Chad Kraemer v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 21 2018, 6:00 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Chad Kraemer, September 21, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-731
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Michael J. Lewis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D06-1702-F1-562
Brown, Judge.
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[1] Chad Kraemer appeals from the trial court’s order imposing his sentence. We
affirm.
Facts and Procedural History
[2] On January 11, 2018, the court held a hearing at which Kraemer stated he
wished to plead guilty pursuant to a plea agreement to neglect of a dependent as
a level 5 felony, two counts of neglect of a dependent as level 6 felonies, and
failure to make a report as a class B misdemeanor.
[3] On February 22, 2018, the court held a hearing at which it asked Kraemer if he
understood that, after sentencing, he would have to provide a DNA sample,
and Kraemer responded affirmatively. The court asked Kraemer if he
understood that, if he was granted any period of probation, he would be
waiving his rights under the United States Constitution and the Indiana
Constitution as to his person, vehicle, residence, cell phones, computers, and
other electronic storage and communication devices and that, at any time and
without notice, probable cause, or a search warrant, any of those can be
searched and that he was consenting that anything that showed up could be
used against him, and Kraemer again responded affirmatively. The court
asked, “usually when . . . you’re on probation you could be . . . asked to do
drug screens and . . . [if] anything shows up it could be used against you at a
later date or hearing, do you understand that,” and Kraemer stated, “[y]es, sir.”
Transcript Volume II at 13. The court advised Kraemer of the rights he would
be giving up by pleading guilty and of the sentencing ranges for the charged
offenses. Kraemer pled guilty pursuant to the plea agreement.
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[4] The prosecutor stated, in presenting the factual bases for the pleas, that
Kraemer knowingly placed dependent children in a situation that endangered
their life or health and that three children had tested positive for
methamphetamine. Kraemer testified that he could live with his grandfather if
he were not in jail, that his children were six and three years old, and that he
used methamphetamine every other day at the time of the offenses. He
indicated that he pled guilty in 2004 to driving without a license as a class C
misdemeanor and was sentenced to one year of probation. When asked “you
understand part of what you’ve admitted to is failing to make a report and also
bringing drugs into a home of . . . a child that later died, are you aware of that,”
Kraemer answered “[y]es, sir.” Id. at 26. Kraemer indicated that he was asking
the court to consider allowing him to be placed on probation. When asked
“[y]ou understand that if you do that the Court will set a list of conditions
you’ll have to comply with,” Kraemer replied affirmatively, and when asked
“[a]nd that if you failed to do that the Court can revoke you and you’ll go to
prison,” he replied “[y]es, sir.” Id. at 27.
[5] The court found as aggravators that all of the children were less than fourteen
years of age, one of the children was disabled, two of the children were
Kraemer’s own children, and each of the children tested positive for
methamphetamine. At sentencing, the court stated “[e]ach one of them had
meth in their system um, and C.H. died. But he didn’t die from the meth in his
system, he died because of other matters that we’ve previously had a trial on.”
Id. at 40. The court found Kraemer’s limited criminal history to be a mitigator.
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It found the aggravating factors outweighed the mitigating factor, sentenced
Kraemer to five years for his level 5 felony, two years for each of his level 6
felonies, and 180 days for his class B misdemeanor, and ordered the sentences
for the felony convictions to be served consecutively for an aggregate sentence
of nine years. The court asked Kraemer if he understood that he was waiving
his constitutional rights while on probation as previously discussed, and
Kraemer responded affirmatively. The court informed Kraemer that, once he
was at the Department of Correction (the “DOC”), he would have to provide a
DNA sample.
[6] The court’s order provides: “Five (5) years of said sentence shall be executed at
the [DOC], two (2) years of said sentence shall be served as a direct
commitment to Vigo County Community Corrections In-Home Detention
Program. The balance of said sentence shall be suspended and [Kraemer] shall
be placed on formal probation for two (2) years.” Appellant’s Appendix
Volume II at 104. The order further provides:
In addition to the standard terms of probation, [Kraemer]
shall:
If not serving an executed sentence [Kraemer] is Ordered
to report to the Vigo County Sheriff’s Office within seven (7)
business days of this date and provide a DNA sample, pursuant
to I.C. 35-38-1-27.
[Kraemer] shall be subject to the rules and regulations of
Vigo County Adult Probation for the balance of his probationary
term, including payment of all probation user’s fees.
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Id. at 105.
Discussion
[7] Kraemer claims that the trial court erred in not issuing a home detention order
under Ind. Code § 35-38-2.5-6 and in not providing him with notice of the terms
of his probation under Ind. Code §§ 35-38-2-1 and -2(b).1 The State responds
that Ind. Code § 35-38-2.5-6 does not apply to a direct placement on home
detention, even if the statute did apply the trial court has ample time to advise
Kraemer of the terms of his placement, the court’s oral and written advisements
together satisfy Ind. Code § 35-38-2-1, and Ind. Code § 35-38-2-2.3(b) is
satisfied as long as Kraemer receives a written statement of the terms of his
probation before his probationary term begins.
[8] Kraemer essentially claims he should have been provided with a written
statement of the exact terms of his home detention and probation at the time of
sentencing. With respect to home detention, Ind. Code § 35-38-2.5-6, cited by
Kraemer, provides that an order for home detention “under section 5 of this
chapter” must include certain terms.2 Ind. Code § 35-38-2.5-5, in turn, relates
1
Kraemer cites Ind. Code § 35-38-2-2, which was repealed by Public Law No. 1-1991, § 197 (1991). Ind.
Code § 35-38-2-2(b) (1990) provided: “When a person is placed on probation, the person shall be given a
written statement of the conditions of probation.” Ind. Code § 35-38-2-2.3 was initially enacted by Public
Law No. 1-1991, § 198 (1991). Ind. Code § 35-38-2-2.3(b) currently provides: “When a person is placed on
probation, the person shall be given a written statement specifying . . . the conditions of probation . . . .”
2
The statute provides that the order must include, among other things, a requirement that the offender be
confined to the offender’s home except during certain times such as during approved employment, notice that
a violation may subject the offender to prosecution for escape, and requirements that the offender abide by a
schedule prepared by a probation department or community corrections program, not commit another crime,
obtain approval before changing residences, maintain a working telephone and if ordered a monitoring
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to home detention as a condition of probation. Here, the court ordered that
Kraemer serve two years as a direct commitment to the Vigo County
community corrections in-home detention program and not as a condition of
probation. Ind. Code §§ 35-38-2.6 relate to direct placement in a community
corrections program, and Ind. Code § 35-38-2.6-4.5 provides that, if a court
places a person on home detention as part of a community corrections program,
the placement must comply with all applicable provisions in Ind. Code §§ 35-
38-2.5. Even assuming Ind. Code § 35-38-2.5-6 is an applicable provision,
reversal is not required. The statute, as observed by the State, does not require
that an order for home detention be issued at the time of sentencing. The court
imposed an aggregate sentence of nine years and ordered “Five (5) years of said
sentence shall be executed at the [DOC], two (2) years of said sentence shall be
served as a direct commitment to Vigo County Community Corrections In-
Home Detention Program.” Appellant’s Appendix Volume II at 104. Kraemer
has not shown that he has been prejudiced by the fact the court did not issue an
order for home detention at the sentencing hearing. To the extent the
sentencing order does not include all of the requirements of Ind. Code § 35-38-
2.5-6 and it is an applicable provision, the trial court may issue an order for
home detention in accordance with the statute prior to or at the time Kraemer
completes his term in the DOC and begins his home detention placement. See
Brock v. State, 558 N.E.2d 872, 877 (Ind. Ct. App. 1990) (finding that the trial
device, pay applicable fees, and provide a DNA sample if applicable and not previously provided. See Ind.
Code § 35-38-2.5-6.
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court’s order for home detention did not comply with every subsection of Ind.
Code § 35-38-2.5-6 but that the defendant did not demonstrate how he had been
prejudiced by the omissions, and instructing the trial court, to the extent the
defendant had not been released from the home detention ordered, to enter a
home detention order in compliance with the statute).
[9] With respect to probation, Ind. Code § 35-38-2-1 provides in part that,
“[w]henever it places a person on probation, the court shall . . . specify in the
record the conditions of the probation.” Also, Ind. Code § 35-38-2-2.3(b)
provides in part that, “[w]hen a person is placed on probation, the person shall
be given a written statement specifying . . . the conditions of probation.” Ind.
Code § 35-38-2-2.3(b) does not specify that the written statement must be
provided by the court. See Ind. Code § 11-13-1-3 (providing that a probation
officer shall, among other things, furnish probationers under the officer’s
supervision with a written statement of the conditions of the probation and
instruct the probationer regarding the conditions).
[10] The trial court advised Kraemer of the rights he waived while on probation as
to his person, vehicle, residence, cell phones, computers, and other electronic
storage and communication devices, that at any time without notice or probable
cause any of those could be searched, that he could be asked to submit to a drug
screen, and that anything that showed up could be used against him. Also, the
plea agreement expressly provides that Kraemer waived his constitutional
rights, that his devices, residence, or person may be searched at any time
without notice and without reasonable suspicion, probable cause, or a search
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warrant, and that any evidence derived from a search may be introduced
against him at a probation revocation hearing or criminal prosecution. The
court’s written order provides that Kraemer shall be subject to the rules and
regulations of Vigo County Adult Probation during his probationary term and
that, in addition to the standard terms of probation, he was required to provide
a DNA sample. Kraemer was adequately advised as to these conditions. See
Kerrigan v. State, 540 N.E.2d 1251, 1252 (Ind. Ct. App. 1989) (“Although the
trial court did not give Kerrigan a written copy of the terms and conditions of
his probation when he was sentenced, the record reveals the trial court orally,
on the record, explained the conditions to him, and which Kerrigan
acknowledged he understood.”); see also Freije v. State, 709 N.E.2d 323, 325
(Ind. 1999) (observing that “a defendant who enters into a plea agreement that
calls for a probationary sentence should reasonably expect that the county’s
standard conditions may apply”). Also, the court ordered an executed sentence
at the DOC and direct placement on home detention, suspended the remainder
of the sentence, and ordered that Kraemer be placed on formal probation for
two years. To the extent Kraemer has not been provided with a written
statement specifying the terms of his probation, such a written statement may
be furnished to him prior to or at the time that he begins his probation.
[11] For the foregoing reasons, we affirm the trial court’s order.
[12] Affirmed.
Altice, J., and Tavitas, J., concur.
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