Tammy Lee Montgomery 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 establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    
    
    ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:
    
    JESSE R. POAG                                       GREGORY F. ZOELLER
    Newburgh, Indiana                                   Attorney General of Indiana
    
                                                        JOSEPH Y. HO
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana
                                                                                        FILED
                                                                                      Aug 16 2012, 8:20 am
    
    
                                                                                             CLERK
                                   IN THE                                                  of the supreme court,
                                                                                           court of appeals and
                                                                                                  tax court
    
                         COURT OF APPEALS OF INDIANA
    
    TAMMY LEE MONTGOMERY,                               )
                                                        )
           Appellant-Defendant,                         )
                                                        )
                   vs.                                  )      No. 82A01-1201-CR-26
                                                        )
    STATE OF INDIANA,                                   )
                                                        )
           Appellee-Plaintiff.                          )
    
    
                     APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                            The Honorable Mary Margaret Lloyd, Judge
                      Cause Nos. 82D02-0909-FD-850 and 82D02-1104-FD-395
    
    
    
                                             August 16, 2012
    
    
                    MEMORANDUM DECISION - NOT FOR PUBLICATION
    
    
    CRONE, Judge
                                         Case Summary
    
           This is a case of a probationer who simply cannot stay away from drugs. While
    
    serving probation on a class D felony conviction for driving while suspended, Tammy Lee
    
    Montgomery violated probation and tested positive for an array of drugs. She was convicted
    
    of two new class D felony counts of drug possession, for which she was sentenced to
    
    probation and drug treatment programs. However, she continued to test positive for illegal
    
    substances. Eventually, she signed a form admitting that she had used a controlled substance
    
    without a valid prescription, whereupon the court granted petitions to revoke her probation
    
    and remanded her to the Department of Correction (“DOC”).
    
           Montgomery now appeals, claiming that the evidence is insufficient to support the
    
    trial court’s finding that she violated her probation. We affirm.
    
                                  Facts and Procedural History
    
           In 2010, Montgomery pled guilty to class D felony driving while suspended causing
    
    injury in cause number 82D02-0909-FD-850 (“Cause 850”). Her two-year sentence was
    
    suspended to probation, and the trial court ordered her to pay restitution and perform
    
    community service. In March 2011, the probation department filed a petition to revoke her
    
    probation, alleging that she had tested positive for methamphetamine, oxycontin, methadone,
    
    and benzodiazepines and had failed to pay restitution or perform community service as
    
    ordered.
    
           Two weeks later, the State charged Montgomery with two counts of class D felony
    
    unlawful possession or use of a legend drug in cause number 82D02-1104-FD-395 (“Cause
    
    
                                                 2
    395”). The next day, the probation department filed a second petition to revoke her probation
    
    in Cause 850, alleging that she had committed a new criminal offense. She admitted to the
    
    allegations in the probation revocation petition, and the trial court granted the petition,
    
    ordering her to serve one year on drug abuse probation service (“DAPS”) and to pay
    
    restitution. That same day, she pled guilty to the drug offenses in Cause 395 and was
    
    sentenced to two concurrent eighteen-month terms, with the first six months on electronic
    
    home detention and the remainder on DAPS.
    
           In June 2011, Montgomery failed her drug tests, and the community corrections
    
    department filed a petition to revoke her probation in Cause 395. The trial court eventually
    
    revoked her home detention and sentenced her to six months in the county jail followed by
    
    the remainder of her DAPS commitment. In September 2011, she tested positive for
    
    methadone and signed an admission stating that she took it without a valid prescription.
    
           On September 13, 2011, the probation department filed probation revocation petitions
    
    in Causes 850 and 395. The trial court issued a bench warrant, but Montgomery was not
    
    apprehended. She did not appear in court until December 29, 2011. During the intervening
    
    months, she missed one scheduled office appointment and seven random drug tests. At her
    
    revocation hearing, she presented an August 2009 note from her doctor’s file, which stated
    
    that the doctor had refilled prescriptions for methadone, xanax, and zanaflex to replace pills
    
    that her husband had allegedly stolen. She stated that in 2009, her doctor had given her a
    
    prescription for 330 methadone pills to take as needed for pain, but that she had ceased
    
    taking them when she started taking oxycodone. Tr. at 22-24. She explained that she
    
    
                                                  3
    resumed taking methadone when she found out that her probation conditions prohibited her
    
    from taking oxycodone. Although she had no independent recollection of signing the form in
    
    which she admitted to taking methadone without a valid prescription, she authenticated her
    
    signature and admitted that her probation officer had given her a copy of the DAPS rules and
    
    had gone over them with her. DAPS Rule 6 states, “For a prescription to be considered valid,
    
    the purchase date must be within 30 days.” State’s Ex. 2.
    
           In January 2012, the trial court found that Montgomery violated her probation and
    
    granted the revocation petitions, sentencing her to two consecutive one-year terms in the
    
    DOC. This appeal ensued. Additional facts will be provided as necessary.
    
                                       Discussion and Decision
    
           Montgomery asserts that the evidence is insufficient to support the trial court’s finding
    
    that she violated her probation. Probation is not a right; instead, it is a matter of grace in the
    
    nature of a favor or a conditional liberty. Cooper v. State, 
    917 N.E.2d 667
    , 671 (Ind. 2009).
    
    The trial court determines the conditions of probation and has the discretion to revoke
    
    probation if the probationer violates those conditions. Id. Because a probation revocation
    
    proceeding is civil in nature, the State must prove a violation by a preponderance of
    
    evidence. Whatley v. State, 
    847 N.E.2d 1007
    , 1010 (Ind. Ct. App. 2006). In conducting our
    
    review of Montgomery’s sufficiency claim, we consider only the evidence and reasonable
    
    inferences most favorable to the judgment without reweighing evidence or judging witness
    
    credibility. Woods v. State, 
    892 N.E.2d 637
    , 639 (Ind. 2008). If there is substantial evidence
    
    of probative value to support the trial court’s decision to revoke probation, we will affirm.
    
    
                                                    4
    Id. at 639-40.
    
            Here, the trial court found that Montgomery had violated her probation by unlawfully
    
    using controlled substances.1 At the revocation hearing, probation officer Melinda Littell
    
    testified that on August 29, 2011, she witnessed as Montgomery signed two documents: the
    
    rules of probation and the drug and alcohol testing agreement. Tr. at 9. Both documents
    
    explicitly prohibited Montgomery from unlawfully using controlled substances. States’s Exs.
    
    1, 2. Littell testified that when Montgomery tested positive for oxycodone in August 2011,
    
    she told Montgomery that her two-month old prescription for oxycodone was no longer valid
    
    because prescriptions were only valid for thirty days. Id. at 12. Littell also stated that when
    
    she asked Montgomery if she was taking any other prescription medications, she said there
    
    were “no other prescriptions.” Id. Less than two weeks later, Montgomery tested positive
    
    for methadone and admitted to taking two methadone pills without a valid prescription. Id. at
    
    12-14. To the extent she argues that she had a valid 2009 prescription for the methadone and
    
    had no recollection of signing the admission form indicating that she took it without a valid
    
    prescription, we note her authenticated signature on the form as well as her admissions (1)
    
    that Littell read the DAPS rules to her; and (2) that she received a copy of the DAPS
    
    agreement, which states that prescriptions are only valid for thirty days after the purchase
    
    date. Tr. at 23, 25-26; State’s Exs. 2, 3. We also note Montgomery’s explanation that she
    
    only resumed taking methadone after she found out that she could not take oxycodone while
    
    
    
            1
                Rule 3 of the probation order states, in part, that the probationer shall “[n]ot unlawfully use, possess,
    sell, or dispense any drug identified as a Controlled Substance[.]” Appellant’s App. at 57.
    
    
                                                             5
    on probation. However, Littell explained to her that her two-month-old prescription for
    
    oxycodone was too old to be considered valid. In now claiming that she was unaware that
    
    her 2009 prescription was no longer valid, Montgomery invites us to reweigh evidence and
    
    judge witness credibility, which we may not do.
    
          Based on the foregoing, we conclude that the evidence is sufficient to support the trial
    
    court’s finding that Montgomery violated her probation. Accordingly, we affirm.
    
          Affirmed.
    
    RILEY, J., and BAILEY, J. concur.
    
    
    
    
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Document Info

DocketNumber: 82A01-1201-CR-26

Filed Date: 8/16/2012

Precedential Status: Non-Precedential

Modified Date: 10/30/2014