James R. Lunsford v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Sep 09 2016, 8:17 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steele Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James R. Lunsford, September 9, 2016
Appellant-Defendant, Court of Appeals Case No.
34A02-1511-CR-2056
v. Appeal from the
Howard Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. William C. Menges, Jr., Judge
Trial Court Cause No.
34D01-1203-FB-206
Kirsch, Judge.
[1] James R. Lunsford (“Lunsford”) appeals the trial court’s order revoking his
previously-suspended sentence for violation of the conditions of his re-entry
Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016 Page 1 of 6
program. He raises the following restated issue for our review: whether the
trial court abused its discretion when it did not award him credit time for time
spent incarcerated for violating the re-entry program when the trial court
revoked his suspended sentence.
[2] We affirm.
Facts and Procedural History
[3] On August 23, 2012, Lunsford pleaded guilty, pursuant to a plea agreement, to
dealing in methamphetamine, a Class B felony, and in exchange, the State
dismissed three additional counts. Pursuant to the plea agreement, Lunsford
was sentenced to 4,380 days with 2,555 days executed in the Department of
Correction and 1,825 days suspended to supervised probation. On June 29,
2015, as a part of his probation, Lunsford appeared in court and signed a Re-
Entry Program Participation Agreement, in which he agreed to participate in
the Howard County Re-Entry Program for a maximum of three years, which
included substance abuse treatment and counseling.
[4] On July 1, 2015, Lunsford was taken into custody for being in indirect
contempt of court as a result of violating the terms and conditions of the Re-
Entry Program based on allegations that he violated a no-contact order with his
wife. On August 26, 2015, an arrest warrant was issued for Lunsford for
violations of the terms of the Re-Entry Program, and he was arrested on the
same date. Lunsford failed to appear for a Re-Entry Program hearing and was
arrested, pursuant to a bench warrant, on September 15, 2015. On September
Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016 Page 2 of 6
16, a case manager for the Re-Entry Program filed a notice of termination with
the trial court stating that the Re-Entry Program intended “to terminate . . .
Lunsford’s participation in the program due to absconding from the Howard
County Re-Entry Court Program.” Appellant’s App. at 79. On the same date,
the trial court issued an order terminating Lunsford’s participation in the Re-
Entry Program, and the probation department filed a petition to revoke
Lunsford’s previously-suspended sentence. At the fact-finding hearing on the
petition, Lunsford admitted that he violated his probation. The trial court then
found that the State had proven the violation by a preponderance of the
evidence and ordered Lunsford to serve the balance of his suspended sentence,
which was determined to be 1,825 days. Lunsford was given credit for forty-
four actual days, or eighty-eight days as a result of day-for-day credit, that were
served while awaiting disposition of the petition to revoke his suspended
sentence. Lunsford now appeals.
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
discretion of the trial court 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 decision is clearly
Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016 Page 3 of 6
against the logic and effect of the facts and circumstances, or when the trial
court misinterprets the law. Id.
[6] Lunsford argues that the trial court abused its discretion when it revoked his
previously-suspended sentence as a result of his violation of the terms of his
probation. Lunsford specifically asserts that it was an abuse of discretion for
the trial court to not grant him credit for the time he spent incarcerated for
sanctions resulting from his violations of the Re-Entry Program. He contends
that he was entitled to this credit for time served because the Re-Entry Program
was post-sentencing, and participants should receive credit for any time spent
incarcerated during the program.
[7] At the time Lunsford entered into the Re-Entry Program on June 29, 2015, he
was on probation, and when he signed the participation agreement, he agreed
to abide by all rules and conditions of the Re-Entry Program, which included,
among other things, complying with the case plan, submitting to drug testing,
and obeying all laws. Appellant’s App. at 74-75. The participation agreement
stated that sanctions shall be given for violations of the Re-Entry Program, and
such sanctions were set forth in a sanction schedule and could include
termination from the program. Id. Lunsford initially violated his terms of the
Re-Entry Program on July 1, 2015 and was taken into custody for that
violation; he was subsequently found to have violated the terms of the Re-Entry
Program two more times, and after the third violation, a notice of termination
from the Re-Entry Program was filed with the trial court. After admitting the
Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016 Page 4 of 6
violations, the trial court ordered that Lunsford’s participation in the Re-Entry
Program be terminated. Id. at 78.
[8] Although Lunsford contends he was entitled to credit for the time he was
incarcerated due to sanctions while participating in the Re-Entry Program, he
fails to acknowledge the provision of the participation agreement in which he
voluntarily and intentionally waived his right to earn credit time for any
sanction under the Re-Entry Program. Paragraph nine of the participation
agreement for the Re-Entry Program specifically stated, “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 Re[-]Entry Program.” Id. at 75. Lunsford was not
eligible to earn credit for time served for any sanctions that occurred while he
was participating in the Re-Entry Program; he was only eligible to begin
earning credit for time served once his participation in the program was
terminated on September 16, 2015. He was, therefore, only entitled to credit
time from September 16, 2015, the date he was no longer participating in the
Re-Entry Program until October 28, 2015, the date his probation was revoked.
When the trial court revoked his suspended sentence, it did give him credit for
forty-four actual days served while awaiting the disposition of the case. The
trial court did not abuse its discretion in awarding credit time to Lunsford.1
1
In his brief, Lunsford discusses several cases to bolster his position that he was entitled to credit time for the
time he spent incarcerated for sanctions under the Re-Entry Program. However, because we conclude that
Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016 Page 5 of 6
[9] Affirmed.
[10] Riley, J., and Pyle, J., concur.
he agreed, pursuant to the participation agreement, to waive any claim to credit time for sanctions while
participating in the Re-Entry Program, we do not address these cases.
Court of Appeals of Indiana | Memorandum Decision 34A02-1511-CR-2056 | September 9, 2016 Page 6 of 6