Keith Phillips v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 27, 2018
• Docket: 18A-CR-210
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 27 2018, 9:24 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Curtis T. Hill, Jr. Kokomo, Indiana Attorney General

Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Keith Phillips, July 27, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-210 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Appellee-Plaintiff Menges, Jr., Judge Trial Court Cause No. 34D01-1503-F2-298

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-210 | July 27, 2018 Page 1 of 5 Case Summary [1] Keith Phillips appeals the trial court’s order revoking his previously suspended

sentence for violation of the terms and conditions of his re-entry program. He

claims that the trial court abused its discretion in failing to award him credit

time for the time he spent incarcerated during his participation in the program.

Finding no abuse of discretion, we affirm.

Facts and Procedural History [2] In March 2015, the State charged Phillips with level 2 felony dealing in cocaine,

level 3 felony dealing in cocaine, level 6 felony maintaining a common

nuisance, and class B misdemeanor possession of marijuana. On September 30,

2015, the State and Phillips entered into a plea agreement pursuant to which

Phillips pled guilty to level 3 felony possession of cocaine in exchange for the

dismissal of the other charges. The parties also agreed that Phillips would be

sentenced to fifteen years executed with ten years suspended to probation. The

agreement provided that a modification of sentence by the trial court would be

considered if Phillips completed a therapeutic community program while

incarcerated. The trial court accepted the agreement and sentenced Phillips

accordingly.

[3] A little less than one year later, on September 22, 2016, Phillips requested a

modification of sentence after he completed the Westville Therapeutic

Community substance abuse treatment program. On November 2, 2016, the

trial court modified Phillips’s sentence by suspending the balance of his

Court of Appeals of Indiana | Memorandum Decision 18A-CR-210 | July 27, 2018 Page 2 of 5 executed sentence to probation and approving his participation in the

Department of Correction Community Transition Program. “As a specific

condition of the Community Transition Program and Probation, [Phillips]

[was] ordered to successfully complete, and make satisfactory arrangements to

pay for the Howard County Re-Entry Program.” Appellant’s App. Vol. 2 at 68.

Phillips signed a program participation agreement in which he agreed to waive

his right to earned credit time for any time spent in jail or otherwise confined

during his participation in the re-entry program.

[4] On March 9, 2017, the trial court found Phillips in indirect contempt of court

for violating the terms of the re-entry program and issued an arrest warrant.

Phillips was taken into custody on March 10, 2017. Apparently, he was

subsequently released and he absconded to Nevada. On April 17, 2017, the

trial court found that Phillips again violated the terms of the re-entry program

for failure to appear and issued another warrant. Phillips was subsequently

arrested in Nevada and brought back to Indiana. A notice of termination from

the re-entry program was filed on November 22, 2017. The trial court held a

hearing and terminated Phillips’s participation in the re-entry program on

December 20, 2017.1 That same day, the State filed a petition to revoke

Phillips’s probation and, following a hearing on January 19, 2018, the trial

1 Phillips claims in his brief that he was continually incarcerated for his re-entry program violations from March 10, 2017, through December 20, 2017, when he was terminated from the program. The record does not support this assertion. During the probation revocation hearing, Phillips testified that he was incarcerated from March 10 until sometime in April 2017, when he left Indiana. He stated that he was later arrested in Nevada and brought back to Indiana “in about June” of 2017. Tr. Vol. 2 at 20.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-210 | July 27, 2018 Page 3 of 5 court entered its order revoking Phillips’s previously suspended sentence. The

court awarded him credit for thirty actual days served plus ten days of good

time credit. This appeal ensued.

Discussion and Decision [5] “‘Probation is a matter of grace left to trial court discretion, not a right to which

a criminal defendant is entitled.’” Heaton v. State, 984 N.E.2d 614, 616 (Ind.

2013) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). It is within the

trial court’s discretion to determine probation conditions and to revoke

probation if the conditions are violated. Id. “In appeals from trial court

probation violation determinations and sanctions, we review for abuse of

discretion.” Id. An abuse of discretion occurs where the trial court’s decision is

clearly against the logic and effect of the facts and circumstances, or when the

trial court misinterprets the law. Id.

[6] Phillips argues that, in revoking his probation and imposing his previously

suspended sentence, the trial court abused its discretion in failing to award him

credit for the time he spent incarcerated as a sanction for his violations of the re-

entry program. Credit time is a matter of statutory right, and for that reason

trial courts generally do not have discretion in awarding or denying such credit.

Meadows v. State, 2 N.E.3d 788, 791 (Ind. Ct. App. 2014). However, Phillips

fails to acknowledge the provision of the re-entry program participation

agreement in which he voluntarily and intentionally waived his right to earn

credit time for any sanction under the re-entry program. This Court has

Court of Appeals of Indiana | Memorandum Decision 18A-CR-210 | July 27, 2018 Page 4 of 5 determined that a defendant may waive the right to credit time as part of a

written participation agreement. House v. State, 901 N.E.2d 598, 600 (Ind. Ct.

App. 2009). Paragraph nine of the participation agreement for the re-entry

program specifically states, “Participant agrees to waive his right to earn credit

time for any time spent in jail or otherwise confined to which he would

otherwise be entitle[d] pursuant to Indiana law during participation in the

Reentry Program.” Appellant’s App. Vol. 2 at 70. Thus, Phillips was not

eligible to earn credit for time served while he was participating in the re-entry

program; he was eligible to begin earning credit for time served only once his

participation in the program was terminated on December 20, 2017. He was,

therefore, only entitled to credit time from December 20, 2017, the date he was

no longer participating in the re-entry program, until January 19, 2017, the date

his probation was revoked. When the trial court revoked his suspended

sentence, it gave Phillips credit for thirty actual days served while awaiting the

disposition of the case plus ten days of good time credit. The trial court did not

abuse its discretion.

[7] Affirmed.

Najam, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-210 | July 27, 2018 Page 5 of 5