Rudisel v. State

• Decision Date: 30 April 2015
• Docket Number: No. 84A01–1410–CR–425.,84A01–1410–CR–425.
• Parties: Casie S. RUDISEL, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

31 N.E.3d 984

Casie S. RUDISEL, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 84A01–1410–CR–425.

Court of Appeals of Indiana.

April 30, 2015.

Cara Schaefer Wieneke, Special Asst. to the State Public Defender, Wieneke Law Office, LLC, Plainfield, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Opinion

BROWN, Judge.

[1] Casie S. Rudisel appeals the trial court's order revoking her probation and placement and ordering that she serve the balance of her original sentence. Rudisel raises one issue which we revise and restate as whether the trial court abused its discretion in sentencing her following revocation of her probation. We reverse and remand.

Facts and Procedural History

[2] On February 9, 2012, Rudisel entered into a plea agreement with the State in which she agreed to plead guilty to operating a vehicle while intoxicated as a class D felony. Rudisel agreed to accept the sentencing recommendation of three years in the Department of Correction (“DOC”) with all of that time suspended except for 180 days served on home detention as a direct commitment. The plea agreement also provided that Rudisel be placed on formal probation for 915 days and that the sentence run consecutive to the sentence in cause number “FB 3678.” Appellant's Appendix at 26.

[3] That same day, the court accepted the plea agreement and sentenced Rudisel to three years suspended except for 180 days to be served as a direct commitment on home detention under the supervision of the Vigo County Community Corrections Program, with no actual days credit. The court ordered that Rudisel have until May 2, 2012, to be placed on home detention, that she be placed on formal probation for 915 days following release from home detention, that she complete the Vigo County Alcohol and Drug Program as a term of probation, and that the sentence be served consecutive to her sentence in cause number 84D03–0911–FB–3678.

[4] On April 30, 2012, and May 21, 2012, the court received letters from Rudisel,¹ and on June 1, 2012, the court held a hearing on her request to modify her sentence. That same day, the court entered an order requiring that Rudisel be placed on work release in lieu of the previously ordered home detention.

[5] On June 26, 2012, Rudisel notified the court of her inability to follow through with the modified sentence. That same day, the State filed a petition to revoke placement in the work release program and/or to revoke probation. The State alleged that Rudisel violated her direct placement by failing to enter the Vigo County Work Release Facility and begin her placement in the Work Release Program.

[6] On July 12, 2012, the court held a hearing on the State's petition and found that Rudisel violated the terms of her direct placement. The court ordered her to be evaluated for placement at Freebirds Solution Center “and if found appropriate she is to be placed in that program within two (2) weeks and pay all the program fees.” Id. at 38. The court also ordered her to complete her home detention at that program if the arrangements could be made and to comply with the terms of the Vigo County Alcohol and Drug Program.

[7] On August 22, 2012, the State filed a petition to revoke direct placement in home detention and/or to revoke probation and alleged that on July 26, 2012, Rudisel was found to be residing at Freebirds serving her home detention as ordered as a direct commitment, but that “[o]n August 20, 2012, the State was informed by Freebirds, [Rudisel] obsconded [sic] during ransom [sic] drug testing and has not returned to date.” Id. at 40. The court issued a bench warrant, and Rudisel was arrested on September 2, 2012.

[8] In September 2012, the court scheduled a bond reduction hearing for October 25, 2012. On October 25, 2012, Rudisel failed to appear, and the court issued a bench warrant. On December 6, 2012, the court entered an order stating that Rudisel appeared in person in custody of the Vigo County Sheriff's Department, and ordering that Rudisel be evaluated by the Vigo County Community Corrections Program for possible placement in the Work Release Program, and that she be remanded back into the custody of the Vigo County Sheriff's Department.

[9] On February 7, 2013, the court entered an order finding that Rudisel admitted the allegations in the State's petition to revoke direct placement on home detention. The court's order states: “The Court revokes the Defendant's sentence for 104 actual days served in the Vigo County Jail.” Id. at 59. The court ordered Rudisel “returned to formal probation and ... to comply with the Vigo County Alcohol and Drug Program and to submit to random drug screens.” Id.

[10] On February 7, 2014, the State filed a notice of probation violation alleging that Rudisel was not reporting as ordered, failed to respond to a letter dated December 4, 2013, and was non-compliant with the Vigo County Alcohol and Drug Program. The court scheduled a hearing for April 11, 2014, Rudisel failed to appear at the hearing, and the court issued a bench warrant. On August 31, 2014, the bench warrant was served.

[11] On September 4, 2014, the court held a hearing. At the end of the hearing, the court stated: “So you're sentenced to the remainder of the term at the Indiana Department of Correction with credit for every day that you've served up til [sic] now.” Transcript at 25. That same day,² the court entered an order finding that Rudisel violated the terms of her probation by not reporting to Adult Probation as ordered and that she was non-compliant with the Vigo County Alcohol and Drug Program. The court revoked Rudisel's probation and sentenced her to the DOC for “2 ½ years, the balance of her original sentence, with credit for 5 actual days served in the Vigo County Jail from August 31, 2014 to September 4, 2014.” Appellant's Appendix at 72. The abstract of judgment indicates under the heading “SENTENCE:”

Sentenced:3 Years

DOC Executed: 2 Years and 6 Months

Comm. Corr. 180 Days

Id. at 73. Under the headings “Dates of confinement prior to sentencing” and “Incarceration,” it lists five days under “ACTUAL DAYS” and five days under “EARNED CREDIT DAYS.” Id.

[12] In a letter received by the trial court on September 15, 2014, Rudisel asked for a count of the number of actual days served for which she received credit. She asserted that before she was sentenced on the probation violation she had credit for 104 actual days, that the chronological case summary indicates that she was sentenced to the DOC for the remainder of her time of two and one-half years with credit for five actual days, and that she was not receiving credit for the 104 days she served. On September 17, 2014, the court entered an order which stated: “The Court is advised [Rudisel] received credit for 104 actual days on a Probation Violation on February 7, 2013 and therefore cannot receive credit for those days again.” Id. at 81.

[13] On September 25, 2014, Rudisel filed a motion for jail time credit alleging that the correct amount of jail time credit was 109 days. On September 29, 2014, the court denied Rudisel's motion and stated that Rudisel “received credit for the 104 days, from September 2, 2012 through October 5, 2012 for 34 actual days and from November 30, 2012 through February 7, 2013 for 70 actual days on the Petition to Revoke Direct Placement that was filed on August 22, 2012.” Id. at 90. On October 6, 2014, Rudisel filed a notice of appeal of the September 4, 2014 order.

[14] In a pro se letter dated November 3, 2014, Rudisel asserted that the DOC was not awarding her credit for the 104 actual days that she served. On November 18, 2014, Rudisel filed a pro se petition for amended abstract and asserted that she was awarded 104 days jail time credit.

Discussion

[15] The issue is whether the trial court abused its discretion in sentencing Rudisel following revocation of her probation. Ind.Code § 35–38–2–3(h) sets forth a trial court's sentencing options if the trial court finds a probation violation and provides:

If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) 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 (1) year beyond the original probationary period.

(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.

[16] The Indiana Supreme Court has held that a trial court's sentencing decisions for probation violations are reviewable using the abuse of discretion standard. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id. (citation omitted).

[17] Rudisel argues that the trial court incorrectly calculated the jail time credit owed to her and points to the court's February 7, 2013 order which states that she had served 104 actual days in jail upon being returned to probation after her first probation violation. According to Rudisel, she “had served 14 more days towards her direct commitment sentence than she was required to serve.” Appellant's Brief at 5. Without citation to the record, she contends that “[a]t the second probation revocation hearing, the trial court apparently believed that [she] served the equivalent of 180 days prior to starting her term of probation. But she had actually served more than that.” Id. She also contends that “[b]y denying [her] credit for those additional days that she served above the 180 days (208 - 180 = 28 total days), [she] will be required to serve an overall sentence in excess of 3 years, the statutory maximum sentence allowed for a Class...