Keith Phillips v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jul 27 2018, 9:24 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
Donald E.C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keith Phillips, July 27, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-210
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff Menges, Jr., Judge
Trial Court Cause No.
34D01-1503-F2-298
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-210 | July 27, 2018 Page 1 of 5
Case Summary
[1] Keith Phillips appeals the trial court’s order revoking his previously suspended
sentence for violation of the terms and conditions of his re-entry program. He
claims that the trial court abused its discretion in failing to award him credit
time for the time he spent incarcerated during his participation in the program.
Finding no abuse of discretion, we affirm.
Facts and Procedural History
[2] In March 2015, the State charged Phillips with level 2 felony dealing in cocaine,
level 3 felony dealing in cocaine, level 6 felony maintaining a common
nuisance, and class B misdemeanor possession of marijuana. On September 30,
2015, the State and Phillips entered into a plea agreement pursuant to which
Phillips pled guilty to level 3 felony possession of cocaine in exchange for the
dismissal of the other charges. The parties also agreed that Phillips would be
sentenced to fifteen years executed with ten years suspended to probation. The
agreement provided that a modification of sentence by the trial court would be
considered if Phillips completed a therapeutic community program while
incarcerated. The trial court accepted the agreement and sentenced Phillips
accordingly.
[3] A little less than one year later, on September 22, 2016, Phillips requested a
modification of sentence after he completed the Westville Therapeutic
Community substance abuse treatment program. On November 2, 2016, the
trial court modified Phillips’s sentence by suspending the balance of his
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executed sentence to probation and approving his participation in the
Department of Correction Community Transition Program. “As a specific
condition of the Community Transition Program and Probation, [Phillips]
[was] ordered to successfully complete, and make satisfactory arrangements to
pay for the Howard County Re-Entry Program.” Appellant’s App. Vol. 2 at 68.
Phillips signed a program participation agreement in which he agreed to waive
his right to earned credit time for any time spent in jail or otherwise confined
during his participation in the re-entry program.
[4] On March 9, 2017, the trial court found Phillips in indirect contempt of court
for violating the terms of the re-entry program and issued an arrest warrant.
Phillips was taken into custody on March 10, 2017. Apparently, he was
subsequently released and he absconded to Nevada. On April 17, 2017, the
trial court found that Phillips again violated the terms of the re-entry program
for failure to appear and issued another warrant. Phillips was subsequently
arrested in Nevada and brought back to Indiana. A notice of termination from
the re-entry program was filed on November 22, 2017. The trial court held a
hearing and terminated Phillips’s participation in the re-entry program on
December 20, 2017.1 That same day, the State filed a petition to revoke
Phillips’s probation and, following a hearing on January 19, 2018, the trial
1
Phillips claims in his brief that he was continually incarcerated for his re-entry program violations from
March 10, 2017, through December 20, 2017, when he was terminated from the program. The record does
not support this assertion. During the probation revocation hearing, Phillips testified that he was
incarcerated from March 10 until sometime in April 2017, when he left Indiana. He stated that he was later
arrested in Nevada and brought back to Indiana “in about June” of 2017. Tr. Vol. 2 at 20.
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court entered its order revoking Phillips’s previously suspended sentence. The
court awarded him credit for thirty actual days served plus ten days of good
time credit. 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.’” Heaton v. State, 984 N.E.2d 614, 616 (Ind.
2013) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). It is within the
trial court’s discretion to determine probation conditions and to revoke
probation if the conditions are violated. Id. “In appeals from trial court
probation violation determinations and sanctions, we review for abuse of
discretion.” Id. An abuse of discretion occurs where the trial court’s decision is
clearly against the logic and effect of the facts and circumstances, or when the
trial court misinterprets the law. Id.[6] Phillips argues that, in revoking his probation and imposing his previously
suspended sentence, the trial court abused its discretion in failing to award him
credit for the time he spent incarcerated as a sanction for his violations of the re-
entry program. Credit time is a matter of statutory right, and for that reason
trial courts generally do not have discretion in awarding or denying such credit.
Meadows v. State, 2 N.E.3d 788, 791 (Ind. Ct. App. 2014). However, Phillips
fails to acknowledge the provision of the re-entry program participation
agreement in which he voluntarily and intentionally waived his right to earn
credit time for any sanction under the re-entry program. This Court has
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determined that a defendant may waive the right to credit time as part of a
written participation agreement. House v. State, 901 N.E.2d 598, 600 (Ind. Ct.
App. 2009). Paragraph nine of the participation agreement for the re-entry
program specifically states, “Participant agrees to waive his right to earn credit
time for any time spent in jail or otherwise confined to which he would
otherwise be entitle[d] pursuant to Indiana law during participation in the
Reentry Program.” Appellant’s App. Vol. 2 at 70. Thus, Phillips was not
eligible to earn credit for time served while he was participating in the re-entry
program; he was eligible to begin earning credit for time served only once his
participation in the program was terminated on December 20, 2017. He was,
therefore, only entitled to credit time from December 20, 2017, the date he was
no longer participating in the re-entry program, until January 19, 2017, the date
his probation was revoked. When the trial court revoked his suspended
sentence, it gave Phillips credit for thirty actual days served while awaiting the
disposition of the case plus ten days of good time credit. The trial court did not
abuse its discretion.
[7] Affirmed.
Najam, J., and Pyle, J., concur.
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