Louis H. Howard, Jr. v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 29 2017, 9:13 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
Joel C. Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General
Brooklyn, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Louis H. Howard, Jr., March 29, 2017
Appellant-Defendant, Court of Appeals Case No.
90A02-1610-CR-2380
v. Appeal from the Wells Circuit
Court
State of Indiana, The Honorable Kenton W.
Appellee-Plaintiff Kiracofe, Judge
Trial Court Cause No.
90C01-1501-F6-12
Vaidik, Chief Judge.
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Case Summary
[1] Louis H. Howard, Jr., appeals the revocation of his home detention, arguing
that the State did not give him sufficient notice that it was seeking to revoke his
direct placement on home detention. Finding that Howard received sufficient
notice, we affirm.
Facts and Procedural History
[2] In July 2015, Howard pled guilty to Level 6 felony theft and Level 6 felony
counterfeiting. The following month, the trial court sentenced Howard to
consecutive terms of one-and-a-half years for theft and two-and-a-half years
(with two years suspended) for counterfeiting. As an alternative to
commitment to the Indiana Department of Correction, the trial court directly
placed Howard on home detention through Wells County Community
Corrections. Appellant’s App. Vol. II p. 53 (“In lieu of incarceration, the
Defendant may serve the executed portion of the sentence on home detention
through Wells County Community Corrections . . . .”); see Ind. Code § 35-38-
2.6-3(a) (“The court may, at the time of sentencing, suspend the sentence and
order a person to be placed in a community corrections program as an
alternative to commitment to the department of correction.”). The court also
ordered Howard to serve two years of probation following completion of home
detention. Appellant’s App. Vol. II p. 53; Ind. Code § 35-38-2.6-7 (“When a
person completes a placement program under this chapter, the court shall place
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the person on probation.”). The trial court ordered Howard’s sentence in this
case to run consecutive to his sentence in another cause number.
[3] After completing his sentence in the other cause number, Howard started
serving his home detention in this case on September 17, 2015. Approximately
two months later, on November 16, 2015, the State filed a Verified Petition for
Revocation of Suspended Sentence and Probation, alleging that Howard
committed a criminal offense (domestic battery under Cause Number 90D01-
1511-CM-389). Approximately nine months after the first petition was filed, on
August 22, 2016, the State filed a Second Verified Petition for Revocation of
Suspended Sentence and Probation, alleging that Howard committed more
criminal offenses (domestic battery, intimidation, and battery against a public-
safety official under Cause Number 90D01-1608-F6-87). The second petition
was then amended on September 7 to allege that Howard committed yet
another criminal offense (battery resulting in bodily injury to a public-safety
officer under Cause Number 90C01-1609-F5-34).
[4] The trial court held a fact-finding hearing on both petitions—the November 16,
2015 first petition and the September 7, 2016 amended second petition. The
court found that the State did not meet its burden with respect to the first
petition but that it did meet its burden with respect to the amended second
petition. Appellant’s App. Vol. II p. 116. Accordingly, the court ordered
Howard to serve the balance of his sentence in the DOC. The court calculated
the balance as follows: 448 days of home detention remaining on Howard’s
theft sentence, 182 days of home detention on his counterfeiting sentence, and
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730 days suspended on his counterfeiting sentence, with credit “for 54 actual
days spent in confinement awaiting disposition in this cause.” Id.
[5] Howard now appeals.
Discussion and Decision
[6] Howard raises one issue on appeal. He concedes that the State gave him
sufficient notice that it was seeking to revoke his probation; however, he argues
that the State did not give him sufficient notice it was also seeking to revoke his
direct placement on home detention.
[7] In support of his argument, Howard cites Christie v. State, 939 N.E.2d 691 (Ind.
Ct. App. 2011). In that case, the trial court directly placed the defendant in a
community-corrections program to be followed by a term of probation. We
held that a petition styled “Verified Petition to Revoke Suspended Sentence”
was sufficient to put Christie on notice that the State was seeking to revoke both
his community-corrections placement and his probation. We relied on the fact
that Indiana Code sections 35-38-2.6-3 and -4 allow a trial court, at the time of
sentencing, to “suspend” a defendant’s sentence and directly place them in a
community-corrections program in lieu of commitment to the DOC.1 Id. at
1
Our Supreme Court has explained that “suspend” as used in these statutes—as opposed to a
traditional “suspended” sentence subject to the terms of probation—means only that the requirement
that the offender actually serve time incarcerated in the DOC is suspended during the community-
corrections placement period. Purcell v. State, 721 N.E.2d 220, 223 (Ind. 1999), reh’g denied; see also
Shaffer v. State, 755 N.E.2d 1193, 1195 (Ind. Ct. App. 2001) (Vaidik, J., concurring in result).
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694. “Thus, revocation of Christie’s suspended sentence necessarily entailed
revocation of his community corrections placement, and the State’s explicit
notice of the former implied notice of the latter.” Id.
[8] Howard argues that unlike the defendant in Christie, he was not given sufficient
notice because the State’s petition “did not ask for revocation of the suspended
sentence in general.” Appellant’s Br. p. 8. We disagree. If anything, the
State’s petition in this case—which was titled Verified Petition for Revocation
of Suspended Sentence and Probation and which asked the court “to revoke the
probation and suspended sentence” of Howard, see Appellant’s App. Vol. II p.
104 (emphasis added)—made it clearer that the State was seeking to revoke not
only Howard’s probation but also his community-corrections placement.
Although the State’s petition could have been more carefully worded to
distinguish between the revocation of Howard’s community-corrections
placement and the revocation of his probation, see, e.g., McCauley v. State, 22
N.E.3d 743 (Ind. Ct. App. 2014) (petition styled “Petition to Revoke Direct
Placement in the Home Detention Program and/or to Revoke Probation”),
trans. denied, it was more than sufficient under Christie. Because Howard had
sufficient notice that the State was seeking to revoke his direct placement on
home detention, we affirm the trial court.
[9] Affirmed.
Bradford, J., and Brown, J., concur.
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