Cynthia S. Gordon v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 10 2018, 10:29 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
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
Andrew R. Falk Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cynthia S. Gordon, May 10, 2018
Appellant-Defendant, Court of Appeals Case No.
32A01-1711-CR-2597
v. Appeal from the Hendricks Circuit
Court
State of Indiana, The Honorable Daniel F. Zielinski,
Appellee-Plaintiff Judge
Trial Court Cause No.
32C01-1502-FA-4
Crone, Judge.
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Case Summary
[1] Cynthia S. Gordon appeals the trial court’s revocation of her placement in work
release. She contends that the trial court abused its discretion in revoking her
placement and that the court violated her due process rights in failing to provide
a clear statement of the reasons for revocation. Finding no abuse of discretion
and no due process violation, we affirm.
Facts and Procedural History
[2] In February 2015, Gordon was charged with level 6 felony theft, level 6 felony
assisting a criminal, and level 4 felony burglary. She subsequently pled guilty to
level 4 felony burglary in exchange for dismissal of the other charges. Pursuant
to the plea agreement, on October 26, 2015, the trial court sentenced Gordon to
2190 days, with 730 days suspended, and 1449 1/3 days to be served on work
release.
[3] In August 2017, Gordon fell in the bathroom at the work release facility and
broke her pelvis. Thereafter, on August 17, 2017, the director of the work
release facility filed a petition and notice of work release violation. The notice
requested a change of placement for Gordon based on the following:
1. On 8/17/17, Ms. Gordon went to the doctor and returned to
the facility with a note that stated that she needs to be placed on
bed rest and have access to a wheelchair when up and about.
They specifically said that she is to rarely be on crutches and
suggested that she be home for at least the first month to aid in
the healing process. The expected healing period is 3-6 months.
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2. Because medical care is not provided in the facility and her
doctor has given such strict guidelines, she is no longer a viable
candidate for the program.
Appellant’s App. Vol. 2. at 59.1 The probable cause affidavit that accompanied
the notice also alleged that on three prior occasions Gordon had violated the
conditions of work release as follows:
1. On 12/14/15, Ms. Gordon was written up and sanctioned by
the Conduct Adjustment Board due to testing positive for
Buprenorphine and Nor-Buprenorphine without a valid
prescription on 12/1/15. Good time credit in the amount of 30
days/22 actual were revoked due to being convicted of a level 4
felony.
2. On 6/25/16, Ms. Gordon was written up and sanctioned by
the Conduct Adjustment Board due to a failure to follow
medication procedures. She had 30 good time/22 actual days
revoked.
3. On 8/5/17, Ms. Gordon was written up and sanctioned by
the Conduct Adjustment Board for being terminated from
employment for disciplinary reasons. She was sanctioned a loss
of 60/45 actual good time credit days.
Id. at 60. Accordingly, the notice requested Gordon’s removal from the work
release facility based on her possession or consumption of illegal drugs without
a prescription, her failure to follow medication procedures, her termination
1
While Gordon’s medical restrictions could serve as a basis for a change of her placement, her medical
restrictions do not constitute a “violation” of probation or the conditions of placement and should never have
been characterized as such by the work release director, the State, or the trial court.
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from employment for disciplinary reasons, and her current medical restrictions.
Some preliminary hearings were held, and Gordon did not return to the work
release facility but was placed on temporary home detention, over the State’s
objection, until the revocation hearing.
[4] A revocation hearing was held on October 5, 2017. During the hearing, the
director of the work release program, Bridgett Collins, testified regarding
Gordon’s injury as well as her prior violations. Collins stated that Gordon has
“had a few write ups” during her time in work release and that “she doesn’t
accept responsibility for her actions.” Tr. Vol. 2 at 26. Collins explained that
“right before [Gordon] was hurt” and needed to be removed from the program
for medical issues, “she was already on the verge of being removed from the
program” based on her prior “discipline issues.” Id. Collins gave specifics
about Gordon’s December 2015 violation, her June 2016 violation, and her
August 2017 violation of the conditions of work release. Collins indicated that
Gordon’s use and misuse of medications was especially problematic because
the work release facility is “filled with addicts” and individuals like Gordon are
“triggers” for others. Id. at 28, 31. Collins stated that about a week after
Gordon was terminated from her employment for disciplinary reasons, she was
injured and needed a wheelchair and to be on bed rest. Collins explained that
Gordon’s medical issues were “beyond” what the facility can handle. Id. at 30.
[5] Gordon stated that her injury had now healed and requested that she be
allowed to continue in the work release program or that she be placed on home
detention. At the conclusion of the hearing, the trial court stated,
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The evidence shows that the defendant has had at least three
violations, she’s not a candidate for work release or home
detention, she violates. She agreed in her plea that she would
serve her time either on work release or the department of
corrections. She’s not a candidate for work release. She’s not
fine, she won’t be a burden, I’m going to sentence her to the
Indiana Department of Corrections for one thousand four
hundred forty-nine days, give credit for seven hundred and
twelve plus one hundred and sixteen.
Id. at 45. This appeal ensued.
Discussion and Decision
Section 1 – The trial court did not abuse its discretion in
revoking Gordon’s work release placement.
[6] Gordon asserts that the trial court abused its discretion in revoking her work
release placement. 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. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). “A defendant is
not entitled to serve a sentence in either probation or a community corrections
program.” Id. “Rather, placement in either is a ‘matter of grace’ and a
‘conditional liberty that is a favor, not a right.’” Id. (quoting Million v. State, 646
N.E.2d 998, 1002 (Ind. Ct. App. 1995)).
[7] “Our standard of review of an appeal from the revocation of a community
corrections placement mirrors that for revocation of probation.” Monroe v. State,
899 N.E.2d 688, 691 (Ind. Ct. App. 2009). A revocation hearing is civil in
nature and the State need only prove an alleged violation by a preponderance of
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the evidence. Id. We will consider all the evidence supporting the judgment of
the trial court without reweighing that evidence or judging the credibility of the
witnesses. Id. If there is substantial evidence of probative value to support the
trial court’s conclusion that a defendant has violated any terms of probation or
community corrections placement, we will affirm the court’s decision to revoke.
Id.[8] Gordon argues that the State’s “primary reason” for seeking revocation of her
work release placement, her pelvic injury and required medical care, had been
resolved at the time of the revocation hearing. Appellant’s Br. at 10. Thus, she
argues, revocation of her placement was no longer necessary and the trial court
abused its discretion in doing so. However, as Collins’s testimony and the
probable cause affidavit attached to the petition to revoke made clear, Gordon
had already violated the conditions of her placement on three prior occasions.
It is well settled that the violation of a single condition of probation is sufficient
to revoke probation. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).
Accordingly, it was reasonable for the trial court here to determine that
revocation of Gordon’s work release placement was warranted based on the
substantial evidence of her three prior violations.
[9] To the extent that the trial court also relied on Gordon’s medical restrictions as
one of the reasons for revocation of placement (oral reference to Gordon not
being “fine” and stating that she “won’t be burden” to the work release facility,
and abstract of judgment listing medical restrictions as reason for revocation),
this was error, as the evidence supports Gordon’s assertion that she is no longer
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medically restricted. However, any such error was harmless in light of the clear
evidence of her three prior violations. See Hubbard v. State, 683 N.E.2d 618, 622
(Ind. Ct. App. 1997) (probationer not harmed by trial court’s error in light of
evidence of multiple probation violations). The trial court did not abuse its
discretion in revoking Gordon’s work release placement.2
Section 2 – The trial court did not violate Gordon’s due
process rights.
[10] Gordon next asserts that the trial court violated her due process rights by failing
to issue a sufficient statement explaining the reasons for revocation. One
requirement of due process provided to a probationer at a revocation hearing
includes 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)). “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.” Medicus v. State, 664 N.E.2d
1163, 1164 (Ind. 1996). Stated another way, “the purposes of the written
statement requirement are to help ‘[e]nsure accurate factfinding with respect to
2
Gordon suggests a double jeopardy issue by stating that she has “already been punished” by the work
release facility for her prior violations. Appellant’s Br. at 14. We note that “a violation of a condition of
community corrections does not constitute an offense within the purview of double jeopardy analysis.”
McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007). Indeed, “[d]ouble jeopardy protection applies
only to criminal proceedings, and revocation of community corrections placement proceedings are not
criminal proceedings….” Id. at 1244. Thus, regardless of the disciplinary actions taken by the work release
facility, the trial court retained the authority to revoke her placement and to revise her sentence accordingly.
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any alleged violation’ and to provide ‘an adequate basis for review to determine
if the decision rests on permissible grounds supported by the evidence.’” Id.(quoting Black v. Romano, 471 U.S. 606, 613-14 (1985)).
[11] Gordon argues that neither the trial court’s written order nor its oral statement
during the revocation hearing provide its specific reasons for revoking her work
release placement, and thus her due process rights were violated. However,
when the court’s oral and written statements are considered along with the
hearing transcript, they indicate that the trial court revoked Gordon’s placement
for both valid and invalid reasons. This is sufficient for due process purposes.
Specifically, the trial court stated at the conclusion of the revocation hearing
that it was revoking placement because Gordon “has at least three violations,”
clearly referring to the violations alleged in the probable cause affidavit, which
included: (1) possession/consumption of illegal drugs without a prescription;
(2) failure to follow medication procedures; and (3) termination from
employment for disciplinary reasons. Tr. Vol. 2 at 45. Additionally, as noted
above, the trial court improperly relied on Gordon’s medical restrictions in
revoking her placement, as the abstract of judgment listed only medical
restrictions as the reason for revocation.
[12] Under the circumstances, we conclude that the trial court’s written order and its
oral statement, when coupled with the hearing transcript, satisfy the writing
requirement, as they clearly indicate the court’s reasons (both valid and invalid)
for revoking Gordon’s probation and serve the purpose of facilitating and
ensuring meaningful appellate review. See Hubbard v. State, 683 N.E.2d 618,
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621 (Ind. Ct. App. 1997) (trial court’s written revocation order, which provided
reasons for revocation, and hearing transcript, which provided evidence
underlying revocation, “provide[d] an adequate basis for appellate review” and
were “adequate to satisfy the separate writing requirement.”); Wilson v. State,
708 N.E.2d 32, 33 (Ind. Ct. App. 1999) (trial court’s oral hearing statement in
which court found that “State has met its burden of proof and [f]ound the
defendant had violated the terms and conditions of his probation as alleged in
Item 3A, 3B, 3C, D, E, and F and G” met the written statement requirement
and did not violate probationer’s due process rights); Clark v. State, 580 N.E.2d
708, 711 (Ind. Ct. App. 1991) (holding that trial judge’s oral statement from
bench stating reasons for revocation that was later reduced to writing in hearing
transcript satisfied due process). Thus, the trial court did not violate Gordon’s
due process rights.3 The trial court’s revocation of Gordon’s work release
placement is affirmed.
[13] Affirmed.
Bailey, J., and Brown, J., concur.
3
We do suggest that it is prudent for a trial court to issue a detailed written order regarding its reasons for
revocation, as obviously some hearing transcripts may not provide us an adequate basis for meaningful
appellate review.
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