Allen Allmond v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 3, 2018
• Docket: 18A-CR-207
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 03 2018, 6:11 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony C. Lawrence Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana

J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Allen Allmond, October 3, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-207 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark K. Dudley, Appellee-Plaintiff. Judge The Honorable Jason A. Childers, Judge Pro Tempore Trial Court Cause Nos. 48C06-1705-F6-1382 48D01-0601-FB-27 48C06-1608-F6-1538

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-207 | October 3, 2018 Page 1 of 11 Statement of the Case [1] Allen Allmond appeals his sentence following the trial court’s revocation of his

probation and placement in a work release program. Allmond presents two

issues for our review, which we restate as follows:

1. Whether the trial court abused its discretion when it ordered him to serve the balance of his previously suspended sentences in the Department of Correction.

2. Whether the trial court erred when it awarded Allmond credit time.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts and Procedural History [3] On June 12, 2006, Allmond pleaded guilty to three counts of burglary, as Class

B felonies; one count of arson, as a Class B felony; and three counts of theft, as

Class D felonies, in Cause Number 48D01-0601-FB-27 (“FB-27”). The trial

court sentenced Allmond to an aggregate sentence of twenty years, with fifteen

years executed in the Department of Correction and five years suspended to

probation.

[4] Sometime thereafter, Allmond was released to probation. On March 17, 2016,

the State filed a notice of violation in which it alleged that Allmond had

violated the terms of his probation when he failed to keep the probation

department informed of his address and when he failed to timely report to

probation. At a hearing on the violations, Allmond admitted that he had

Court of Appeals of Indiana | Memorandum Decision 18A-CR-207 | October 3, 2018 Page 2 of 11 violated the terms of his probation. The trial court determined that Allmond’s

violations did not warrant jail time and returned him to probation.

[5] On August 5, the State charged Allmond with domestic battery and possession

of methamphetamine, both as Level 6 felonies, in Cause Number 48C06-1608-

F6-1538 (“F6-1538”). On August 8, the State filed a second notice of violation

in FB-27 based on those charges. After a hearing, the court found that Allmond

had violated the terms of his probation when he committed domestic battery in

F6-1538. As a result, the court revoked one year of Allmond’s previously

suspended sentence in FB-27 and ordered Allmond to report to the Department

of Correction on August 30. The trial court awarded Allmond credit time for

time that Allmond had spent incarcerated from June 19 through July 12 and

August 8 through August 30.

[6] On February 2, 2017, Allmond pleaded guilty to domestic battery, as a Level 6

felony, in F6-1538. On February 14, the trial court sentenced him to two years,

with one year to be spent on home detention and one year suspended to

probation. The court ordered that sentence to run consecutive to Allmond’s

sentence in FB-27.

[7] On April 21, after he had been released to probation in F6-1538, Allmond’s

probation officer filed a notice of violation in that cause and alleged that

Allmond had committed new crimes of escape and theft. The officer further

alleged that Allmond had failed to pay home detention fees. And, on June 6,

the State charged Allmond with one count of escape, as a Level 6 felony, and

Court of Appeals of Indiana | Memorandum Decision 18A-CR-207 | October 3, 2018 Page 3 of 11 one count of theft, as a Class A misdemeanor, in Cause Number 48C06-1705-

F6-1382 (“F6-1382”).

[8] On July 18, Allmond pleaded guilty as charged in F6-1382. The trial court

accepted Allmond’s guilty plea and sentenced him to two years, with one year

to be served on work release and one year suspended to probation. The trial

court ordered that sentence to run consecutive to Allmond’s prior sentences.

The trial court also noted that any credit time Allmond had already received

was to be applied to his sentence in F6-1538.

[9] When he pleaded guilty in F6-1382, Allmond also admitted to violating the

terms of his home detention in F6-1538. The court then revoked two years of

Allmond’s previously suspended sentence in F6-1538 and ordered him to serve

those two years on work release. The court awarded him credit time for time

he had spent incarcerated from January 25 through February 14, March 3

through April 17, April 27 through May 1, and June 25 through July 25.

[10] On July 31, Allmond failed to return to his detention facility. The State

charged Allmond with failure to return to lawful detention, as a Level 6 felony,

in Cause Number 48C06-1709-F6-2081 (“F6-2081”). Additionally, the State

charged Allmond with sexual battery, as a Level 6 felony, in Cause Number

48C06-1709-F6-2388 (“F6-2388”) based on events that had occurred on August

15. And the State charged Allmond with resisting law enforcement, as a Level

Court of Appeals of Indiana | Memorandum Decision 18A-CR-207 | October 3, 2018 Page 4 of 11 6 felony, in Cause Number 48C06-1710-F6-2598 (“F6-2598”) after Allmond

had attempted to flee from law enforcement officers on October 17.1

[11] On October 20, the State filed notices of violation in both FB-27 and F6-1382.

In both notices, the State alleged that Allmond had violated the terms of his

suspended sentence when he failed to return to lawful detention in F6-2081 and

when he committed sexual battery in F6-2388. Additionally, in the notice of

violation for F6-1382, the State alleged that Allmond had violated the terms of

his suspended sentence when he committed the new offense of resisting law

enforcement in F6-2598. Thereafter, on November 15, the State also filed a

petition to terminate Allmond’s participation on work release in F6-1538. In

that petition, the State alleged that Allmond had violated the terms of his work

release program when he left the facility on July 30 and never returned. It also

alleged that Allmond owed $154.99 in arrears to the work release center.

[12] The trial court held a joint hearing on the two notices of violation in FB-27 and

F6-1382 and the petition to terminate his participation in the work release

program in F6-1538. At the conclusion of the hearing, the court found that

Allmond had failed to return to lawful detention, that Allmond had committed

sexual battery, and that Allmond had resisted law enforcement. Accordingly,

the trial court found that Allmond had violated the terms of his probation in

FB-27 and F6-1382 and that he had violated the terms of his work release

1 The record does not provide any information as to the disposition of those three criminal charges.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-207 | October 3, 2018 Page 5 of 11 program in F6-1538 as alleged. In FB-27, the trial court revoked four years of

Allmond’s sentence, ordered him to serve the remainder of the sentence in the

Department of Correction, and gave him credit time for time served from June

19 through July 12, 2016,2 and from October 17 through December 21, 2017.

In F6-1538, the trial court revoked two years of Allmond’s previously

suspended sentence and ordered that all credit time in that cause be applied to

his sentence in FB-27. Finally, in F6-1382, the trial court revoked two years of

Allmond’s previously suspended sentence and awarded him no credit time.

This appeal ensued.

Discussion and Decision Issue One: Previously Suspended Sentence

[13] Allmond first contends that the trial court abused its discretion when it ordered

him to serve the balance of his previously suspended sentences in the

Department of Correction. Probation is a matter of grace left to trial court

discretion. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). Upon finding

that a defendant has violated a condition of his probation, the trial court may

“[o]rder execution of all or part of the sentence that was suspended at the time

of initial sentencing.” Ind. Code § 35-38-2-3(h)(3) (2018). We review the trial

court’s sentencing decision following the revocation of probation for an abuse

2 In its sanctions order, the trial court awarded Allmond credit for time served from June 19 through July 12, 2017. But both parties agree that that is a scrivener’s error and that Allmond was actually incarcerated during those dates in 2016.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-207 | October 3, 2018 Page 6 of 11 of discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). An abuse

of discretion occurs “only where the trial court’s decision is clearly against the

logic and effect of the facts and circumstances” before the court. Robinson v.

State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam). We will not reweigh the

evidence or reconsider witness credibility. Griffith v. State, 788 N.E.2d 835, 839-

40 (Ind. 2003). Rather, we consider only the evidence most favorable to the

trial court’s judgment to determine if there was substantial evidence of

probative value to support the court’s ruling. Id.

[14] Here, Allmond does not dispute that he repeatedly violated the terms of his

probation and his work release program. Rather, he asserts that the trial court

abused its discretion when it ordered him to serve the balance of his previously

suspended sentences in the Department of Correction because he has a drug

problem and because he “expressed an interest in the Continuum of Sanctions

Program and the Drug Court Program” to assist him with his addiction.

Appellant’s Br. at 14. In essence, Allmond contends that the trial court abused

its discretion when it did “not explor[e] alternatives to incarceration.” Id. at 15.

[15] But we cannot say that the trial court abused its discretion when it ordered

Allmond to serve the balance of his sentences in the Department of Correction.

Allmond violated the terms of his probation in FB-27 when he committed the

offense in F6-1538. And he violated the terms of his probation in F6-1538

when he committed the offenses in F6-1382. As a result of those violations, the

trial court revoked one year of his suspended sentence in FB-27, and it revoked

his suspended sentence in F6-1538 and placed him on work release.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-207 | October 3, 2018 Page 7 of 11 [16] But, despite the numerous opportunities the trial court gave him, Allmond

continued to commit new offenses and violate the terms of his probation and

work release program. Indeed, Allmond again violated the terms of his

probation in FB-27 and F6-1382 when he failed to return to lawful custody and

when he committed sexual battery. He further violated the terms of his

probation in F6-1382 when he resisted law enforcement. And he violated the

terms of his work release program in F6-1538 when he failed to return to lawful

detention. Thus, we agree with the State that Allmond “has displayed nothing

but complete disregard for the rules of probation.” Appellee’s Br. at 16. The

court’s orders that Allmond serve the balance of his previously suspended

sentences in the Department of Correction are supported by the record and well

within the trial court’s discretion.

Issue Two: Credit Time

[17] Allmond next contends that the trial court erred when it awarded him credit

time. Credit time is a matter of statutory right, and trial courts do not have

discretion in awarding or denying such credit. Hickman v. State, 81 N.E.3d

1083, 1085 (Ind. Ct. App. 2017). In its sanctions order in FB-27, the trial court

awarded Allmond credit time for time he was incarcerated from June 19

through July 12, 2016, and from October 17 through December 22, 2017, plus

good time credit. And in its sanctions order in F6-1538, the trial court stated

that “all credit” time in that cause is to be applied to FB-27. Appellant’s App.

Vol. II at 90. Finally, the court awarded Allmond no credit time in F6-1383.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-207 | October 3, 2018 Page 8 of 11 [18] We initially address Allmond’s contention that the trial court’s order awarding

him credit for time served from June 19 through July 12, 2016, was “in error”

because that date range is “not applicable to the current sanction.” Appellant’s

Br. at 17. Allmond further states that the credit time from June 16 through July

12, 2016, is not applicable because it is “credit time that was previously

awarded on a prior sanction.” Id. at 10. We agree.

[19] After the State filed its second notice of violation in FB-27, the trial court

revoked one year of Allmond’s suspended sentence and ordered that he execute

that year at the Department of Correction beginning on August 30. At that

point, the trial court awarded credit time to Allmond for days he had spent

incarcerated between June 19 and July 12, 2016. Thus, it is apparent that that

credit time was applied to Allmond’s one-year sentence that began to run on

August 30. Because Allmond’s credit time for that date range had already been

applied to a prior, already executed sentence, the trial court cannot also award

credit time to Allmond for those same dates for the present probation violation.

The trial court therefore erred when it awarded Allmond credit time for the

days he spent incarcerated from June 19 through July 12, 2016.

[20] Allmond next contends that he is entitled to credit time for time he was

incarcerated during the following date ranges: January 25 through February 14,

March 3 through April 17, April 27 through May 1, June 25 through July 25,

July 25 through July 30, and October 17 through December 21, 2017. He

asserts that he, the trial court, and the State all “agreed to the application of

credit time and acknowledged its accuracy” and, thus, the trial court erred

Court of Appeals of Indiana | Memorandum Decision 18A-CR-207 | October 3, 2018 Page 9 of 11 when it only awarded him credit for days served from October 17 through

December 21. Id. at 17.

[21] The State does not dispute that Allmond deserves credit time for those date

ranges. Rather, the State contends that the trial court did award Allmond credit

time for those date ranges in past sanction orders and that “[n]othing in the

most recent three Sanctions Orders removes or takes away from any of the

above assigned credit time.” Appellee’s Br. at 18. The State further asserts that

the present sanctions order in FB-1538 “simply incorporated by reference all

past Sanctions Orders’ assignment of credit” time. Id. at 17-18. We agree with

the State’s reading of the record, with one exception.

[22] When the trial court first revoked Allmond’s suspended sentence and ordered

him to serve that sentence on work release, the court awarded Allmond credit

time plus good time credit for the following date ranges: January 25 through

February 14, March 3 through April 17, April 27 through May 1, and June 25

through July 25, 2017. Accordingly, the trial court had already applied credit

time for those date ranges to Allmond’s sentence. Because the trial court had

already applied that credit time to his sentence, the court cannot again apply

credit time for the same date ranges to the present sanction. Thus, the trial

court did not err when it did not apply credit time to the current sanction for

those date ranges.

[23] However, we agree with Allmond that the trial court did err when it failed to

give him credit time plus good time credit for the time he had spent on work

Court of Appeals of Indiana | Memorandum Decision 18A-CR-207 | October 3, 2018 Page 10 of 11 release from July 25 through July 30. It is clear from the record, and the State

does not dispute, that Allmond is entitled to credit time for those dates.

However, nowhere in any sanctions order or abstract of judgment for F6-1538

or FB-27 did the trial court award Allmond credit for those days.

[24] In sum, we affirm the trial court’s order revoking the balance of Allmond’s

previously suspended sentences. And we affirm the trial court’s award of credit

time plus good time credit to Allmond for the time Allmond had served from

October 17 through December 21. We further hold that the trial court did not

err when it did not again award Allmond credit time for the following date

ranges: January 25 through February 14, March 3 through April 17, April 27

through May 1, and June 25 through July 25, 2017. However, we hold that the

trial court erred when it awarded Allmond good time credit for the time he had

spent incarcerated from June 19 through July 12, 2016, and when it did not

award Allmond credit time plus good time credit for the time Allmond served

on work release from July 25 through July 30, 2017. Accordingly, we reverse

the trial court’s determination as to Allmond’s credit time, and we remand to

the trial court with instructions to award Allmond credit time plus good time

credit for the time he had spent on work release from July 25 through July 30 in

addition to credit time that Allmond earned for the time he spent incarcerated

from October 17 through December 21.

[25] Affirmed in part, reversed in part, and remanded with instructions.

Crone, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-207 | October 3, 2018 Page 11 of 11