Louis H. Howard, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 29, 2017
• Docket: 90A02-1610-CR-2380
• 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 Mar 29 2017, 9:13 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 Joel C. Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General Brooklyn, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Louis H. Howard, Jr., March 29, 2017 Appellant-Defendant, Court of Appeals Case No. 90A02-1610-CR-2380 v. Appeal from the Wells Circuit Court State of Indiana, The Honorable Kenton W. Appellee-Plaintiff Kiracofe, Judge Trial Court Cause No. 90C01-1501-F6-12

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2380| March 29, 2017 Page 1 of 5 Case Summary [1] Louis H. Howard, Jr., appeals the revocation of his home detention, arguing

that the State did not give him sufficient notice that it was seeking to revoke his

direct placement on home detention. Finding that Howard received sufficient

notice, we affirm.

Facts and Procedural History [2] In July 2015, Howard pled guilty to Level 6 felony theft and Level 6 felony

counterfeiting. The following month, the trial court sentenced Howard to

consecutive terms of one-and-a-half years for theft and two-and-a-half years

(with two years suspended) for counterfeiting. As an alternative to

commitment to the Indiana Department of Correction, the trial court directly

placed Howard on home detention through Wells County Community

Corrections. Appellant’s App. Vol. II p. 53 (“In lieu of incarceration, the

Defendant may serve the executed portion of the sentence on home detention

through Wells County Community Corrections . . . .”); see Ind. Code § 35-38-

2.6-3(a) (“The court may, at the time of sentencing, suspend the sentence and

order a person to be placed in a community corrections program as an

alternative to commitment to the department of correction.”). The court also

ordered Howard to serve two years of probation following completion of home

detention. Appellant’s App. Vol. II p. 53; Ind. Code § 35-38-2.6-7 (“When a

person completes a placement program under this chapter, the court shall place

Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2380| March 29, 2017 Page 2 of 5 the person on probation.”). The trial court ordered Howard’s sentence in this

case to run consecutive to his sentence in another cause number.

[3] After completing his sentence in the other cause number, Howard started

serving his home detention in this case on September 17, 2015. Approximately

two months later, on November 16, 2015, the State filed a Verified Petition for

Revocation of Suspended Sentence and Probation, alleging that Howard

committed a criminal offense (domestic battery under Cause Number 90D01-

1511-CM-389). Approximately nine months after the first petition was filed, on

August 22, 2016, the State filed a Second Verified Petition for Revocation of

Suspended Sentence and Probation, alleging that Howard committed more

criminal offenses (domestic battery, intimidation, and battery against a public-

safety official under Cause Number 90D01-1608-F6-87). The second petition

was then amended on September 7 to allege that Howard committed yet

another criminal offense (battery resulting in bodily injury to a public-safety

officer under Cause Number 90C01-1609-F5-34).

[4] The trial court held a fact-finding hearing on both petitions—the November 16,

2015 first petition and the September 7, 2016 amended second petition. The

court found that the State did not meet its burden with respect to the first

petition but that it did meet its burden with respect to the amended second

petition. Appellant’s App. Vol. II p. 116. Accordingly, the court ordered

Howard to serve the balance of his sentence in the DOC. The court calculated

the balance as follows: 448 days of home detention remaining on Howard’s

theft sentence, 182 days of home detention on his counterfeiting sentence, and

Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2380| March 29, 2017 Page 3 of 5 730 days suspended on his counterfeiting sentence, with credit “for 54 actual

days spent in confinement awaiting disposition in this cause.” Id.

[5] Howard now appeals.

Discussion and Decision [6] Howard raises one issue on appeal. He concedes that the State gave him

sufficient notice that it was seeking to revoke his probation; however, he argues

that the State did not give him sufficient notice it was also seeking to revoke his

direct placement on home detention.

[7] In support of his argument, Howard cites Christie v. State, 939 N.E.2d 691 (Ind.

Ct. App. 2011). In that case, the trial court directly placed the defendant in a

community-corrections program to be followed by a term of probation. We

held that a petition styled “Verified Petition to Revoke Suspended Sentence”

was sufficient to put Christie on notice that the State was seeking to revoke both

his community-corrections placement and his probation. We relied on the fact

that Indiana Code sections 35-38-2.6-3 and -4 allow a trial court, at the time of

sentencing, to “suspend” a defendant’s sentence and directly place them in a

community-corrections program in lieu of commitment to the DOC.1 Id. at

1 Our Supreme Court has explained that “suspend” as used in these statutes—as opposed to a traditional “suspended” sentence subject to the terms of probation—means only that the requirement that the offender actually serve time incarcerated in the DOC is suspended during the community- corrections placement period. Purcell v. State, 721 N.E.2d 220, 223 (Ind. 1999), reh’g denied; see also Shaffer v. State, 755 N.E.2d 1193, 1195 (Ind. Ct. App. 2001) (Vaidik, J., concurring in result).

Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2380| March 29, 2017 Page 4 of 5 694. “Thus, revocation of Christie’s suspended sentence necessarily entailed

revocation of his community corrections placement, and the State’s explicit

notice of the former implied notice of the latter.” Id.

[8] Howard argues that unlike the defendant in Christie, he was not given sufficient

notice because the State’s petition “did not ask for revocation of the suspended

sentence in general.” Appellant’s Br. p. 8. We disagree. If anything, the

State’s petition in this case—which was titled Verified Petition for Revocation

of Suspended Sentence and Probation and which asked the court “to revoke the

probation and suspended sentence” of Howard, see Appellant’s App. Vol. II p.

104 (emphasis added)—made it clearer that the State was seeking to revoke not

only Howard’s probation but also his community-corrections placement.

Although the State’s petition could have been more carefully worded to

distinguish between the revocation of Howard’s community-corrections

placement and the revocation of his probation, see, e.g., McCauley v. State, 22

N.E.3d 743 (Ind. Ct. App. 2014) (petition styled “Petition to Revoke Direct

Placement in the Home Detention Program and/or to Revoke Probation”),

trans. denied, it was more than sufficient under Christie. Because Howard had

sufficient notice that the State was seeking to revoke his direct placement on

home detention, we affirm the trial court.

[9] Affirmed.

Bradford, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 90A02-1610-CR-2380| March 29, 2017 Page 5 of 5