David C. Coleman v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 26, 2018
• Docket: 18A-CR-1014
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 26 2018, 9:05 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ryan D. Bower Curtis T. Hill, Jr. Bower Law Office, LLC Attorney General of Indiana New Albany, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David D. Coleman, December 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1014 v. Appeal from the Orange Circuit Court State of Indiana, The Honorable Steven L. Owen, Appellee-Plaintiff. Judge Trial Court Cause No. 59C01-1312-FA-870

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018 Page 1 of 6 Statement of the Case [1] David D. Coleman appeals the trial court’s revocation of his probation.

Coleman raises three issues for our review, which we restate as follows:

1. Whether the trial court erred when it did not dismiss the State’s third notice of probation violation as untimely.

2. Whether the trial court’s written order revoking Coleman’s probation failed to identify the basis for that revocation.

3. Whether Coleman’s argument that his sentence is inappropriate under Indiana Appellate Rule 7(B) is available in this appeal.

[2] We affirm.

Facts and Procedural History [3] In December of 2013, the State charged Coleman with three counts of murder

and three counts of Class C felony criminal recklessness. Coleman pleaded

guilty to the three counts of Class C felony criminal recklessness, and, in

exchange, the State dismissed the three counts of murder. The trial court

sentenced Coleman to an aggregate term of eight years, which, aside from the

time Coleman had already actually served, the court then suspended to formal

probation.

[4] Less than one year later, the State filed its first notice of probation violation

based on Coleman having committed a new offense of battery. The first notice

was later dismissed under a plea agreement in another cause number. Less than

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018 Page 2 of 6 one year after that dismissal, the State filed a second notice of probation

violation based on Coleman’s failure to report to probation. Coleman admitted

to that violation, and the trial court revoked forty-two days of his previously

suspended sentence.

[5] The next month, the State filed its third notice of probation violation based on

Coleman having committed the new offense of operating a vehicle as a habitual

traffic violator. Coleman moved to dismiss the third notice “under the Doctrine

of Res Judicata” because, according to Coleman, “the alleged offense . . . could

have been alleged in the prior [second] petition.” Appellant’s App. Vol. 2 at 19-

20. After a hearing on the motion to dismiss, the trial court denied Coleman’s

motion to dismiss because the State had not discovered the violation at the time

the court heard and decided the second notice.

[6] At the ensuing fact-finding hearing on the third notice, Coleman renewed his

objection to the notice on res judicata grounds, which the court overruled. The

State then presented the testimony of Lawrence County Sheriff’s Department

Officer Caleb Merriman, who testified that he had pulled over a vehicle being

operated by Coleman in Lawrence County and that, at that time, Coleman was

a habitual traffic violator. The court found that Coleman had violated the

terms and conditions of his probation, and the court revoked his probation and

ordered him to serve the balance of his previously suspended sentence in the

Department of Correction. In its ensuing written order, the court stated, “the

State has met [its] burden of proof by a Preponderance of Evidence that the

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018 Page 3 of 6 defendant did violate the order of this Court as set forth in said Petition . . . .”

Id. at 14. This appeal ensued.

Discussion and Decision Issue One: Timeliness of the Third Notice

[7] On appeal, Coleman first asserts that the trial court erred when it revoked his

probation because the State’s third notice was based on an act that preceded the

State’s second notice. Insofar as Coleman appears to argue that the trial court

erred when it did not apply the doctrine of res judicata, Coleman’s argument is

not supported by cogent reasoning. See Ind. Appellate Rule 46(A)(8)(a).

Coleman fails to discuss either the law of res judicata or the evidence most

favorable to the trial court’s judgment. And, although not addressed by

Coleman, the trial court’s denial of the motion to dismiss under the doctrine of

res judicata is supported by the record. See Ind. Alcohol & Tobacco Comm’n v.

Spirited Sales, LLC, 79 N.E.3d 371, 381 (Ind. 2017) (“Res judicata applies when

a particular issue is adjudicated and then put in issue in a subsequent suit on a

different cause of action between the same parties or their privies.”) (quotation

marks omitted). Accordingly, we cannot say that the trial court erred when it

denied Coleman’s motion to dismiss under the doctrine of res judicata.

[8] That said, Coleman’s actual argument on this issue on appeal is not that the

trial court misapplied the doctrine of res judicata but that the State’s third notice

was untimely under Indiana Code Section 35-38-2-3. Coleman raises this

statutory issue for the first time on appeal. “It is well-settled law in Indiana that

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018 Page 4 of 6 a defendant may not argue one ground for objection at trial and then raise new

grounds on appeal.” Hitch v. State, 51 N.E.3d 216, 219 (Ind. 2016) (quotation

marks omitted). Accordingly, Coleman has not preserved this issue for our

review, and we do not consider it. See, e.g., Leonard v. State, 80 N.E.3d 878, 884

n.4 (Ind. 2017).

Issue Two: Written Order

[9] Coleman next asserts that the trial court violated his due process rights when

the court did not identify the basis for its revocation of his probation in its

written judgment. We conclude that Coleman has not supported this apparent

argument with cogent reasoning and, as such, this issue is waived. App. R.

46(A)(8)(a). Coleman’s waiver notwithstanding, the court’s written order

plainly states that the basis for the court’s revocation of his probation was that

“the defendant did violate the order of this Court as set forth in said

Petition . . . .” Appellant’s App. Vol. 2 at 14. We affirm the court’s judgment

on this issue.

Issue Three: Appellate Rule 7(B)

[10] Last, Coleman asserts that the court’s imposition of the balance of his

previously suspended sentence is inappropriate under Indiana Appellate Rule

7(B). However, Rule 7(B) “is not the correct standard to apply when reviewing

a sentence imposed for a probation violation.” Prewitt v. State, 878 N.E.2d 184,

188 (Ind. 2007). Accordingly, we cannot consider Coleman’s request to review

and revise his sentence.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018 Page 5 of 6 [11] In sum, we affirm the trial court’s judgment.

[12] Affirmed.

Pyle, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1014 | December 26, 2018 Page 6 of 6