Court of Appeals of Indiana | Memorandum Decision 34A04-1503-CR-133 | September 9, 2015 Page 1 of 8

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

ATTORNEY FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Kasey Hutchins,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 9, 2015

Court of Appeals Case No.

34A04-1503-CR-133

Appeal from the Howard Superior 

Court;

The Honorable William C. 

Menges, Judge;

34D01-1207-FB-714

May, Judge.
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[1] Kasey Hutchins appeals the revocation of his probation. He alleges the court 

abused its discretion by imposing the balance of his suspended sentence and 

erred in calculating the length of time that remained on his sentence. We affirm 

in part, reverse in part, and remand.

Facts and Procedural History

[2] In August 2012, the State charged Hutchins with Class B felony dealing in a 

controlled substance1 after he helped a confidential informant obtain Saboxone. 

Hutchins entered a plea of guilty pursuant to an agreement that capped his 

sentence at fifteen years. The court imposed a fifteen-year sentence to be served 

consecutive to a sentence from another cause, and it gave Hutchins credit for 

“155 actual days or 310 credit days, day for day credit, served while awaiting 

trial and disposition in this matter.” (Appellant’s App. at 34.) It reserved the 

right to modify Hutchins’ sentence if he completed a therapeutic community

program while in the custody of the Department of Correction (DOC). 

[3] In November 2013, Hutchins petitioned for sentence modification. He told the 

court he had completed a therapeutic community program and asked that the 

court suspend the remainder of his sentence. On December 19, 2013, the court 

did so and ordered Hutchins to serve the remaining time on “supervised 

probation.” (Id. at 50.) Hutchins was to report immediately upon release to 

Community Corrections. (Id.) As a condition of his probation, Hutchins was 

 

1 Ind. Code § 35-48-4-2(a)(1) (2011). 
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required to “successfully complete, and make satisfactory arrangements to pay 

for, the Howard County Re-entry Program.” (Id.) 

[4] On October 2, 2014, the State petitioned to revoke Hutchins’ suspended 

sentence because he was terminated from the Re-entry Program. Hutchins 

admitted violating the terms of his probation. The State and Hutchins 

recommended2 the court impose the following punishment for the probation 

violation: “[Hutchins’] suspended sentence shall be executed as follows: Three 

(3) years in the Indiana Department of Corrections [sic] with the remainder on 

Community Corrections In-Home Detention.” (Id. at 64.) 

[5] Thereafter, the Probation Department recommended Hutchins “serve the entire 

suspended sentence in the Department of Corrections [sic], all of which shall be 

executed.” (Id. at 65.) The Probation Department so recommended because 

Hutchins “was given the chance to prove to the Court that he was able to follow 

rules and change his criminal thinking. However, he has failed to do so.” (Id.) 

The County Transition Program agreed with the Probation Department’s 

recommendation. (Id. at 67.) 

[6] At the conclusion of the revocation hearing the court said, in pertinent part:

I see absolutely no reason to impose a sentence in connection 

with this case that is less what he received in 2007. Particularly 

 

2 The Recommendation, which was signed by Hutchins, his counsel, and the deputy prosecutor, 

acknowledged “this is just a recommendation for the Court and the Court is not bound by this 

recommendation.” (App. at 64.) 
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since he was offered the advantage of dealing with the re-entry 

program and all the benefits that successful completion of that 

would have brought with it, and the other issue that I have is that 

his failure in the re-entry program did not occur early in that 

program but it occurred after a relatively long period of time that 

involves behavior that he should have progressed through well 

before [he] committed the violation. Accordingly, I’m going to 

order the balance of the defendant’s sentence executed. He is 

obviously entitled to some credit time. I do not have access to 

how much time he has served during the period of time that he 

was on re-entry as a result of sanctions. Accordingly, I will 

calculate the credit time and put that in the sentencing order. I 

will give you the right, [Hutchins’ counsel], to object to my 

calculation and you can have a hearing on that so we’re not 

going to be bound, necessarily bound by the earlier determined 

sentence.

[7] (Tr. at 21-22.) Then, in the written sentencing order, the court sentenced 

Hutchins “to the Indiana Department of Correction for the balance of the 

previously suspended sentence, with [sic] the Court finds to be 4419 days.” 

(Appellant’s App. at 69.) The court also gave “jail time credit in the sum of 125 

actual days or 250 credit days, day for day credit, served while awaiting 

disposition in this matter.” (Id.) 

Discussion and Decision

[8] We first note the State has not filed a brief. When an appellee does not file a 

brief, we are not required to develop an argument on that party’s behalf. State v. 

Gilbert, 997 N.E.2d 414, 416 n.1 (Ind. Ct. App. 2013). Instead we “may reverse 

the trial court’s decision if the appellant establishes prima facie error—that is, 
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error ‘at first sight, on first appearance, or on the face of it.’” Id. (citation 

omitted). 

[9] Hutchins argues the court abused its discretion by revoking all the suspended 

time that remained on his sentence. 

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

right to which a criminal defendant is entitled. It is within the 

discretion of the trial court to determine probation conditions 

and to revoke probation if the conditions are violated. In appeals 

from trial court probation violation determinations and 

sanctions, we review for abuse of discretion. An abuse of 

discretion occurs where the decision is clearly against the logic 

and effect of the facts and circumstances, or when the trial court 

misinterprets the law.

Probation revocation is a two-step process. First, the trial court 

must make a factual determination that a violation of a condition 

of probation actually occurred. Second, if a violation is found, 

then the trial court must determine the appropriate sanctions for 

the violation.

[10] Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (internal citations and 

quotations omitted). The selection of an appropriate sanction for violation 

depends on the severity of the probation violation. Id. at 618. On review, “we 

consider only the evidence most favorable to the judgment without reweighing 

that evidence or judging the credibility of the witnesses.” Woods v. State, 892 

N.E.2d 637, 639 (Ind. 2008).

[11] Hutchins and the State agreed to recommend the court impose only three years 

in the Department of Correction, with the remainder of his time to be served 
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through Community Corrections on in-home detention. However, the

Probation Department and Transitions Program both disagreed with that 

suggestion. 

[12] Hutchins points to his “success” since being released from the DOC,

(Appellant’s Br. at 9), but most of the information on which he relies to 

demonstrate his success comes from the “unsworn statement” Hutchins read to 

the court after the close of evidence. (Tr. at 18.) Unsworn statements are not 

“evidence” on which a court may base a judgment. See Smith v. State, 471 

N.E.2d 1245, 1248-49 (Ind. Ct. App. 1984) (deputy prosecutor’s unsworn 

statement of medical expenses is insufficient to support restitution order), reh’g 

denied, trans. denied. 

[13] At the hearing on the State’s petition to revoke Hutchins’ suspended sentence, 

the court explained that it saw “absolutely no reason” to impose a shorter 

sentence, (Tr. at 21), because Hutchins already had been “offered the advantage 

of dealing with the re-entry program and all of the benefits that successful 

completion of that would have brought with it,” (id.), and his failure in that 

program had “occurred after a relatively long period of time,” (id.), and 

“involve[d] behavior that he should have progressed through well before [he] 

committed the violation.” (Id. at 22.) In light of the court’s explanation, we 

find no abuse of discretion in the court’s decision to order Hutchins to serve the 

remainder of his suspended sentence. 
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[14] Finally, Hutchins asserts the court miscalculated the amount of credit time to be 

applied against his sentence. The only discussion of this matter at the hearing

was the court’s pronouncement that it did not have the information before it so 

the court would calculate the credit time after the hearing. The court entered an 

order that provided the “balance of the previously suspended sentence . . . to be 

4419 days.” (Appellant’s App. at 69.) The court also found Hutchins had “125 

actual days or 250 credit days” served while awaiting disposition of the 

probation revocation. (Id.) 

[15] Hutchins outlines the days to which he believes he is entitled, and he supports 

his argument with citations to the record that support his being incarcerated 

many of the additional dates he asserts he was incarcerated. (See Appellant’s 

Br. at 10-11.) However, when the court originally imposed his sentence on 

January 2, 2013, the court ordered it “served consecutively to the sentence 

imposed in cause number 34D01-0606-FA-422.” (Appellant’s App. at 34.) As 

we have not been directed to evidence of when Hutchins was released from that 

other sentence to begin serving the sentence herein, we cannot determine the 

number of days to which Hutchins is entitled. Accordingly, we must reverse

the court’s finding and remand for a hearing to determine the time remaining 

on Hutchins’ sentence. 

Conclusion

[16] The court did not abuse its discretion when it revoked all of the time remaining 

on Hutchins’ suspended sentence. However, on the record before us, we 
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cannot determine whether Hutchins received the credit time to which he was 

entitled. We accordingly affirm in part, reverse in part, and remand. 

[17] Affirmed in part, reversed in part, and remanded.

Crone, J., and Bradford, J., concur.