Brent R. Gilbert v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: June 16, 2014
• Docket: 28A04-1312-CR-613
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jun 16 2014, 9:15 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK SMALL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

BRENT R. GILBERT, ) ) Appellant-Defendant, ) ) vs. ) No. 28A04-1312-CR-613 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM GREENE SUPERIOR COURT The Honorable Dena A. Martin, Judge Cause No. 28D01-0908-FB-390

June 16, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Brent R. Gilbert appeals from the trial court’s order revoking his placement in

community corrections, contending that the trial court abused its discretion by committing

him to the Department of Correction. Because Gilbert has failed to demonstrate an abuse

of discretion, we must affirm the trial court’s order.

FACTS AND PROCEDURAL HISTORY

On August 14, 2009, the State charged Gilbert in Greene County with one count of

Class B felony dealing in a schedule II controlled substance, one count of Class C felony

possession of methamphetamine with a firearm, one count of Class D felony possession of

a chemical reagent or precursor with the intent to manufacture, one count of Class D felony

maintaining a common nuisance, one count of Class A misdemeanor possession of

anhydrous ammonia in an improper container, and one count of Class A misdemeanor

possession of marijuana. The State later filed a request for an habitual offender sentence

enhancement.

Gilbert and the State entered into a plea agreement, which was rejected by the trial

court. On April 23, 2010, the State filed a petition to revoke Gilbert’s surety bond, alleging

that while released on bond, Gilbert had committed several felonies and a misdemeanor in

Vigo County. At the conclusion of the bond revocation hearing held on May 3, 2010, the

trial court revoked Gilbert’s bond.

On October 8, 2010, Gilbert and the State entered into a negotiated plea agreement

whereby Gilbert would plead guilty to one count of Class B felony dealing in

methamphetamine and would be sentenced to sixteen years imprisonment at the Indiana

Department of Correction with twelve years executed and four years suspended to

2 supervised probation. In exchange for Gilbert’s plea, the State agreed to dismiss the

remaining counts against Gilbert including the habitual substance offender request and the

charges under a separate cause number in Greene County. On November 12, 2010, the

trial court accepted the plea agreement and sentenced Gilbert to sixteen years imprisonment

with four years suspended to supervised probation pursuant to the terms of the plea

agreement.

On May 31, 2012, Gilbert filed a letter with the trial court alleging that he had cancer

and requesting that the trial court hold a hearing. By an order entered on June 5, 2012, the

trial court denied Gilbert’s request, citing to the terms of the plea agreement, which did not

contain a reservation of rights by which the trial court could modify Gilbert’s negotiated

sentence. On November 15, 2012, Gilbert filed a petition to modify his sentence and

placement, again alleging that he had been diagnosed with stage 4 cancer while

incarcerated. Gilbert requested a modification of his sentence to placement on home

detention so that he could be close to his family and continue to receive necessary

treatment. Gilbert also informed the trial court that the State had been consulted about

Gilbert’s requested and would leave the question of sentence modification to the trial

court’s discretion.

On January 7, 2013, the trial court issued its order granting Gilbert’s petition to

modify his sentence and placement, and ordering Gilbert to serve the remainder of his

sentence on home detention. Gilbert was committed to the Greene County Community

Corrections Home Detention program for the remainder of his sentence provided that

Gilbert complied with the rules and regulations of that program. The order also specified

3 that if the Executive Director had an articulable suspicion that Gilbert was failing to comply

with the rules and regulations of his placement, the Executive Director was authorized to

transfer Gilbert to the Greene County Jail and file a written report to the trial court advising

the trial court of the imprisonment. The Executive Director was also required to seek a

modification of Gilbert’s commitment to the Indiana Department of Correction in that

event.

Gilbert began his home detention on May 2, 2013, and was advised of the rules and

conditions of that placement by his case worker, Gregg Roudebush. Those terms and

conditions included that Gilbert should violate no laws, should be of good character, and

should comply with all conditions set forth in his order of probation. A standard condition

of Gilbert’s probation was the prohibition against using, possessing, or transporting any

alcoholic beverage or using any controlled substance unless prescribed by a physician.

On October 3, 2013, at Roudebush’s request, Community Corrections field officer

Donald Fish conducted a home visit at Gilbert’s residence to check on his well-being.

Gilbert had contacted Roudebush to inform him that Gilbert’s prescription medications had

been stolen a few days earlier. When Fish arrived at Gilbert’s home at 10:30 a.m., Fish

could hear Gilbert in the back bedroom yelling and cussing. Fish continued to knock on

the door. Gilbert answered the door yelling and cussing things like, “who the ‘f’ was

there,” and “what the ‘f’ was going on.” Tr. at 14. Fish thought that this behavior was

very unusual because Gilbert had not acted that way on prior visits. Gilbert, who was on

the telephone, opened the door and allowed Fish to enter the house. Gilbert continued to

curse and appeared to be irate. Gilbert lived with his parents, but neither of them were

4 present at that time. The house was a mess, which was the complete opposite of what Fish

had observed on prior visits.

Fish sat and talked with Gilbert in an effort to calm him. During the course of their

conversation Fish observed some of Gilbert’s medications on the coffee table, but could

not discern what the medications were. Fish spoke with Gilbert about his medication

because of Gilbert’s prior report to Roudebush about the theft of his medications. Gilbert

told Fish that he had contacted the Sheriff’s Department about the stolen medication and

that he was in the process of getting some of them back. Gilbert began to calm down and

Fish left, returning to Gilbert’s house later in the day to check on him. Upon his return to

the Community Corrections office, Fish reported to Roudebush about his observations at

Gilbert’s house including Gilbert’s irrational behavior. After listening to Fish’s report,

Roudebush decided to call Gilbert into the office for a drug screen, but Gilbert could not

secure transportation.

On the morning of October 31, 2013, Roudebush called to have Gilbert come in for

a drug screen, but Gilbert again could not find transportation to the office. Roudebush then

made the decision to conduct a home visit in order to accomplish the drug screen.

Roudebush and Fish drove to Gilbert’s residence and arrived at approximately 10:30 a.m.

Two of Gilbert’s friends were at the residence at that time, but remained in the back

bedroom.

Fish and Roudebush observed bottles of pills on the coffee table and pills scattered

on the coffee table and an end table. Roudebush asked to see Gilbert’s medications. Gilbert

did not seem to know where his medications were and wandered around the house in search

5 of them. Gilbert handed Roudebush a bottle of Lorazepam, a prescription that had been

filled on October 29, 2013 for 60 pills. Roudebush counted the pills in the bottle and

discovered that the bottle contained only 25 pills when, if taken as prescribed, there should

have been at least 54 pills. Roudebush confronted Gilbert about the missing pills. Gilbert

first explained that he did not like to take the pills because they were very strong, so he

decided to flush the pills down the toilet. After further questioning, Gilbert admitted that

he gave the missing pills to someone, but was “messed up,” and did not remember to whom

he gave the medication. Id. at 36.

Roudebush obtained a urine sample from Gilbert for the drug screen. The screen

gave a positive result for Gilbert’s prescription medications and also for the presence of

methamphetamine. Fish was in the room when Roudebush confronted Gilbert about the

positive results of the drug screen for the presence of methamphetamine. Initially, Gilbert

denied ingesting methamphetamine, but eventually admitted that he “did a line” two days

prior. Id. Gilbert told Roudebush that he had traded the Lorazepam pills to his brother in

exchange for the methamphetamine. Gilbert then signed an admission that he did take the

methamphetamine, which constituted a violation of the rules and regulations of the

community corrections program. A laboratory analysis of Gilbert’s urine sample

confirmed the presence of methamphetamine.

While Roudebush had been counting Gilbert’s medications and conducting the drug

screen, Fish was looking around Gilbert’s house. Fish went into the bedroom where

Gilbert’s friends had remained and observed on an end table a gallon jug of water, shredded

cotton balls, and two small bottles of Coleman water purification tablets, all of which are

6 used to ingest illegal drugs. Fish asked Gilbert about the Coleman tablets. Although

Gilbert responded that he used them when he went camping, both Fish and Roudebush

knew that Gilbert was on home detention and had not been camping. Fish and Roudebush

subsequently returned to the end table in the bedroom and discovered that the Coleman

tablets had been moved, the shredded cotton balls were gone, and Gilbert’s friends were

no longer there.

The next day, Roudebush returned to Gilbert’s residence to check on him and to

conduct another pill count. The pill count was accurate. Roudebush again inquired about

the Coleman tablets and told Gilbert that they were ineffective in masking

methamphetamine for purposes of a drug screen. Gilbert replied that he was aware of that

and changed his story about where he obtained the methamphetamine. Gilbert claimed that

he did not get the methamphetamine from his brother, but had told Roudebush that story

because he was angry with his brother. Gilbert changed his story to reflect that he had

obtained the methamphetamine from the friends who were present at Gilbert’s house when

Roudebush and Fish were there the day before.

On November 26, 2013, Greene County Community Corrections officers filed a

petition to modify Gilbert’s placement alleging that on October 31, 2013, Gilbert was given

a drug screen and had tested positive for the presence of methamphetamine. The petition

also alleged that Gilbert had admitted to Roudebush and Fish that he had used

methamphetamine and that he traded approximately thirty pills from his Lorazepam

prescription for the methamphetamines. At the conclusion of the probation revocation

hearing, the trial court found that Gilbert had failed to comply with the rules and regulations

7 of his placement. The trial court modified Gilbert’s commitment and ordered him to serve

the remainder of his twelve-year sentence in the Department of Correction. Gilbert now

appeals.

DISCUSSION AND DECISION

Gilbert appeals from the trial court’s order revoking his probation, contending that

the trial court abused its discretion by sentencing him to serve the remainder of his twelve-

year sentence in the Department of Correction. We begin with the premise that

“[p]robation 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). “[C]ourts in

probation revocation hearings may consider any relevant evidence bearing some

substantial indicia of reliability.” Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). It is

within the discretion of the trial court to determine the conditions of a defendant’s

probation and to revoke probation if the conditions are violated. Prewitt, 878 N.E.2d at

188. In a sense, all probation requires “strict compliance” because probation is a matter of

grace, and once the trial court extends this grace and sets its terms and conditions, the

probationer is expected to comply with them strictly. Woods v. State, 892 N.E.2d 637, 641

(Ind. 2008). If the probationer fails to do so, then a violation has occurred. Id. But even

in the face of a probation violation, the trial court may nonetheless exercise its discretion

in deciding whether to revoke probation. Id. (citing Clark Cnty. Council v. Donahue, 873

N.E.2d 1038, 1039 (Ind. 2007) (“The probationary scheme is deliberately designed to give

trial judges the flexibility to make quick, case-by-case determinations.”)).

8 Violation determinations and sanctions are reviewed for abuse of discretion. Id. An

abuse of discretion occurs where the decision is clearly against the logic and effect of the

facts and circumstances, or when the trial court misinterprets the law. Prewitt, 878 N.E.2d

at 188. We consider only the evidence most favorable to the judgment without reweighing

that evidence or judging the credibility of the witnesses. Woods, 892 N.E.2d at 639 (citing

Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995)). If there is substantial evidence of

probative value to support the trial court’s decision that a defendant has violated any terms

of probation, the reviewing court will affirm its decision to revoke probation. Id. at 639-

40.

Probation revocation is a two-step process. First, the trial court must make a factual

determination that a violation of a condition of probation actually occurred. Beeler v. State,

959 N.E.2d 828, 829-30 (Ind. Ct. App. 2011). Second, if a violation is found, then the trial

court must determine the appropriate sanction for the violation. Id. A probation revocation

hearing is civil in nature, and the State’s burden is to prove the alleged violations only by

a preponderance of the evidence. Figures v. State, 920 N.E.2d 267, 272 (Ind. Ct. App.

2010). Violation of a single term or condition of probation is sufficient to revoke probation.

Washington v. State, 758 N.E.2d 1014, 1017 (Ind. Ct. App. 2001). When reviewing an

appeal from the revocation of probation, the reviewing court considers only the evidence

most favorable to the judgment, and does so without reweighing the evidence or

reassessing the credibility of the witnesses. Piper v. State, 770 N.E.2d 880, 882 (Ind. Ct.

App. 2002).

9 Gilbert admitted to Roudebush that he violated the terms of his placement in

community corrections by using and testing positive for methamphetamine. Thus, Gilbert

is not challenging the sufficiency of the evidence supporting his probation revocation, but

is challenging his placement in the Department of Correction.

Indiana Code section 35-38-2-3 provides leeway to the trial court in terms of its

disposition upon the finding of a probation violation. Although Gilbert presents an

argument akin to that made when sentences are reviewed under Indiana Appellate Rule

7(b), in the context of a trial court’s sentencing decisions for probation violations, the

standard of review is for an abuse of discretion. Prewitt, 878 N.E.2d at 188. “A trial

court’s action in a post-sentence probation violation proceeding is not a criminal sentence

as contemplated by the rule. The review and revise remedy of App. R. 7(B) is not

available.” Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008).

Community corrections programs consist of residential and work release, electronic

monitoring, day treatment, or day reporting. Ind. Code § 35-38-2.6-2. “Alternative

sentences such as probation and community corrections serve the humane purposes of

avoiding incarceration and of permitting the offender to meet the offender’s financial

obligations.” Cox, 706 N.E.2d at 550.

The trial court exercised its discretion by modifying Gilbert’s sentence to allow for

his placement in the community corrections program. Gilbert responded to this leniency

by testing positive for methamphetamine in a drug screen, and the result was confirmed in

a laboratory analysis. Gilbert admitted to Roudebush and Fish that he had used

methamphetamine he obtained by trading approximately thirty pills of Lorazepam. Gilbert

10 signed a written admission that he had used methamphetamine and that to do so was a

violation of the rules and regulations of the community corrections program.

The trial court did not abuse its discretion by returning Gilbert to his placement in

the Department of Correction. Gilbert failed to follow the rules and it was within the trial

court’s discretion to order that Gilbert serve the remainder of his twelve-year sentence

executed in the Department of Correction. See Sanders v. State, 825 N.E.2d 952, 957-58

(Ind. Ct. App. 2005) (trial court has discretion to order defendant to serve entire suspended

sentence).

Affirmed.

MAY, J., and BAILEY, J., concur.