MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 08 2020, 9:47 am
this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court 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 Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana
Zachary R. Griffin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Andrew Thomas Kress, April 8, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2567 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan J. King, Appellee-Plaintiff Judge Trial Court Cause No. 69C01-1609-F5-32
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020 Page 1 of 7 [1] Within a month of receiving a six-year suspended sentence for Level 5 felony
conspiracy to commit burglary, Andrew Kress violated probation by
committing a new criminal offense – Level 6 felony escape – and using
methamphetamine and marijuana. Kress admitted to these violations, and the
trial court revoked five and one-half years of his suspended sentence and sent
him to the Indiana Department of Correction (the DOC). On appeal, Kress
argues that the trial court abused its discretion.
[2] We affirm.
Facts & Procedural History
[3] In September 2016, the State charged Kress in Ripley County with Level 5
felony conspiracy to commit burglary, as well as three misdemeanor offenses.
The State also filed a habitual offender enhancement a few weeks later. Then,
after Kress failed to appear at a pretrial hearing in July 2017, a warrant was
issued for his arrest, and the trial court permitted the State to add another count
for Level 6 felony failure to appear.
[4] On April 9, 2018, Kress entered into a negotiated plea agreement with the State,
pursuant to which he agreed to plead guilty to conspiracy to commit burglary
and the State agreed to the dismissal of the habitual offender allegation and the
other counts. Additionally, the agreement provided for imposition of a six-year
prison sentence suspended to supervised probation. The trial court accepted the
plea and sentenced Kress accordingly on June 25, 2018.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020 Page 2 of 7 [5] While the Ripley County charges were pending throughout 2017, Kress
committed crimes in Decatur County (theft, forgery, neglect of a dependent,
and escape) and Jackson County (driving while suspended). The various
criminal causes out of Decatur County, along with a habitual offender
enhancement, were resolved on March 5, 2018 through a joint plea agreement.
Kress received an aggregate sentence of about nine years, with four years
suspended to probation and five years executed on community corrections.
Thus, at the time Kress was sentenced in the instant Ripley County case, he was
already serving his sentence in Decatur County on home detention through
community corrections.
[6] On June 21, 2018, Kress was administered a drug screen by community
corrections, which later returned positive for methamphetamine and THC.
Thereafter, on July 12, 2018, Kress cut off his GPS monitor and fled Decatur
County. On July 24, 2018, he was involved in a traffic stop in Bartholomew
County and fled on foot. A new criminal charge was filed in Decatur County
for Level 6 felony escape, along with a habitual offender enhancement.
[7] In the instant Ripley County case, on July 30, 2018, the State filed a petition for
probation violation hearing, alleging that Kress had violated the terms of
probation by committing a new criminal offense (escape) and using illegal
drugs. While this petition was pending, Kress pled guilty to the escape charge
in Decatur County and admitted being a habitual offender. He was sentenced
to an executed term of eight years in prison on November 19, 2018.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020 Page 3 of 7 [8] On March 14, 2019, the probation hearing was held in this case. Kress
conceded that he violated probation as alleged by committing felony escape and
using methamphetamine and marijuana. He also admitted that he had been
charged and convicted of an additional crime committed while on probation –
resisting law enforcement in Bartholomew County. Kress testified that he was
about to start the Recovery While Incarcerated Program (the RWI Program) in
prison to address his drug problem. 1 Kress asked that the court revoke only two
years of his six-year sentence and allow him to continue in the RWI Program.
[9] The trial court revoked five and one-half years of Kress’s suspended sentence
and ordered that time to be served in the DOC. The court ordered that after
Kress serves three years, he may enroll in the RWI Program, at the conclusion
of which the court would consider sentence modification following completion.
Kress now appeals. Additional facts will be provided below as needed.
Discussion & Decision
[10] It is well established that probation is a matter of grace left to trial court
discretion, not a right to which a criminal defendant is entitled. Prewitt v.
State, 878 N.E.2d 184, 188 (Ind. 2007). Once a trial court has exercised its
grace by ordering probation rather than incarceration, the trial court has
considerable leeway in deciding how to proceed. Id. Accordingly, a trial
1 Kress claimed to have had an untreated drug problem for twenty years. On cross-examination, Kress indicated that he had been using methamphetamine for three years and that he had lied when he reported no addiction issues to the probation officer for the presentence investigation report in 2018.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020 Page 4 of 7 court’s sentencing decisions for probation violations are reviewable for an abuse
of discretion and reversible only where the decision is clearly against the logic
and effect of the facts and circumstances. Id. “If the court finds the defendant
has violated a condition of his probation at any time before the termination of
the probationary period, and the petition to revoke is filed within the
probationary period, then the court may order execution of the sentence that
had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.
2007); see also Ind. Code § 35-38-2-3(h) (listing three sanctions that may be
imposed upon the finding of a violation: (1) continue the person on probation
with or without modification; (2) extend the probationary period; or (3) order
execution of all or part of the sentence that was suspended at the time of the
initial sentencing).
[11] Kress asserts that the sanction imposed by the trial court for his admitted
violations was “an illogical decision unsupported by the facts as presented at his
probation revocation hearing.” Appellant’s Brief at 8. He directs us to his
testimony at the hearing regarding his twenty-year history of drug use and
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 08 2020, 9:47 am
this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court 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 Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana
Zachary R. Griffin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Andrew Thomas Kress, April 8, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2567 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Ryan J. King, Appellee-Plaintiff Judge Trial Court Cause No. 69C01-1609-F5-32
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020 Page 1 of 7 [1] Within a month of receiving a six-year suspended sentence for Level 5 felony
conspiracy to commit burglary, Andrew Kress violated probation by
committing a new criminal offense – Level 6 felony escape – and using
methamphetamine and marijuana. Kress admitted to these violations, and the
trial court revoked five and one-half years of his suspended sentence and sent
him to the Indiana Department of Correction (the DOC). On appeal, Kress
argues that the trial court abused its discretion.
[2] We affirm.
Facts & Procedural History
[3] In September 2016, the State charged Kress in Ripley County with Level 5
felony conspiracy to commit burglary, as well as three misdemeanor offenses.
The State also filed a habitual offender enhancement a few weeks later. Then,
after Kress failed to appear at a pretrial hearing in July 2017, a warrant was
issued for his arrest, and the trial court permitted the State to add another count
for Level 6 felony failure to appear.
[4] On April 9, 2018, Kress entered into a negotiated plea agreement with the State,
pursuant to which he agreed to plead guilty to conspiracy to commit burglary
and the State agreed to the dismissal of the habitual offender allegation and the
other counts. Additionally, the agreement provided for imposition of a six-year
prison sentence suspended to supervised probation. The trial court accepted the
plea and sentenced Kress accordingly on June 25, 2018.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020 Page 2 of 7 [5] While the Ripley County charges were pending throughout 2017, Kress
committed crimes in Decatur County (theft, forgery, neglect of a dependent,
and escape) and Jackson County (driving while suspended). The various
criminal causes out of Decatur County, along with a habitual offender
enhancement, were resolved on March 5, 2018 through a joint plea agreement.
Kress received an aggregate sentence of about nine years, with four years
suspended to probation and five years executed on community corrections.
Thus, at the time Kress was sentenced in the instant Ripley County case, he was
already serving his sentence in Decatur County on home detention through
community corrections.
[6] On June 21, 2018, Kress was administered a drug screen by community
corrections, which later returned positive for methamphetamine and THC.
Thereafter, on July 12, 2018, Kress cut off his GPS monitor and fled Decatur
County. On July 24, 2018, he was involved in a traffic stop in Bartholomew
County and fled on foot. A new criminal charge was filed in Decatur County
for Level 6 felony escape, along with a habitual offender enhancement.
[7] In the instant Ripley County case, on July 30, 2018, the State filed a petition for
probation violation hearing, alleging that Kress had violated the terms of
probation by committing a new criminal offense (escape) and using illegal
drugs. While this petition was pending, Kress pled guilty to the escape charge
in Decatur County and admitted being a habitual offender. He was sentenced
to an executed term of eight years in prison on November 19, 2018.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020 Page 3 of 7 [8] On March 14, 2019, the probation hearing was held in this case. Kress
conceded that he violated probation as alleged by committing felony escape and
using methamphetamine and marijuana. He also admitted that he had been
charged and convicted of an additional crime committed while on probation –
resisting law enforcement in Bartholomew County. Kress testified that he was
about to start the Recovery While Incarcerated Program (the RWI Program) in
prison to address his drug problem. 1 Kress asked that the court revoke only two
years of his six-year sentence and allow him to continue in the RWI Program.
[9] The trial court revoked five and one-half years of Kress’s suspended sentence
and ordered that time to be served in the DOC. The court ordered that after
Kress serves three years, he may enroll in the RWI Program, at the conclusion
of which the court would consider sentence modification following completion.
Kress now appeals. Additional facts will be provided below as needed.
Discussion & Decision
[10] It is well established that probation is a matter of grace left to trial court
discretion, not a right to which a criminal defendant is entitled. Prewitt v.
State, 878 N.E.2d 184, 188 (Ind. 2007). Once a trial court has exercised its
grace by ordering probation rather than incarceration, the trial court has
considerable leeway in deciding how to proceed. Id. Accordingly, a trial
1 Kress claimed to have had an untreated drug problem for twenty years. On cross-examination, Kress indicated that he had been using methamphetamine for three years and that he had lied when he reported no addiction issues to the probation officer for the presentence investigation report in 2018.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020 Page 4 of 7 court’s sentencing decisions for probation violations are reviewable for an abuse
of discretion and reversible only where the decision is clearly against the logic
and effect of the facts and circumstances. Id. “If the court finds the defendant
has violated a condition of his probation at any time before the termination of
the probationary period, and the petition to revoke is filed within the
probationary period, then the court may order execution of the sentence that
had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.
2007); see also Ind. Code § 35-38-2-3(h) (listing three sanctions that may be
imposed upon the finding of a violation: (1) continue the person on probation
with or without modification; (2) extend the probationary period; or (3) order
execution of all or part of the sentence that was suspended at the time of the
initial sentencing).
[11] Kress asserts that the sanction imposed by the trial court for his admitted
violations was “an illogical decision unsupported by the facts as presented at his
probation revocation hearing.” Appellant’s Brief at 8. He directs us to his
testimony at the hearing regarding his twenty-year history of drug use and
claims that he never had an opportunity for real rehabilitation. Finally, noting
that he was about to start the RWI Program while serving his eight-year
sentence out of Decatur County, Kress argues that by not allowing him to
engage in the RWI Program until three years into this sentence will “essentially
unravel[] the opportunity provided to him in Decatur County.” Id. at 11.
[12] The trial court considered Kress’s testimony at the probation hearing but
observed that it was “a lot different” than it was at the original sentencing
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020 Page 5 of 7 hearing and that the “two don’t square.” Transcript at 21, 22. After questioning
the credibility of this testimony, the trial court noted Kress’s “extensive criminal
history” and characterized his new crime of escape as “pretty flagrant” because
it occurred while he was on home detention and he “continued to run in
Bartholomew County.” Id. at 23. The court continued:
[Y]ou’ve proven yourself to be a very poor candidate for probation. Heck, you’re not even a good candidate for in-home detention …. If they can’t monitor you on in-home without you escaping by cutting off your bracelet, that was a very, very poor decision and it was furthered when you tried to resist in Columbus or you did resist, I guess, in Columbus. I don’t know what the problem is here, but given that you have criminal history that goes all the way back to 1995, I guess it’s not gonna be fixed here soon…. I don’t think [the RWI Program]’s gonna fix it. I’m actually a little bit surprised that you got that[.]”
Id. at 23-24. Ultimately, the trial court revoked five and one-half years of
Kress’s suspended sentence and allowed for his participation in the RWI
Program after the successful completion of three years of his sentence. The
court indicated that it believed this sanction appropriately balanced “both penal
consequences as well as rehabilitation”. Id. at 27.
[13] We cannot agree with Kress that the sanction imposed by the trial court is
against the logic and effect of the facts and circumstances. Here, Kress
originally received a fully suspended sentence for his Level 5 felony conspiracy
to commit burglary conviction. This sentence was particularly lenient
considering his criminal history, which, at the time, spanned twenty years and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020 Page 6 of 7 included six felony convictions and at least ten misdemeanor convictions. His
felony convictions include drug-related crimes (committed in 2000, 2009, and
2010), forgery (2017), neglect of a dependent (2017), and escape (2017, from
home detention). Within a month of being sentenced in this case and while on
home detention for a conviction in Decatur County, Kress proceeded to
commit another escape, use illegal drugs, and commit resisting law
enforcement. These brazen violations show that Kress is ill suited for
probation. Moreover, it is evident that the trial court did not find Kress’s
testimony at the probation hearing to be particularly credible. In sum, we
conclude that the trial court acted well within its discretion.
[14] Judgment affirmed.
Bradford, C.J. and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2567 | April 8, 2020 Page 7 of 7