Jeremy Fletchall v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 16 2018, 9:25 am
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.
Kokomo, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Fletchall, July 16, 2018
Appellant-Defendant, Court of Appeals Case No.
34A02-1712-CR-2976
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Jr., Judge
Trial Court Cause Nos.
34D01-1308-FB-643
34D01-1501-F6-11
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Jeremy Fletchall (Fletchall), appeals the trial court’s
revocation of his probation and imposition of his previously suspended
sentences.
[2] We affirm.
ISSUE
[3] Fletchall presents one issue on appeal, which we restate as: Whether Fletchall
was properly advised of the terms of his probation before he was found to have
violated his probation for the second time.
FACTS AND PROCEDURAL HISTORY
[4] On August 23, 2013, the State charged Fletchall with three Counts of Class B
felony dealing in a narcotic drug and two Counts of Class B felony dealing in a
schedule II controlled substance in Cause No. 34D01-1308-FB-643 (FB-643).
One Count of Class B felony dealing in a schedule II controlled substance was
later dismissed. On January 7, 2015, while Fletchall was out on bond on FB-
643, the State filed another Information, charging him with two Counts of
Level 6 felony theft in Cause No. 34D01-1501-F6-11 (F6-11).
[5] On April 22, 2015, Fletchall entered into a plea agreement in both Causes,
pleading guilty to three Counts of Class B felony dealing in a narcotic drug in
FB-643 and to both Counts of Level 6 felony theft in F6-11. That same day, the
trial court sentenced him to concurrent terms of 15 years, with 10 years
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executed and 5 years suspended for each of his offenses in FB-643. In F6-11,
Fletchall was sentenced to concurrent terms of 913 days for each of his offenses.
The trial court ordered the sentences in both Causes to run consecutively to
each other, and verbally advised Fletchall:
As a specific condition of his probation he shall follow any and
all recommendations made by the [p]robation [d]epartment
concerning education or treatment, further that as a specific
condition of his probation he shall attend, complete and pay for
the Drug and Alcohol Program. . . . . As a further specific
condition of his probation he shall make restitution to the
Kokomo Police Department in the sum of $480.
(Suppl. Transcript Vol. II, p. 12). As part of its sentencing order, the trial court
enumerated the following specific conditions of Fletchall’s probation:
Successfully attend, complete and pay for the Howard County
Drug and Alcohol Program and/or such other program as may
be from time to time designated by the Howard County Drug
and Alcohol Program. As further specific conditions of
probation, [Fletchall] is ordered to follow any and all
recommendations made by the [p]robation [d]epartment
including, but not limited to, treatment and education. As
further specific conditions of probation, [Fletchall] is ordered to
pay restitution to the Kokomo Police Department . . . It is
recommended that [Fletchall] be placed in a Therapeutic
Community Program while incarcerated in the Indiana
Department of [C]orrection. Upon successful completion of said
program, the [c]ourt will consider modifying his sentence, so as
to reduce the total time of incarceration.
(Appellant’s App. Vol. II. p. 11).
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[6] On May 9, 2016, Fletchall’s sentence in both Causes was modified to allow him
to serve the balance of his suspended sentence on electronic monitoring and day
reporting and/or re-entry court supervision through Community Corrections.
On May 27, 2016, Fletchall entered into a re-entry court program participation
agreement. This agreement, signed by Fletchall, provided him with all the
terms and conditions of the re-entry program and noted, in relevant part:
8. If Participant is terminated from the [re-entry] [p]rogram
while on the Community Transition Program they will be
returned to the Department of Correction[]. If Participant is on
probation they will be referred to the sentencing court for final
disposition and if they are on parole they will be referred to the
parole board for final disposition.
(Appellant’s App. Vol. III, pp. 5-6).
[7] On November 9, 2016, the State filed a petition to revoke Fletchall’s suspended
sentence in both Causes when he was found to have violated the rules of the re-
entry court program after testing positive for morphine and by leaving the
program. As a result, Fletchall was terminated from the program. The trial
court conducted a hearing on the State’s petition on March 21, 2017, and after
Fletchall admitted to the allegations, the trial court revoked his probation. The
trial court ordered Fletchall to serve 548 days of his previously-suspended
sentence in FB-643 and in F6-11, the trial court ordered him to return to
probation “with all the previous terms and conditions to remain in full force
and effect,” after completing his sentence in FB-643. (Appellant’s App. Vol. II,
p. 32).
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[8] On July 11, 2016, Fletchall signed specific conditions of home detention, which
specified, in pertinent part:
6. I agree to limit my movement away from my house to involve
only traveling to and from work. All other deviations must be
pre-approved by the Community Corrections staff. If I am found
to be away from my residence without prior permission from a
Staff Member, I may be accused of escape. In case of a medical
emergency, I agree to contact the Home Detention Staff as
quickly as possible and show proof that it was in fact a medical
emergency. Further, I understand that any attempt on my behalf
to falsify information which will result in or has in fact resulted in
a deviation from my schedule, will result in a violation being
filed with the Prosecutor’s office.
****
27. I understand all of the above conditions and agree to comply
with each provision. I understand that if I am found to be in
violation of any of the aforementioned conditions, I may be
subject to sanctions which may include loss of errand time,
forfeiture of good time credit or possibl[y] jail.
(Appellant’s App. Vol. III, pp. 23, 26).
[9] On July 18, 2017, Fletchall entered into a second re-entry court program
participation agreement, which cautioned Fletchall that if he was terminated
from the re-entry program, he would be returned to the Department of
Correction or, if on probation, to the trial court for final disposition. In
addition to the agreement, Fletchall was handed the re-entry handbook which
contained all the conditions and sanctions of the programs. However, barely a
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month later, on August 23, 2017, a second notice of termination from the re-
entry program was filed in both Causes because Fletchall was not in a place
where he had permission to be. After being terminated from the re-entry
program, the State filed a petition to revoke Fletchall’s suspended sentence in
both Causes on October 12, 2017. During the fact-finding hearing on the
State’s petition on November 21, 2017, Fletchall acknowledged that he had to
follow certain rules with the re-entry program and admitted that he was out
more than three hours running errands in violation of the program
requirements. The trial court concluded that Fletchall had violated the terms of
his probation and revoked his probation. Fletchall was ordered to serve the
entire balance of his previously-suspended sentence in both Causes.
[10] Fletchall now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[11] Fletchall contends that the trial court abused its discretion in finding him in
violation of his probation because the trial court had failed to advise him of the
terms of his probation. Probation is a matter of grace left to the trial court
discretion, not a right to which a criminal defendant is entitled. Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the conditions of
probation and may revoke probation if conditions are violated. Id. Once a trial
court has exercised its grace by ordering probation rather than incarceration,
the judge should have considerable leeway in deciding how to proceed. Id. If
this discretion were not afforded to the trial court and sentences were
scrutinized too severely on appeal, trial courts might be less inclined to order
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probation to future defendants. Id. Accordingly, a trial court’s sentencing
decisions for probation violations are reviewable using the abuse of discretion
standard. Id. An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances. Id.[12] Whenever the trial court places a person on probation, the court must specify
on the record the conditions of the probation and give the person a written
statement specifying his conditions of probation. Ind. Code §§ 35-38-2-1; -2.3.
“Thus, the law generally requires that if a person is placed on probation, the
trial court must provide the defendant a written statement containing the terms
and conditions of probation at the sentencing hearing.” Gil v. State, 988 N.E.2d
1231, 1234 (Ind. Ct. App. 2013). However, we have previously held that the
trial court’s failure to provide written probation terms may be harmless error if
the defendant has been orally advised of the conditions and acknowledges that
he understands them. Id.[13] Nevertheless, during the trial court’s hearing on the State’s petition to revoke
Fletchall’s probation, Fletchall never presented the argument that he had not
been advised of the conditions of probation. It is well settled that a party may
not present an argument or issue to an appellate court unless the party raised
the same argument or issue before the trial court. See Craig v. State, 883 N.E.2d
218, 220 (Ind. Ct. App. 2008). Therefore, Fletchall waived his claim.
[14] Furthermore, Indiana Appellate Rule 46(A)(8)(a) mandates that the argument
section of an appellate brief should contain the contentions of the appellant
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supported by cogent reasoning and with reference to the appropriate authorities
and record. Not counting the standard of review, Fletchall’s entire argument is
two sentences long, with another two sentences repeating what has already
been stated. The argument is coached in general terms—"the failure to have
written, signed rules of probation is fatal”—and fails to assert which proceeding
Fletchall is referring to, which probation terms he was not advised about, or
which were unclear. (Appellant’s Br. p. 7). Accordingly, Fletchall waived his
claim.
[15] Notwithstanding these waivers, a review of the record discloses that Fletchall
was apprised of his terms of probation, signed specific conditions of home
detention, signed two re-entry court program participation agreements, and
acknowledged during the hearing that he had violated the conditions of his
probation. Therefore, as Fletchall was repeatedly advised of his probation
conditions, we affirm the trial court’s revocation of his probation.
CONCLUSION
[16] Based on the foregoing, we hold that the trial court did not abuse its discretion
in revoking Fletchall’s probation and ordering him to serve the balance of his
previously suspended sentence.
Affirmed.
May, J. and Mathias, J. concur
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