Jeffrey Hickman v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                   FILED
    regarded as precedent or cited before any                           Jun 29 2017, 8:24 am
    
    court except for the purpose of establishing                            CLERK
                                                                        Indiana Supreme Court
    the defense of res judicata, collateral                                Court of Appeals
                                                                             and Tax Court
    estoppel, or the law of the case.
    
    
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Mark Small                                               Curtis T. Hill, Jr.
    Indianapolis, Indiana                                    Attorney General of Indiana
    
                                                             Tyler G. Banks
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana
    
    
    
                                               IN THE
        COURT OF APPEALS OF INDIANA
    
    Jeffery Hickman,                                         June 29, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
                                                             84A01-1603-CR-551
            v.                                               Appeal from the Vigo Superior
                                                             Court
    State of Indiana,                                        The Honorable Michael Rader,
    Appellee-Plaintiff.                                      Judge
                                                             Trial Court Cause Nos.
                                                             84D05-1211-FD-3627
                                                             84D05-1210-FD-3404
    
    
    
    Brown, Judge.
    
    
    
    
    Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017         Page 1 of 14
    [1]   Jeffery Hickman appeals the trial court’s order finding that he violated the terms
    
          of drug court, entering judgments of conviction, and sentencing him. Hickman
    
          raises one issue which we revise and restate as whether the court erred or
    
          abused its discretion in entering judgments of conviction and sentencing him.
    
          We affirm.
    
    
                                          Facts and Procedural History
    
    [2]   On October 25, 2012, the State charged Hickman under cause number 84D05-
    
          1210-FD-3404 (“Cause No. 3404”) with: Count I, operating a vehicle while
    
          intoxicated endangering a person as a class A misdemeanor; and Count II,
    
          operating a vehicle while intoxicated endangering a person as a class D felony.
    
          On November 19, 2012, the State charged Hickman under cause number
    
          84D05-1211-FD-3627 (“Cause No. 3627”) with: Count I, operating a vehicle
    
          while intoxicated endangering a person as a class A misdemeanor; Count II,
    
          resisting law enforcement as a class D felony; Count III, resisting law
    
          enforcement as a class A misdemeanor; and Count IV, operating a vehicle
    
          while intoxicated endangering a person as a class D felony.
    
    
    [3]   On April 10, 2013, Hickman entered into an “OVWI DRUG COURT
    
          AGREEMENT” addressing both Cause No. 3404 and Cause No. 3627.
    
          Appellant’s Appendix Volume 2 at 35. The agreement provided that Hickman
    
          would enter a plea of guilty under Cause No. 3404 to Count II, operating a
    
          vehicle while intoxicated endangering a person as a class D felony, and under
    
          Cause No. 3627 to Count IV, operating a vehicle while intoxicated endangering
    
          a person as a class D felony. The agreement provided that all other counts
          Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 2 of 14
    would be dismissed and that entry of judgments of conviction and imposition of
    
    sentence were postponed for a period of thirty-six months from the date of the
    
    guilty plea. It also provided that Hickman acknowledged that compliance with
    
    the Drug Court Program required abstinence from alcohol and all controlled
    
    substances listed in Schedules I, II, III, IV, and V of the Indiana Code and that
    
    he participate fully in a program of substance abuse treatment and counseling.
    
    The agreement stated that if Hickman satisfactorily complied with the
    
    conditions, then upon the expiration of thirty-six months from the entry of the
    
    guilty plea, the prosecutor would consent to the court entering an order
    
    allowing Hickman to withdraw his guilty plea, and if the court allowed the
    
    withdrawal, the prosecutor would then move for dismissal. The agreement
    
    further provided:
    
            5. The Defendant understands that by entering this agreement he
            . . . consents to the jurisdiction of the Court over his . . . person
            for the period of 36 months from the entry of a guilty plea.
    
    
            6. In the event the Prosecutor has probable cause to believe that
            there has been a violation of any of the conditions upon which
            the entry of a judgment of conviction and the imposition of
            sentence have been deferred, the Prosecutor may file a written
            motion with the Court requesting the entry of a judgment of
            conviction on the Defendant’s plea of guilty and sentencing. The
            Prosecutor’s motion shall set forth the date, the place, and the
            nature of the alleged violation of any condition upon which the
            entry of judgment and the imposition of sentence were
            postponed. The Court may issue either a summons to appear or
            a warrant for the Defendant’s arrest and shall conduct an
            evidentiary hearing to decide whether a condition has been
            violated by the Defendant as alleged in the motion. The
    
    Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 3 of 14
                  Defendant shall be entitled to be represented by an attorney at
                  the hearing. If the Court finds that a violation has occurred then
                  the Court may immediately enter a judgment of conviction on
                  the Defendant’s plea of guilty, and the Court may immediately
                  impose a sentence according to the statutory guidelines.
    
    
                                                       *****
    
    
                  9. The Defendant understands and agrees that failure to appear
                  for court dates, treatment appointments, or urinalysis testing, and
                  positive urinalysis test results constitute violations of the
                  conditions of the Agreement and will result in imposition of
                  sanctions, a warrant being issued for his or her arrest, and may
                  result in termination from the program.
    
    
          Id. at 37-38.
    
    
    [4]   On December 16, 2015, the court held a hearing at which Hickman and his
    
          lawyer were present. The court stated: “Okay, now you were to screen at Club
    
          Soda on December 8th and it says here, screened a day late with a positive for
    
          opiates that were confirmed.” Transcript at 72. After some discussion, the
    
          court stated: “We got a confirmed screen here, so I am going to assess twenty-
    
          four hours of community service and I want some of that done by January 6th,
    
          but not necessarily all of it.” Id. at 73-74.
    
    
    [5]   On December 21, 2015, the State filed a petition to enter judgment of
    
          conviction. The petition alleged that Hickman violated the terms of the
    
          agreement by failing drug testing on December 9, 2015, by testing positive for
    
          opiates.
    
    
          Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 4 of 14
    [6]   On December 30, 2015, Hickman filed a motion to dismiss the State’s petition
    
          and argued that any additional sanctions or punishment beyond the twenty-four
    
          hours of community service ordered at the December 16, 2015 hearing would a
    
          violate res judicata and double jeopardy principles.
    
    
    [7]   On January 11, 2016, the court held a hearing and addressed Hickman’s
    
          motion to dismiss. The court stated in part: “It hasn’t been litigated. I haven’t
    
          heard anything.” January 11, 2016 Transcript at 2. The court also referred to
    
          the December 16, 2015 hearing as a status hearing and stated: “I can’t just ex
    
          parte, State not here, do something and then say oh by the way, sorry, your
    
          petition is void, it’s dismissed. I can’t do that.” Id. at 4. The court stated that it
    
          “issued a sanction and a punishment after having heard evidence from not the
    
          deputy prosecutor, but from an agent of the state, that there was an allegation of
    
          a positive test.” Id. at 6. The prosecutor stated: “No, no, that’s not an agent of
    
          the state, that is an arm of the court. That is not an agent of the state.” Id. The
    
          court stated: “I think it’s the court talking to itself, I tend to agree with that.”
    
          Id. The court scheduled an evidentiary hearing for February 8, 2016. After a
    
          continuance, the court held an evidentiary hearing on February 22, 2016.
    
    
    [8]   On February 25, 2016, the court entered an order finding that Hickman violated
    
          the terms of the Drug Court as follows:
    
    
                  [Hickman] tested positive on a drug screen on December 9, 2015.
                  The Court finds [Hickman] has a history of deception.
                  [Hickman] advised he volunteered to enroll in the Community
                  Christian Counseling Program and maintain compliance with
                  that program while in the Drug Court Program. The Court is
    
          Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 5 of 14
                   advised [Hickman] failed to appear on three (3) separate
                   appointments made by that program and has not followed up
                   with any further appointments or counseling. Further,
                   [Hickman] did not keep an appointment with Choices Consulting
                   on January 11, 2016.
    
    
           Appellant’s Appendix Volume 2 at 71. The court entered judgments of
    
           conviction under Cause Nos. 3404 and 3627 and sentenced Hickman to three
    
           years under Cause No. 3404 and a consecutive sentence of three years under
    
           Cause No. 3627.
    
    
                                                       Discussion
    
    [9]    The issue is whether the trial court erred or abused its discretion in entering
    
           judgments of conviction and sentencing Hickman. Hickman argues that the
    
           imposition of twenty-four hours of community service and his sentence
    
           constitute a violation of the prohibition against double jeopardy. He
    
           alternatively argues that the doctrine of res judicata bars relitigation.
    
    
    [10]   The State contends that the principles of double jeopardy are inapplicable to
    
           drug court revocation proceedings and that, even if a double jeopardy analysis
    
           was applicable, the record shows that Hickman was revoked from drug court
    
           for more than one positive drug screen. The State also argues that its
    
           revocation petition and subsequent proceeding were not barred by res judicata
    
           because the issues in the two sanction proceedings were entirely different and
    
           the State did not seek or secure the community service sanction imposed by the
    
           trial court.
    
    
           Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 6 of 14
    [11]   Ind. Code § 33-23-16-5 defines a “drug court” as “a problem solving court
    
           focused on addressing the substance abuse issues of defendants or juveniles in
    
           the criminal justice system . . . .” Ind. Code § 33-23-16-8 defines a “problem
    
           solving court” as “a court providing a process for immediate and highly
    
           structured judicial intervention for eligible individuals . . . .” “A problem
    
           solving court and [its] accompanying services . . . are available only to
    
           individuals over whom the court that established the problem solving court has
    
           jurisdiction.” Ind. Code § 33-23-16-12(a). The Drug Court program is a
    
           forensic diversion program akin to community corrections, and we will review
    
           the termination of placement in a Drug Court program as we do a revocation of
    
           placement in community corrections.” Withers v. State, 
    15 N.E.3d 660
    , 663
    
           (Ind. Ct. App. 2014).
    
                   For purposes of appellate review, we treat a hearing on a petition
                   to revoke a placement in a community corrections program the
                   same as we do a hearing on a petition to revoke probation. The
                   similarities between the two dictate this approach. Both
                   probation and community corrections programs serve as
                   alternatives to commitment to the [Department of Correction]
                   and both are made at the sole discretion of the trial court. 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. at 663-664 (quoting Monroe v. State, 
    899 N.E.2d 688
    , 691 (Ind. Ct. App.
    
           2009)). Generally, we will review a trial court’s sentencing decisions for drug
    
           court violations for an abuse of discretion. Id. at 665. An abuse of discretion
    
    
           Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 7 of 14
           occurs where the decision is clearly against the logic and effect of the facts and
    
           circumstances. Id. We review a trial court’s legal conclusions regarding double
    
           jeopardy de novo. Sloan v. State, 
    947 N.E.2d 917
    , 920 (Ind. 2011).
    
    
    [12]   Generally, defendants “who plead guilty to achieve favorable outcomes give up
    
           a plethora of substantive claims and procedural rights, such as challenges to
    
           convictions that would otherwise constitute double jeopardy.” Debro v. State,
    
           
    821 N.E.2d 367
    , 372 (Ind. 2005) (quoting Lee v. State, 
    816 N.E.2d 35
    , 40 (Ind.
    
           2004) (quotation omitted)). See id. (observing that the agreement the defendant
    
           reached with the State provided him with the significant benefit of the
    
           possibility of no criminal conviction for his admitted criminal conduct and
    
           holding that the defendant could not be heard to complain following his failure
    
           to fulfill his part of the agreement).
    
    
    [13]   The OVWI Drug Court Agreement provided that Hickman understood and
    
           agreed that a positive urinalysis test result constitutes a violation of the
    
           conditions of the agreement and “will result in imposition of sanctions, a
    
           warrant being issued for his or her arrest, and may result in termination from
    
           the program.” Appellant’s Appendix Volume 2 at 38. The agreement also
    
           provided that the prosecutor may file a written motion requesting entry of
    
           judgment of conviction and that, if the court finds that a violation occurred, it
    
           may immediately enter a judgment of conviction on Hickman’s plea of guilty.
    
           The agreement Hickman reached with the State provided him with a significant
    
           benefit, the possibility of no criminal conviction for his admitted criminal
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 8 of 14
           conduct. Even assuming that Hickman did not waive his argument, we cannot
    
           say that reversal is warranted.
    
    
    [14]   The Fifth Amendment to the United States Constitution provides that no
    
           person shall “be subject for the same offense to be twice put in jeopardy of life
    
           or limb.” Article 1, Section 14 of the Indiana Constitution provides that “[n]o
    
           person shall be put in jeopardy twice for the same offense.”
    
    
    [15]   As we have noted, “Drug Court is a forensic diversion program akin to
    
           community corrections and probation.” Withers, 15 N.E.3d at 665. In Childers
    
           v. State, 
    656 N.E.2d 514
    , 517 (Ind. Ct. App. 1995), trans. denied, we held that a
    
           violation of a condition of probation does not constitute an offense within the
    
           purview of double jeopardy analysis and that the double jeopardy clause was
    
           not implicated by a second probation revocation hearing. In McQueen v. State,
    
           
    862 N.E.2d 1237
    , 1243 (Ind. Ct. App. 2007), we stated that “[r]evocation
    
           proceedings are based upon violations of probation conditions rather than upon
    
           the commission of a crime, and the finding of whether a defendant has
    
           complied with these conditions is a question of fact and not an adjudication of
    
           guilt.” We also held in McQueen that a violation of a condition of community
    
           corrections does not constitute an offense within the purview of double
    
           jeopardy analysis. 862 N.E.2d at 1244. Based upon our decisions in Childers
    
           and McQueen, we find unpersuasive Hickman’s argument that the trial court
    
           violated double jeopardy. See also Johnson v. State, 
    512 N.E.2d 1090
    , 1092 (Ind.
    
           1987) (rejecting the appellant’s claim that the trial court erred in placing him in
    
           double jeopardy because of the State’s moving forward in a probation
    
           Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 9 of 14
           revocation proceeding on the same charges in the criminal case); Kincaid v.
    
           State, 
    736 N.E.2d 1257
    , 1259 (Ind. Ct. App. 2000) (holding that a violation of a
    
           condition of probation does not constitute an offense within the purview of
    
           double jeopardy analysis), reh’g denied; Shumate v. State, 
    718 N.E.2d 1133
    , 1135
    
           (Ind. Ct. App. 1999) (holding that the Double Jeopardy Clause does not apply
    
           to probation revocation proceedings and that the trial court did not violate the
    
           Double Jeopardy Clause by subjecting the defendant to a second probation
    
           revocation hearing); Ashba v. State, 
    570 N.E.2d 937
    , 940 (Ind. Ct. App. 1991)
    
           (observing that the law in this jurisdiction is well settled that a violation of a
    
           condition of probation does not constitute an offense for purposes of double
    
           jeopardy), aff’d by 
    580 N.E.2d 244
     (Ind. 1991), cert. denied, 
    503 U.S. 1007
    , 112 S.
    
           Ct. 1767 (1992).
    
    
    [16]   With respect to Hickman’s argument regarding res judicata, the Indiana
    
           Supreme Court has held that “[r]es judicata is a legal doctrine intended ‘to
    
           prevent repetitious litigation of disputes that are essentially the same, by
    
           holding a prior final judgment binding against both the original parties and their
    
           privies.’” Ind. State Ethics Comm’n v. Sanchez, 
    18 N.E.3d 988
    , 993 (Ind. 2014)
    
           (quoting Becker v. State, 
    992 N.E.2d 697
    , 700 (Ind. 2013)). “It applies ‘where
    
           there has been a final adjudication on the merits of the same issue between the
    
           same parties.’” Id. (quoting Gayheart v. Newnam Foundry Co., Inc., 
    271 Ind. 422
    ,
    
           426, 
    393 N.E.2d 163
    , 167 (1979)). The Indiana Supreme Court has said:
    
    
                   Stated in more detail:
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 10 of 14
                   1. the former judgment must have been rendered by a court of
                   competent jurisdiction;
    
    
                   2. the former judgment must have been rendered on the merits;
    
    
                   3. the matter now in issue was or might have been determined in
                   the former suit; and
    
    
                   4. the controversy adjudicated in the former suit must have been
                   between the parties to the present action or their privies.
    
    
           Id. (citing Chemco Transp., Inc. v. Conn, 
    527 N.E.2d 179
    , 181 (Ind. 1988)). If any
    
           element is absent, res judicata does not apply. Id.
    
    
    [17]   We addressed a similar issue in Montgomery v. State, 
    58 N.E.3d 279
     (Ind. Ct.
    
           App. 2016). In that case, the trial court sentenced Montgomery to thirteen
    
           years with five years suspended and ordered that he serve the final four years of
    
           his nonsuspended term on “active adult probation.” 58 N.E.3d at 280. On
    
           June 19, 2015, the trial court assigned Montgomery from the Indiana
    
           Department of Correction to the Allen County Community Transition Program
    
           and ordered him to comply with certain conditions of reentry. Id. In its order,
    
           the court informed Montgomery that, “[i]f probation was imposed in the
    
           original sentence, then the defendant shall report to the Probation Department
    
           as directed . . . .” Id. On August 27, the State filed a petition to revoke
    
           Montgomery’s placement in the transition program and alleged in part that he:
    
                   Did not maintain good behavior. On or about August 24, 2015[,]
                   the defendant is alleged to have committed the offense of
    
           Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 11 of 14
                   Interfering with a Drug or Alcohol Screening Test and
                   Possession of a Devi[c]e or Substance Used to Interfere with a
                   Drug or Alcohol Screening, a Class B misdemeanor as referenced
                   in cause number 02D05-1508-CM-3278.
    
    
           Id. On August 31, the trial court revoked Montgomery’s placement in the
    
           transition program, further revoked sixty days of actual credit time from
    
           Montgomery’s sentence, and then referred him to the Allen County Probation
    
           Department “for further action.” Id. On September 2, the State filed its
    
           petition to revoke Montgomery’s probation. Id. In particular the State alleged
    
           that Montgomery:
    
    
                   1. Did not maintain good behavior. On August 31, 2015, the
                   defendant was terminated from the Re–Entry Program while
                   serving the executed portion of his sentence.
    
    
                   2. Did not maintain good behavior. On August 24, 2015, the
                   defendant is alleged to have committed the offense of Interfering
                   with a Drug or Alcohol Screening Test, a Class B Misdemeanor,
                   as referenced in the affidavit of probable cause in cause number
                   02D05-1508-CM-3278.
    
    
           Id. The trial court revoked Montgomery’s probation and ordered him to serve
    
           five years in the Department of Correction. Id.
    
    
    [18]   On appeal, Montgomery argued that the court’s revocation of both his
    
           placement in the transition program and his probation violated the doctrine of
    
           res judicata. Id. at 281. We noted that probation was a matter of grace left to
    
           trial court discretion. Id. We held:
    
    
           Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 12 of 14
                   We cannot agree that the trial court’s subsequent revocation of
                   Montgomery’s probation was barred by its prior revocation of his
                   placement in the transition program. In the language of res
                   judicata, the matter in issue before the court during the probation
                   revocation proceedings—Montgomery’s placement on
                   probation—was simply not the same matter in issue before the
                   court during the revocation proceedings on his placement in the
                   transition program. And we are not persuaded by Montgomery’s
                   suggestion that the court was obliged to consider and determine
                   those two separate matters once and for all during the revocation
                   proceedings for his placement in the transition program.
    
    
                   Placement on probation and placement in a community
                   transition program are not one and the same, and the court’s
                   consideration of those options is not mutually exclusive. Rather,
                   those options are two of many tools in the trial court’s toolbox
                   for the court’s use in the administration and supervision of a
                   defendant’s sentence, over which the court has continuing
                   jurisdiction. We conclude that the trial court’s revocation of
                   Montgomery’s probation was not barred by res judicata and was
                   not otherwise an abuse of the trial court’s discretion.
                   Accordingly, we affirm the trial court’s judgment.
    
    
           Id. at 281-282.
    
    
    [19]   Here, at the December 16, 2015 status hearing, the court discussed Hickman’s
    
           positive screen for opiates and ordered that he complete twenty-four hours of
    
           community service. We cannot say that the matter of a sanction under the
    
           Drug Court program at the December 16, 2015 hearing was the same matter at
    
           issue following the State’s petition to enter judgment of conviction where the
    
           court considered other Drug Court violations as well in terminating Hickman
    
           from the program and entering judgments of conviction. See Montgomery, 58
    
           Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 13 of 14
           N.E.3d at 281-282. We also observe that the prosecutor was not present at the
    
           December 16, 2015 status hearing. We cannot say that the controversy
    
           previously adjudicated was between the parties to the present action.
    
           Accordingly, we cannot say that res judicata barred the entry of judgments of
    
           conviction.
    
    
                                                       Conclusion
    
    [20]   For the foregoing reasons, we affirm the trial court’s entry of judgments of
    
           conviction in Cause No. 3404 and Cause No. 3627.
    
    
    [21]   Affirmed.
    
    
           Vaidik, C.J., and Bradford, J., concur.
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017   Page 14 of 14