Court of Appeals of Indiana | Memorandum Decision 20A-CR-1129 | December 10, 2020 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Donald E.C. Leicht

Peru, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Benjamin J. Shoptaw

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Wayne Anderson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 10, 2020

Court of Appeals Case No.

20A-CR-1129

Appeal from the Howard Circuit 

Court

Appeal from the Howard Superior 

Court

The Honorable William C. 

Menges, Jr., Judge and Special 

Judge

Trial Court Cause Nos.

34D01-1112-FC-294, 34D02-1112-

FC-292, and 34C01-1604-F5-73

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1129 | December 10, 2020 Page 2 of 7

STATEMENT OF THE CASE

[1] Appellant-Defendant, Wayne Anderson (Anderson), appeals the trial court’s 

revocation of his probation and imposition of his previously-suspended 

sentence.

[2] We affirm.

ISSUES

[3] Anderson presents one issue for our review, which we restate as the following 

three issues:

(1) Whether Anderson has forfeited his argument for additional credit time 

in his sentence imposed by the trial court in August of 2012;

(2) Whether the trial court abused its discretion in calculating his credit time

in the current charge; and

(3) Whether the trial court erred by failing to instruct Anderson of his right 

to appeal.

FACTS AND PROCEDURAL HISTORY

[4] In October of 2011, Anderson made a purchase at Kroger with a counterfeit 

check in the amount of $144.04. On December 9, 2011, the State filed an 

Information, charging Anderson with Class C felony forgery under Cause 

number 34D01-1112-FC-292 (FC-292). On the same day he made the purchase 

at Kroger, Anderson also made a purchase at Marsh with a counterfeit check in 

the amount of $138.28 for which he was charged with a Class C felony forgery 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1129 | December 10, 2020 Page 3 of 7

in Cause number 34D02-1112-FC-294 (FC-294). On August 7, 2012, Anderson 

was sentenced to eight years, with four years executed and the balance 

suspended to probation. He was granted a total of 123 days of credit time from 

January 24, 2012 through May 15, 2012, and from May 16, 2012 through May 

25, 2012. On June 6, 2014, Anderson commenced his probation.

[5] On April 1, 2016, the State filed an Information under Cause number 34C01-

1604-F5-73 (F5-73), charging Anderson with Counts I-II, conspiracy to commit 

fraud on a financial institution, Level 5 felonies; Count III, counterfeiting, a 

Level 3 felony; Counts IV-VII, counterfeiting, Level 6 felonies; and an habitual 

offender enhancement. On September 27, 2017, Anderson pled guilty to Level 

5 felony conspiracy to commit fraud on a financial institution, in exchange for 

the remaining charges being dismissed by the State. The trial court sentenced 

Anderson to six years, to run concurrently to his remaining sentence in FC-292 

and FC-294.

[6] On May 23, 2019, Anderson’s sentence in all three Causes was modified and he 

entered the Howard County Re-entry Court. On February 26, 2020, Anderson 

failed to appear for a status hearing and the trial court issued a warrant for his 

arrest. On March 26, 2020, Anderson was terminated from the Re-entry 

Program and the State filed a petition to revoke Anderson’s suspended 

sentence. On May 5, 2020, he pled true to the allegations in the State’s petition 

to revoke. On May 7, 2020, during a factfinding hearing, the trial court 

concluded that Anderson had violated his probation and ordered the balance of 

his remaining sentence in all three Causes to be executed. 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1129 | December 10, 2020 Page 4 of 7

[7] Anderson now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Standard of Review

[8] Probation is a matter of grace left to a trial court’s discretion, not a right to 

which a criminal defendant is entitled. Terpstra v. State, 138 N.E. 3d 278, 284 

(Ind. Ct. App. 2019), trans. denied. A probation violation hearing is a civil 

proceeding, and the State must prove the alleged probation violation by a 

preponderance of the evidence. Id. Our standard of review of the sufficiency of 

the evidence supporting the revocation of probation is similar to our standard of 

review for other matters: we consider only the evidence most favorable to the 

judgment without regard to weight or credibility and will affirm if there is 

substantial evidence of probative value to support the trial court’s conclusion 

that a probationer has violated any condition of probation. Id. 

II. Credit Time in FC-292 & FC-294

[9] Claiming that he was entitled to day-to-day credit, Anderson contends that the 

trial court abused its discretion when it calculated its credit time for his original 

sentence in 2012. 

[10] The record reflects that on August 7, 2012, Anderson was sentenced to eight 

years, with four years executed and the balance suspended to probation. At the 

sentencing hearing, he was granted a total of 123 days of credit time from 

January 24, 2012 through May 15, 2012, and from May 16, 2012 through May 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1129 | December 10, 2020 Page 5 of 7

25, 2012. Indiana Appellate Rule 9 (A)(1) provides a party with thirty days 

after the entry of final judgment in which to file a timely appeal. “Unless the 

notice of appeal is timely filed, the right to appeal shall be forfeited.” Ind. App. 

R. 9(A)(5). As Anderson failed to appeal his credit time calculation within 

thirty days of August 7, 2012, he has now forfeited his appeal on this issue. 

III. Credit Time in F5-73

[11] Next, Anderson contends that the trial court abused its discretion in the 

calculation of his credit time in F5-73. In F5-73, Anderson was sentenced to a 

Level 5 felony. “A person who is not a credit restricted felon and who is 

imprisoned for a crime other than a Level 6 felony or misdemeanor or 

imprisoned awaiting trial or sentencing for a crime other than a Level 6 felony 

or misdemeanor is initially assigned to Class B.” Ind. Code § 35-50-6-4(b). “A 

person assigned to Class B earns one (1) day of good time credit for every three 

(3) days the person is imprisoned for a crime or confined awaiting trial or 

sentencing.” I.C. § 35-50-6-3.1(c). Anderson served forty-one actual days while 

awaiting sentencing, for which the trial court gave him credit for fifty-five days

by applying I.C. § 35-50-6-3.1(c). Therefore, the trial court properly calculated 

his credit time in F5-73 and did not abuse its discretion. 

IV. Right to Appeal

[12] Lastly, Anderson claims that the trial court erred by failing to instruct him of 

his appellate rights at the close of the fact-finding hearing on the State’s petition 

to revoke his probation. 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1129 | December 10, 2020 Page 6 of 7

[13] Indiana Criminal Rule 11 (emphasis added) provides, in relevant part, that:

Following the sentencing of a defendant after a trial or following 

a judgment revoking probation of a defendant found to have 

violated the terms of his probation after a contested felony probation 

revocation proceeding, the judge shall immediately advise the 

defendant as follows:

(1) that he is entitled to take an appeal or file a motion to correct 

error;

(2) that if he wishes to file a motion to correct error, it must be 

done within thirty (30) days of the sentencing;

(3) that if he wishes to take an appeal, he must file a Notice of 

Appeal designating what is to be included in the record on appeal 

within thirty (30) days after the sentencing or within thirty (30) 

days after the motion to correct error is denied or deemed denied, 

if one is filed; if the Notice of Appeal is not timely filed, the right 

to appeal may be forfeited []

The evidence reflects that on May 5, 2020, Anderson signed a waiver of rights, 

acknowledging that he changed his “plea from false to true in connection with 

the [p]etition to [r]evoke [] currently pending” against him. (Appellant’s App. 

Vol. II, p. 148). The sentencing order, entered on May 19, 2020 on the State’s 

petition, also recognized that Anderson withdrew his “former plea of false and 

enter[ed] a plea of true to the allegations contained” in the petition to revoke. 

(Appellant’s App. Vol. II, p. 153). Accordingly, the fact-finding hearing on the 

State’s petition was not a contested felony probation revocation proceeding, 
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1129 | December 10, 2020 Page 7 of 7

and, pursuant to Criminal Rule 11, the trial court was not required to advise 

Anderson of his appellate rights following the imposition of the sentence. 

[14] However, even if the trial court was required to give the appellate instruction, 

its failure to do so amounted to harmless error. Failure by a trial court to advise 

the defendant of his right to appeal is harmless if “defendant lost none of his 

rights by reason of the trial court’s initial failure to tell him what his rights were 

and has demonstrated no harm.” Carter v. State, 438 N.E.2d 738, 740-41 (Ind. 

1982). At the May 7, 2020 fact-finding hearing, the trial court informed 

Anderson that he was “entitled to appeal the sentence if he so desire[d]” but 

was not entitled to the appellate instruction. (Transcript Vol. II, p. 40). 

Anderson timely filed his notice to appeal and failed to now demonstrate any 

harm. 

CONCLUSION

[15] Based on the foregoing, we conclude that Anderson forfeited his appellate 

review for additional credit time in FC-292 and FC-294; the trial court did not 

abuse its discretion in calculating his credit time in F5-73; and the trial court 

was not required to instruct Anderson of his right to appeal pursuant to 

Criminal Rule 11. 

[16] We affirm.

[17] May, J. and Altice, J. concur