LEWIS v. STATE (2026)

MEMORANDUM DECISION

[1] Gary Lewis appeals the trial court's revocation of his probation. Lewis raises a single issue for our review, namely, whether the trial court denied him his fundamental right to due process when it revoked his probation. We conclude that Lewis did not preserve his argument for our review, but, his waiver notwithstanding, the trial court did not err when it revoked his probation. Accordingly, we affirm.

Facts and Procedural History

[2] On January 30, 2024, Lewis pleaded guilty to Level 5 felony unlawful carrying of a firearm. The trial court accepted Lewis's plea and sentenced him to 730 days with 714 days suspended to probation.

[3] Between October 2024 and August 2025, Lewis repeatedly failed drug tests for having used marijuana. Lewis admitted to having used marijuana to the trial court in notice-of-violation proceedings on at least three occasions. At a violation hearing on August 7, 2025, the court acknowledged twelve drug tests (at that time) that Lewis had failed for marijuana and stated, “I think that the only thing that's going to get Mr. Lewis to stop smoking weed is to go to jail.” Tr. Vol. 2, p. 20. But Lewis insisted that he was now clean, and the court responded: “I'm going to take you at your word ․ [But i]f you test positive today because you've just lied to me, ․ [i]f you test positive again for weed or anything else, you are going to be doing some time.” Id. at 21-22. Lewis acknowledged the court's warning. The court then scheduled a follow-up status hearing for September 4.

[4] At the commencement of that status hearing, the State informed the court that Lewis had failed more drug screens and had missed others. The court responded:

Mr. Lewis, I don't know if I could have told you any[ ]more clearer, you're going to jail if you test positive[,] and you did. I said to you ․, I've sat in [your counsel's] seat and I used to say to my clients, are you going to be the fool who's going to prison because you smoke weed[?] Guess what? You're going to prison because you smoke weed. Do you understand that?

Id. at 28. Lewis responded that he understood. The court then asked Lewis's counsel how he would like to proceed. Lewis's counsel informed the court that Lewis would admit to the probation violation followed by a presentation of evidence relevant to the imposition of a sentence. The court proceeded accordingly.

[5] After Lewis had presented his evidence, his counsel asked the court to “consider maybe a weekend in jail ․” Id. at 38. The court declined, revoked Lewis's probation, and ordered him to serve 545 days in the Department of Correction. In doing so, the court stated:

I don't know what more I can do ․ with you, Mr. Lewis[,] because you've put me in a position where I'm going to look like a fool if I don't send you to [the] DOC because I've told you on I don't know how many occasions. You've tested positive seventeen times. I told you․ [Y]ou just couldn't stop smoking weed․

Id. at 37-38. This appeal ensued.

Discussion and Decision

[6] Lewis appeals the trial court's revocation of his probation and imposition of 545 days of previously suspended time to be executed in the DOC. We generally review the trial court's decision to revoke probation for an abuse of discretion. See Bennett v. State, 119 N.E.3d 1057, 1058 (Ind. 2019). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or the court misapplies the law. See id.

[7] Lewis argues that the trial court denied him his due process rights because it failed to remain impartial and, instead, “prejudged” that he had violated the conditions of his probation and would go to jail for it. Appellant's Br. at 8, 10-11. Lewis presents his argument on appeal as an abuse of the trial court's discretion; but that is not correct, as Lewis did not object to the purported error in the trial court. Our Supreme Court has long held that, where a defendant fails “to object to the trial judge's remarks and move for a mistrial,” the defendant waives appellate review of his argument that the judge “failed to maintain an impartial and neutral position during the course of the proceedings.” Cornett v. State, 450 N.E.2d 498, 505 (Ind. 1983); see also Garrett v. State, 737 N.E.2d 388, 391 (Ind. 2000). Lewis never objected to the trial court's comments, and, thus, he has not preserved his alleged error for our review.

[8] To avoid his waiver, Lewis needed to argue on appeal that the alleged error requires reversal under the fundamental-error doctrine. See, e.g., Carr v. State, 274 N.E.3d 444, 460 (Ind. 2026). “An error is fundamental error when the error made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” Id. (quotation marks omitted). But Lewis did not make a fundamental-error argument in his brief to our Court, and our Supreme Court has been equally clear that “failure to allege fundamental error in [the appellant's] principal appellate brief results in waiver” of any such issue. Owen v. State, 210 N.E.3d 256, 264 (Ind. 2023) (citing Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011)). Thus, Lewis's argument on appeal is doubly waived.

[9] Lewis's waivers notwithstanding, the trial court's comments did not deny him due process. Lewis did not dispute the State's evidence of his repeated positive drug tests. Further, while the trial court made clear that Lewis would spend some time in jail, the court never indicated how much time Lewis would spend in jail before hearing Lewis's evidence. Indeed, following his presentation of evidence, Lewis argued that he should spend “maybe a weekend” in jail. Tr. Vol. 2, p. 38. The trial court's comments do not show that the court failed to impartially and neutrally consider Lewis's evidence and argument. We therefore affirm the trial court's revocation of Lewis's probation and its ensuing order for him to serve 545 days of previously suspended time in the DOC.

[10] Affirmed.

Mathias, Judge.

May, J., and Felix, J., concur.