Court of Appeals of Indiana | Memorandum Decision 34A05-1706-CR-1448 | October 23, 2017 Page 1 of 9

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

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Angela Tomlinson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

October 23, 2017

Court of Appeals Case No.

34A05-1706-CR-1448

Appeal from the Howard Superior 

Court

The Honorable William C. 

Menges, Judge

Trial Court Cause No.

34D01-1109-FA-774

Altice, Judge.

Case Summary
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[1] After admitting that she violated the terms of her probation, the trial court 

ordered Angela Tomlinson to serve the balance of her previously suspended

sentence, which the court determined to be 2516 days. On appeal, Tomlinson 

challenges the trial court’s determination as to the balance of her previously 

suspended sentence. Tomlinson also argues that the trial court abused its 

discretion in ordering that she serve the balance of her previously suspended 

sentence. 

[2] We affirm and remand.

Facts & Procedural History

[3] On September 1, 2011, the State charged Tomlinson with dealing in a schedule 

III controlled substance as a Class A felony and neglect of a dependent as a 

Class D felony. On August 15, 2012, Tomlinson pled guilty to the lesserincluded offense of dealing in a schedule III controlled substance as a Class B 

felony. The trial court sentenced Tomlinson to twelve years, with eight years 

executed and four years suspended to supervised probation. The trial court 

awarded a total of 328 credit days.

[4] On January 29, 2014, the trial court modified Tomlinson’s sentence, ordering 

that she be transferred to the community transition program under home 

electronic monitoring effective that day and that the balance of her executed 

sentence be suspended to supervised probation. The trial court also ordered 

that her release from the Department of Correction (DOC) would be effective 
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July 29, 2014. On August 21, 2014, Tomlinson appeared before the court and 

was advised of the terms of her probation.

[5] On February 17, 2016, the State filed a petition to revoke Tomlinson’s 

probation, alleging that she had committed a new criminal offense of Level 6 

felony maintaining a common nuisance and tested positive for cocaine and 

opiates. Tomlinson was arrested on February 25, 2016. On March 23, 2016, 

Tomlinson pled guilty to visiting a common nuisance, a Class B misdemeanor, 

and admitted the allegations in the petition. Pursuant to the plea agreement, 

the disposition for the probation violation was a sentence of fifty-four days, 

which accounted for twenty-seven actual days served while awaiting disposition 

and twenty-seven credit days. Tomlinson was returned to probation.

[6] On July 21, 2016, the State filed a request for a sanction hearing in this cause. 

The outcome of the hearing was that Tomlinson was ordered to serve thirty 

days in the Howard County Jail.1 She was released from jail on August 4, 

2016. 

[7] On October 21, 2016, the State filed a petition to revoke Tomlinson’s 

suspended sentence alleging that she had failed to report to her probation 

officer, tested positive for cocaine, failed to report for a drug screen, and 

committed new offenses of Level 6 felony unlawful use of a legend drug and 

 

1

In subsequent petitions to revoke suspended sentence, the State refers to this action as a “behavior 

modification.” Appellant’s Appendix Vol. 3 at 51.
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three counts of Class A misdemeanor theft. It is unclear when Tomlinson was 

arrested on the new charges and petition to revoke. On March 7, 2017, 

Tomlinson admitted to the allegations and the trial court ordered that she be 

returned to probation and successfully complete and pay for the re-entry court 

program as ordered under a different cause. 

[8] On March 9, 2017, Tomlinson signed the re-entry program participation 

agreement. On March 15, 2017, the Howard County Re-Entry Court Program 

filed a notice of termination alleging that Tomlinson committed a new criminal 

offense. On April 13, 2017, the trial court found that Tomlinson violated the 

rules of the re-entry program and terminated her participation.

[9] On April 17, 2017, the State filed yet another petition to revoke Tomlinson’s 

suspended sentence, which was based on her termination from the re-entry 

program. On June 6, 2017, Tomlinson admitted the allegations in the petition. 

The trial court revoked Tomlinson’s probation and ordered that she serve the 

balance of her previously suspended sentence, which the court determined was 

2516 days. In its oral sentencing statement, the trial court ordered that 

Tomlinson be awarded credit time for 108 days (54 actual days).2 Tomlinson 

now appeals. Additional facts will be provided as necessary. 

Discussion & Decision

 

2

In the written sentencing order, the trial court stated, “jail time credit in the sum of 56 actual days or 108 

credit days.” Appellant’s App. Vol. 3 at 80. This is clearly a typographical error.
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[10] Tomlinson argues that the trial court erred in calculating her credit for time 

spent in confinement which led to an error in calculating the balance of her 

previously suspended sentence. Because credit time is a matter of statutory 

right, trial courts do not have discretion in awarding or denying such credit. 

James v. State, 872 N.E.2d 669, 671 (Ind. Ct. App. 2007). In other words, a

defendant is entitled by statute to credit for time spent in confinement prior to 

sentencing. McAllister v. State, 913 N.E.2d 778, 782 (Ind. Ct. App. 2009). 

Generally, a person “imprisoned awaiting trial or sentencing is initially 

assigned to Class I.” Ind. Code § 35-50-6-4(a) (2008). A person assigned to 

Class I earns one day of credit time for each day the person is confined awaiting 

trial or sentencing. I.C. § 35-50-6-3(a) (2008). 

[11] The trial court determined that Tomlinson had 2516 days remaining of her 

suspended sentence. Tomlinson calculates the balance of her suspended time to 

be 1496 days. By the State’s calculation, Tomlinson has 2532 days remaining 

of her suspended sentence, which calculation includes credit for time the State 

acknowledges the trial court failed to award.

[12] We begin by noting that there is no indication in the record as to how the court 

calculated the days remaining on Tomlinson’s suspended sentence and we have 

been unable to make the numbers add up. With regard to Tomlinson’s 

calculation, we cannot discern from the record that Tomlinson is entitled to all 

of the credit she claims or even if such was included in the court’s calculation of 

credit time in determining the remaining portion of her suspended sentence. 

The State acknowledges a possible error in the court’s calculation of credit time 
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as it concerns the time spent in confinement prior to this most recent probation 

violation, but does not agree with Tomlinson that she is entitled to all other 

claimed credit. 

[13] A defendant is entitled to credit for time spent in confinement for a probation 

violation. See Dolan v. State, 420 N.E.2d 1364, 1374 (Ind. Ct. App. 1981) 

(holding that a defendant is entitled to credit time for time spent in confinement 

for a probation violation as long as the defendant is being held solely on the 

probation violation). However, a defendant is not entitled to credit if credit for 

the same time period was given in another case in which the sentence was 

consecutive. Diedrich v. State, 744 N.E.2d 1004, 1007 (Ind. Ct. App. 2001) 

(noting that when a defendant is confined for multiple cases and the other case 

involves a consecutive sentence, credit is given to only one offense; defendant is 

not entitled to duplicate credit time).3In Tomlinson’s calculation, she includes 

overlapping periods of confinement for new offenses and probation violations. 

As the State points out, whether Tomlinson was entitled to credit or whether 

such credit was already given cannot be determined from the record. 

[14] Tomlinson also claims she is entitled to credit for time spent in the court’s reentry program. We note, however, that it is not clear whether the trial court did 

 

3 Without citation to the record, the State maintains that “[i]t appears that [Tomlinson] received credit in 

[another cause] on March 7, 2017 for 149 actual days served while awaiting trial and disposition in that 

matter or 298 credit days.” Appellee’s Brief at 10 n.1. This does not address the issue of whether Tomlinson 

was entitled to such credit time in this cause. Such is dependent on whether the sentence imposed in the 

other cause was concurrent or consecutive.
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in fact give Tomlinson credit for such time. Further, there is nothing in the 

record that indicates how Tomlinson’s time in the re-entry program was served. 

If Tomlinson’s time in the re-entry program was served on work release or 

home detention, then she would have been entitled to credit for such time. See 

Brattain v. State, 777 N.E.2d 774, 778 (Ind. Ct. App. 2002) (stating that 

probationers are entitled to credit for time served in work release or in-home 

detention).

[15] On appeal, it is the defendant’s burden to show that the trial court erred. 

Harding v. State, 27 N.E.3d 330, 332 (Ind. Ct. App. 2015). The State, however, 

acknowledges possible error and asserts that “[b]ecause of the discrepancies, the 

proper remedy in this case may be to remand this case back to the trial court.” 

Appellee’s Brief at 12. We agree. Given that we cannot discern the basis for the 

trial court’s calculation of the balance of Tomlinson’s suspended sentence and 

that the discrepancies in the record preclude us from making the numbers add 

up, we choose to remand to the trial court for clarification as to how it 

calculated the balance of Tomlinson’s suspended sentence.

Abuse of Discretion

[16] Tomlinson also argues that “the Trial Court should have unsuspended only the 

remaining portion of the original eight (8) years executed sentence.” Appellant’s 

Brief at 12. She maintains that the court’s decision to “unsuspend[] the balance 

of the original twelve (12) year sentence” is an abuse of discretion. Id. at 13. 
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[17] Probation is a matter of grace left to trial court discretion, not a right to which a 

criminal defendant is entitled. Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct.

App. 2005), trans. denied. Where a trial court has exercised its grace by granting 

a defendant probation in lieu of incarceration, it has considerable leeway in 

deciding how to proceed when the defendant then violates the conditions of his 

probation. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Thus, the sanction 

imposed by the trial court upon a finding of a probation violation is reviewed 

on appeal for an abuse of discretion. Brandenburg v. State, 992 N.E.2d 951, 953 

(Ind. Ct. App. 2013), trans. denied. An abuse of discretion occurs where the trial 

court’s decision is clearly against the logic and effect of the facts and 

circumstances before the court. Id. Although the court has several alternative 

sanctions it may impose where it has found that a defendant has violated his 

probation, one of those sanctions is to order execution of all or part of the 

sentence that was suspended at the time of initial sentencing. Id.; see also Ind.

Code § 35-38-2-3(h)(3).

[18] We begin by noting that when Tomlinson’s sentence was modified in January 

2014, the trial court clearly ordered the balance of the executed portion of the 

sentence to be served on probation. This order for probation was in addition to 

the four years of the original sentence that was initially suspended to probation. 

[19] In ordering that Tomlinson serve the balance of the previously suspended 

sentence, including both the initial period of probation and the balance of the 

executed portion that was later suspended to probation, the trial court aptly 

stated:
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I, also, was struck by the idea that she wants a second chance. 

We gave her a fourth or fifth or sixth or seventh chance when we 

put her in re-entry. That was basically the last choice or last 

option we had for any kind of community based treatment. 

Everything else has been tried over the years and nothing has 

been successful and I think the only thing that’s left is to execute 

the balance of her suspended sentence.

Transcript at 14. We will not second-guess the trial court in this regard. The 

trial court did not abuse its discretion.

We affirm and remand for clarification.

Baker, J. and Bailey, J., concur.