MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Nov 13 2018, 9:48 am

regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
court except for the purpose of establishing                                Court of Appeals
                                                                              and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Derick W. Steele                                        Curtis T. Hill, Jr.
Deputy Public Defender                                  Attorney General of Indiana
Kokomo, Indiana
                                                        Justin F. Roebel
                                                        Supervising Deputy Attorney General
                                                        Indianapolis, Indiana


                                            IN THE
      COURT OF APPEALS OF INDIANA

Christopher S. Goble,                                   November 13, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1414
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable William C. Menges,
Appellee-Plaintiff                                      Jr., Judge
                                                        Trial Court Cause No.
                                                        34D01-1603-F6-247



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1414 | November 13, 2018                Page 1 of 7
                                             Case Summary
[1]   Christopher S. Goble appeals the trial court’s revocation of his probation and

      imposition of his previously suspended sentence. He asserts that the trial court

      lacked the statutory authority to revoke probation or, in the alternative, that the

      evidence is insufficient to support revocation. Concluding that the trial court

      had authority and that the evidence is sufficient, we affirm.


                                 Facts and Procedural History
[2]   In March 2016, the State charged Goble with level 6 felony unlawful possession

      of a syringe, level 6 felony attempt to obtain a controlled substance by fraud or

      deceit, level 6 felony forgery, and class A misdemeanor theft. Pursuant to a

      plea agreement, Goble pled guilty to level 6 felony unlawful possession of a

      syringe and class A misdemeanor theft in exchange for the dismissal of the

      remaining charges. The trial court sentenced him to concurrent, suspended

      sentences of 931 days for the level 6 felony (with 122 executed/credit days and

      791 days suspended to supervised probation) and 365 days for the class A

      misdemeanor (with 122 executed/credit days and 243 days suspended to

      supervised probation).


[3]   On November 20, 2016, the State filed a petition to revoke Goble’s probation.

      The parties subsequently entered into a plea agreement, whereby Goble

      admitted to violating his probation by being arrested for a new crime and failing

      to notify his probation officer. The parties agreed that Goble would serve 365




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1414 | November 13, 2018   Page 2 of 7
      days of his previously suspended sentence. The trial court entered its order

      accordingly on February 7, 2017.


[4]   The State filed a second petition to revoke Goble’s probation on January 24,

      2018. Among the violations, the State alleged that Goble failed to report to

      probation as required after his release from jail, and further that Goble

      committed and was charged with a new crime, level 6 felony theft, on January

      23, 2018. Goble moved to dismiss the petition to revoke claiming that he was

      not on probation at the time of the alleged violations. The trial court

      subsequently denied the motion to dismiss. Following a factfinding hearing

      held in March 2018, the trial court found that Goble violated his probation and

      ordered him to serve the remaining 426 days of his previously suspended

      sentence. Goble filed a motion to correct error which the trial court denied.

      This appeal ensued.


                                     Discussion and Decision
[5]   “Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

      2007). It is within the trial court’s discretion to determine the conditions of

      probation and to revoke probation if those conditions are violated. Heaton v.

      State, 984 N.E.2d 614, 616 (Ind. 2013). A person’s probation may be revoked if

      “the person has violated a condition of probation during the probationary

      period.” Ind. Code § 35-38-2-3(a)(1). Probation revocation is a two-step

      process. “First, the court must make a factual determination that a violation of

      a condition of probation actually occurred. If a violation is proven, then the
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1414 | November 13, 2018   Page 3 of 7
      trial court must determine if the violation warrants revocation of the

      probation.” Vernon v. State, 903 N.E.2d 533, 537 (Ind. Ct. App. 2009) (citations

      omitted), trans. denied.       Once a trial court has concluded that probation has

      been violated, it may continue the defendant on probation, extend the

      probationary period for not more than one year beyond the original period, or

      order all or part of the previously suspended sentence to be executed. Ind. Code

      § 35-38-2-3(h).


        Section 1 – The trial court had statutory authority to revoke
                             Goble’s probation.
[6]   Goble first argues that the trial court lacked the statutory authority to revoke his

      probation because he was no longer on probation at the time of the January

      2018 alleged violations. Specifically, Goble asserts that his probation was

      terminated during the February 2017 prior revocation proceeding, and thus the

      January 2018 alleged violations did not occur during a probationary period.

      The trial court disagreed, and so do we.


[7]   Goble complains that the court’s February 2017 oral revocation sentencing

      statement is inconsistent with its written sentencing statement which caused

      confusion regarding whether his probation was terminated or continued. As

      noted by Goble, the February 2017 oral and written revocation sentencing

      statements were entered by a senior judge and not by the current trial judge.

      Where, as here, the trial court makes a determination on a paper record, this

      Court is in as good a position as the trial court to determine the force and effect

      of the evidence, and under those circumstances, our review is de novo. In re

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1414 | November 13, 2018   Page 4 of 7
      Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013). Because the trial judge in

      this case neither viewed Goble’s February revocation hearing firsthand nor

      personally drafted the resulting written orders, its conclusions regarding the

      senior judge’s intent are based on the same paper records now before this Court.

      Therefore, we are in as good a position as the trial judge was to determine

      whether the senior judge intended that Goble’s probation be terminated. Upon

      such review, we determine that the senior judge did not intend that Goble’s

      probation be terminated.


[8]   “When oral and written sentencing statements conflict, we should examine

      them together to discern the intent of the sentencing court.” Walker v. State, 932

      N.E.2d 733, 738 (Ind. Ct. App. 2010). “Rather than presuming the superior

      accuracy of the oral statement, we examine it alongside the written sentencing

      statement to assess the conclusions of the trial court.” Dowell v. State, 873

      N.E.2d 59, 60 (Ind. 2007) (quoting McElroy v. State, 865 N.E.2d 584, 589 (Ind.

      2007)).


[9]   Here, both the oral and written revocation sentencing statements (as well as the

      abstract of judgment) revoked and ordered executed precisely the same 365-day

      previously suspended sentence. However, the statements are conflicting

      because the oral statement indicated that probation terminated upon

      completion of that sentence, whereas the written statement indicated that

      probation continued. Notably, both statements fail to specifically account for

      the remaining balance, which was quite large, of Goble’s previously suspended

      sentence. Contrary to Goble’s assertion, the balance of his suspended sentence

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1414 | November 13, 2018   Page 5 of 7
       did not somehow just disappear. Indeed, nothing in Goble’s revocation plea

       agreement or the revocation proceedings provides for a modification of Goble’s

       original sentence. As a practical matter, because his original sentence was

       never modified, the balance of his suspended sentence would certainly remain

       upon completion of his executed sentence. Having examined both sentencing

       statements and the totality of the circumstances presented, we believe that the

       clear intent was that Goble remain on probation with regard to the balance of

       his suspended sentence, and thus the January 2018 alleged violations occurred

       during a probationary period.1 Accordingly, the trial court had statutory

       authority to revoke Goble’s probation.


             Section 2 – Sufficient evidence supports the trial court’s
                             revocation of probation.
[10]   Goble maintains that insufficient evidence supports the revocation of his

       probation. An alleged probation violation need be proven only by a

       preponderance of the evidence. Pitman v. State, 749 N.E.2d 557, 559 (Ind. Ct.

       App. 2001), trans. denied. Moreover, violation of a single condition of probation

       is sufficient to revoke probation. Id.




       1
[1]      Despite this belated claim of confusion regarding the status of his probation, at no point did Goble alert the
       trial court to the conflict between its oral and written sentencing statements and request that the statements be
       clarified and reconciled. We note that “it is in the best interests of all parties that sentencing errors be
       immediately discovered and corrected.” Robinson v. State, 805 N.E.2d 783, 786 (Ind. 2004). In general, such
       errors are most appropriately presented in a motion to correct error or in a direct appeal from the sentencing
       judgment. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1414 | November 13, 2018                    Page 6 of 7
[11]   Here, among other things, the State alleged that Goble violated the rule of

       probation which states, “You are required to report [to] the Probation

       Department as directed.” Appellant’s App. Vol. 2 at 55. The record indicates

       that Goble was released from jail on July 24, 2017, and failed to report to

       probation. Indeed, probation officer Laura Rood testified that she had no

       contact with Goble between July 2017 and January 2018. This evidence is

       sufficient to support the revocation of probation.


[12]   Affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1414 | November 13, 2018   Page 7 of 7
