Thomas Robert Bucher, Jr. v. State of Indiana (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                         FILED
    this Memorandum Decision shall not be                                     Jan 10 2018, 9:13 am
    regarded as precedent or cited before any                                      CLERK
    court except for the purpose of establishing                               Indiana Supreme Court
    Court of Appeals
    the defense of res judicata, collateral                                         and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Leanna Weissmann                                         Curtis T. Hill, Jr.
    Lawrenceburg, Indiana                                    Attorney General of Indiana
    Christina D. Pace
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Thomas Robert Bucher, Jr.,                               January 10, 2018
    Appellant-Defendant,                                     Court of Appeals Case No.
    15A01-1707-CR-1671
    v.                                               Appeal from the Dearborn Circuit
    Court
    State of Indiana,                                        The Honorable James D.
    Appellee-Plaintiff.                                      Humphrey, Judge
    Trial Court Cause No.
    15C01-1208-FC-72
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018            Page 1 of 9
    Case Summary and Issue
    [1]   For the third time in this case, the trial court revoked Thomas Bucher, Jr.’s
    probation and ordered him to serve two years of his previously suspended
    sentence in the Indiana Department of Correction (“DOC”). On appeal,
    Bucher raises the sole issue of whether the trial court abused its discretion in
    revoking his probation and ordering him to serve two years of his sentence in
    the DOC. Concluding the trial court did not abuse its discretion, we affirm.
    Facts and Procedural History
    [2]   In 2012, Bucher stole tools and equipment from his father’s garage. Following
    his arrest, the State charged Bucher with burglary, a Class C felony, and theft, a
    Class D felony. Bucher pleaded guilty to burglary and the trial court sentenced
    him to eight years with six of those years suspended to probation.
    [3]   Bucher was released from incarceration and began probation on June 28, 2013.
    Bucher’s conditions of probation included the following:
    (a)      [Bucher] shall obey all conditions of probation set forth by
    the Dearborn County Probation Department . . . .
    ***
    (e)      [Bucher] shall not consume alcoholic beverages or illegal
    controlled substances and shall be tested for consumption
    of [the] same at any time by the Probation Department or
    law enforcement officer.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 2 of 9
    Appellant’s Appendix, Volume Two at 43. On January 28, 2014, the State filed
    a notice of probation violation alleging Bucher tested positive for a controlled
    substance. Bucher admitted the violation and the trial court revoked one year
    of his previously suspended sentence. On December 11, 2015, the State filed a
    second notice of probation violation alleging Bucher tested positive for ethyl
    glucuronide and ethyl sulfate—metabolites of alcohol. Bucher also admitted
    this violation and the trial court revoked another year of Bucher’s suspended
    sentence; this left four years suspended to probation on his original sentence.
    Bucher served this sentence and was eventually re-released to probation.
    [4]   Bucher’s probation officer, Jennifer Benson, scheduled an appointment with
    him on Friday, March 24, 2017. Several days prior to their meeting, Bucher
    called Benson and asked to reschedule to the following Monday. Bucher
    informed Benson his job required him to work out of town and she agreed to
    reschedule the appointment. On March 24, Bucher’s ex-girlfriend called the
    probation office and informed Benson that Bucher had been drinking alcohol
    and using illegal narcotics. Benson then drove to Bucher’s home and observed
    him in his driveway working on his car, not out of town as he claimed. From
    this point on, Benson had Bucher submit to a drug test every Monday,
    Wednesday, and Friday.
    [5]   On Monday, May 15, and Friday, May 19, Bucher again tested positive for
    metabolites of alcohol. Bucher’s drug screens from Wednesday, May 17, and
    Monday, May 22, both returned negative for alcohol or narcotics. The State
    filed its third notice of probation violation on May 23. Convinced the tests
    Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 3 of 9
    were false positives, Bucher submitted a hair follicle to United States Drug
    Testing Laboratories in Des Plaines, Illinois. This method of testing found no
    traces of ethyl glucuronide in Bucher’s hair.1 While awaiting his test results,
    Bucher skipped six probation appointments and drug screens from May 24 to
    June 5, 2017. The State subsequently amended its notice of probation violation
    to reflect these missed appointments.
    [6]   The trial court held a probation revocation hearing on June 29, 2017. At the
    hearing, the State submitted into evidence Bucher’s two failed drug screens and
    his hair follicle test. Bucher called an independent forensic toxicologist, Harry
    Plotnick, to testify. Dr. Plotnick testified the hair follicle test and urine
    screenings of May 15 and May 19 were incompatible with each other and he
    had no explanation for why the urine screens tested positive but the hair follicle
    test came back negative for alcohol. The trial court found insufficient evidence
    that Bucher consumed alcohol in violation of the conditions of his probation;
    however, the trial court determined Bucher violated probation by skipping six
    probation appointments and revoked two years of Bucher’s suspended sentence.
    Bucher now appeals.
    Discussion and Decision
    1
    Hair follicle testing has a window of detection for alcohol of up to three months. Exhibits, Volume I at 14.
    By contrast, drug screens of urine have a window of two to three days. 
    Id. Court of
    Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018            Page 4 of 9
    [7]   Probation is a conditional liberty that is a privilege, not a right. Heaton v. State,
    
    984 N.E.2d 614
    , 616 (Ind. 2013). A single violation of a condition of probation
    is sufficient to revoke probation. 
    Id. at 618.
    When a trial court determines
    probation has been violated and issues sanctions, we review for abuse of
    discretion. 
    Id. at 616.
    An abuse of discretion occurs where the decision is
    clearly against the logic and effect of the facts and circumstances before the
    court, or when the court misinterprets the law. 
    Id. A trial
    court that has
    determined probation has been violated may “[o]rder execution of all or part of
    the sentence that was suspended at the time of initial sentencing.” Ind. Code §
    35-38-2-3(h)(3).
    [8]   Bucher does not challenge the trial court’s determination he violated the
    conditions of his probation by skipping six probation appointments and drug
    screens. See Brief of Appellant at 9, 12 (admitting Bucher “technically violated
    his probation . . . .”). However, Bucher maintains his offenses were “minor
    violation[s]” caused by a “vengeful ex-girlfriend” which are undeserving of the
    revocation of probation and imposition of a two-year sentence in the DOC. Br.
    of Appellant at 5, 13. In support of his argument, Bucher cites to two cases,
    Ripps v. State, 
    968 N.E.2d 323
    (Ind. Ct. App. 2012), and Johnson v. State, 
    62 N.E.3d 1224
    (Ind. Ct. App. 2016).
    [9]   In Ripps, the defendant pleaded guilty to child molesting and part of his
    sentence was suspended to probation. A condition of the defendant’s probation
    was that he not live within 1,000 feet of a youth program center. Several years
    into his probation, the defendant, who was suffering from terminal cancer,
    Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 5 of 9
    congestive heart failure, and pulmonary disease, moved into an assisted-living
    facility that was located within 1,000 feet of a youth program center. The
    defendant registered his address with the sheriff’s department. The trial court
    revoked the defendant’s probation and he was ordered to serve the nearly three
    years remaining of his sentence in prison. On appeal, we considered the
    “totality of the circumstances” presented by the case:
    [Defendant] was sixty-nine years old and suffering from serious
    health issues, including terminal cancer; he was attempting to
    adhere to his probation conditions, as evidenced by his going to
    the sheriff’s office to register his new address; although he was
    initially in violation of the residency restriction, evidence reveals
    he was taking steps to correct the violation by finding a new
    residence; while he did live within 1,000 feet of the public library,
    this was only so by about twenty feet and some ambiguity exists
    in how this distance was measured; and, last, [the defendant]
    previously served time in prison for a crime that was later
    vacated as violative of our constitutional ex post facto provision.
    
    Ripps, 928 N.E.2d at 328
    . Under these circumstances, we held it “was
    unreasonable for the trial court to determine [the] violation warranted revoking
    [the defendant’s] probation.” 
    Id. [10] In
    Johnson, the defendant, who had learning, cognitive, and memory
    deficiencies, pleaded guilty to neglect of a dependent and the trial court
    sentenced him to eleven years, with seven of those years served on home
    detention and the remainder suspended to probation. Shortly thereafter,
    community corrections filed a notice alleging the defendant was behind in
    probation fees, was given permission to travel to the social security office and
    Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 6 of 9
    instead went elsewhere, went to the bank three hours before he was permitted
    to, moved the monitoring equipment in his apartment, and was seen sitting
    outside his apartment on the porch. Following a hearing, the trial court
    modified the defendant’s sentence to seven years executed in the DOC.
    [11]   On appeal, this court agreed the “evidence supports the trial court’s
    determination that [the defendant] violated the term of his community
    corrections placement that he not leave his apartment and its decision to revoke
    the placement.” 
    Johnson, 62 N.E.3d at 1231
    . However, we again looked to the
    totality of the circumstances and concluded the defendant’s “level of . . .
    functioning and his resources, his previous successful placement on work
    release, the nature of the violation, and the severity of the court’s sentence”
    warranted a finding the trial court abused its discretion. 
    Id. at 1231.
    We
    ordered the trial court to place the defendant on work release. 
    Id. at 1232.
    [12]   Notwithstanding the cases cited by Bucher, the trial court did not abuse its
    discretion in revoking his probation. Cumulatively, this was Bucher’s third
    probation violation in this case, as he previously violated probation for
    consuming alcohol and controlled substances. The trial court revoked one year
    of Bucher’s probation for each of the prior violations. With these previous
    abuses of probationary grace, Bucher presumably knew the trial court would
    not tolerate any further missteps. And although we are sympathetic to Bucher’s
    situation, submitting a hair follicle sample to an independent laboratory did not
    require him to miss six probation appointments and drug screens over the
    Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 7 of 9
    course of two weeks. The trial court indicated the same in its statement to
    Bucher.
    The Court: Mr. Bucher, do you know where you would be at
    right now had you not missed all these
    appointments that I found that you missed, and the
    tests? . . . You would be out of [jail] and you would
    be leaving because I found insufficient evidence on
    the drug testing. But that didn’t happen.
    Transcript at 60-61. Bucher claims he could not attend these appointments
    because he knew he would be arrested and therefore unable to prove his
    innocence if he met with his probation officer. However, Bucher offers no valid
    reason why he could not petition the trial court for a hair follicle test, or, in the
    alternative, notify his probation officer that he intended to submit a hair follicle
    test and then attend the rest of his appointments, as he is required to do by the
    terms of his probation.
    [13]   As to the trial court’s revocation of two years of Bucher’s probation, the
    sentence is harsh but does not constitute an abuse of discretion. Indiana Code
    section 35-38-2-3(h)(3) permits a trial court to order a probationer to serve either
    all or part of a suspended sentence upon a single violation of probation. Bucher
    has now violated probation three times for failing to adhere to the terms of his
    probation’s alcohol and controlled substances policy and for failing to attend
    probation appointments. Each of the previous two times, the trial court
    revoked one year of Bucher’s probation. Because Bucher has previously
    struggled to adhere to the terms of his probation, we cannot say the trial court’s
    Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 8 of 9
    revocation of an additional two years of his sentence constitutes an abuse of
    discretion.
    Conclusion
    [14]   The trial court did not abuse its discretion in revoking Bucher’s probation and
    ordering him to serve two years in the DOC. Accordingly, we affirm the trial
    court’s order and sentence.
    [15]   Affirmed.
    Crone, J., and Bradford, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 15A01-1707-CR-1671 | January 10, 2018   Page 9 of 9
    

Document Info

Docket Number: 15A01-1707-CR-1671

Filed Date: 1/10/2018

Precedential Status: Precedential

Modified Date: 4/17/2021