MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Jun 15 2018, 11:20 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

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                                          Matthew B. MacKenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jason Bailey,                                            June 15, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A02-1711-CR-2725
        v.                                               Appeal from the Howard Superior
                                                         Court
State of Indiana,                                        The Honorable William C.
Appellee-Plaintiff.                                      Menges, Jr., Judge
                                                         Trial Court Cause No.
                                                         34D01-1511-F6-1010



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2725 | June 15, 2018            Page 1 of 9
[1]   Jason Bailey (“Bailey”) pleaded guilty in Howard Superior Court to Level 6

      felony forgery. After Bailey completed a Therapeutic Community Program, the

      trial court modified his sentence to 913 days with 823 days suspended to

      probation with participation in the Howard County Re-Entry Program. After

      Bailey violated the rules of the Re-Entry Program, the Howard Superior Court

      revoked Bailey’s probation and ordered him to serve the remainder of his

      suspended sentence in the Department of Correction (“DOC”). Bailey appeals

      and argues that the trial court abused its discretion when it revoked his

      probation by failing to notify him of the terms of his probation.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In December 2014 and January 2015, Bailey used a business credit account to

      make unauthorized personal purchases from two different auto parts stores. The

      State charged Bailey with thirteen counts of Level 6 felony forgery. On March

      10, 2016, Bailey entered a plea of guilty to one count of forgery, and the trial

      court accepted the guilty plea. Pursuant to the agreement, the remaining

      charges were dismissed.


[4]   The trial court sentenced Bailey to serve 913 days in the DOC. The trial court

      further ordered that Bailey be placed in a Therapeutic Community program

      while incarcerated. Upon completion of the program, the court would consider




      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2725 | June 15, 2018   Page 2 of 9
      modifying his sentence. Bailey successfully completed the program, and the

      trial court modified Bailey’s sentence.1


[5]   The trial court suspended the remaining 823 days of Bailey’s sentence and

      placed him on supervised probation. As a specific condition of probation, the

      court ordered Bailey to “successfully complete, and make satisfactory

      arrangements to pay for, the Howard County Re-Entry Program.” Appellant’s

      App. Vol. II, p. 7. As a further specific condition, the court ordered Bailey to

      follow “any and all recommendations of the Probation Department as it relates

      to treatment and education.” Id.


[6]   One week after his sentence modification, Bailey enrolled in the Howard

      County Re-Entry Program, and he signed a form acknowledging the conditions

      of his enrollment and probation. The terms of the participation agreement that

      are pertinent to this appeal are:


                 2. Participant agrees that he will participate in the Howard
                 County Reentry Program for a maximum period of three years,
                 during which time he agrees to abide by all rules and conditions of the
                 Reentry Program.


                                                           ***




      1
          The transcript of the modification hearing was not included in the record.


      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2725 | June 15, 2018   Page 3 of 9
              8. If Participant is terminated from the Reentry Program while
              on the Community Transition Program they will be returned to
              the Department of Corrections. If Participant is on probation,
              they will be referred to the sentencing court for final disposition .
              . . Upon termination, the Reentry program will issue a written
              notice to the sentencing court advising the court that the
              Participant has been terminated.


                                                      ***


              13. Participant acknowledges by his initials that he was provided
              the opportunity to review and discuss this agreement with
              counsel.


      Appellant’s App. Vol. III, pp. 13–14. (emphasis added).


[7]   As a part of his participation in the Re-Entry Program, Bailey enrolled in the

      Gap Program—a faith-based program where, according to Tim Trambarger

      (“Trambarger”), the director of the Gap Program, “it’s all Godly things that

      they go through and do.” Tr. p. 7. He was enrolled in the program for two

      weeks when he began borrowing a tablet from the worship leader, allegedly to

      learn how to play the guitar from videos online to worship in the church band,

      and he eventually purchased the tablet. However, Bailey began using the tablet

      to communicate with Alisha King (“King”)—the mother of his child—despite

      the fact that all visitation and communication with King was to be supervised

      by staff members of the Gap. In doing so, Bailey violated the rules of the Gap

      program. King eventually reported the communication to Trambarger. She told


      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2725 | June 15, 2018   Page 4 of 9
      Trambarger, “if Jason didn’t quit harassing her she was going to get the

      authorities to come to [t]he Gap.” Tr. p. 11.


[8]   The tablet was confiscated after King’s call to Trambarger. Brian Day (“Day”),

      the supervisor of the Case Management Department at Community

      Corrections, looked through the tablet to find a long thread of text messages

      between King and Bailey. The text messages established that Bailey

      “attempt[ed] to manipulate [the] situation” by trying to get King to call and

      conceal the contact between King and himself. Tr. p. 16. Day also found

      pornographic videos of King on the tablet. The use of the tablet, among other

      violations, prompted the Re-Entry Program to terminate Bailey’s participation.

      On June 14, 2017, the Howard Re-Entry Program submitted a Notice of

      Termination which stated its intent to terminate Bailey’s participation in the

      program “for possession and use of a tablet in violation of Re-Entry Program

      and sober housing rules and lying about the use of the device.” Appellant’s

      App. Vol. III, p. 15.


[9]   As a result, on August, 4, 2017, the State filed a petition to revoke Bailey’s

      probation. At the October 4, 2017 revocation hearing, the trial court found that

      Bailey “possessed the tablet in contravention of the rules and the totality of the

      circumstances justified the filing of th[e] Notice of Termination.” Tr. p. 25. The

      court stated, “[Bailey] was spending a lot more time and effort trying to avoid

      the rules . . . than he was in participating in the program and there was no

      indication . . . that he ha[d] any intention of doing what he’s required to do[.]”

      Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2725 | June 15, 2018   Page 5 of 9
       Id. After noting Bailey’s extensive criminal history, and that his violation that

       “falls kind of in the same category as committing a new crime,” the court found

       that Bailey had violated his probation. Id. at 36–37. Bailey was then sentenced

       to serve the remainder of his previously suspended sentence of 823 days in the

       DOC. Bailey now appeals.


                                      Discussion and Decision
[10]   Bailey argues that the trial court abused its discretion in revoking his probation

       because it failed to provide Bailey with written or oral rules of probation. More

       specifically, Bailey argues that he was never informed that failure to complete

       the re-entry program would result in revocation of his probation.


[11]   “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). “Probation is a criminal sanction wherein a convicted defendant

       specifically agrees to accept conditions upon his behavior in lieu of

       imprisonment.” McCarty v. State, 94 N.E.3d 350, 352 (Ind. Ct. App. 2018)

       (quoting Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans.

       denied). “The decision to grant probation is a matter within the sound discretion

       of the trial court.” Seals v. State, 700 N.E.2d 1189, 1190 (Ind. Ct. App. 1998).

       “An abuse of discretion occurs when the decision is clearly against the logic and

       effect of the facts and circumstances before it, or the reasonable, probable, and

       actual deductions to be drawn therefrom.” McCarty, 94 N.E.3d at 353. “The


       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2725 | June 15, 2018   Page 6 of 9
       court determines the conditions of probation and may revoke probation if the

       conditions are violated.” Seals, 700 N.E.2d at 1190.


[12]   Indiana Code section 35-38-2-1 provides that “[w]henever it places a person on

       probation the court shall . . . specify in the record the conditions of the

       probation[.]” And “[w]hen a person is placed on probation, the person shall be

       given a written statement specifying . . . the conditions of probation[.]” I.C. §

       35-38-2-2.3(b). “The intent behind Indiana Code section 35-38-2-2.3 is ‘to

       provide a defendant with prospective notice of the standard of conduct required

       of him or her while on probation and to prohibit the imposition of additional

       conditions after sentencing.” McCarty, 94 N.E.3d at 353 (quoting Kerrigan v.

       State, 540 N.E.2d 1251, 1252 (Ind. Ct. App. 1989)).


[13]   Bailey argues that the trial court abused its discretion when it failed to provide

       him with written terms of his probation. Because revocation occurred upon the

       “violation of a term of probation that was not included in any writing provided

       to Bailey at the time of his modification,” Appellant’s Br. at 8, he contends that

       he should be returned to the Howard County Probation Department “with

       terms and conditions, including, but not limited to, in-home detention[.]” Id.

       Further, Bailey asserts that there is no evidence in the record establishing his

       acknowledgement of the conditions of his probation.


[14]   After Bailey successfully completed the Therapeutic Community program, a

       modification hearing was held. At his modification hearing, the trial court


       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2725 | June 15, 2018   Page 7 of 9
       issued a written sentencing order requiring Bailey to successfully complete, and

       make satisfactory arrangements to pay for, the Howard County Re-Entry

       Program and to follow any and all recommendations of the Probation

       Department as it related to treatment and education. Bailey claims that the

       nothing in the Sentencing Order, or the record, “indicates that Bailey

       acknowledged that he understood that condition.” Id. at 7.2


[15]   However, one week after the order was issued, Bailey signed the Re-entry Court

       Participation Agreement which contained clauses acknowledging that:


                2. he will participate in the Howard County Reentry Program …
                during which time he agrees to abide by all rules and conditions
                of the Reentry Program.


                                                           ***


                8. . . . [i]f Participant is on probation, they will be referred to the
                sentencing court for final disposition . . . Upon termination, the
                Reentry program will issue a written notice to the sentencing
                court advising the court that the Participant has been terminated.


                                                           ***




       2
         It is reasonable to assume that the trial court discussed Bailey’s conditions of probation with him at the
       modification hearing. But, as previously mentioned, the transcript from the modification hearing was not
       included in the record provided to this court, as required by Appellate Rule 9(F)(5) (“A designation of all
       portions of the Transcript necessary to present fairly and decide the issues on appeal”).

       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2725 | June 15, 2018                 Page 8 of 9
               13. . . . by his initials that he was provided the opportunity to
               review and discuss this agreement with counsel.


       Appellant’s App. Vol. III, pp. 13–14. (emphasis added). Thus, Bailey’s

       signature on the Participation Agreement and enrollment in the Re-entry Court

       Program establishes that he understood the conditions of his probation.


                                                 Conclusion
[16]   Although the trial court was required to provide Bailey with written conditions

       of probation at the sentencing hearing, the record indicates that Bailey

       understood the terms of his probation since he enrolled in the Re-Entry

       Program, signed the Participation Agreement, and acknowledged that he

       understood the terms he was agreeing to, and was terminated for failing to

       comply with the Re-entry Court rules. For all of these reasons, the trial court

       acted within its discretion when it revoked Bailey’s probation.


[17]   Affirmed.


       Riley, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2725 | June 15, 2018   Page 9 of 9
