Ashlee K. Pierce v. State of Indiana (mem. dec.) ( 2018 )


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  •       MEMORANDUM DECISION
          Pursuant to Ind. Appellate Rule 65(D),                                     FILED
          this Memorandum Decision shall not be                                 Mar 16 2018, 9:45 am
          regarded as precedent or cited before any
                                                                                     CLERK
          court except for the purpose of establishing                           Indiana Supreme Court
                                                                                    Court of Appeals
          the defense of res judicata, collateral                                     and Tax Court
    
          estoppel, or the law of the case.
    
    
          ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
          Anthony C. Lawrence                                     Curtis T. Hill, Jr.
          Anderson, Indiana                                       Attorney General of Indiana
                                                                  George P. Sherman
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana
    
    
    
                                                    IN THE
              COURT OF APPEALS OF INDIANA
    
          Ashlee K. Pierce,                                       March 16, 2018
          Appellant-Defendant,                                    Court of Appeals Case No.
                                                                  48A05-1708-CR-1991
                  v.                                              Appeal from the Madison Circuit
                                                                  Court
          State of Indiana,                                       The Honorable Thomas Newman,
          Appellee-Plaintiff.                                     Jr., Judge
                                                                  Trial Court Cause No.
                                                                  48D03-0912-FD-433
    
    
    
          Pyle, Judge.
    
    
    [1]   Ashlee K. Pierce (“Pierce”) appeals the revocation of her probation, arguing
    
          that: (1) the trial court violated her right to due process by failing to specify the
    
    
          Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018           Page 1 of 12
          reasons for revoking her probation; and (2) the trial court abused its discretion
    
          by ordering her to serve her previously suspended sentence. Finding no due
    
          process violation nor abuse of discretion, we affirm the trial court’s judgment.
    
    
    [2]   We affirm.
    
    
                                                            Issues
                   1. Whether the trial court violated Pierce’s right to due process.
    
                   2. Whether the trial court abused its discretion by ordering Pierce
                   to serve her previously suspended sentence.
    
                                                             Facts
    [3]   In December 2009, the State charged Pierce with Class D felony theft. In
    
          March 2010, she pled guilty as charged. The trial court imposed a two (2) year
    
          sentence, all of which was suspended to probation, and ordered it to be served
    
          consecutively to her sentence in cause number 48D03-0911-FA-401.
    
    
    [4]   In August 2013, the State filed a notice of probation violation. At the
    
          revocation hearing, Pierce admitted that she had committed a new criminal
    
          offense and had failed to obtain her GED.1 The trial court found that she had
    
    
    
    
          1
            Pierce did not include a copy of the notice of probation violation or the trial court’s order following the
          probation revocation hearing. However, the notice of probation violation is contained in the chronological
          case summary (“CCS”) for this case in Indiana’s Odyssey Case Management System (“Odyssey”). That
          revocation notice reveals that the State alleged that she had violated probation by committing the offenses of
          Class B felony dealing in methamphetamine and Class D felony neglect of a dependent. See Horton v. State,
          
    51 N.E.3d 1154
    , 1160 (Ind. 2016) (explaining that Indiana Evidence Rule 201(b)(5), as amended effective
          January 1, 2010, “now permits courts to take judicial notice of ‘records of a court of this state’”).
    
    
    
    
          Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018              Page 2 of 12
          violated her probation but gave her a second chance and placed her back on
    
          probation. The trial court also ordered Pierce to complete an evaluation upon
    
          her release from the Indiana Department of Correction.
    
    
    [5]   On July 17, 2017, Madison County Probation Officer Janelle Johnson
    
          (“Probation Officer Johnson”) obtained a urine sample from Pierce for a drug
    
          screen. Pierce told the probation officer that “she would be clean” other than
    
          her prescriptions for methadone for her opiate addiction and Vyvanse for her
    
          ADHD. (Tr. 21). A preliminary test came back positive for other drugs, so
    
          Probation Officer Johnson sent the urine sample for more complete testing.2
    
          The subsequent lab results revealed that Pierce tested positive for methadone,
    
          amphetamine, methamphetamine, morphine, cocaine, and fentanyl.
    
    
    [6]   On July 25, 2017, the State filed a second notice of probation violation, alleging
    
          that Pierce had violated her probation by: (a) failing to pay probation fees; (b)
    
          failing to pay administrative fees; (c) “[f]ail[ing] to abstain from the use of . . .
    
          illicit drugs during the period of probation” and submitting a urine sample that
    
          tested positive for methadone, methamphetamine, morphine, cocaine, and
    
          fentanyl;3 and (d) failing to provide truthful information to the probation
    
          department. (App. Vol. 2 at 15).
    
    
    
    
          2
              The preliminary test revealed the presence of benzodiazepine, cocaine, and THC.
          3
            The State initially alleged that the drug test results indicated a positive test for THC, but it later withdrew
          that allegation during the probation revocation hearing.
    
          Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018                   Page 3 of 12
    [7]   The trial court held a probation revocation hearing on July 31, 2017. At the
    
          beginning of the hearing, Pierce’s counsel told the trial court that there were
    
          “going to be partial admissions.” (Tr. 9). Thereafter, Pierce’s counsel
    
          questioned Pierce regarding allegations (a) through (c) in the probation
    
          revocation petition. Pierce admitted that she had failed to pay her probation
    
          fees and administrative fees as alleged in subsections (a) and (b) of the
    
          revocation petition. She stated that she was behind on her probation fees
    
          because she had been incarcerated, but she confirmed that she was not
    
          disputing that she had failed to pay the fees. In regard to the allegation of drug
    
          use in subsection (c) of the revocation petition, she admitted that she had used
    
          methadone because she had a prescription for it for her opiate addiction. She
    
          also admitted that she should have tested positive for amphetamines because
    
          she took Vyvanse for her ADHD. As for her positive test results for
    
          methamphetamine, morphine, cocaine, and fentanyl, she denied using those
    
          drugs but opined that some of those substances could have been contained in a
    
          tooth cream that she had gotten from her uncle, who she “kn[e]w . . . [wa]s a
    
          user.” (Tr. 13). Alternatively, she testified that the positive test results for those
    
          drugs could have been the result of her “being in contact at [her uncle’s]
    
          house.” (Tr. 14).
    
    
    [8]   Thereafter, the State presented testimony from Probation Officer Johnson, who
    
          testified about the lab test results. Probation Officer Johnson testified that, in
    
          addition to the positive results for methadone and amphetamines for which
    
          Pierce had a prescription, Pierce also tested positive for methamphetamine,
    
    
          Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 4 of 12
           cocaine, morphine, and fentanyl. Pierce did not object to Probation Officer
    
           Johnson’s testimony regarding the lab test results.4 Probation Officer Johnson
    
           testified that she had not expected Pierce to have any positive drug results, other
    
           than her two prescriptions, because Pierce had informed her that she would be
    
           “clean.” (Tr. 21).
    
    
    [9]    Pierce’s counsel argued that the trial court should not find that Pierce had
    
           violated her probation based on allegation (c) of the revocation petition because
    
           she “could have been drugged by [her] uncle” with the tooth cream and that it
    
           would have been “without her knowledge.” (Tr. 28). Her counsel also argued
    
           that trial court should not find that Pierce had violated her probation based on
    
           allegation (d) because she had testified that she had not lied to the probation
    
           officer.
    
    
    [10]   At the end of the hearing, the trial court stated that Pierce had violated her
    
           probation by “violat[ing] C and D.” (Tr. 28). That same day, the trial court
    
           issued a written order in which it found, in relevant part, as follows:
    
    
                   The defendant [Pierce] admits to violation in that the defendant
                   failed to pay Probation Fees and failed to pay Administrative
                   Fees. Cause submitted and evidence heard. The Court finds by
                   [a] preponderance of the evidence that the defendant violated the
                   conditions of Probation, to wit: failed to abstain from the use of .
    
    
    
    
           4
             The State did not introduce the lab test results into evidence as a separate exhibit. When Pierce’s counsel
           cross-examined Probation Officer Johnson, counsel stated that the lab results would have been “very
           inadmissible” but made no argument “because [Probation Officer Johnson] ha[d] already testified to it.” (Tr.
           24).
    
           Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018             Page 5 of 12
                   . . illicit drugs and failed to provide truthful information to the
                   Probation Department.
    
           (App. Vol. 2 at 17). The trial court revoked Pierce’s probation and ordered her
    
           to serve her previously suspended two (2) year sentence in the Indiana
    
           Department of Correction. The trial court recommended that Pierce be placed
    
           in purposeful incarceration, and it informed her that it would be willing to
    
           consider modifying her sentence after she had successfully completed the
    
           purposeful incarceration program. Pierce now appeals.
    
    
                                                       Decision
    [11]   Pierce argues that the trial court: (1) violated her right to due process; and (2)
    
           abused its discretion by ordering her to serve the remainder of her previously
    
           suspended sentence. We will address each argument in turn.
    
    
           1. Due Process
    
    
    [12]   Pierce contends that the trial court violated her right to due process by failing to
    
           specify the reasons for revoking her probation.
    
    
    [13]   “Probation is a matter of grace left to trial court discretion, not a right to which
    
           a criminal defendant is entitled.” Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind.
    
           2007). “A probation hearing is civil in nature[,]” Cox v. State, 
    706 N.E.2d 547
    ,
    
           551 (Ind. 1999), reh’g denied, and “probationers do not receive the same
    
           constitutional rights that defendants receive at trial.” Reyes v. State, 
    868 N.E.2d 438
    , 440 (Ind. 2007), reh’g denied. “Although probationers are not entitled to
    
           the full array of constitutional rights afforded defendants at trial, ‘the Due
    
           Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 6 of 12
           Process Clause of the Fourteenth Amendment [does] impose [ ] procedural and
    
           substantive limits on the revocation of the conditional liberty created by
    
           probation.’” Woods v. State, 
    892 N.E.2d 637
    , 640 (Ind. 2008) (quoting Debro v.
    
           State, 
    821 N.E.2d 367
    , 374 (Ind. 2005)).
    
    
    [14]   The minimum requirements of due process provided to a probationer at a
    
           revocation hearing include: (a) written notice of the claimed violations of
    
           probation; (b) disclosure of the evidence against the probation; (c) an
    
           opportunity to be heard and present evidence; (d) the right to confront and
    
           cross-examine adverse witnesses; (e) a neutral and detached hearing body; and
    
           (f) a written statement by the factfinder as to the evidence relied on and reasons
    
           for revoking probation. Parker v. State, 
    676 N.E.2d 1083
    , 1085 (Ind. Ct. App.
    
           1997) (citing Morrissey v. Brewer, 
    408 U.S. 471
    , 489 (1972)). The requirement for
    
           a written statement “is a procedural device aimed at promoting accurate fact
    
           finding and ensuring the accurate review of revocation decisions.” Hubbard v.
    
           State, 
    683 N.E.2d 618
    , 620-21 (Ind. Ct. App. 1997) (footnote omitted). See also
    
           Medicus v. State, 
    664 N.E.2d 1163
    , 1164 (Ind. 1996) (“Due process requires that
    
           the reasons for revoking probation be clearly and plainly stated by the
    
           sentencing judge not merely to give appellant notice of the revocation, but also
    
           to facilitate meaningful appellate review.”). “[A] trial judge’s oral statement, if
    
           it contains the facts relied upon and reasons for revocation, and is reduced to
    
           writing in the transcript of the hearing, is sufficient to satisfy this requirement.”
    
           Wilson v. State, 
    708 N.E.2d 32
    , 33 (Ind. Ct. App. 1999).
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 7 of 12
    [15]   Pierce acknowledges that the trial court found that she had violated her
    
           probation as alleged in subsections (c) and (d) of the probation revocation
    
           petition. Subsection (c) of the petition alleged that Pierce had “fail[ed] to
    
           abstain from the use of . . . illicit drugs during the period of probation” when
    
           she submitted a urine sample that tested positive for methadone,
    
           methamphetamine, morphine, and cocaine, fentanyl, and subsection (d) alleged
    
           that she had “fail[ed] to provide truthful information to the Probation
    
           Department.” (App. Vol. 2 at 15). At the end of the revocation hearing, the
    
           trial court stated that it had determined that Pierce had violated her probation
    
           by “violat[ing] C and D.” (Tr. 28). Additionally, the trial court’s written order
    
           also set forth the bases upon which it was revoking Pierce’s probation:
    
    
                   The defendant [Pierce] admits to violation in that the defendant
                   failed to pay Probation Fees and failed to pay Administrative
                   Fees. Cause submitted and evidence heard. The Court finds by
                   [a] preponderance of the evidence that the defendant violated the
                   conditions of Probation, to wit: failed to abstain from the use of .
                   . . illicit drugs and failed to provide truthful information to the
                   Probation Department.
    
           (App. Vol. 2 at 17).
    
    
    [16]   Pierce, however, contends that she was denied due process because the trial
    
           court did not specify “what drug and the nature of the untruthfulness[.]”
    
           (Pierce’s Br. 12). We disagree with her contention that her due process rights
    
           were violated.
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 8 of 12
    [17]   The trial court’s written order and oral findings at the hearing clearly indicate
    
           that the reasons for revoking Pierce’s probation were the four allegations
    
           contained in the revocation petition, which included: (a) failure to pay
    
           probation fees; (b) failure to pay administrative fees; (c) failure to abstain from
    
           drugs; and (d) failure to provide truthful information to the probation
    
           department. The trial court’s order indicates that it relied upon Pierce’s
    
           admission regarding her failure to pay to find that she had violated allegations
    
           (a) and (b) and that it relied upon the State’s evidence, which consisted of
    
           Probation Officer Johnson’s testimony, to find that Pierce had violated
    
           allegations (c) and (d). Thus, the trial court’s written order and oral hearing
    
           statement satisfy the Morrissey written statement requirement and serve the
    
           requirement’s purpose of giving notice of the revocation and facilitating
    
           meaningful review. Accordingly, the trial court did not violate Pierce’s due
    
           process rights. See, e.g., Hubbard, 683 N.E.2d at 621 (the trial court’s written
    
           revocation order, which provided the reasons for revocation, and the hearing
    
           transcript, which provided the evidence underlying the revocation, “provide[d]
    
           an adequate basis for appellate review” and were “adequate to satisfy the
    
           separate writing requirement”); Wilson, 708 N.E.2d at 33-34 (holding that the
    
           trial court’s oral hearing statement—that it “f[ound] that [the] State has met its
    
           burden of proof and f[ound] the defendant ha[d] violated the terms and
    
           conditions of his probation as alleged in Item 3A, 3B, 3C, D, E, and F and
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 9 of 12
           G”—met the written statement requirement and did not violate the
    
           probationer’s due process rights).5
    
    
           2. Order to Serve Suspended Sentence
    
    
    [18]   Pierce also argues that the trial court abused its discretion by ordering her to
    
           serve her previously suspended sentence.
    
    
    [19]   Upon determining that a probationer has violated a condition of probation, the
    
           trial court may “[o]rder execution of all or part of the sentence that was
    
           suspended at the time of initial sentencing.” IND. CODE § 35-38-2-3(h)(3).
    
           “Once a trial court has exercised its grace by ordering probation rather than
    
           incarceration, the judge should have considerable leeway in deciding how to
    
           proceed.” Prewitt, 878 N.E.2d at 188. “If this discretion were not given to trial
    
           courts and sentences were scrutinized too severely on appeal, trial judges might
    
    
    
    
           5
             Pierce does not set forth a separate argument regarding the sufficiency of the evidence to support her
           revocation; however, she sets forth some peripheral arguments, which we now address. Pierce acknowledges
           that “the Trial Court rightly found that Pierce failed to pay her probation and administrative fees as ordered.”
           (Pierce’s Br. 14). Nevertheless, she contends that her failure to pay fees cannot serve as the sole basis for her
           revocation or for the trial court’s order that she serve her suspended sentence in the Indiana Department of
           Correction. However, as is clear from the record, her failure to pay fees was not the sole basis. Her
           revocation was also based on her failure to abstain from drugs and her failure to be truthful with the
           probation department.
           Additionally, Pierce does not challenge the admissibility of the testimony regarding the lab test results.
           Instead, Pierce contends that her revocation should not have been premised upon a positive drug result for
           THC, methadone, or amphetamines. The record reveals that the State withdrew that the allegation that
           Pierce had violated probation by testing positive for THC and that Probation Officer Johnson acknowledged
           that Pierce had prescriptions that would account for her methadone and amphetamine drug results. Thus,
           her revocation would not have been based on these drugs. As for her positive test results for fentanyl,
           methamphetamine, morphine, and cocaine, she suggests that only the cocaine result should be excused
           because of the tooth cream given to her by her uncle. This contention is nothing more than a request to
           reweigh the evidence and the trial court’s determination of witness credibility, which we will not do. See
           Sanders v. State, 
    825 N.E.2d 952
    , 955 (Ind. Ct. App. 2005), trans. denied.
    
           Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018               Page 10 of 12
           be less inclined to order probation to future defendants.” Id. As a result, we
    
           review a trial court’s sentencing decision from a probation revocation for an
    
           abuse of discretion. Id. (citing Sanders, 825 N.E.2d at 956). An abuse of
    
           discretion occurs where the decision is clearly against the logic and effect of the
    
           facts and circumstances. Id.
    
    
    [20]   Pierce contends that “the Trial Court abused its discretion [by] fully revoking
    
           her sentence and ordering it served at the Indiana Department of Correction
    
           considering the technical nature of her violations which included only a positive
    
           drug screen, failure to pay fees[,] and failure to be truthful to the Probation
    
           Department.” (Pierce’s Br. 16-17) (emphasis added). Again, we disagree with
    
           Pierce’s argument.
    
    
    [21]   The record reveals that the trial court had ample basis for its decision to order
    
           Pierce to serve her previously suspended sentence in the Indiana Department of
    
           Correction. Most significantly—and completely disregarded by Pierce—this
    
           was her second violation of probation. Pierce’s first probation violation occurred
    
           when she committed a new criminal offense. As noted above, the case records
    
           for this case in Odyssey reveal that the new offense was related, in part, to
    
           dealing methamphetamine. Upon her admission that she had violated
    
           probation by committing the new offense, the trial court granted leniency to
    
           Pierce and placed her back on probation.
    
    
    [22]   Pierce’s second probation violation at issue in this appeal was based, in part, on
    
           her use of illegal drugs. Indeed, Pierce acknowledged during the revocation
    
    
           Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 11 of 12
           hearing that she has drug problems as she is taking methadone for an opiate
    
           addiction. Yet, she violated her probation by using illegal drugs, including
    
           fentanyl, methamphetamine, morphine, and cocaine. Additionally, the record
    
           before us reveals that she also has a prior criminal history. When Pierce was
    
           originally sentenced in this case, she had a prior conviction in cause number
    
           48D03-0911-FA-401, and her sentence for this case was ordered to be served
    
           consecutively to that cause.
    
    
    [23]   Based on the record before us, we conclude that the trial court did not abuse its
    
           discretion by ordering Pierce to serve her previously suspended sentence. For
    
           the foregoing reasons, we affirm the trial court’s revocation of Pierce’s
    
           probation.
    
    
    [24]   Affirmed.
    
    
           Kirsch, J., and Bailey, J., concur.
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 48A05-1708-CR-1991| March 16, 2018   Page 12 of 12