Jeffery Overstreet v. State of Indiana ( 2019 )

FILED
Nov 13 2019, 9:29 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer A. Joas Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffery Overstreet, November 13, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1114
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James Humphrey,
Appellee-Plaintiff. Judge
Trial Court Cause No.
15C01-1408-F5-55
Riley, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-1114 | November 13, 2019 Page 1 of 8
STATEMENT OF THE CASE
[1] Appellant-Defendant, Jeffery Overstreet (Overstreet), appeals the trial court’s
Order, revoking his probation and imposing the balance of his previously
suspended sentence.
[2] We affirm.
ISSUE
[3] Overstreet presents this court with one issue on appeal, which we restate as:
Whether the trial court abused its discretion by revoking the balance of his
previously suspended sentence following his admission to having violated the
conditions of his probation.
FACTS AND PROCEDURAL HISTORY
[4] On August 4, 2014, in Dearborn County, Indiana, the State filed an
Information, charging Overstreet with Count I, criminal confinement resulting
in bodily injury, a Level 5 felony; Count II, domestic battery, a Class A
misdemeanor; and Count III, interference with the reporting of a crime, a Class
A misdemeanor. On August 7, 2014, Overstreet was released from jail after he
posted a cash bond. On April 1, 2016, Overstreet pleaded guilty to the Level 5
felony criminal confinement resulting in bodily injury. In exchange, the State
dismissed the other charges. The trial court then sentenced Overstreet to the
Indiana Department of Correction (DOC) for six years, with the entire sentence
suspended to probation. Overstreet’s probation was to be supervised by the
Dearborn County Probation Department.
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[5] At the time of his sentencing in the current cause, Overstreet was serving a
sentence in the “Kentucky Department of Corrections” (Kentucky DOC) for a
separate offense. (Transcript Vol. II, p. 19). On July 17, 2017, the Kentucky
DOC released Overstreet. Overstreet was required to report to the Dearborn
County Probation Department for his probation on July 20, 2017. However,
because Overstreet was a resident of Kentucky, the Dearborn County Probation
Department transferred Overstreet’s probation to Kentucky.
[6] On February 12, 2019, the State filed a Request for Probation Violation
Hearing, alleging that:
On or about October 16, 2018, [Overstreet] submitted to a drug
screen as directed by Kentucky Probation and Parole and
subsequently tested positive for
Amphetamines/Methamphetamines and THC; and that on or
about November 6, 2018 and November 20, 2018, [Overstreet]
submitted to drug screens for Kentucky Probation and Parole and
subsequently tested positive for THC. These are violations of
probation.
(Appellant’s App. Vol. II, p. 100).
[7] On March 19, 2019, the trial court conducted a probation revocation hearing
and Overstreet admitted to the allegations. On April 24, 2019, the trial court
conducted another dispositional hearing during which Dearborn County
Probation Officer Steve Miller (Miller) testified. Miller stated that a probation
violation was not filed immediately after Dearborn County probation officers
learned of Overstreet’s positive drug screens because “Kentucky did not send
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this in a manner in which they were pushing for a probation violation to be filed
at that point. They were still . . . willing to continue to work with [] Overstreet,
give him some suggestions for treatment and to continue on with his
supervision.” (Tr. Vol. II, p. 21). Miller then added that he learned through
Kentucky Probation and Parole officials that Overstreet had been
recommended for substance abuse treatment on two separate occasions in
November 2018. On re-direct examination, Miller explained that it was his
opinion that, irrespective of “whether [] Overstreet was participating in
treatment one hundred percent (100%) or zero percent (0%), the probation
violation needed to be filed based on these allegations.” (Tr. Vol. II, p. 34). At
the conclusion of that hearing, the trial court took the matter under advisement.
The trial court then reconvened at a separate hearing on April 29, 2019, and it
revoked Overstreet’s probation ordering him to serve the balance of his
previously suspended sentence in the DOC.
[8] Overstreet now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] Overstreet appeals the trial court’s Order, revoking his probation and imposing
the balance of his previously suspended sentence. “Probation is a matter of
grace left to the trial court’s discretion, not a right to which a criminal
defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). It is
within the discretion of the trial court to determine probation conditions and to
revoke probation if these conditions are violated. Id. We review the appeal
from a trial court’s probation determination and sanction for an abuse of
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discretion. See id. An abuse of discretion occurs when the decision is clearly
against the logic and effect of the facts and circumstances. Smith v. State, 963
N.E.2d 1110, 1112 (Ind. 2012). A probation hearing is civil in nature and the
State need only prove the alleged violation by a preponderance of the evidence.
Id.[10] Probation revocation is a two-step process. First, the trial court must make a
factual determination that a violation of a condition has occurred. Sanders v.
State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. If a violation is
proven, then the trial court must determine if the violation warrants revocation
of the probation. Id. However, where, as here, a probationer admits to the
violations, the trial court can proceed immediately to the second step of the
inquiry and determine whether the violation warrants revocation. Id. In
determining whether the violation warrants revocation, the probationer must be
given an opportunity to present evidence that explains and mitigates his
violation. See id. Once a violation has been found and revocation of probation
is warranted, the trial court may impose one or more of the following sanctions:
(1) continue the person on probation, with or without modifying or enlarging
the conditions; (2) extend the person’s probationary period for not more than
one year beyond the original probationary period; or (3) order execution of all
or part of the sentence that was suspended at the time of initial sentencing. See
Ind. Code § 35-38-2-3(h).
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[11] Overstreet argues that there was no benefit in placing him in the DOC and this
“extreme sanction does not comport with the violations [he] committed.”
(Appellant’s Br. p. 11). He continues by stating,
that this is his first violation in this case, that he was working on
addressing his drug use and the violations do not warrant such a
severe revocation. In fact, after failing the three (3) drugs
screens, a violation was not filed[,] and Overstreet was referred
for treatment of which he was actively engaging in and no further
failed drug screens were presented.
(Appellant’s Br. p. 10). In support of his position, Overstreet relies on Heaton v
State, 948 N.E. 2d 614 (Ind. 2013). Heaton addressed an issue regarding
whether the trial court applied the correct standard to prove that Heaton had
committed a new criminal defense in a probation revocation proceeding. Id. at
616-17. Our supreme court concluded that the trial court had not applied the
correct standard and, given the nature of Heaton’s remaining violations, it was
remanded to the trial court for further proceedings, ordering the trial court to
determine if Heaton had violated the terms of her probation and what sanction
was appropriate. Id. at 618. Our reading of Heaton does not allow this court to
conclude that trial courts are barred from revoking a person’s probation where
they have submitted and admitted to several failed drug screens, or that a trial
court abuses its discretion by revoking probation based on a first-time violation.
[12] At the probation revocation hearing, Overstreet admitted to testing positive for
illegal drugs—i.e., methamphetamine, amphetamines, and marijuana—on
October 16, 2018, November 6, 2018, and November 20, 2018. His three
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positive drug screens are hardly mere “technical” violations of probation.
Overstreet then argues that in light of his ongoing struggle with substance
abuse, he should be placed in Purposeful Incarceration where he would
continue to receive the substance abuse treatment he deserves. The record
shows that Overstreet’s past criminal history involves “six felony convictions,
eight probation violations, twenty-two (22) misdemeanors, []numerous attempts
at treatment involving drug court” in early 2000, and alcohol and substance
abuse treatment during the time he was recently incarcerated in the Kentucky
DOC. (Tr. Vol. II, p. 27). We are not convinced with Overstreet’s arguments
on appeal. Contrary to his argument, the same substance abuse treatments are
offered in the DOC. Also, we note, as did the trial court, that Overstreet has
received extensive treatment for his substance abuse in the past, but
nevertheless continues to abuse drugs. Overstreet has been shown considerable
leniency and given multiple opportunities to address his addiction, all to no
avail. In sum, when Overstreet agreed in his plea agreement that the trial court
could place him on probation, he impliedly agreed to comply with the terms of
any such probation and to the imposition of any punishment or consequence
for violating probation. Overstreet admitted to using drugs. Upon finding a
probation violation, the trial court was then required to look to the terms of the
probation revocation statute, specifically Indiana Code section 35-38-2-3(h), for
the potential consequences to be imposed for Overstreet’s violation of
probation. That section gave the trial court authority to order execution of all
or part of Overstreet’s sentence that was suspended at the time of initial
sentencing upon finding that Overstreet had violated a condition of his
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probation. Thus, the trial court did not abuse its discretion by ordering
Overstreet to serve five years, the balance of his previously suspended sentence.
CONCLUSION
[15] In sum, we conclude that the trial court did not abuse its discretion by revoking
Overstreet’s probation. Accordingly, we affirm the trial court’s Order that
Overstreet serve the balance of his previously suspended sentence.
[16] Affirmed.
[17] Vaidik, C. J. and Bradford, J. concur
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