Court of Appeals of Indiana | Memorandum Decision 18A-CR-200 | January 15, 2019 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

R. Patrick Magrath

Alcorn Sage Schwartz & Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Laura R. Anderson

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kristie Abner,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 15, 2019

Court of Appeals Case No.

18A-CR-200

Appeal from the Ripley Superior 

Court

The Honorable Carl H. Taul, 

Special Judge

Trial Court Cause No.

69D01-1609-F6-228

Barnes, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-200 | January 15, 2019 Page 2 of 7

Statement of the Case

[1] Kristie Abner appeals the sentence the trial court imposed after she admitted to 

violating the terms of her placement on home detention. We affirm.

Issue

[2] Abner raises one issue, which we restate as: whether the trial court abused its 

discretion in ordering her to serve her previously-suspended sentence.

Facts and Procedural History

[3] On September 20, 2017, Abner pleaded guilty to unlawful sale of a precursor, a 

Level 6 felony. The trial court accepted the plea agreement and sentenced 

Abner to serve 910 days, with credit for ten days served and the remainder of 

her sentence suspended to probation.

[4] On November 13, 2017, the State filed a petition for a probation violation 

hearing, alleging Abner violated a condition of probation by failing to appear 

for two previously-scheduled meetings with probation department staff. On 

December 12, 2017, the trial court held a fact-finding hearing. During the 

hearing, Abner admitted to violating a condition of probation as alleged by the 

State. The court revoked 545 days of her previously-suspended sentence, with 

credit for fourteen days served. The court further determined that Abner would 

serve the remaining 531 days on home detention.

[5] Later, on December 12, 2017, Abner met with a probation officer for a home 

detention intake meeting. She was asked to identify her intended dwelling, and 
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she provided her father’s address in Moores Hill, Indiana, along with his

telephone number. The probation officer instructed Abner to go to that address 

and remain there until her next probation appointment on December 18, 2017.

[6] On the evening of December 12, 2017, probation officers received repeated 

automatic alerts that Abner had left her designated address. They called 

Abner’s father, who stated he believed that Abner was staying with a friend.

[7] The officers eventually contacted Abner very early the next morning in Rising 

Sun, Indiana, after receiving fifty-two automatic alerts. Abner later claimed she 

had left a voicemail with the probation office explaining that her father had not 

been home that evening, and that she had to go stay with a friend, but the 

probation officers never received such a voicemail. Further, Abner never

contacted the police for assistance, and she did not return to jail.

[8] On December 13, 2017, the State filed a “request for home detention violation

and motion to convert hearing,” claiming Abner violated a condition of her 

placement by failing to remain in her home. Appellant’s App. Vol. 2, p. 37. 

The State separately filed a new case against Abner, alleging she committed the 

offense of failing to be in a location not previously approved by community 

corrections, a Level 6 felony.

[9] On December 20, 2017, the trial court held a fact-finding hearing. Abner, who 

had waived the assistance of counsel, admitted she violated the terms of her 

home detention placement. The State asked the court to order Abner to serve 

the remainder of her suspended sentence in jail, but Abner asked to remain on 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-200 | January 15, 2019 Page 4 of 7

home detention. The court ordered Abner to serve the remainder of her 

previously revoked sentence, a term of 531 days, in jail. This appeal followed.

Discussion and Decision

[10] Abner claims the trial court should not have ordered her to serve an executed 

sentence, characterizing her violation as “technical” in nature. Appellant’s Br. 

p. 10. The State argues Abner’s claim is moot because she has already “likely” 

served her sentence. Appellee’s Br. p. 10. Although the State’s calculations 

may be correct, we decline to determine Abner’s claim is moot in the absence of 

either a concession by Abner that she has finished serving her sentence or other 

evidence in the record demonstrating that she has been released from 

incarceration. Cf. Smith v. State, 971 N.E.2d 86, 89 (Ind. 2012) (determining 

appellant’s credit time claim was moot because he conceded that he had served 

his sentence).

[11] A reviewing court treats a petition to revoke placement in a community 

corrections program, including home detention, the same as a petition to revoke 

probation. McCauley v. State, 22 N.E.3d 743, 746 (Ind. Ct. App. 2014), trans. 

denied. Probation is a matter of grace left to trial court discretion, not a right to 

which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 

(Ind. 2007). A defendant serving a term of probation specifically agrees to 

accept conditions upon his or her behavior instead of imprisonment. Jones v. 

State, 838 N.E.2d 1146, 1148 (Ind. Ct. App. 2005). The conditions are designed 
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to ensure that the probation serves as a period of genuine rehabilitation and that 

the public is not harmed by a probationer living within the community. Id.

[12] When a trial court determines a person has violated a condition of probation, 

the court may: (1) continue the person on probation; (2) extend the 

probationary period; and/or (3) order execution of all or part of the previouslysuspended sentence. Ind. Code § 35-38-2-3(h) (2015). We review a court’s 

choice of sanctions for an abuse of discretion. Castillo v. State, 67 N.E.3d 661, 

664 (Ind. Ct. App. 2017), trans. denied. An abuse of discretion occurs when the 

decision is clearly against the logic and effect of the facts and circumstances. 

Prewitt, 878 N.E.2d at 188.

[13] Here, the trial court ordered Abner to serve her sentence on home detention 

after she violated the terms of probation by failing to attend previouslyscheduled meetings with her probation officer. After the court placed Abner on 

home detention, she immediately violated the terms of her placement by failing 

to remain at the address she had given to her probation officer. Abner claimed 

that she intended to stay at her father’s home but was unaware that he was out 

of town on the day of her release, and she was forced to stay elsewhere. Upon 

discovering his absence, she did not contact the probation office or the police, 

and she did not return to jail. Instead, she traveled to another town. In 

addition, probation officers had great difficulty contacting her because the only 

telephone number she had provided was her father’s.
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[14] Abner’s violation of the conditions of home detention was more than merely 

technical. Alternatives to incarceration allow probationers to remain in their 

communities if they agree to submit to close supervision of their movements, 

among other restrictions. Abner’s failure to return to jail or otherwise notify 

probation officers of her location fundamentally undermined that arrangement. 

Jenny Wise, the Assistant Director of Ripley County’s Office of Court Services, 

testified that she was concerned Abner was “just not going to abide by home 

detention rules.” Tr. p. 5.

[15] Abner cites four cases, noting that in each case the Court of Appeals reversed 

the trial court’s sanction for probation or community corrections violations. 

We have reviewed those cases and conclude they are not persuasive because 

they are factually dissimilar from Abner’s case. See Johnson v. State, 62 N.E.3d 

1224, 1231 (Ind. Ct. App. 2016) (Johnson’s failures to remain at authorized 

locations were minor in scope; Johnson had limited mental functioning);

Sullivan v. State, 56 N.E.3d 1157, 1162 (Ind. Ct. App. 2016) (trial court 

erroneously believed it was required under terms of plea agreement to revoke 

placement); Ripps v. State, 968 N.E.2d 323, 328 (Ind. Ct. App. 2012) (Ripps 

attempted in good faith to comply with conditions of probation and had a 

terminal medical condition); and Puckett v. State, 956 N.E.2d 1182, 1188 (Ind. 

Ct. App. 2011) (trial court’s sentence in probation revocation proceeding based 

on improper factors including trial court’s opinion on sex offender registry). 

The trial court acted well within its discretion in ordering Abner to serve her 
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previously suspended sentence in jail. See Jones, 838 N.E.2d at 1149 (no abuse 

of discretion in lengthy sentence imposed for second probation violation).

Conclusion

[16] For the reasons stated above, we affirm the judgment of the trial court.

[17] Affirmed.

[18] Bailey, J., and Altice, J., concur.