Timothy W. Woolum, Sr. v. State of Indiana ( 2014 )

  • Pursuant to Ind. Appellate Rule 65(D), this
    Memorandum Decision shall not be
    regarded as precedent or cited before any                        Feb 21 2014, 9:02 am
    court except for the purpose of
    establishing the defense of res judicata,
    collateral estoppel, or the law of the case.
    RICHARD WALKER                                  GREGORY F. ZOELLER
    Anderson, Indiana                               Attorney General of Indiana
                                                    KARL M. SCHARNBERG
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana
                                  IN THE
                        COURT OF APPEALS OF INDIANA
    TIMOTHY W. WOOLUM, SR.,                         )
           Appellant-Defendant,                     )
                  vs.                               )       No. 48A02-1306-CR-560
    STATE OF INDIANA,                               )
           Appellee-Plaintiff.                      )
                            The Honorable Dennis D. Carroll, Judge
                                Cause No. 48D01-0504-FA-115
                                        February 21, 2014
    BAKER, Judge
          On occasion, the evidence will convince the trial court that the least restrictive
    placement for one who violates probation is not the most appropriate sanction.
    Appellant-defendant Timothy Woolum Sr. appeals the revocation of his probation. More
    particularly, he argues that the trial court should have considered placement in
    community corrections rather than executing the remainder of his suspended sentence in
    the Indiana Department of Corrections (DOC). Finding that the trial court properly
    revoked Woolum’s probation and ordered him to serve the remainder of his suspended
    sentence in the DOC, we affirm.
          On December 27, 2005, Woolum, pursuant to a plea agreement, pleaded guilty to
    class B felony dealing in cocaine. The trial court sentenced Woolum to sixteen years in
    the DOC, with thirteen years executed and three years suspended. The trial court ordered
    that, upon release from the executed portion of the sentence, Woolum be placed on
    probation for three years. Woolum was released from the DOC on August 31, 2010 and
    began serving his probation.
          On March 10, 2013, Trooper Nathan Rainey of the Indiana State Police was
    contacted by the Department of Child Services (DCS); the DCS told Trooper Rainey that
    it had received a report that methamphetamine was being manufactured in a house in
    Anderson, a home where children were present. Trooper Rainey went to investigate and
    detected the odor of an organic solvent emanating from the house. He spoke to Michael
    Sheets, who was living in the home, and ordered all of the individuals inside the home to
    come outside. Trooper Rainey conducted a protective sweep of the home and saw
    methamphetamine in plain view on a coffee table. He then obtained a search warrant for
    the residence, which produced lithium batteries, soiled coffee filters, pseudoephedrine
    blister packs, burnt foils, drain cleaner, and rye. Trooper Rainey arrested everyone inside
    the home.
           About a week later, Trooper Rainey saw Woolum on the front porch of the house
    as he drove by. He stopped and spoke to Woolum, who told him that he was living in the
    house and that he had not known what Sheets was doing in the home.
           On April 17, 2013, Trooper Rainey went to a Payless store in Anderson to check
    on some receipts for lithium batteries he had found in the house.            The Payless
    surveillance camera showed that Woolum had purchased the lithium batteries. Upon
    discovering that Woolum had made this purchase, Trooper Rainey contacted Woolum’s
    probation officer, Tony New, and informed him that he intended to interview Woolum in
    connection with the case against Sheets. New asked Trooper Rainey to allow him to
    conduct a home visit before interviewing Woolum. New and Trooper Rainey attempted
    to conduct a home visit on April 17, 2013, but Woolum was not at home.
           Officer Rainey returned to the home the following day, along with New, Trooper
    Skylar Whittington, and Trooper David Preston, a canine officer with the Indiana State
    Police. The Troopers knocked on the front door, and when Woolum saw them, he
    attempted to go out the back of the house.         However, some officers had placed
    themselves behind the house, and Woolum, upon seeing them, went back into the home
    and spoke to New at the front door. Woolum gave New permission for Trooper Preston
    to walk the canine through the house, where the dog alerted twice.
          Woolum had a plastic straw in his pocket that tested positive for
    methamphetamine residue. Additionally, the police found ten pseudoephedrine pills in a
    plastic bag, methamphetamine product in a bag, scales, marijuana, lithium batteries,
    soiled coffee filters that tested positive for marijuana, and twenty grams of an unknown
    substance. Woolum later admitted that he had known there was marijuana in the home,
    and that, if he were tested, he would test positive for hydrocodone. The coffee filters
    found that day also tested positive for methamphetamine.
          On April 29, 2013, the State filed a notice of probation violation.   On May 28,
    2013, an evidentiary hearing was conducted. At the evidentiary hearing, Woolum asked
    the trial court to consider placement in the Madison County Drug Program. The trial
    court stated that Woolum could have his attorney speak “to the prosecutor about whether
    or not Drug Court ought to be appropriate . . . but on the probations case you have three
    years of exposure and that’s going to be revoked.” Tr. p. 48-49. At the conclusion of the
    hearing, the trial court found that Woolum had violated his probation by testing positive
    for methamphetamine, opiates, and cannabinoids and by committing new criminal
    offenses. The trial court revoked Woolum’s probation and executed the remaining three-
    year term in the DOC.
          Woolum now appeals.
                                    DISCUSSION AND DECISION
                                         I. Standard of Review
          On appeal, we review a trial court’s probation revocation decision for an abuse of
    discretion. Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007). An abuse of discretion
    occurs when the trial court’s decision is clearly against the logic and effect of the facts
    and circumstances before it. Turner v. State, 
    953 N.E.2d 1039
    , 1045 (Ind. 2011). In
    reviewing a trial court’s revocation decision, we do not reweigh the evidence or judge the
    credibility of witnesses. Mogg v. State, 
    918 N.E.2d 750
    , 759 (Ind. Ct. App. 2009). We
    only consider the evidence most favorable to the judgment, and we will affirm the trial
    court’s revocation decision when finding substantial evidence supporting the trial court’s
    revocation decision. Woods v. State, 
    892 N.E.2d 637
    , 639-40 (Ind. 2008).
          Probation is not a right to which a criminal defendant is entitled, but a matter of
    grace left to the trial court’s discretion. Prewitt, 878 N.E.2d at 188.       A probation
    revocation hearing is in the nature of a civil action and is not to be equated with an
    adversarial criminal proceeding. Grubb v. State, 
    734 N.E.2d 589
    , 591 (Ind. Ct. App.
    2000). A trial court has discretion to revoke probation if a violation of a probation
    condition occurs during the probationary period. Ind. Code § 35-38-2-3(a)(1); Cooper v.
    917 N.E.2d 667
    , 671 (Ind. 2009). Violation of a single probation condition is
    sufficient to support a revocation. Richardson v. State, 
    890 N.E.2d 766
    , 768 (Ind. Ct.
    App. 2008).
                                        II. Revocation of Probation
           Woolum argues that the trial court abused its discretion in sentencing him to the
    DOC. He contends that, because he was gainfully employed following his incarceration,
    the court should have considered placement in community corrections.
           Woolum’s argument that the trial court abused its discretion in sentencing him to
    serve his executed sentence at the DOC is in contradiction with the principles behind
    probation and placement in corrections programs. Placement in a community corrections
    program, as with probation, is a “matter of grace” and a “conditional liberty;” it is not a
    right. Million v. State, 646, N.E.2d 998, 1002 (Ind. Ct. App. 1995). Placement in a
    community corrections program is an alternative to a commitment at the DOC, and such
    placement is made at the sole discretion of the trial court. Id.
           Furthermore, the trial court did consider placement in community corrections.
    The trial court took notice of Woolum’s request to be placed with the Madison County
    Drug Court Program. Tr. p. 47. However, the trial court heard evidence that Woolum
    had already completed some drug counseling, and yet determined that he was still
    “heavily involved in meth use.” Id. at 48-49. The trial court advised Woolum that his
    attorney could speak to the prosecutor about whether Drug Court was appropriate but
    determined that Woolum should return to the DOC. The trial court determined that
    Woolum had violated his probation by testing positively for drugs and committing new
    criminal offenses and acted within its discretion in revoking Woolum’s probation and
    sentencing him to serve his executed sentence at the DOC.
          The judgment of the trial court is affirmed.
    NAJAM, J., concurs, and CRONE, J., concurs in result.