MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 12 2019, 9:24 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon G. McAllister, November 12, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-CR-1425 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Petitioner. Judge Trial Court Cause No. 84D01-1509-F5-2108
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 1 of 8 [1] Brandon G. McAllister appeals the revocation of his probation. We affirm.
Facts and Procedural History
[2] On August 8, 2016, McAllister and the State entered into a plea agreement
which McAllister agreed to plead guilty as charged under cause number 84D01-
1509-F5-2108 (“Cause No. 2108”) to resisting law enforcement as a level 5
felony, failure to remain at the scene of an accident with serious bodily injury as
a level 6 felony, and reckless driving as a class A misdemeanor, and he agreed
to admit to a probation violation under cause number 84D01-1207-FB-2252
(“Cause No. 2252”). The State agreed to dismiss three other counts, its
allegation that McAllister was an habitual offender, and its action under
another cause. The plea agreement provided there was no agreement as to
sentencing except that McAllister would not be sentenced to a term of
imprisonment greater than eight years.
[3] According to a presentence investigation report (“PSI”) prepared in September
2016, McAllister “was diagnosed with paranoid schizophrenia in 2011, but is
not being treated for it at this time.” Appellant’s Appendix Volume 2 at 58. It
stated that he admitted to using marijuana and methamphetamine on a daily
basis from the age of thirteen. Under mental health, it provided: “He reports
that he was diagnosed as a juvenile with bipolar disorder. In 2011, he was
diagnosed with paranoid schizophrenia. He is not currently under a physician’s
care and is not taking any medications.” Id. at 64.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 2 of 8 [4] On September 19, 2016, the court entered a sentencing order which stated there
were no statutory mitigating factors but some weight was given to McAllister’s
expression of remorse, and that the aggravating factors included his history of
criminal behavior, that the harm caused the victim is significant and greater
than the elements necessary to prove the offense, and that he was on probation
when he committed the offense. The court ordered that he serve two years of
his previously-suspended sentence under Cause No. 2252 and sentenced him to
six years for his level 5 felony, two and one-half years for his level 6 felony, and
one year for his class A misdemeanor under Cause No. 2108, to be served
concurrently, but consecutive to Cause No. 2252, for a combined term of eight
years in the Department of Correction (the “DOC”). The court also ordered
purposeful incarceration and stated that if he successfully completed CLIFF
and some education and/or job training, it would consider a modification.
[5] On February 19, 2018, McAllister filed a petition to modify sentence stating
that he had completed the CLIFF program, the course Power Over Addiction
through Mothers Against Methamphetamine, and a series of eight courses by
Home Bible Studies. On April 6, 2018, the court granted his motion,
suspended sufficient time to modify his DOC release date to July 12, 2018,
approved him for the Community Transition Program (“CTP”) under the
supervision of Vigo County Community Corrections Work Release, ordered
him to engage in any available relapse prevention programming while on CTP,
and ordered that the time from July 12, 2018, to August 25, 2020, was
suspended to formal probation and that, in the discretion of his probation
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 3 of 8 officer, he could earn the right to convert to informal probation after
successfully completing one year. The terms of his probation included that he
would not violate any laws, that he agreed to submit to any drug screening test
as requested, and that he acknowledged that a positive test would be deemed a
violation of probation.
[6] On April 22, 2019, McAllister’s probation officer filed a notice of probation
violation alleging that McAllister had submitted to seven drug screens since
being placed on probation, that six of those tested positive for
methamphetamine, and that he was noncompliant with recommended drug
treatment.
[7] On May 22, 2019, the court held a revocation hearing at which McAllister’s
probation officer testified that he submitted to seven drug screens and tested
positive for methamphetamine on six of the screens. When asked if McAllister
was supposed to undergo drug treatment, the officer stated “yeah, we’d come to
an agreement for that,” that he was supposed to report to Choices, that he did
receive an evaluation, and that he did not start the recommended program.
Transcript Volume 2 at 6. When asked if Choices made efforts to work with
McAllister, the officer answered that he believed so. When asked if he had a
conversation with McAllister about the failed drug screens, the officer stated
that he had multiple conversations with him about them. When asked for his
recommendation, the officer answered “I honestly don’t have a
recommendation. We’ve went through two (2) to three (3) different options
with Mr. Mc[A]llister. [H]e’s not done any of them . . . so I honestly don’t
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 4 of 8 have an opinion . . . I know what he needs to do, [] but he hasn’t done it so
far.” Id. at 8. The prosecutor argued that McAllister “has had basically the
most intensive drug treatment we can offer through DOC,” his sentence was
modified, and he has failed nearly every drug screen that was given. Id. at 15.
She stated she did not think that he had any intention of complying with the
terms of probation and did not think there was “anything that we can offer him
at this point here, having already been through [] RWI and Purposeful,” and
“there’s nothing that we can offer locally, uh, even Choices, which he was
offered as followed up care.” Id. at 15-16. McAllister’s counsel stated that, if
the court found that a commitment to community corrections would be
appropriate, McAllister could be placed on work release. The court asked
“[s]tatus of any programming while on CTP,” and McAllister’s probation
officer replied “[n]o. He hasn’t done anything.” Id. at 16. The court revoked
McAllister’s previously-suspended time and ordered that he serve the sentence
in the DOC.
[8] On May 30, 2019, McAllister’s counsel filed a Motion to Reconsider Ruling
which stated that he had acquired new information and attached a letter from
Virgil Macke.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 12 2019, 9:24 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon G. McAllister, November 12, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-CR-1425 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable John T. Roach, Appellee-Petitioner. Judge Trial Court Cause No. 84D01-1509-F5-2108
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 1 of 8 [1] Brandon G. McAllister appeals the revocation of his probation. We affirm.
Facts and Procedural History
[2] On August 8, 2016, McAllister and the State entered into a plea agreement
which McAllister agreed to plead guilty as charged under cause number 84D01-
1509-F5-2108 (“Cause No. 2108”) to resisting law enforcement as a level 5
felony, failure to remain at the scene of an accident with serious bodily injury as
a level 6 felony, and reckless driving as a class A misdemeanor, and he agreed
to admit to a probation violation under cause number 84D01-1207-FB-2252
(“Cause No. 2252”). The State agreed to dismiss three other counts, its
allegation that McAllister was an habitual offender, and its action under
another cause. The plea agreement provided there was no agreement as to
sentencing except that McAllister would not be sentenced to a term of
imprisonment greater than eight years.
[3] According to a presentence investigation report (“PSI”) prepared in September
2016, McAllister “was diagnosed with paranoid schizophrenia in 2011, but is
not being treated for it at this time.” Appellant’s Appendix Volume 2 at 58. It
stated that he admitted to using marijuana and methamphetamine on a daily
basis from the age of thirteen. Under mental health, it provided: “He reports
that he was diagnosed as a juvenile with bipolar disorder. In 2011, he was
diagnosed with paranoid schizophrenia. He is not currently under a physician’s
care and is not taking any medications.” Id. at 64.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 2 of 8 [4] On September 19, 2016, the court entered a sentencing order which stated there
were no statutory mitigating factors but some weight was given to McAllister’s
expression of remorse, and that the aggravating factors included his history of
criminal behavior, that the harm caused the victim is significant and greater
than the elements necessary to prove the offense, and that he was on probation
when he committed the offense. The court ordered that he serve two years of
his previously-suspended sentence under Cause No. 2252 and sentenced him to
six years for his level 5 felony, two and one-half years for his level 6 felony, and
one year for his class A misdemeanor under Cause No. 2108, to be served
concurrently, but consecutive to Cause No. 2252, for a combined term of eight
years in the Department of Correction (the “DOC”). The court also ordered
purposeful incarceration and stated that if he successfully completed CLIFF
and some education and/or job training, it would consider a modification.
[5] On February 19, 2018, McAllister filed a petition to modify sentence stating
that he had completed the CLIFF program, the course Power Over Addiction
through Mothers Against Methamphetamine, and a series of eight courses by
Home Bible Studies. On April 6, 2018, the court granted his motion,
suspended sufficient time to modify his DOC release date to July 12, 2018,
approved him for the Community Transition Program (“CTP”) under the
supervision of Vigo County Community Corrections Work Release, ordered
him to engage in any available relapse prevention programming while on CTP,
and ordered that the time from July 12, 2018, to August 25, 2020, was
suspended to formal probation and that, in the discretion of his probation
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 3 of 8 officer, he could earn the right to convert to informal probation after
successfully completing one year. The terms of his probation included that he
would not violate any laws, that he agreed to submit to any drug screening test
as requested, and that he acknowledged that a positive test would be deemed a
violation of probation.
[6] On April 22, 2019, McAllister’s probation officer filed a notice of probation
violation alleging that McAllister had submitted to seven drug screens since
being placed on probation, that six of those tested positive for
methamphetamine, and that he was noncompliant with recommended drug
treatment.
[7] On May 22, 2019, the court held a revocation hearing at which McAllister’s
probation officer testified that he submitted to seven drug screens and tested
positive for methamphetamine on six of the screens. When asked if McAllister
was supposed to undergo drug treatment, the officer stated “yeah, we’d come to
an agreement for that,” that he was supposed to report to Choices, that he did
receive an evaluation, and that he did not start the recommended program.
Transcript Volume 2 at 6. When asked if Choices made efforts to work with
McAllister, the officer answered that he believed so. When asked if he had a
conversation with McAllister about the failed drug screens, the officer stated
that he had multiple conversations with him about them. When asked for his
recommendation, the officer answered “I honestly don’t have a
recommendation. We’ve went through two (2) to three (3) different options
with Mr. Mc[A]llister. [H]e’s not done any of them . . . so I honestly don’t
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 4 of 8 have an opinion . . . I know what he needs to do, [] but he hasn’t done it so
far.” Id. at 8. The prosecutor argued that McAllister “has had basically the
most intensive drug treatment we can offer through DOC,” his sentence was
modified, and he has failed nearly every drug screen that was given. Id. at 15.
She stated she did not think that he had any intention of complying with the
terms of probation and did not think there was “anything that we can offer him
at this point here, having already been through [] RWI and Purposeful,” and
“there’s nothing that we can offer locally, uh, even Choices, which he was
offered as followed up care.” Id. at 15-16. McAllister’s counsel stated that, if
the court found that a commitment to community corrections would be
appropriate, McAllister could be placed on work release. The court asked
“[s]tatus of any programming while on CTP,” and McAllister’s probation
officer replied “[n]o. He hasn’t done anything.” Id. at 16. The court revoked
McAllister’s previously-suspended time and ordered that he serve the sentence
in the DOC.
[8] On May 30, 2019, McAllister’s counsel filed a Motion to Reconsider Ruling
which stated that he had acquired new information and attached a letter from
Virgil Macke. The letter stated “I have been seeing Mr. McAllister at Hamilton
Center for a few months now,” “I was hoping that the Dr. would place Mr.
McAllister on Latuda . . . but she placed him on Abilify,” “[t]his is after several
months that it took to get him in to see the Dr.,” “[a]nyway, Mr. McAllister’s
brain is wired a little differently than others. A stimulant slows his brain down
and allows him to concentrate and sleep better. Thus, the failed drug screens
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 5 of 8 for meth,” and “I think that if Mr. McAllister could be placed on the right
medication (Latuda) his life would be much different.” Appellant’s Appendix
Volume 2 at 172. That same day, the court denied the motion.
Discussion
[9] McAllister claims the trial court erred in revoking his probation. He states that
he did not dispute that he violated the terms of his probation by testing positive
for methamphetamine and failing to follow through with drug treatment
recommendations but argues that he has suffered from severe bipolar disorder
since childhood, that he self-medicates by using methamphetamine when he is
not properly medicated for the disorder, and that while on probation he was not
properly medicated. He argues “[t]his does not justify [his] methamphetamine
abuse but explains why he returned to using drugs even after completing the
CLIFF program,” that his therapist “implied that if properly medicated, [he]
may not turn to methamphetamine to self-medicate,” and he could have been
placed in community corrections and allowed to continue drug treatment.
Appellant’s Brief at 10.
[10] The State responds that the trial court did not abuse its discretion when it
revoked McAllister’s probation, that he tested positive for methamphetamine
on six occasions after completing CLIFF, that the probation department gave
him multiple options to complete programs that would help with his drug use
and addiction, and that he did not take advantage of them. It argues that
McAllister’s claim that his violation was based on an underlying mental health
issue is unfounded, Macke is a licensed social worker and not a psychologist or Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 6 of 8 doctor, the court was not required to credit Macke’s opinion, and none of the
speculation in Macke’s letter changes the facts before the court.
[11] Ind. Code § 35-38-2-3 provides in part:
If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) 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 (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
[12] We review trial court probation violation determinations and sanctions for an
abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (citing
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The Indiana Supreme Court
has explained that “[o]nce a trial court has exercised its grace by ordering
probation rather than incarceration, the judge should have considerable leeway
in deciding how to proceed” and that “[i]f this discretion were not afforded to
trial courts and sentences were scrutinized too severely on appeal, trial judges
might be less inclined to order probation to future defendants.” Prewitt, 878
N.E.2d at 188.
[13] The record reveals that the court initially imposed a combined sentence of eight
years to be served in the DOC, ordered purposeful incarceration, and stated
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 7 of 8 that, if McAllister successfully completed CLIFF and some education and/or
job training, it would consider modification. McAllister later requested
sentence modification stating that he had completed CLIFF and other
programs, and the court granted his request, suspended a portion of his
sentence to formal probation, and ordered him to participate in any available
relapse prevention programming. McAllister does not dispute that he
submitted to seven drug screens and six were positive for methamphetamine.
His probation officer testified that he had multiple conversations with
McAllister regarding his positive drug screens and that there was an attempt to
work with him and present him with programming options, but he did not
comply. The court emphasized the extent to which McAllister had received
treatment and leniency and ordered that he serve his previously-suspended
sentence. McAllister’s bipolar disorder diagnosis was reflected in the PSI, and
the court was able to consider the letter from Macke but declined to reconsider
the revocation of his probation on that basis.
[14] Given the circumstances, we cannot say that the trial court abused its discretion
in revoking McAllister’s probation and ordering that he serve the remainder of
his previously-suspended sentence.
[15] Affirmed.
Altice, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1425 | November 12, 2019 Page 8 of 8