Anthony E. Hyser, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Anthony Hyser pleaded guilty to possession of a legend drug, a Level 6 felony, and operating a vehicle while intoxicated (“OVWI”), a Class A misdemeanor. Hyser also admitted to being a habitual vehicular substance offender (“HVSO”). The trial court sentenced Hyser to 1,440 days with 1,430 days thereof suspended to probation. The State later filed a petition to revoke Hyser's probation, and Hyser admitted to violating the terms of his probation. The trial court then ordered Hyser to execute the balance of his previously suspended sentence, 1,430 days, in the Department of Correction (“DOC”). The trial court credited Hyser with forty-five days for time served and forty-five days of good-time credit. Hyser appeals and argues that: (1) the trial court abused its discretion by ordering Hyser to serve all of his previously suspended sentence; and (2) the trial court erred in calculating Hyser's credit time. Finding no error, we affirm.

Issues

[2] Hyser presents two issues, which we restate as:

I. Whether the trial court abused its discretion by ordering Hyser to serve the balance of his previously suspended sentence.

II. Whether the trial court erred in calculating Hyser's credit time.

Facts

[3] On December 18, 2021, Hyser drove while intoxicated and possessed Xanax pills for which he no longer had a prescription. Accordingly, on January 7, 2022, the State charged Hyser with Count I: OVWI with a prior conviction for OVWI within the preceding seven years, a Class A misdemeanor; and Count II: possession of a legend drug, a Level 6 felony. The State also alleged that Hyser was an HVSO.

[4] On July 10, 2023, Hyser entered into a plea agreement with the State in which he pleaded guilty as charged. Pursuant to the terms of the plea agreement, the trial court sentenced Hyser on Count I to 360 days, which the court enhanced by 1,080 days as a result of the HVSO finding, for a total of 1,440 days. The trial court ordered Hyser to serve ten days of this sentence in jail and suspended the remaining 1,430 days to probation. On Count II, the trial court sentenced Hyser to a concurrent term of 360 days, with six days served in jail and the remaining 354 days suspended to probation.

[5] Within one month of being sentenced in this case, Hyser was charged in Fayette County with four new criminal offenses in two causes. In Cause No. 21D01-2308-CM-595 (“Cause No. CM-595”), the State charged Hyser with criminal mischief and public intoxication, Class B misdemeanors; and in Cause No. 21D01-2308-CM-616 (“Cause No. CM-616”), the State charged Hyser with criminal trespass and invasion of privacy, Class A misdemeanors.¹

[6] On August 30, 2023, the State filed a petition to revoke Hyser's probation in this case based on his commission of the new offenses in Fayette County. Hyser was served with the arrest warrant in this case on September 17, 2024. Hyser was served with the arrest warrant while he was incarcerated in the Fayette County Jail, where he had been since August 19, 2023.

[7] On October 31, 2024, the trial court held a probation revocation hearing at which Hyser admitted to violating the terms of his probation. The State asked the trial court to impose the balance of Hyser's previously suspended sentences. The State also argued that Hyser's credit time should be calculated from the date Hyser was served with the arrest warrant in this case—September 17, 2024—to the date of the dispositional hearing—October 31, 2024, totaling forty-five days. Hyser requested that only 432 days of the previously suspended sentence be executed and that he should receive credit for the time from March 28, 2024, after which he claimed that he no longer received credit in his Fayette County cases. The trial court rejected Hyer's argument and ordered Hyser to serve 1,430 days in the DOC, with credit for forty-five days for time served plus forty-five days of good-time credit. Hyser now appeals.

Discussion and Decision

I. The trial court did not abuse its discretion by ordering Hyser to execute the balance of his previously suspended sentence.

[8] Hyser first argues that the trial court abused its discretion by ordering him to serve his entire previously suspended sentence. We disagree.

[9] When a probation violation is alleged, the trial court engages in two functions. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “First, the trial court must make a factual determination that a violation of a condition of probation actually occurred.” Id. “Second, if a violation is found, then the trial court must determine the appropriate sanctions for the violation.” Id. Indiana Code Section 35-38-2-3(h) governs such sanctions and provides:

If the court finds that the person has violated a condition at any time before termination of the [probationary] 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.

[10] “ ‘Proof of a single violation is sufficient to permit a trial court to revoke probation.’ ” Hammann v. State, 210 N.E.3d 823, 832 (Ind. Ct. App. 2023) (citing Killebrew v. State, 165 N.E.3d 578, 582 (Ind. Ct. App. 2021)), reh'g denied, trans. denied. “While it is correct that probation may be revoked on evidence of violation of a single condition, the selection of an appropriate sanction will depend upon the severity of the defendant's probation violation, which will require a determination of whether the defendant committed a new criminal offense.” Heaton, 984 N.E.2d at 618. “The requirement that a probationer obey federal, state, and local laws is automatically a condition of probation by operation of law.” Luke v. State, 51 N.E.3d 401, 421 (Ind. Ct. App. 2016), trans. denied; Ind. Code § 35-38-2-1(b).

[11] On appeal, we review a trial court's sanction for probation violations only for an abuse of discretion. Heaton, 984 N.E.2d at 616. 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.

[12] Here, Hyser claims that the trial court should not have imposed the entire balance of his previously suspended sentence as a sanction for his probation violation. Hyser admits that he violated his probation only a month after being placed on probation. Hyser claims, however, that the trial court should have given more consideration to the fact that Hyser completed a sixteen-week intensive treatment program while in jail and later served as a mentor in that program. While incarcerated, Hyser also completed a twelve-step program on relapse prevention, regularly attended AA meetings, and signed up for the “MRT” program.² Tr. Vol. II p. 14.

[13] We note, however, that Hyser did not commit a minor probation violation. He was charged with four new criminal offenses in two causes only weeks after being placed on probation in this case and pleaded guilty to one of them—criminal mischief.³ Hyser admitted to using alcohol while on probation in this case, which is a serious violation of probation in an OVWI case. Hyser also admitted that he had a prior conviction for battery by bodily waste, a Level 6 felony, in Fayette County and a prior conviction in Franklin County for “criminal trespassing and entering a vehicle.”⁴ Id. at 21. Indeed, Hyser admitted that he had “been in and out [of] trouble a long time” and had a “significant” criminal history. Id. at 18-19.

[14] We commend Hyser for his efforts to address his substance abuse issues, but he has yet to demonstrate success while not incarcerated. Nor can we ignore Hyser's prior criminal history, the swiftness of his probation violations in the present case, or that he used alcohol while on probation. Under these circumstances, the trial court was well within its discretion to revoke Hyser's probation and order him to serve his entire previously suspended sentence. See Lampley v. State, 31 N.E.3d 1034, 1038 (Ind. Ct. App. 2015) (holding that trial court did not abuse its discretion by ordering defendant to serve previously suspended sentence based on defendant's admission to smoking marijuana while on probation).

II. The trial court did not err in calculating Hyser's credit time.

[15] Hyser next claims that the trial court erred in calculating Hyser's credit for time he spent in jail. “Because pre-sentence jail time credit is a statutory right, trial courts have no discretion in awarding or denying that credit.” Glover v. State, 177 N.E.3d 884, 886 (Ind. Ct. App. 2021) (citing Perry v. State, 13 N.E.3d 909, 911 (Ind. Ct. App. 2014)), trans. denied.

[16] “By statute, ‘time spent in confinement before sentencing applies toward a prisoner's fixed term of imprisonment.’ ” Id. at 885-86 (quoting Robinson v. State, 805 N.E.2d 783, 789 (Ind. 2004)); see also Ind. Code § 35-50-6-3.1 (providing that persons are entitled to credit for time “confined awaiting trial or sentencing.”). We have explained that the statutory term “[c]onfined awaiting trial or sentencing” means “confined as a result of the charge for which the defendant is being sentenced.” Diedrich v. State, 744 N.E.2d 1004, 1005 (Ind. Ct. App. 2001) (citing Willoughby v. State, 626 N.E.2d 601, 602 (Ind. Ct. App. 1993), Dolan v. State, 420 N.E.2d 1364, 1373 (Ind. Ct. App. 1981)). A defendant is not “confined” for purposes of determining accrued credit time merely because a warrant has been issued for his arrest. Willoughby, 626 N.E.2d at 602. Instead, the confinement period begins when the defendant is actually served with and arrested on the warrant. Id.

[17] Here, it is undisputed that the probation revocation warrant was not served on Hyser until September 17, 2024. Thus, Hyser is entitled to credit only for time he was incarcerated after this date. See Willoughby, 626 N.E.2d at 602 (holding that defendant was entitled to credit for time served after November 12, 1992—the date on which the warrant based on the notice of probation violation was served). And the trial court here did give Hyser credit for the time he served in jail from September 17, 2024. Tr. Vol. II. p. 24.

[18] Hyser, however, argues that he is also entitled to credit for time he served from March 28, 2024, through September 16, 2024. Hyser notes that he was in jail from August 19, 2023, until he was “sentenced”⁵ in this case on October 31, 2024. Hyser also notes that, in Cause No. F6-618, he was given credit for time served from August 19, 2023, through November 11, 2023; and in Cause No. CM-759, he was given credit for time served from November 11, 2023, through March 27, 2024. Hyser also had two other pending cases; in Cause No. CM- 595, he pleaded guilty with no sentence and only a restitution order was entered, and Cause No. CM-616 was dismissed.⁶ According to Hyser, this leaves a “gap” from March 27, 2024 (the last day he received credit in his other cases), until September 17, 2024 (the day the probation warrant was served in this case), for which Hyser was incarcerated yet received no credit toward any of his sentences. Thus, Hyser argues, this time must be applied toward his sentence in this case. We disagree.

[19] It is unclear from the record precisely why Hyser was incarcerated between March 27 and September 17, 2024. Perhaps it was because of his pending cases in Cause Nos. CM-595 or CM-616.⁷ What is clear, however, is that Hyser was not being confined in this case during this period. Hyser could not have been confined in the present case until September 17, 2024—the day on which the probation revocation warrant in this case was served on Hyser. See Willoughby, 626 N.E.2d at 602.

[20] In short, the trial court gave Hyser credit for all the days Hyser was confined in this case—from the date the warrant in this case was served on Hyser until the date the trial court ordered Hyser to serve the balance of his previously suspended sentence. Hyser was not entitled to credit in this case for time he was incarcerated before the date the warrant in this case was served.

Conclusion

[21] The trial court did not abuse its discretion by ordering Hyser to serve the balance of his previously suspended sentence. Nor did the trial court err in the calculation of Hyser's credit time. We, therefore, affirm the trial court.

[22] Affirmed.

FOOTNOTES

1.   On July 24, 2024, Hyser pleaded guilty in Cause No. CM-595 to the criminal mischief charge and the public intoxication charge was dismissed. The charges in Cause No. CM-616 were dismissed on June 5, 2024. Hyser also had a prior conviction in Fayette County in Cause No. 21D01-2209-F6-618 (“Cause No. F6-618”) for battery by bodily waste against a public safety officer. And in Cause No. 24C02-2108-CM-759 (“Cause No. CM-759”), Hyser was charged in Franklin County with criminal trespass, a Class A misdemeanor, and unauthorized entry of a motor vehicle, a Class B misdemeanor. Hyser pleaded guilty to the Class A misdemeanor in that case on January 6, 2023.

2.   The record does not reveal what the MRT program is. In In re K.W., 247 N.E.3d 1250 (Ind. Ct. App. 2024), the record contained a similar reference to “MRT,” and we noted:According to the Indiana Department of Correction's website, “Moral Reconation Therapy” is a cognitive behavioral class that teaches problem solving and decision-making skills. See IDOC: Programs, Treatments & Services Overview, https://www.in.gov/idoc/facilities/reentry/ community-correction/program-treatment-andservices-overview/[https://perma.cc/4MVM-28J7].Id. at 1257 n.13.

3.   Hyser is correct that “being arrested and charged is not, without more, evidence of a probation violation.” Brown v. State, 162 N.E.3d 1179, 1183 (Ind. Ct. App. 2021) (citing Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014)). “ ‘Instead, when the State alleges that the defendant violated probation by committing a new criminal offense, the State is required to prove—by a preponderance of the evidence—that the defendant committed the offense.’ ” Id. (quoting Brown, 162 N.E.3d at 1183); accord Heaton, 984 N.E.2d at 617. Here, we limit our consideration to the crime for which Hyser was convicted—criminal mischief—in addition to his previous convictions.

4.   Hyser also seemed to admit that he violated the terms of his probation in the Franklin County case. See id. at 21 (“but it was a criminal trespassing and entering a vehicle․ [w]hich I – then I had violated. They put me on probation and Community Corrections”).

5.   This is how Hyser refers to what happened on October 31, 2024. It is more accurate to say that this is the day on which the trial court revoked Hyser's probation and ordered him to serve his previously suspended sentence, which was imposed on July 10, 2023.

6.   Hyser has filed a motion asking this Court to take judicial notice of the sentencing orders in his other cases. Indiana Evidence Rule 201(a)(2)(C) provides that a court may take judicial notice of the “records of a court of this state”, and Evidence Rule 201(d) provides that a court may do so “at any stage of the proceeding.” We, therefore, grant Hyser's motion by a separate order issued contemporaneously with this decision. See Horton v. State, 51 N.E.3d 1154, 1162 (Ind. 2016) (taking judicial notice of trial court docket in related case showing that defendant had been previously convicted of Class A misdemeanor battery).

7.   Criminal defendants are often incarcerated prior to trial. Yet, if the criminal charges are dismissed, or the defendant is acquitted, the defendant does not “bank” those days spent in confinement to be applied to future cases. See Pollard v. State, 78 N.E.3d 663, 666 (Ind. Ct. App. 2017) (holding that defendant could not “bank” credit time to be used toward a future parole violation).

Tavitas, Judge.

Chief Judge Altice and Judge Brown concur. Altice, C.J., and Brown, J., concur.