FILED Sep 15 2020, 9:06 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark K. Leeman Curtis T. Hill, Jr. Leeman Law Office Attorney General of Indiana Logansport, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James T. Knight, September 15, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-268 v. Appeal from the Carroll Circuit Court State of Indiana, The Honorable Benjamin A. Appellee-Plaintiff. Diener, Judge Trial Court Cause No. 08C01-1710-F5-21
Pyle, Judge.
Statement of the Case [1] James T. Knight (“Knight”)—who is a licensed Indiana attorney and who pled
guilty to Class A misdemeanor battery in exchange for the dismissal of two
felony criminal confinement charges, a felony domestic battery charge, and a
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 1 of 21 misdemeanor domestic battery charge—appeals the trial court’s order
amending the conditions of his probation pursuant to INDIANA CODE § 35-38-2-
1.8. Knight argues that the trial court abused its discretion and committed
fundamental error when it amended his probation conditions to include a
community service condition, requiring Knight to complete 600 hours of service
during his one-year probationary period and to report his hours to probation on
a monthly basis. Knight raises procedural challenges under INDIANA CODE §
35-38-2-1.8 to the trial court’s imposition of the community service condition
and a substantive challenge to the condition.
[2] We conclude that the trial court complied with the procedural requirements of
INDIANA CODE § 35-38-2-1.8 when it held a new probation hearing. We,
however, conclude that—under the specific facts of this case—the imposition of
the community service probation condition was beyond the trial court’s
discretion where that condition was not specified in Knight’s plea agreement
and where the plea agreement contained language that limited the trial court’s
discretion to impose that condition. Accordingly, we reverse the trial court’s
imposition of the community service probation condition.
[3] We reverse.
Issue Whether the trial court abused its discretion and committed fundamental error when it amended the conditions of Knight’s probation.
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 2 of 21 Facts [4] In October 2017, the State charged Knight with: Count 1, Level 5 felony
domestic battery; Counts 2 and 3, Level 5 felony criminal confinement; and
Count 4, Class A misdemeanor domestic battery.1 Count 1 was elevated to a
Level 5 felony based on Knight’s 2014 conviction for domestic battery against
his wife.2
[5] In April 2018, the State moved for the appointment of a special prosecutor
because Knight had previously spoken to the prosecutor about representing
Knight in this current case. The trial court granted the motion and appointed a
special prosecutor. Thereafter, in October 2019, the State, under the special
prosecutor, charged Knight with an additional count, Count 5, Class A
misdemeanor battery resulting in bodily injury.
[6] On December 12, 2019, Knight entered into a plea agreement, in which he
agreed to plead guilty to Count 5 in exchange for the State’s dismissal of the
remaining four counts. The plea agreement at issue in this appeal provided, in
relevant part, as follows:
[Knight] shall plead guilty to Count 5, Battery Resulting in Bodily Injury, a Class A Misdemeanor. [Knight] shall be
1 The charging informations indicate that allegations in Counts 1 and 2 were in reference to Knight’s actions against his wife, Cathy Knight, and that the allegations in Counts 3 and 4 were in reference to Knight’s actions against Gene Knight. 2 We take judicial notice, pursuant to Indiana Evidence Rule 201, that our Indiana Supreme Court issued a public reprimand against Knight based upon his 2014 domestic battery conviction. See In re Knight, 42 N.E.3d (Mem.) (Ind. June 5, 2015), Cause Number 09S00-1410-DI-648.
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 3 of 21 sentenced to the Carroll County Jail for a period of 365 days, all suspended. [Knight] shall be placed on formal probation for the balance of the suspended sentence. Terms and conditions of probation are to be at the Court’s discretion, but shall include restitution in the amount of $1405.00 for medical expenses incurred; completion of alcohol/substance abuse program. The other counts herein shall be dismissed. Any fees, costs, or fines shall be left to the discretion of the Court. Upon proof of payment of restitution, costs and fees and submission of proof of alcohol/substance abuse counseling, [Knight’s] probation shall automatically change to informal, non-reporting probation.
(App. Vol. 2 at 63) (emphases added).
[7] During the combined guilty plea and sentencing hearing, which was conducted
by a senior judge, Knight pled guilty and admitted that he had knowingly and
intentionally touched his wife in a rude, insolent or angry manner when he
grabbed her and dragged her by her leg, resulting in her bodily injury. Knight
submitted a written, confidential sentencing memorandum and submitted proof
that he had completed a counseling program as required by the plea agreement.
The senior judge accepted Knight’s plea agreement and guilty plea, imposed
probation conditions that did not include community service, and sentenced the
then fifty-five-year-old Knight in accordance with the plea agreement.
[8] Shortly thereafter, at the end of December 2019, the regular presiding judge
notified the parties that the court—on its own motion and pursuant to INDIANA
CODE § 35-38-2-1.8—was setting a hearing “for the purpose of modifying the
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 4 of 21 conditions of [Knight’s] probation.” (App. Vol. 2 at 77).3 During the January
20, 2020 hearing (“the new probation hearing”), the trial court again informed
Knight that it was amending the conditions of Knight’s probation pursuant to
INDIANA CODE § 35-38-2-1.8. The trial court specifically pointed out that it
was authorized, under subsection (d) of this statute, to hold a new probation
hearing even if Knight had not violated the conditions of probation or the State
had not filed a petition to revoke his probation. The trial court stated that it had
“generated an Amended Order on Probation” and then informed Knight that it
was adding the following two conditions to Knight’s probation: (1) Condition
11, which provided that Knight was required to perform 600 hours of
community service during his probationary period and to report his hours to
probation on a monthly basis (“Community Service Condition”);4 and (2)
Condition 14, which directed Knight that he was prohibited from possessing a
firearm without permission (“Firearm Condition”).5 The trial court also
3 We note that it is likely that given the seriousness of the initial charges, the presiding judge was not happy to learn of the plea agreement that had been negotiated by the parties and accepted by the senior judge. 4 Condition 11, the Community Service Condition, provided:
You shall perform volunteer labor for local governmental or charitable organizations. You shall perform six hundred (600) hours of volunteer labor during your term of probation; no less than fifty (50) hours of labor each month during the term of your probation; all volunteer labor shall be subject to the further conditions, limitations, and agreements contained in the Community Work Service Agreement, which you shall complete with your Probation Officer; You shall submit proof of volunteer labor monthly, by the 7th day of the following month; beginning February 1, 2020, any month with fewer than fifty (50) hours of volunteer labor performed shall constitute a violation of probation[.] (App. Vol. 2 at 81; Tr. Vol. 2 at 17). 5 Condition 14, the Firearm Condition, provided: “You shall not carry, transport, or have in your possession any type of firearm, destructive device, or dangerous weapon without written permission from your Probation Officer or the Court[.]” (App. Vol. 2 at 82; Tr. Vol. 2 at 17).
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 5 of 21 advised Knight that if he violated either of these additional conditions during
his probationary period, then a probation revocation petition could be filed
before the earlier of: (1) one year after the termination of his probation; or (2)
forty-five days after the State receives notice of the violation.
[9] The trial court then gave Knight and his counsel an opportunity to review the
amended probation terms. Thereafter, Knight challenged the inclusion of the
Community Service Condition, but he did not contest the addition of the
Firearm Condition. Knight argued that, pursuant to Jackson v. State, 968
N.E.2d 328 (Ind. Ct. App. 2012), the trial court did not have authority to add
the Community Service Condition because the condition was “punitive of
nature” and not contained in the plea agreement. (Tr. Vol. 2 at 18). The trial
court took a brief recess to read the Jackson case. Thereafter, the trial court went
back on the record and stated that the Jackson case was distinguishable from the
facts of Knight’s case because Knight’s plea agreement had expressly provided
that the terms and conditions of Knight’s probation were left to the trial court’s
discretion.
[10] The trial court then noted that, as part of Knight’s plea agreement, Knight had
given up the right to appeal his sentence but had not waived his right to appeal
the terms of his probation. The trial court then informed Knight that he,
therefore, had the right to appeal the trial court’s modification of his probation
conditions. Knight indicated that he was going to appeal and asked the trial
court to “toll” the Community Service Condition until the appellate process
had been completed. (Tr. Vol. 2 at 22). The trial court denied Knight’s request.
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 6 of 21 The trial court stated that it was “[the court’s] understanding [that] the fees
have already been paid and so [Knight’s] probation, by the agreement, [wa]s
already non-reporting, and so, as such, Mr. Knight, . . . should have ample time
to volunteer at local organizations, better the community in furtherance of the
terms of probation.” (Tr. Vol. 2 at 22).
[11] Thereafter, following the new probation hearing, the trial court entered an order
amending Knight’s conditions of probation (“Amended Probation Order”).
The trial court’s Amended Probation Order specified that the order was
“AMENDED AFTER NOTICE AND HEARING HELD JANUARY 20,
2020.” (App. Vol. 2 at 83) (emphasis in original). Knight now appeals.
[12] Shortly after Knight commenced this appeal, he filed with the trial court a
motion to stay the Community Service Condition, arguing that the imposition
of the 600 hours of community service was an “onerous burden on Knight who
must bill hours of work as a lawyer and maintain his legal practice and pay his
staff.” (App. Vol. 2 at 100). Thereafter, the trial court held a hearing and then,
in June 2020, issued an order granting the stay.
Decision [13] Knight argues that the trial court abused its discretion and committed
fundamental error when it amended his probation conditions to include the
Community Service Condition. Specifically, Knight contends that: (1) the trial
court abused its discretion because it sua sponte amended his probation
conditions before holding a hearing; (2) the trial court abused its discretion by
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 7 of 21 ordering an amount of community service that was coercive and unrelated to
his rehabilitation; (3) the trial court abused its discretion by imposing new
probation conditions when there was no probation violation, no change in the
law, and no change in his circumstances; and (4) the trial court committed
fundamental error by denying him a right to allocution during the hearing.
Three of Knight’s four arguments relate to the procedural aspect of the new
probation hearing, while the remaining argument is an attack on the substance
of the Community Correction Condition. Accordingly, we will review his
arguments according to these procedural and substantive aspects.
[14] “Probation is a criminal sanction wherein a convicted defendant specifically
agrees to accept conditions upon his behavior in lieu of imprisonment.”
Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013) (internal quotation
marks and citation omitted). INDIANA CODE § 35-38-2-2.3 contains a host of
requirements that a trial court may impose on a defendant as a condition of
probation. Relevant to this appeal, this statute permits a trial court to impose
community service as a condition of probation. I.C. § 35-38-2-2.3(a)(14)
(providing that, as a condition of probation, a trial court may require a
defendant to “[p]erform uncompensated work that benefits the community”). 6
“Trial courts have broad discretion in determining the appropriate conditions of
a defendant’s probation.” Howe v. State, 25 N.E.3d 210, 213 (Ind. Ct. App.
6 Another condition of probation that a trial court may impose is for the defendant to “[r]efrain from possessing a firearm or other deadly weapon unless granted written permission by the court or the [defendant’s] probation officer.” I.C. § 35-38-2-2.3(a)(9).
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 8 of 21 2015). “This discretion is limited only by the principle that the conditions
imposed must be reasonably related to the treatment of the defendant and the
protection of public safety.” Id. “This [C]ourt will not set aside the terms of a
probation order unless the trial court has abused its discretion.” Collins v. State,
911 N.E.2d 700, 707 (Ind. Ct. App. 2009), trans. denied.
[15] At the heart of this appeal is INDIANA CODE § 35-38-2-1.8, which was enacted
in 2005 and provides, in relevant part, as follows:
(b) The court may hold a new probation hearing at any time during a probationer’s probationary period:
(1) upon motion of the probation department or upon the court’s motion; and
(2) after giving notice to the probationer.
(c) At a probation hearing described in subsection (b), the court may modify the probationer’s conditions of probation. If the court modifies the probationer’s conditions of probation, the court shall:
(1) specify in the record the conditions of probation; and
(2) advise the probationer that if the probationer violates a condition of probation during the probationary period, a petition to revoke probation may be filed before the earlier of the following:
(A) One (1) year after the termination of probation.
(B) Forty-five (45) days after the state receives notice of the violation.
(d) The court may hold a new probation hearing under this section even if: Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 9 of 21 (1) the probationer has not violated the conditions of probation; or
(2) the probation department has not filed a petition to revoke probation.
(Emphases added).
[16] Knight challenges procedural aspects of the trial court’s new probation hearing
and modification of his probation conditions pursuant to INDIANA CODE § 35-
38-2-1.8. We note that during the new probation hearing, Knight challenged
the trial court’s authority to add only the Community Service Condition, and
he specifically stated that he did not contest the addition of the Firearm
Condition. On appeal, he does not raise a specific argument against the
Firearm Condition.
[17] Knight contends that the modification of his probation conditions to include the
Community Service Condition was procedurally deficient under INDIANA
CODE § 35-38-2-1.8 because the trial court: (1) sua sponte amended his
probation conditions before holding a hearing; (2) imposed new probation
conditions when there was no probation violation, no change in the law, and no
change in his circumstances; and (3) denied him a right to allocution during the
new probation hearing.
[18] We first turn to Knight’s argument that the trial court’s modification of his
probation conditions was procedurally improper because the trial court sua
sponte amended his probation conditions before holding a hearing. The crux of
Knight’s argument is focused on subsection (c) of INDIANA CODE § 35-38-2-1.8,
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 10 of 21 which provides, in relevant part, that “[a]t a probation hearing . . ., the court
may modify the probationer’s conditions of probation.” I.C. § 35-38-2-1.8(c).
Knight does not dispute that the trial court held a hearing. Instead, Knight
argues that the trial court essentially imposed the new probation conditions prior
to the hearing and not at the hearing because the trial court came into the
hearing with the Amended Probation Order “already drafted.” (Knight’s Br.
11). He contends that the trial court’s act of bring a copy of its Amended
Probation Order into the hearing equated to the trial court “issu[ing] an order
modifying probation before holding a hearing.” (Knight’s Br. 11).
[19] Contrary to Knight’s argument, the record on appeal reveals that the trial court
amended the probation conditions and issued its Amended Probation Order
after holding the new probation hearing. During the hearing, the trial court
informed Knight that it had “generated an Amended Order on Probation[.]”
(Tr. Vol. 2 at 16). Thereafter, the trial court complied with the requirements of
INDIANA CODE § 35-38-2-1.8(c)(1) and (c)(2) when it: (1) advised Knight of the
two new probation conditions by reciting aloud the entirety of the Community
Service Condition and the Firearm Condition; and (2) advised Knight that if he
violated either of these additional conditions during his probationary period,
then a probation revocation petition could be filed before the earlier of one year
after the termination of his probation or forty-five days after the State receives
notice of the violation. The trial court then presented a copy of its Amended
Probation Order to Knight so that he and his counsel could review the amended
probation terms. After the trial court considered and rejected Knight’s
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 11 of 21 argument against the Community Service Condition, the trial court stated that
it was “going to impose the two new conditions as stated on the record” and
“enter an Amended Order on Probation [with] today’s date[.]” (Tr. Vol. 2 at
21) (emphasis added). Subsequently, the trial court entered and issued its
Amended Probation Order, which specified that it was “AMENDED AFTER
NOTICE AND HEARING HELD JANUARY 20, 2020.” (App. Vol. 2 at 83)
(emphasis in original). Thus, the trial court complied with the requirements of
INDIANA CODE § 35-38-2-1.8(c) for modifying Knight’s probation conditions.
[20] Next, we address Knight’s contention that the trial court improperly imposed
the new probation condition when there was no probation violation, no change
in the law, and no change in his circumstances. In support of his argument,
Knight cites to Ferrill v. State, 904 N.E.2d 323 (Ind. Ct. App. 2009) and Jones v.
State, 789 N.E.2d 1008 (Ind. Ct. App. 2003), reh’g denied, trans. denied.
[21] The plain language of INDIANA CODE § 35-38-2-1.8 shows that Knight’s
argument is without merit. Specifically, subsection (a) provides that a trial
court “may hold a new probation hearing at any time during a probationer’s
probationary period[,]” while subsection (d) provides that a trial “court may
hold a new probation hearing under this section even if: (1) the probationer has
not violated the conditions of probation; or (2) the probation department has
not filed a petition to revoke probation.” I.C. § 35-38-2-1.8(a),(d) (format
altered). Moreover, this Court has interpreted INDIANA CODE § 35-38-2-1.8
and held that, under this statute, “probation can be altered at any time, even in
the absence of a probation violation.” Collins, 911 N.E.2d at 708.
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 12 of 21 [22] Additionally, Knight’s reliance on Jones and Ferrill is misplaced. The Collins
Court explained that Jones, which was decided prior to the enactment of
INDIANA CODE § 35-38-2-1.8, has been superseded by the enactment of
INDIANA CODE § 35-38-2-1.8, which “clearly gives a trial court authority to
revise the terms of probation regardless of whether a probation violation has
occurred[.]” Id. The Collins Court also questioned the applicability of Ferrill,
which had been decided after the enactment of INDIANA CODE § 35-38-2-1.8
but had failed to mention or address the applicability of that statute and had
instead applied the superseded Jones case. Id. at 708, n.2. Based on those
factors, the Collins Court “decline[d] to follow Ferrill.” Id. Although not
discussed by Collins, we note that Ferrill is distinguishable, and thus inapplicable
to this case, because its holding was based on an application and interpretation
of INDIANA CODE § 35-38-2-1(b),7 which is not at issue in this appeal. Thus, we
too decline to follow Ferrill.
7 INDIANA CODE § 35-38-2-1(b) provides:
In addition, if the person was convicted of a felony and is placed on probation, the court shall order the person to pay to the probation department the user’s fee prescribed under subsection (d). If the person was convicted of a misdemeanor, the court may order the person to pay the user’s fee prescribed under subsection (e). The court may:
(1) modify the conditions (except a fee payment may only be modified as provided in section 1.7(b) of this chapter); or
(2) terminate the probation;
at any time. If the person commits an additional crime, the court may revoke the probation.
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 13 of 21 [23] We now briefly turn to Knight’s last procedural challenge to the trial court’s
new probation hearing. Knight contends that the trial court denied his right to
allocution under INDIANA CODE § 35-38-1-5.8
[24] In relevant part, INDIANA CODE § 35-38-1-5 provides that when a defendant
appears for sentencing following a “verdict of the jury” or a “finding of the
court[,]” the trial court “shall ask the defendant whether the defendant wishes
to make . . . a statement” on his “own behalf[.]” I.C. § 35-38-1-5. Our Indiana
Supreme Court has explained that where a trial court is not pronouncing a
sentence—such as in a probation revocation hearing or a sentencing hearing
following a guilty plea—the trial court is not required ask the defendant
whether he wishes to make a statement. See Biddinger v. State, 868 N.E.2d 407,
412 (Ind. 2007) (citing Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004)). If,
however, a defendant specifically requests to make a statement in either of these
two hearings, then the trial court should grant that request. Biddinger, 868
N.E.2d at 412 (citing Vicory, 802 N.E.2d at 429).
[25] Knight contends that, pursuant to INDIANA CODE § 35-38-1-5, the trial court
should have specifically asked him whether he wished to make a statement
8 INDIANA CODE § 35-38-1-5 provides:
When the defendant appears for sentencing, the court shall inform the defendant of the verdict of the jury or the finding of the court. The court shall afford counsel for the defendant an opportunity to speak on behalf of the defendant. The defendant may also make a statement personally in the defendant’s own behalf and, before pronouncing sentence, the court shall ask the defendant whether the defendant wishes to make such a statement. Sentence shall then be pronounced, unless a sufficient cause is alleged or appears to the court for delay in sentencing.
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 14 of 21 during the new probation hearing that it held under INDIANA CODE § 35-38-2-
1.8. He argues that “the right of allocution should be extended to hearings that
modify the terms of a sentencing order, including hearings to modify the
probation terms that were imposed as part of the original sentencing order.”
(Knight’s Br. 20). The State, on the other hand, contends that the hearing
modifying Knight’s probation conditions was akin to a probation revocation
hearing, which does not require the trial court to specifically ask a defendant if
he wished to make a statement.
[26] We will not at this time, however, make a definitive determination on the
parties’ arguments because Knight has waived his allocution challenge by
failing to object to the trial court’s alleged error. See Robles v. State, 705 N.E.2d
183, 187 (Ind. Ct. App. 1998). “[A] party may not sit idly by, permit the court
to act in a claimed erroneous manner, and then attempt to take advantage of
the alleged error at a later time.” Id. Because Knight failed to object during the
new probation hearing, he has waived appellate review of his allocution
argument. See, e.g., id. (holding that the defendant who “did not object to the
trial court’s failure to grant him or his counsel the opportunity to speak before
pronouncement of the sentence . . . [had] waived the alleged error and [wa]s
precluded from raising it for the first time on appeal”). See also Angleton v. State,
714 N.E.2d 156, 159 (Ind. 1999) (holding that the defendant, who had been a
practicing Indiana attorney, had waived his appellate allocution argument
where he had failed to object to the trial court’s alleged error during his
resentencing hearing), reh’g denied, cert. denied; Abd v. State, 120 N.E.3d 1126,
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 15 of 21 1137 (Ind. Ct. App. 2019) (concluding that the defendant had waived his
allocution argument on appeal), trans. denied. Accordingly, we conclude that
the trial court complied with the procedural requirements of INDIANA CODE §
35-38-2-1.8 when it held the new probation hearing.9
[27] We next review Knight’s substantive challenge to the Community Service
Condition. Knight challenges both the imposition of community service as a
condition of probation and the amount of service hours imposed. Specifically,
he argues that the imposition of “600 hours of labor is coercive and punitive
and not designed to serve the goal of rehabilitation.” (Knight’s Br. 13).
[28] “‘As a general proposition trial courts have broad discretion in setting
conditions of probation, subject to appellate review only for an abuse of
discretion.’” Berry v. State, 10 N.E.3d 1243, 1246 (Ind. 2014) (quoting Freije v.
State, 709 N.E.2d 323, 324 (Ind. 1999). “But ‘[i]f the court accepts a plea
agreement, it shall be bound by its terms,’ thus limiting the court’s otherwise-
broad discretion in ordering conditions of probation.” Berry, 10 N.E.3d at 1246
(quoting Freije, 709 N.E.2d at 324 (quoting I.C. § 35-35-3-3(e))) (substitution
original to Freije).
9 In Knight’s Reply Brief, he asserts that, under Indiana Trial Rule 63(A), any hearing to modify his probation conditions should have been conducted by the senior judge who conducted the original hearing. We decline to address this argument because Knight has waived it. See Jones v. State, 22 N.E.3d 877, 881 n.4 (Ind. Ct. App. 2014) (explaining that a party may not raise an issue for the first time in a reply brief and that an attempt to do so results in waiver of the issue).
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 16 of 21 [29] In Freije, the supreme court discussed a trial court’s authority to impose
probation conditions in cases involving a plea agreement. The Freije Court held
that probation conditions that impose a “substantial obligation of a punitive
nature” may be imposed only where either: (1) the condition was specified in
the defendant’s plea agreement; or (2) the plea agreement specifically provides
that the trial court has discretion to establish the conditions of probation. Freije,
709 N.E.2d at 324-25 (citing Disney v. State, 441 N.E.2d 489 (Ind. Ct. App.
1982) and discussing Antcliff v. State, 688 N.E.2d 166 (Ind. Ct. App. 1997)).
Additionally, the Freije Court explained that community service was one of
those such conditions that “add to the punitive obligation[.]” Freije, 709 N.E.2d
at 325.10 As such, a trial court—when imposing community service as a
condition of probation in a case involving a plea agreement—may impose such
a condition either where the condition was specified in the defendant’s plea
agreement or where the plea agreement grants the trial court general discretion
to establish probation conditions. See id. at 324-26.11
[30] Our appellate review of Knight’s challenge to the trial court’s imposition of the
Community Service Condition requires this Court to review and apply the plea
agreement entered between Knight and the State. “In construing the plea
10 The Freije Court also held that home detention was also a probation condition that added to the punitive obligation. Freije, 709 N.E.2d at 325. 11 Our supreme court advised that when parties enter into a plea agreement it would be “[b]etter still . . . to specify the court’s discretion to set ‘punitive terms of probation,’ to place the issue beyond all doubt. An ounce of drafting is worth a pound of appeal.” Berry, 10 N.E.3d at 1248 (emphasis in original).
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 17 of 21 agreement, we are guided (though not strictly bound) by contract interpretation
principles, and therefore begin with its plain language and read its provisions as
a harmonious whole if possible.” Berry, 10 N.E.3d at 1247 (internal citation
omitted). When discussing the importance of strict adherence to plea
agreements, our Indiana Supreme Court has explained that
[t]he concept of plea bargaining contemplates an explicit agreement between the State and defendant which is binding upon both parties when accepted by the trial court. To allow the trial court to either increase or suspend the executed sentence, would deny the parties the essential purpose of their agreement. It is to the interest of both the defendant and the public to facilitate expeditious disposition of criminal cases. Strict adherence to the agreement is essential to this purpose.
Freije, 709 N.E.2d at 324-25 (quoting State ex rel. Goldsmith v. Marion Cnty.
Superior Ct., 275 Ind. 545, 419 N.E.2d 109, 114 (1981)).
[31] Knight’s plea agreement—which was accepted by the trial court—contains
language giving the trial court broad discretion to impose conditions of
probation. However, the plea agreement contains additional language that
limits the trial court’s discretion upon a completion of a condition precedent.
Specifically, the broad language in Knight’s plea agreement provided: “Terms
and conditions of probation are to be at the Court’s discretion, but shall include
restitution in the amount of $1405.00 for medical expenses incurred;
completion of alcohol/substance abuse program.” (App. Vol. 2 at 63)
(emphasis added). However, the plea agreement also contains the following
language: “Upon proof of payment of restitution, costs and fees and
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 18 of 21 submission of proof of alcohol/substance abuse counseling, [Knight’s]
probation shall automatically change to informal, non-reporting probation.”
(App. Vol. 2 at 63). Thus, while the initial language in Knight’s plea agreement
confers broad discretion to the trial court to impose probation conditions such
as community service, the later language—providing that Knight’s probation
would revert to nonreporting probation—ultimately imposes a limitation on the
trial court’s discretion to order a probation condition that would require Knight
to report to probation.
[32] Here, the trial court modified Knight’s probation conditions to include the
Community Service Condition, which required Knight to perform 600 hours of
community service, with a minimum of fifty hours per month, during the
remaining portion of his one-year probationary term and to submit proof of his
service to the probation department on a monthly basis. However, at the time
the trial court imposed this Community Service Condition, Knight had already
completed his substance abuse counseling and had paid restitution, costs, and
fees. Thus, per the terms of Knight’s plea agreement, his probation was
nonreporting. Because the specific language of Knight’s plea agreement
controls the general language, the trial court did not have authority under
Knight’s plea agreement to impose the Community Service Condition. See
Tubbs v. State, 888 N.E.2d 814, 817 (Ind. Ct. App. 2008) (specific provision
authorizing one condition of probation limited a more-general provision
granting sentencing discretion). Accordingly, the trial court abused its
discretion by modifying Knight’s probation to include the Community Service
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 19 of 21 Condition. See, e.g., Berry, 10 N.E.3d at 1249 (reversing the trial court’s
imposition of restrictive placement for probation, which was a punitive
probation condition, where the plea agreement contained a general provision
regarding the trial court’s discretion and a “specific provision that implie[d] the
absence of discretion over the placement of Defendant’s probation”); Freije, 709
N.E.2d at 325-26 (reversing the trial court’s imposition of 650 hours of
community service as a condition of probation “in the absence of a plea
agreement provision giving the trial court discretion to impose [that] condition[]
of probation”); Jackson v. State, 968 N.E.2d 328, 332 (Ind. Ct. App. 2012)
(following Freije and holding that the trial court was without authority to order
the defendant to perform community service when the plea agreement did not
provide for the imposition of that condition); Tubbs, 888 N.E.2d at 817 (holding
that the language of the plea agreement did not authorize the trial court to
impose the challenged probation condition).12
[33] In summary, we conclude that the trial court complied with the procedural
requirements of INDIANA CODE § 35-38-2-1.8 when it held a new probation
hearing. We, however, conclude that the imposition of the Community Service
Condition was beyond the trial court’s discretion where the plea agreement
contained language that limited the trial court’s discretion to impose that
12 While Knight’s argument tends to focus more on whether the Community Service Condition was reasonably related to his rehabilitation, we need not address that argument given our determination that the condition was not authorized under the specific language of the plea agreement.
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 20 of 21 condition. Accordingly, we reverse the trial court’s imposition of the
Community Service Condition.13
[34] Reversed.
Bradford, C.J., and Baker, Sr.J., concur.
13 We note that we need not remand to the trial court because this case involves the trial court’s improper imposition of a probation condition pursuant to INDIANA CODE § 35-38-2-1.8, and not from the imposition of a probation condition at an original sentencing hearing following the court’s acceptance of the defendant’s plea agreement. Cf. Freije, 709 N.E.2d at 326; Berry, 10 N.E.3d at 1249; Tubbs, 888 N.E.2d 817.
Court of Appeals of Indiana | Opinion 20A-CR-268 | September 15, 2020 Page 21 of 21