MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 07 2020, 9:16 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Peru, Indiana Courtney L. Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Debriel Scales, December 7, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-909 v. Appeal from the Howard Superior Court State of Indiana, The Honorable Appellee-Plaintiff. William C. Menges, Jr., Judge Trial Court Cause No. 34D01-1312-FB-966
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-909 | December 7, 2020 Page 1 of 7 [1] Debriel Scales (“Scales”) appeals from the trial court’s order revoking his
probation. He raises one issue for our review: whether the trial court abused its
discretion in sentencing him.
[2] We remand with instructions.
Facts and Procedural History [3] On November 5, 2013, a confidential informant working with the Kokomo
Police Department contacted Scales to purchase heroin, and Scales sold the
confidential informant heroin for fifty dollars. Appellant’s App. Vol. 2 at 17-18.
On December 6, 2013, the State charged Scales with Class B felony dealing in a
narcotic drug. Id. at 15. On November 5, 2014, Scales entered into a plea
agreement in which he agreed to plead guilty as charged, and the State agreed
to recommend that he be sentenced to fifteen years with seven years executed in
the Department of Correction, one year executed on in-home detention, and
seven years suspended to formal probation. Id. at 62-63. The trial court
accepted the plea agreement and sentenced Scales pursuant to its terms. Id. at
65-66. Specifically, the trial court’s written sentencing statement provided that
Scales was sentenced to the Department of Correction for a period of 5,475
days, of which 2,555 days were ordered executed and the remaining 2,920 days
were ordered suspended. Id. at 65. The suspended portion of the sentence was
ordered to be served as follows: 2,555 days on supervised probation and 365
days on in-home detention. Id. On November 15, 2016, Scales began his
placement on in-home detention. Id. at 97.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-909 | December 7, 2020 Page 2 of 7 [4] On April 28, 2017, Howard County Community Corrections filed a notice of
non-compliance, alleging that Scales violated the terms and conditions of in-
home detention by testing positive for the presence of benzodiazepines,
admitting to smoking Spice, missing a randomly scheduled drug screen, and
being behind on his probation fees. Id. at 96-98. On May 1, 2017, a warrant
was issued for Scales’s arrest, and on May 19, 2018, he was arrested and
detained in the Howard County Jail. Id. at 109-10. On July 9, 2018, a hearing
was held, and the parties agreed that Scales had spent 214 actual days in the
Howard County Jail awaiting disposition for a total of 428 credit days. Supp.
Tr. at 3. At the conclusion of the hearing, the trial court ordered Scales to serve
the balance of his in-home detention time in the Howard County Jail, which the
trial court found to be 19.5 actual days or 39 credit days. Id. at 4. The trial
court further revoked 31.5 actual days or 63 credit days of his previously-
suspended sentence to be executed in the Howard County Jail. Id. Ultimately,
this resulted in a time-served sentence, and Scales was returned to “probation
for roughly seven years, a little less than seven years.” Id.; Appellant’s App. Vol.
2 at 116.
[5] On May 3, 2019, the Howard County Probation Department filed a petition to
revoke Scales’s previously-suspended sentence, alleging that he committed
Level 6 felony domestic battery on a person less than fourteen years of age and
Class A misdemeanor resisting law enforcement and that he had tested positive
for marijuana. Appellant’s App. Vol. 2 at 121-22. On June 10, 2019, Scales
entered into an agreement with the State where he agreed to admit to the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-909 | December 7, 2020 Page 3 of 7 violations and serve 120 days in the Howard County Work Release Program.
Id. at 132. The trial court accepted the agreement and revoked 120 days of
Scales’s previously-suspended sentence with the 120 days to be executed on
work release. Id. at 137. In its order, the trial court noted that Scales had
accrued 32 actual days or 64 credit days awaiting disposition. Id. Therefore,
this left 56 credit days or 28 actual days to serve on work release. Id. at 137,
148. Scales completed his work release sentence on August 13, 2019. Id. at
148.
[6] On November 13, 2019, the Howard County Probation Department filed a
second petition to revoke Scales’s probation, alleging that he violated the terms
and conditions of his probation by testing positive for amphetamines and
methamphetamine and failing to report for a drug test on two separate
occasions. Id. at 137-39. On April 6, 2020, the trial court found that Scales had
“demonstrated repeatedly that he has no desire to be compliant” and
determined that the only reasonable solution was to revoke the balance of his
previously-suspended sentence to the Department of Correction. Tr. Vol. II at
16; Appellant’s App. Vol. 2 at 149. In making this ruling, the trial court
determined that the balance of Scales’s previously-suspended sentence was
2,800 days. Tr. Vol. II at 16; Appellant’s App. Vol. 2 at 149, 152-53. Scales now
appeals.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-909 | December 7, 2020 Page 4 of 7 Discussion and Decision [7] Scales argues that the trial court abused its discretion in sentencing him.
“‘Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct.
App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)), trans.
denied. “It is within the discretion of the trial court to determine the conditions
of a defendant’s probation and to revoke probation if the conditions are
violated.” Id. If a violation is proven, the trial court must determine if the
violation warrants revocation of the probation. Sullivan v. State, 56 N.E.3d
1157, 1160 (Ind. Ct. App. 2016). If the trial court determines a probationer has
violated a term of probation, then the court may impose one or more of the
following sanctions: (1) continue the person on probation, with or without
modifying or enlarging the conditions; (2) extend the person’s probationary
period for not more than one year beyond the original probationary period; or
(3) order execution of all or part of the sentence that was suspended at the time
of initial sentencing. Ind. Code § 35-38-2-3(h). We review a trial court’s
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 07 2020, 9:16 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Peru, Indiana Courtney L. Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Debriel Scales, December 7, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-909 v. Appeal from the Howard Superior Court State of Indiana, The Honorable Appellee-Plaintiff. William C. Menges, Jr., Judge Trial Court Cause No. 34D01-1312-FB-966
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-909 | December 7, 2020 Page 1 of 7 [1] Debriel Scales (“Scales”) appeals from the trial court’s order revoking his
probation. He raises one issue for our review: whether the trial court abused its
discretion in sentencing him.
[2] We remand with instructions.
Facts and Procedural History [3] On November 5, 2013, a confidential informant working with the Kokomo
Police Department contacted Scales to purchase heroin, and Scales sold the
confidential informant heroin for fifty dollars. Appellant’s App. Vol. 2 at 17-18.
On December 6, 2013, the State charged Scales with Class B felony dealing in a
narcotic drug. Id. at 15. On November 5, 2014, Scales entered into a plea
agreement in which he agreed to plead guilty as charged, and the State agreed
to recommend that he be sentenced to fifteen years with seven years executed in
the Department of Correction, one year executed on in-home detention, and
seven years suspended to formal probation. Id. at 62-63. The trial court
accepted the plea agreement and sentenced Scales pursuant to its terms. Id. at
65-66. Specifically, the trial court’s written sentencing statement provided that
Scales was sentenced to the Department of Correction for a period of 5,475
days, of which 2,555 days were ordered executed and the remaining 2,920 days
were ordered suspended. Id. at 65. The suspended portion of the sentence was
ordered to be served as follows: 2,555 days on supervised probation and 365
days on in-home detention. Id. On November 15, 2016, Scales began his
placement on in-home detention. Id. at 97.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-909 | December 7, 2020 Page 2 of 7 [4] On April 28, 2017, Howard County Community Corrections filed a notice of
non-compliance, alleging that Scales violated the terms and conditions of in-
home detention by testing positive for the presence of benzodiazepines,
admitting to smoking Spice, missing a randomly scheduled drug screen, and
being behind on his probation fees. Id. at 96-98. On May 1, 2017, a warrant
was issued for Scales’s arrest, and on May 19, 2018, he was arrested and
detained in the Howard County Jail. Id. at 109-10. On July 9, 2018, a hearing
was held, and the parties agreed that Scales had spent 214 actual days in the
Howard County Jail awaiting disposition for a total of 428 credit days. Supp.
Tr. at 3. At the conclusion of the hearing, the trial court ordered Scales to serve
the balance of his in-home detention time in the Howard County Jail, which the
trial court found to be 19.5 actual days or 39 credit days. Id. at 4. The trial
court further revoked 31.5 actual days or 63 credit days of his previously-
suspended sentence to be executed in the Howard County Jail. Id. Ultimately,
this resulted in a time-served sentence, and Scales was returned to “probation
for roughly seven years, a little less than seven years.” Id.; Appellant’s App. Vol.
2 at 116.
[5] On May 3, 2019, the Howard County Probation Department filed a petition to
revoke Scales’s previously-suspended sentence, alleging that he committed
Level 6 felony domestic battery on a person less than fourteen years of age and
Class A misdemeanor resisting law enforcement and that he had tested positive
for marijuana. Appellant’s App. Vol. 2 at 121-22. On June 10, 2019, Scales
entered into an agreement with the State where he agreed to admit to the
Court of Appeals of Indiana | Memorandum Decision 20A-CR-909 | December 7, 2020 Page 3 of 7 violations and serve 120 days in the Howard County Work Release Program.
Id. at 132. The trial court accepted the agreement and revoked 120 days of
Scales’s previously-suspended sentence with the 120 days to be executed on
work release. Id. at 137. In its order, the trial court noted that Scales had
accrued 32 actual days or 64 credit days awaiting disposition. Id. Therefore,
this left 56 credit days or 28 actual days to serve on work release. Id. at 137,
148. Scales completed his work release sentence on August 13, 2019. Id. at
148.
[6] On November 13, 2019, the Howard County Probation Department filed a
second petition to revoke Scales’s probation, alleging that he violated the terms
and conditions of his probation by testing positive for amphetamines and
methamphetamine and failing to report for a drug test on two separate
occasions. Id. at 137-39. On April 6, 2020, the trial court found that Scales had
“demonstrated repeatedly that he has no desire to be compliant” and
determined that the only reasonable solution was to revoke the balance of his
previously-suspended sentence to the Department of Correction. Tr. Vol. II at
16; Appellant’s App. Vol. 2 at 149. In making this ruling, the trial court
determined that the balance of Scales’s previously-suspended sentence was
2,800 days. Tr. Vol. II at 16; Appellant’s App. Vol. 2 at 149, 152-53. Scales now
appeals.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-909 | December 7, 2020 Page 4 of 7 Discussion and Decision [7] Scales argues that the trial court abused its discretion in sentencing him.
“‘Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.’” Cain v. State, 30 N.E.3d 728, 731 (Ind. Ct.
App. 2015) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)), trans.
denied. “It is within the discretion of the trial court to determine the conditions
of a defendant’s probation and to revoke probation if the conditions are
violated.” Id. If a violation is proven, the trial court must determine if the
violation warrants revocation of the probation. Sullivan v. State, 56 N.E.3d
1157, 1160 (Ind. Ct. App. 2016). If the trial court determines a probationer has
violated a term of probation, then the court may impose one or more of the
following sanctions: (1) continue the person on probation, with or without
modifying or enlarging the conditions; (2) extend the person’s probationary
period for not more than one year beyond the original probationary period; or
(3) order execution of all or part of the sentence that was suspended at the time
of initial sentencing. Ind. Code § 35-38-2-3(h). We review a trial court’s
sentencing decisions for probation violations under an abuse of discretion
standard. Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App. 2017). An abuse of
discretion occurs where the decision is clearly against the logic and effect of the
facts and circumstances. Id.
[8] Here, as the State concedes, remand is appropriate to allow the trial court to
correct and clarify its sanction given in its sentencing order. In both the trial
court’s oral statement and its written order, it is clear that the trial court
Court of Appeals of Indiana | Memorandum Decision 20A-CR-909 | December 7, 2020 Page 5 of 7 intended to revoke the balance of Scales’s sentence and to order him to serve
the balance in the Department of Correction. Tr. Vol. II at 16; Appellant’s App.
Vol. 2 at 149. Although the trial court was within its discretion to revoke the
balance of Scales’s sentence, the trial court mistakenly found the balance of
Scales’s previously suspended sentence to be 2,800 days. Tr. Vol. II at 16;
Appellant’s App. Vol. 2 at 149, 152-53. However, 2,800 days is longer than the
original probationary sentence that was imposed at the time of the original
sentencing. Appellant’s App. Vol. 2 at 65. The trial court’s sentence of 2,800
days also fails to account for the time Scales served for his previous violations
of in-home detention and probation.
[9] Where we find an irregularity in the trial court’s sentencing decision, we may
(1) remand to the trial court for a clarification or new sentencing determination,
(2) affirm the sentence if the error is harmless, or (3) reweigh the proper
aggravating and mitigating circumstances independently at the appellate level.
Ramos v. State, 869 N.E.2d 1262, 1264 (Ind. Ct. App. 2017) (citing Merlington v.
State, 814 N.E.2d 269, 273 (Ind. 2004)). Here, because the length of the
revocation is erroneous on its face, and it is evident that the trial court meant to
revoke the balance of Scales’s previously-suspended sentence, we elect to
remand to the trial court to allow the trial court to clarify and correct its
sanction for the probation violation. See Treece v. State, 10 N.E.3d 52, 60 (Ind.
Ct. App. 2014) (sua sponte remanding to the trial court to correct and clarify its
sentencing statement), trans. denied; Ramos, 869 N.E.2d at 1264 (remanding to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-909 | December 7, 2020 Page 6 of 7 the trial court with instructions for the trial court to issue a sentencing
statement).
[10] Remanded with instructions.
Bradford, C.J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-909 | December 7, 2020 Page 7 of 7