Jakesha J. Wilms v. State of Indiana ( 2012 )


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  • 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
    FILED
    Apr 20 2012, 8:37 am
    establishing the defense of res judicata,
    collateral estoppel, or the law of the                              CLERK
    of the supreme court,
    case.                                                             court of appeals and
    tax court
    ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:
    DONALD C. SWANSON, JR.                           GREGORY F. ZOELLER
    Fort Wayne, Indiana                              Attorney General of Indiana
    IAN MCLEAN
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    JAKESHA J. WILMS,                                )
    )
    Appellant-Defendant,                      )
    )
    vs.                                )      No. 02A03-1102-CR-46
    )
    STATE OF INDIANA,                                )
    )
    Appellee-Plaintiff.                       )
    APPEAL FROM THE ALLEN SUPERIOR COURT
    The Honorable Frances C. Gull, Judge
    Cause No. 02D04-1006-FD-613
    April 20, 2012
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    BARNES, Judge
    Case Summary
    Jakesha Wilms appeals her guilty plea and the termination of her participation in a
    drug court diversion program. We affirm.
    Issues
    Wilms raises two issues, which we restate as:
    I.     whether she may challenge the factual basis supporting
    her guilty plea; and
    II.    whether the trial court properly terminated her
    participation in a drug court diversion program.
    Facts
    On June 30, 2010, Wilms was charged with Class D felony possession of a
    controlled substance, Class A misdemeanor attempted criminal conversion, and Class B
    misdemeanor false reporting or informing. On July 19, 2010, Wilms pled guilty to the
    charges. The trial court took the guilty plea under advisement while Wilms participated
    in a drug court diversion program.
    On December 6, 2010, the State filed a petition to terminate Wilms’s participation
    in the drug court diversion program. The petition alleged that Wilms violated the terms
    of her Drug Court Participation Agreement by failing to appear for a scheduled hearing
    on August 9, 2010, absconding from the drug court diversion program, and being arrested
    for false informing. According to the petition, a bench warrant was issued on August 10,
    2010, and was served on December 2, 2010.
    2
    At a December 6, 2010 hearing, the trial court found that Wilms violated the terms
    of the Drug Court Participation Agreement.1 A sentencing hearing was held on January
    10, 2011, at which the trial court entered convictions on the offenses that Wilms had pled
    guilty to on July 19, 2010. Finding that the aggravators balanced the mitigators, the trial
    court sentenced Wilms to one-and-one-half-years in the Department of Correction
    (“DOC”) for the Class D felony conviction, one year for the Class A misdemeanor
    conviction, and sixty days for the Class B misdemeanor conviction. The trial court
    ordered the sentences to be served concurrently. Wilms now appeals.
    Analysis
    I. Factual Basis
    Wilms argues that that the factual basis supporting the July 19, 2010 guilty plea is
    insufficient. “One consequence of pleading guilty is restriction of the ability to challenge
    the conviction on direct appeal.” Tumulty v. State, 
    666 N.E.2d 394
    , 395 (Ind. 1996).
    Post-conviction relief is the proper vehicle for pursuing this type of claim. See 
    id. at 396
    (rejecting a defendant’s challenge to the factual basis supporting his guilty plea to an
    habitual offender enhancement on direct appeal). Because Wilms may not challenge the
    factual basis supporting her guilty plea on direct appeal, we do not reach the merits of the
    claim.
    II. Termination of Participation in Drug Court Diversion Program
    1
    A transcript of this hearing was not included in the record on appeal. Nevertheless, because of the
    nature of Wilms’s argument regarding the termination of her participation in the drug court diversion
    program, we are able to review her claim.
    3
    Wilms argues that the trial court abused its discretion by terminating her
    participation in the drug court diversion program and by sentencing her to the DOC
    because there is no evidence of the efforts made to assist her with her addiction. The
    parties contend that Wilms’s participation in the drug court diversion program is akin to a
    community corrections program. “Both probation and community corrections programs
    serve as alternatives to commitment to the DOC, and both are made at the sole discretion
    of the trial court.” McQueen v. State, 
    862 N.E.2d 1237
    , 1242 (Ind. Ct. App. 2007). A
    defendant is not entitled to serve a sentence in either probation or a community
    corrections program; rather, placement in either is a “matter of grace” and a “conditional
    liberty that is a favor, not a right.” 
    Id. (internal quotations
    omitted).
    Our review of the decision to revoke a community corrections placement mirrors
    that for the revocation of probation. 
    Id. “That is,
    a revocation of community corrections
    placement hearing is civil in nature, and the State need only prove the alleged violations
    by a preponderance of the evidence.” 
    Id. We consider
    the evidence most favorable to the
    judgment of the trial court without reweighing that evidence or judging the credibility of
    witnesses. 
    Id. “If there
    is substantial evidence of probative value to support the trial
    court’s conclusion that a defendant has violated any terms of community corrections, we
    will affirm its decision to revoke placement.” 
    Id. Wilms suggests
    that the petition fails to allege and the State failed to prove that
    “the best efforts” were given to assist her with her addiction. Appellant’s Br. p. 7. She,
    however, provides no authority for the assertion that such must be alleged and proven
    before one’s participation in a diversion program may be terminated. Thus, she has not
    4
    established that the trial court erroneously terminated her participation in the drug court
    diversion program.
    As for her sentence to the DOC, Wilms has not established that the trial court
    abused its discretion. See Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007) (concluding
    that a trial court’s sentencing decisions for probation violations are reviewable for an
    abuse of discretion). “An abuse of discretion occurs where the decision is clearly against
    the logic and effect of the facts and circumstances.” 
    Id. Wilms, who
    was eighteen when
    she was charged with the offenses, had a criminal history that involved at least thirteen
    juvenile adjudications and three misdemeanor convictions as an adult. She had violated
    terms of juvenile probation on multiple occasions. Under these circumstances, the trial
    court did not abuse its discretion in terminating Wilms’s participation in drug court
    diversion program and sentencing her to the DOC.
    Conclusion
    Wilms’s challenge to the factual basis surrounding her guilty plea is not
    reviewable on direct appeal.      Further, Wilms has not established the trial court
    improperly terminated her participation the drug court diversion program and sentenced
    her to the DOC. We affirm.
    Affirmed.
    FRIEDLANDER, J., and MAY, J., concur.
    5
    

Document Info

Docket Number: 02A03-1102-CR-46

Filed Date: 4/20/2012

Precedential Status: Non-Precedential

Modified Date: 4/17/2021