MEMORANDUM DECISION
Crone, Judge.
Case Summary
[1] Heather Lee Crabtree appeals the sanction imposed by the trial court upon revocation of her probation. She contends that the trial court abused its discretion when it ordered her to serve the balance of her previously suspended sentence. The State cross-appeals, arguing that Crabtrees appeal should be dismissed as untimely under Indiana Appellate Rule 9(A) and that Indiana Post-Conviction Rule 2 does not apply to allow the belated filing of a notice of appeal in probation proceedings. Declining the States invitation to dismiss Crabtrees appeal yet finding that the trial court did not abuse its discretion by imposing the sanction, we affirm.
Facts and Procedural History
[2] On May 17, 2022, the State charged Crabtree with level 6 felony possession of methamphetamine, level 6 felony unlawful possession of a syringe, and class A misdemeanor possession of paraphernalia. The State alleged that on May 16, Crabtree was found in Bartholomew County in the passenger seat of a vehicle. A K9 officer alerted to the vehicle, and another officer found a small bag of methamphetamine near Crabtrees seat, a straw containing methamphetamine residue underneath her seat, and a syringe in her handbag. On January 23, 2023, Crabtree pled guilty, pursuant to a plea agreement, to level 6 felony possession of methamphetamine. On February 23, the trial court sentenced Crabtree to 912 days in the county jail, with forty-two (twenty-one actual) days executed and 870 days suspended to probation. At the time of sentencing, Crabtree was living in Marion County, working as a home health aide. She was caring for her mother, who has COPD and difficulty walking, and her father, who is an amputee with stage-4 liver cancer.
[3] Crabtree began her probation on February 23, 2023. Conditions of her probation and community corrections placement included that she participate in all programs and counseling deemed appropriate by her probation officer and not use drugs. On February 27, Crabtree failed to appear for an appointment to complete a risk assessment to determine the level of services she would receive. The community corrections department made multiple unsuccessful attempts to contact her. On March 13, the probation department filed a petition to revoke Crabtrees probation. The following day, the trial court issued a bench warrant for her arrest. Crabtree was arrested on October 9.
[4] On November 27, the trial court held a probation revocation hearing. Bartholomew County community corrections supervisor Robin Winters testified that: (1) the risk assessment was required to be performed before Crabtrees probation could be transferred to Marion County; (2) Crabtree failed to report for her risk assessment appointment; (3) community corrections was able to reach Crabtree to reschedule her appointment for the following day; (4) Crabtree failed to report for the rescheduled appointment; (5) further attempts to reach Crabtree by cell phone, text message, and email proved unsuccessful.
[5] During the hearing, Crabtree admitted to violating the terms of her probation by failing to report for the risk assessment. Crabtree testified that she missed the appointments because she did not have transportation. She told the trial court that she emailed community corrections, and she admitted that she had received a response, instructing her to “report [to community corrections and] turn [her]self in[.]” Id. at 14. Crabtree testified that she did not do so because she needed to care for her mother. Crabtree also admitted that she had continued to use methamphetamine and heroin while on probation.
[6] The trial court determined that Crabtrees probation should be revoked, explaining that
[t]he Court looks back at Ms. Crabtrees history. We have seven misdemeanors, five, Im sorry, three felonies, four including this one. Shes been on probation a total of seven times, now eight. Shes had at least five violations, now six and shes going to be unsuccessfully discharged again, so that includes at least four times that shes been placed on probation and has not made it.
Shes had counseling in the past; shes had opportunities in the past to address substance use disorder and has not been successful at that.․
The Court doesnt find that she would be successful on probation. We cant get her to show up or answer phone calls or emails. If you dont have contact[,] we cant do anything, plain and simple, thats how it is and if youre going to continue to use, then you remain a risk to yourself as well as the community. Weve given you opportunities in the past; theres really no reason to place you back on probation and quite frankly, if youre using meth and heroin, you ought not be caring for anybody.․
Id. at 17-18. The trial court then advised Crabtree that she had thirty days to file a notice of appeal. When asked by the court if she “intended to appeal” “[a]t this time,” Crabtree told the court, “No.” Id. at 20.
[7] Following the hearing, the trial court issued its written order, finding that Crabtree violated the terms of her probation. The court sanctioned her by terminating the remainder of her probation, revoking the balance of her previously suspended sentence, and ordering her to serve 870 days in the county jail. The order was entered on the chronological case summary on November 29, 2023. The notice of appeal was due by December 29.
[8] On December 27, the trial court received a letter from Crabtree, stating that she was “currently” in the county jail and was “writing to ask for an appeal[.]” Appellants App. Vol. 2 at 89. The letter was internally dated as being written on December 13.
1
On January 2, 2024, the trial court issued an order, stating that Crabtree had filed a letter “indicating she wishes to appeal her sentence[,]” appointing Crabtree counsel, and directing counsel to file a notice of appeal. Id. at 91. On January 4, counsel filed with the trial court a petition for permission to file a belated notice of appeal, requesting relief under Post-Conviction Rule 2 (PCR2) and claiming that Crabtree had been diligent in pursuing an appeal.
2
On January 8, the trial court granted the petition, without holding a hearing, finding that Crabtree had “failed to file a timely notice of appeal[,]” the “failure ․ was not due to the fault of [Crabtree,]” and Crabtree had been “diligent in requesting permission to file a belated notice of appeal under [PCR2].” Id. at 102.
[9] On January 11, Crabtree filed her notice of appeal with this Court. On February 22, Crabtree filed with this Court a motion to file a belated notice of appeal, acknowledging that PCR2 does not apply to probation revocation proceedings. The following day, the State filed a motion to dismiss Crabtrees appeal on grounds that Crabtrees notice of appeal was untimely and belated appeals from orders revoking probation are not permitted under PCR2. The motions panel of this Court denied the States motion on March 15, 2024. The motions panel granted Crabtrees motion to file a belated notice of appeal, pursuant to In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), and Indiana Appellate Rule 1. Crabtree now appeals, and the State cross-appeals. Additional facts will be provided as necessary.
Discussion and Decision
[10] Crabtree argues that the trial court abused its discretion when it revoked her probation for a technical violation and ordered her to serve the balance of her previously suspended sentence. On cross-appeal, the State contends that Crabtree has forfeited her right to appeal because she failed to timely file her notice of appeal. Because the States argument on cross-appeal is potentially dispositive, we address it first.
Section 1 – In light of our Supreme Courts decision in O.R. and Indiana Appellate Rule 1, which Crabtree did not invoke, this appeal should not be dismissed, under the facts and circumstances of this case, based on the late filing of Crabtrees notice of appeal.
[11] The State renews its argument that this Court should dismiss this appeal because Crabtree was not permitted to seek permission to file a belated notice of appeal under PCR2 for a probation violation. Even though our motions panel has already ruled on this issue, the State is not precluded from presenting its argument to us. Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007). A writing panel has “the inherent authority” to reconsider decisions of the motions panel while an appeal remains pending. Haggerty v. Anonymous Party 1, 998 N.E.2d 286, 293 (Ind. Ct. App. 2013). We are reluctant, however, to overrule a motions panel decision unless a more complete record “reveals clear authority establishing that our motions panel erred.” Id.
[12] We also note that Crabtree did not respond to the States allegation that we should dismiss her appeal because she failed to timely file her notice of appeal. “ ‘In such a circumstance, if we find prima facie error, we may reverse.’ ” Amphonephong v. State, 32 N.E.3d 825, 829-30 (Ind. Ct. App. 2015) (quoting Townsend v. State, 843 N.E.2d 972, 974 (Ind. Ct. App. 2006), trans. denied). “In this context, prima facie is defined as at first sight, on first appearance, or on the face of it.” Id. (internal quotation marks omitted).
[13] The State maintains that because this is an appeal from a probation revocation proceeding, the trial court was without authority to grant Crabtree permission to file a belated notice of appeal under PCR2, and Crabtree failed to assert extraordinary circumstances to justify an exception to the rule. Thus, according to the State, Crabtrees appeal should be dismissed.
[14] Indiana Appellate Rule 9(A)(1) provides that a “party initiates an appeal by filing a Notice of Appeal ․ within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary.” If a timely notice of appeal is not filed, “the right to appeal shall be forfeited except as provided by [PCR2].” Ind. Appellate Rule 9(A)(5). Relevant to this case, PCR2 provides:
Eligible Defendant Defined. An “eligible defendant” for purposes of this Rule is a defendant who, but for the defendants failure to do so timely, would have the right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty by filing a notice of appeal, filing a motion to correct error, or pursuing an appeal.
․
Section 1. Belated Notice of Appeal.
(a) Required Showings. An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if:
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and
(3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.
[15] We acknowledge that the State is correct that PCR2 does not provide a vehicle for a belated appeal from a probation revocation proceeding. The rule is a “vehicle for belated direct appeals alone.” Howard v. State, 653 N.E.2d 1389, 1390 (Ind. 1995). “[B]elated appeals from orders revoking probation are not presently available pursuant to [PCR2].” Dawson v. State, 938 N.E.2d 841, 845 (Ind. Ct. App. 2010), adopted and incorporated by reference by 943 N.E.2d 1281, 1281 (Ind. 2011) (per curiam).
[16] Our supreme court has explained, however, that an appellate court may restore a right of appeal that has been forfeited if there are “extraordinarily compelling reasons” to do so. O.R., 16 N.E.3d at 971. “In effect, O.R. acts as a fail-safe where procedural defaults would render forfeiture of an appeal shockingly unfair. Guiding this principle is the recognition that procedural rules are simply the means to an end, not the end itself.” Sevion v. State, 223 N.E.3d 1154, 1156 (Ind. Ct. App. 2023) (citing O.R., 16 N.E.3d at 971-72).
[17] In O.R., our supreme court concluded that, in an appeal of a father seeking to challenge the adoption of his child, there were extraordinarily compelling reasons that existed to restore the fathers forfeited right to appeal. O.R., 16 N.E.3d at 972. In so finding, the O.R. Court cited to: (1) Appellate Rule 1, which provides that our Court may permit deviation from the Appellate Rules; (2) the fathers timely attempt to initiate an appeal before the deadline for filing his notice of appeal; and (3) the parent-child relationship as a fundamental liberty interest and one of the most valued relationships in our culture. Id. Although not specifically enunciated by the O.R. Court, implicit in its finding of extraordinarily compelling reasons was the fact that the father would have been forever precluded from appealing the trial courts adoption order.
[18] In this case, Crabtree did not assert O.R.’s standard of extraordinarily compelling reasons in the trial court or on appeal. The only basis Crabtree provides for her argument is that her appellate counsel “was not an attorney of record in the trial proceedings.” Appellants Motion to File Belated Notice of Appeal at 2. However, under the facts and circumstances of this case, we reach the same result as in O.R., specifically, in light of: (1) Appellate Rule 1; (2) Crabtrees attempt to perfect a timely appeal by sending a letter to the trial court requesting an appeal prior to the deadline for filing the notice of appeal, which speaks to Crabtrees diligence; and (3) the loss of liberty interest that she experienced when the trial court ordered her to serve the balance of her previously suspended sentence in jail. We conclude that these events, taken together, represent extraordinarily compelling reasons to allow this appeal to proceed on the merits.
[19] Furthermore, we find that under the facts and circumstances of this case, dismissing Crabtrees appeal would exalt form over substance, considering that Crabtree could have appealed the probation revocation and sanction by filing a petition for post-conviction relief under Post-Conviction Rule 1. See Ind. Post-Conviction Rule 1(a)(5) (“[a]ny person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims ․ that ․ his probation, parole or conditional release [was] unlawfully revoked ․ may institute at any time a proceeding under this Rule to secure relief.” Therefore, we decline to overrule our motions panels decision granting Crabtrees motion to file a belated notice of appeal and denying the States motion to dismiss her appeal.
Section 2 – The trial court did not abuse its discretion by ordering Crabtree to serve the balance of her previously suspended sentence following the revocation of her probation.
[20] We now address Crabtrees argument that the trial court abused its discretion when it ordered her to serve the balance of her previously suspended sentence after revoking her probation for what Crabtree deems a technical violation. Probation is a matter of grace and a conditional liberty that is a favor, not a right. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). “Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Indiana Code Section 35-38-2-3(h) offers the trial court the following options when it finds a defendant has violated the terms of her probation: (1) “[c]ontinue the person on probation, with or without modifying or enlarging the conditions[,]” (2) “[e]xtend the persons probationary period for not more than one (1) year beyond the original probationary period[,]” or (3) “[o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing.”
[21] We review a trial courts selection of a sanction for an abuse of discretion. Overstreet v. State, 136 N.E.3d 260, 263 (Ind. Ct. App. 2019), trans. denied (2020). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances. Id.
[22] Technical violations have been described as including such things as missing an undetermined number of appointments with probation. Brown v. State, 162 N.E.3d 1179, 1184 (Ind. Ct. App. 2021). On the other hand, testing positive for illegal drugs is not a merely technical violation. See Overstreet, 136 N.E.3d at 264 (concluding that three positive drug screens are “hardly mere ‘technical’ violations” of probation).
[23] Here, four days after being placed on probation, Crabtree violated the terms of her probation by failing to appear for an appointment to complete a risk assessment to determine the level of services she would receive. At the probation revocation hearing, Crabtree not only admitted that she had violated the terms of her probation by failing to report for the risk assessment but also admitted that she had continued to use methamphetamine and heroin while on probation. Under these circumstances, the trial court was well within its discretion to order Crabtree to serve the balance of her previously suspended sentence. The judgment of the trial court is affirmed.
Affirmed.
FOOTNOTES
1
. The State does not dispute this.
2
. Post-Conviction Rule 2 permits belated appeals in certain criminal cases, but not from orders revoking probation. See Dawson v. State, 938 N.E.2d 841, 845 (Ind. Ct. App. 2010), adopted and incorporated by reference by 943 N.E.2d 1281, 1282 (Ind. 2011) (per curiam) (holding that belated appeals from orders revoking probation are not permitted under Post-Conviction Rule 2).
Memorandum Decision by Judge Crone
Judges Bradford and Tavitas concur.
Bradford, J., and Tavitas, J., concur.