David C. Coleman v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 26 2018, 9:05 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ryan D. Bower Curtis T. Hill, Jr.
Bower Law Office, LLC Attorney General of Indiana
New Albany, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David D. Coleman, December 26, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1014
v. Appeal from the Orange Circuit
Court
State of Indiana, The Honorable Steven L. Owen,
Appellee-Plaintiff. Judge
Trial Court Cause No.
59C01-1312-FA-870
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018 Page 1 of 6
Statement of the Case
[1] David D. Coleman appeals the trial court’s revocation of his probation.
Coleman raises three issues for our review, which we restate as follows:
1. Whether the trial court erred when it did not dismiss the
State’s third notice of probation violation as untimely.
2. Whether the trial court’s written order revoking Coleman’s
probation failed to identify the basis for that revocation.
3. Whether Coleman’s argument that his sentence is
inappropriate under Indiana Appellate Rule 7(B) is
available in this appeal.
[2] We affirm.
Facts and Procedural History
[3] In December of 2013, the State charged Coleman with three counts of murder
and three counts of Class C felony criminal recklessness. Coleman pleaded
guilty to the three counts of Class C felony criminal recklessness, and, in
exchange, the State dismissed the three counts of murder. The trial court
sentenced Coleman to an aggregate term of eight years, which, aside from the
time Coleman had already actually served, the court then suspended to formal
probation.
[4] Less than one year later, the State filed its first notice of probation violation
based on Coleman having committed a new offense of battery. The first notice
was later dismissed under a plea agreement in another cause number. Less than
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one year after that dismissal, the State filed a second notice of probation
violation based on Coleman’s failure to report to probation. Coleman admitted
to that violation, and the trial court revoked forty-two days of his previously
suspended sentence.
[5] The next month, the State filed its third notice of probation violation based on
Coleman having committed the new offense of operating a vehicle as a habitual
traffic violator. Coleman moved to dismiss the third notice “under the Doctrine
of Res Judicata” because, according to Coleman, “the alleged offense . . . could
have been alleged in the prior [second] petition.” Appellant’s App. Vol. 2 at 19-
20. After a hearing on the motion to dismiss, the trial court denied Coleman’s
motion to dismiss because the State had not discovered the violation at the time
the court heard and decided the second notice.
[6] At the ensuing fact-finding hearing on the third notice, Coleman renewed his
objection to the notice on res judicata grounds, which the court overruled. The
State then presented the testimony of Lawrence County Sheriff’s Department
Officer Caleb Merriman, who testified that he had pulled over a vehicle being
operated by Coleman in Lawrence County and that, at that time, Coleman was
a habitual traffic violator. The court found that Coleman had violated the
terms and conditions of his probation, and the court revoked his probation and
ordered him to serve the balance of his previously suspended sentence in the
Department of Correction. In its ensuing written order, the court stated, “the
State has met [its] burden of proof by a Preponderance of Evidence that the
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defendant did violate the order of this Court as set forth in said Petition . . . .”
Id. at 14. This appeal ensued.
Discussion and Decision
Issue One: Timeliness of the Third Notice
[7] On appeal, Coleman first asserts that the trial court erred when it revoked his
probation because the State’s third notice was based on an act that preceded the
State’s second notice. Insofar as Coleman appears to argue that the trial court
erred when it did not apply the doctrine of res judicata, Coleman’s argument is
not supported by cogent reasoning. See Ind. Appellate Rule 46(A)(8)(a).
Coleman fails to discuss either the law of res judicata or the evidence most
favorable to the trial court’s judgment. And, although not addressed by
Coleman, the trial court’s denial of the motion to dismiss under the doctrine of
res judicata is supported by the record. See Ind. Alcohol & Tobacco Comm’n v.
Spirited Sales, LLC, 79 N.E.3d 371, 381 (Ind. 2017) (“Res judicata applies when
a particular issue is adjudicated and then put in issue in a subsequent suit on a
different cause of action between the same parties or their privies.”) (quotation
marks omitted). Accordingly, we cannot say that the trial court erred when it
denied Coleman’s motion to dismiss under the doctrine of res judicata.
[8] That said, Coleman’s actual argument on this issue on appeal is not that the
trial court misapplied the doctrine of res judicata but that the State’s third notice
was untimely under Indiana Code Section 35-38-2-3. Coleman raises this
statutory issue for the first time on appeal. “It is well-settled law in Indiana that
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a defendant may not argue one ground for objection at trial and then raise new
grounds on appeal.” Hitch v. State, 51 N.E.3d 216, 219 (Ind. 2016) (quotation
marks omitted). Accordingly, Coleman has not preserved this issue for our
review, and we do not consider it. See, e.g., Leonard v. State, 80 N.E.3d 878, 884
n.4 (Ind. 2017).
Issue Two: Written Order
[9] Coleman next asserts that the trial court violated his due process rights when
the court did not identify the basis for its revocation of his probation in its
written judgment. We conclude that Coleman has not supported this apparent
argument with cogent reasoning and, as such, this issue is waived. App. R.
46(A)(8)(a). Coleman’s waiver notwithstanding, the court’s written order
plainly states that the basis for the court’s revocation of his probation was that
“the defendant did violate the order of this Court as set forth in said
Petition . . . .” Appellant’s App. Vol. 2 at 14. We affirm the court’s judgment
on this issue.
Issue Three: Appellate Rule 7(B)
[10] Last, Coleman asserts that the court’s imposition of the balance of his
previously suspended sentence is inappropriate under Indiana Appellate Rule
7(B). However, Rule 7(B) “is not the correct standard to apply when reviewing
a sentence imposed for a probation violation.” Prewitt v. State, 878 N.E.2d 184,
188 (Ind. 2007). Accordingly, we cannot consider Coleman’s request to review
and revise his sentence.
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[11] In sum, we affirm the trial court’s judgment.
[12] Affirmed.
Pyle, J., and Altice, J., concur.
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