Sean Hendrix, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Sean Hendrix appeals the revocation of his probation, claiming the evidence was insufficient to support revocation because he had not yet begun serving probation when he allegedly violated a probation condition. We affirm.

Facts and Procedural History

[2] In 2021, Hendrix pleaded guilty to Level 5 felony dealing in a schedule IV controlled substance. In January 2022, the trial court sentenced him to three years with two years to be served on home detention and one year suspended to probation. The trial court ordered the sentence to be served consecutively to a sentence Hendrix was serving in another case. At the time of sentencing, Hendrix signed standard conditions of probation for both home detention and probation. The standard conditions of probation included that Hendrix would “not commit any criminal offense after sentencing in this cause.” Appellant's App. Vol. 2 at 70. In April 2025, the trial court modified his sentence in this case to 810 days of probation. On the same day, Hendrix signed a new document listing the standard conditions of probation, again including that he would “not commit any criminal offense after sentencing in this cause.” Ex. Vol. 1 at 4.

[3] The probation department filed a notice of probation violation in this case on October 22, 2025, alleging Hendrix had failed to refrain from committing a new criminal offense in violation of the conditions of his probation. Specifically, it alleged Hendrix had been charged with several crimes, including Level 5 felony dealing in marijuana, for conduct occurring on October 20. The notice also stated Hendrix's probation was to start on September 12, 2026, and end on November 29, 2028.

[4] At the probation violation hearing in March 2026, the State presented evidence that Hendrix had been convicted of the Level 5 felony dealing in marijuana charge and sentenced on February 11, 2026. Hendrix argued that because he was appealing that conviction, it was premature to say he had committed a new criminal offense. The trial court found the State met its burden of proving by a preponderance of the evidence that Hendrix violated a condition of his probation. The court revoked his probation and ordered him to serve 810 days executed in the Indiana Department of Correction (“DOC”).

Sufficient evidence supported the trial court's revocation of Hendrix's probation.

[5] Hendrix argues the evidence was insufficient to revoke his probation because the alleged violation “did not occur during the probationary period and because revocation was not sought during the probationary period.” Appellant's Br. at 7. He notes the notice of probation violation was filed in October 2025 and alleged he committed a new offense that month—yet his probation was not due to start until September 2026.

[6] Probation is a matter of grace, not a right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). A probation hearing is civil in nature, and the State must prove the alleged violations by a preponderance of the evidence. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999); Ind. Code § 35-38-2-3(f) (2015).

[7] When the sufficiency of the evidence to support probation revocation is at issue on appeal, we consider the evidence most favorable to the trial court's judgment without reweighing the evidence or judging the credibility of witnesses. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). If there is substantial evidence of probative value to support the trial court's decision that the defendant violated any terms of probation, we will affirm the court's decision to revoke it. Id.

[8] When a trial court places a person on probation, the court shall specify the conditions of probation and advise the person that a petition to revoke probation may be filed if the person violates a condition of probation during the probationary period. I.C. § 35-38-2-1(a) (2012). The statute describing the court's options when addressing a petition to revoke probation provides, in relevant part, that the court may revoke probation if the court finds a person “has violated a condition of probation during the probationary period[.]” I.C. § 35-38-2-3(a)(1). If the court finds 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 or more enumerated sanctions. I.C. § 35-38-2-3(h) (emphasis added). “Probationary period” is not defined by statute, but appellate courts have consistently held a defendant's “probationary period” begins immediately after sentencing, regardless of when the defendant enters or begins serving the official probationary phase of his sentence. See, e.g., Baker v. State, 894 N.E.2d 594, 597–98 (Ind. Ct. App. 2008); Johnson v. State, 606 N.E.2d 881, 882 (Ind. Ct. App. 1993).

[9] The reasoning for this rule can be traced back to this Court's opinion in Ashba v. State, 570 N.E.2d 937 (Ind. Ct. App. 1991), aff'd 580 N.E.2d 244 (Ind. 1991), cert. denied. In Ashba, we held that a defendant who was on parole from the DOC, but not yet on probation, could violate his probation prospectively. At the time of the defendant's probation revocation proceeding, Indiana Code Section 35-38-2-3 stated the court could revoke probation if it found the defendant violated a condition “at any time before termination of the period.” Id. at 939 (quoting I.C. § 35-38-2-3(f) (1983)) (emphasis omitted). The Court interpreted the language “at any time” to permit the trial court “to revoke probation before the defendant enters the probationary phases of his sentence” because the terms of the defendant's probation “attached to his suspended sentence from the moment the sentence was imposed.” Id. at 939–40.

[10] In deciding this issue of first impression in Indiana, the Court looked to other jurisdictions for guidance. One such jurisdiction was the Fifth Circuit Court of Appeals, which held in 1974 that a federal statute providing for termination, alteration, or suspension of probation for a violation occurring “at any time within the probationary period” was not limited to revocation only after probation actually begins. Id. at 939 (citing United States v. Ross, 503 F.2d 940 (5th Cir. 1974)). The Fifth Circuit court observed: “Sound policy requires that courts should be able to revoke probation for a defendant's offense committed before the sentence commences; an immediate return to criminal activity is more reprehensive than one which occurs at a later date.” 503 F.2d at 943.

[11] Hendrix urges us not to rely on Ashba or its progeny because after Ashba was decided, Section 35-38-2-3 was “substantially amended,” yet none of the cases following Ashba addressed the amendment. Appellant's Br. at 9 (citing the 1991 amendment to Section 35-38-2-3, which first used the phrase “probationary period”). We decline Hendrix's request to “take a fresh look” at this statute for two reasons. Appellant's Br. at 7.

[12] One, our Supreme Court granted transfer and affirmed the decision in Ashba, stating the “Court of Appeals correctly decided” this issue of first impression. Ashba v. State, 580 N.E.2d 244 (Ind. 1991) (per curiam). In so doing, the Supreme Court adopted the Court of Appeals’ decision as its own. See Kimberlin v. DeLong, 637 N.E.2d 121, 123 n.1 (Ind. 1994) (explaining the Supreme Court expresses approval of all or a portion of a Court of Appeals decision by granting transfer and declaring it “adopted” or “expressly adopted and incorporated by reference” whereas when the Supreme Court “summarily affirms” a portion of a Court of Appeals opinion, it is in essence partially denying transfer and declining to review the issue). “We are bound by our Supreme Court's decisions, and its precedent is binding until it is changed by the supreme court or legislative enactment.” Culbertson v. State, 929 N.E.2d 900, 906 (Ind. Ct. App. 2010), trans. denied. And two, even after the statute was amended, the Supreme Court reiterated that “[p]robation may be revoked at any time for a violation of its terms. This includes revocation prior to the start of probation.” Champlain v. State, 717 N.E.2d 567, 571 (Ind. 1999) (emphasis added). The language Ashba construed as permitting the trial court to revoke probation before the defendant begins serving probation—“at any time before termination of the period”—remains in the statute today.

[13] The probationary period begins immediately after sentencing and ends at the conclusion of the probationary phase of the defendant's sentence. Ashley v. State, 717 N.E.2d 927, 928 (Ind. Ct. App. 1999). Hendrix's probationary period therefore began when he was sentenced in this case in January 2022. See Appellant's App. Vol. 2 at 63 (sentencing order dated January 5, 2022). It was due to end in November 2028. See id. at 88. One of the conditions of his probation was that he not commit a criminal offense. The State proved Hendrix was convicted of a crime that occurred in October 2025. Although Hendrix's probation in this case was not to begin until September 12, 2026, as stated above, revocation can occur prior to the start of probation.¹ To hold otherwise would mean Hendrix could violate any number of probation conditions between 2022 and 2026 but not face a probation revocation. See Rosa v. State, 832 N.E.2d 1119, 1122 (Ind. Ct. App. 2005).

Conclusion

[14] The State proved Hendrix violated a condition of his probation during his probationary period, and the trial court did not abuse its discretion in revoking his probation.

[15] Affirmed.

FOOTNOTES

1.   We also note the conditions of probation Hendrix signed stated he would not commit any criminal offense “after sentencing in this cause.” Appellant's App. Vol. 2 at 70; Ex. Vol. 1 at 4 (emphasis added). Aside from the general rules of revocation discussed herein, Hendrix specifically agreed that probation revocation was possible in this instance.

Kenworthy, Judge.

Mathias, J., and DeBoer, J., concur.