MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 04 2018, 10:07 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 A. David Hutson Curtis T. Hill, Jr. Hutson Legal Attorney General of Indiana Jeffersonville, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brittany Erin Hoak, October 4, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1094 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Bradley B. Jacobs, Appellee-Plaintiff Judge Trial Court Cause Nos. 10C02-1403-FA-26 10C02-1711-F5-300
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 1 of 9 [1] Brittany Hoak appeals the three-year sentence imposed by the trial court after
she pleaded guilty to Level 5 Felony Possession of Methamphetamine,1 arguing
that the sentence was inappropriate in light of the nature of the offense and her
character. She simultaneously appeals the trial court’s revocation of her
probation in a separate cause, arguing that revocation is unwarranted and that
the imposition of a full suspended sentence is improper. Finding that the
sentence is not inappropriate and no other error, we affirm.
Facts
[2] Hoak has experienced significant hardships throughout her life. She has
endured sexual and emotional abuse, has lost custody of her only son to her
estranged mother, and has been diagnosed with multiple psychological
disorders. Guilty Plea Tr. Def. Ex. A p. 4-8. Additionally, Hoak currently
suffers from Spinal Stenosis, a ruptured disk in her neck, and a herniated disk in
her lower back. Id. Hoak is a drug addict who has been in and out of the
Indiana criminal justice system on multiple drug-related charges for many
years, though she has yet to receive court-ordered substance abuse treatment.
Id. at 9.
1 Ind. Code § 35-48-4-6.1(b)(2).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 2 of 9 [3] On March 31, 2014, Hoak was charged with Class A felony dealing in
methamphetamine and Class B felony possession of methamphetamine in
Cause Number 10C02-1403-FA-26 (Cause FA-26).
[4] On August 25, 2014, she entered into a plea agreement with the State in Cause
FA-26. Pursuant to the agreement, she would plead guilty to the Class B felony
possession charge, the State would dismiss the Class A felony dealing in
methamphetamine charge, and she would be sentenced to ten years in the
Department of Correction with four years suspended to strict probation. The
terms of Hoak’s probation expressly state that she could not possess any
controlled substances. Guilty Plea Tr. p. 10-12.
[5] Hoak began her term of probation on May 12, 2017. On November 14, 2017,
the Jeffersonville Police Department responded to a call and found Hoak at a
motel. The police discovered methamphetamine on her person, which was a
direct violation of her probation.
[6] Shortly thereafter, the State charged Hoak with Level 6 felony possession of
methamphetamine, Class C misdemeanor possession of paraphernalia, and
Level 5 felony possession of methamphetamine in Cause Number 10C02-1711-
F5-300 (Cause F5-300). On December 5, 2017, the State also filed a petition in
Cause FA-26 to revoke Hoak’s probation based on these new charges.
[7] On January 18, 2018, Hoak entered into a guilty plea agreement in Cause F5-
300, pursuant to which she pleaded guilty to the Level 5 felony possession of
methamphetamine charge in exchange for the dismissal of the other charges.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 3 of 9 She also admitted to violating probation in Cause FA-26 because she had
possessed a controlled substance. The plea agreement left the matter of
sentencing up to the trial court’s discretion.
[8] On April 9, 2018, the trial court sentenced Hoak in Cause F5-300 to three years
of fixed imprisonment with the Department of Correction on the Level 5 felony
possession of methamphetamine charge. It also revoked her probation in Cause
FA-26 and imposed her remaining suspended sentence of 294 days. Sentencing
Tr. p. 36-37. The trial court considered the aggravating factor of Hoak’s
extensive prior criminal history and the mitigating factor of her abuse and
trauma in arriving at its decision. Id. Hoak now appeals.2
Discussion and Decision
[9] Hoak presents two arguments on appeal: (1) the three-year sentence in Cause
F5-300 is inappropriate in light of the nature of the offense and her character;
and (2) the trial court improperly imposed her 294-day suspended sentence
when it revoked her probation in Cause FA-26.
2 These two separate cases now come before this Court in this consolidated appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 4 of 9 I. Appropriateness
[10] We first address Hoak’s argument that the trial court inappropriately sentenced
her to three years of fixed imprisonment in Cause F5-300. Specifically, Hoak
argues that we should revise her sentence to a three-year, fully suspended
sentence so long as she participates in the rehabilitative Recovery Works
Program or a similar drug treatment program. She believes that further
incarceration will only exacerbate her drug habits since she has yet to receive
any substance abuse treatment.
[11] Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if,
after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Additionally, the defendant bears the burden of persuading us
that her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
[12] The maximum sentence possible for committing a Level 5 felony conviction is
six years and the minimum sentence is one year. Indiana Code § 35-50-2-6(b).
The advisory sentence, which the trial court imposed in this case, is three years.
Id.
[13] First, as to the nature of the offense, Hoak pleaded guilty to possession of
methamphetamine while on probation for pleading guilty to possession of
methamphetamine. Hoak not only violated the express terms of probation, but
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 5 of 9 she also pleaded guilty to a crime she had already committed in the past.
Moreover, Hoak is a repeat offender who has a long criminal history involving
the possession and distribution of controlled substances. Guilty Plea Tr. Def.
Ex. A. p. 9-10. Specifically, she has multiple prior convictions for possession of
methamphetamine. Id. We do not find that the nature of the offense renders the
sentence inappropriate.
[14] Second, as to the character of the offender, Hoak correctly states that she has
yet to receive any court-ordered substance abuse treatment. Additionally, Hoak
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 04 2018, 10:07 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 A. David Hutson Curtis T. Hill, Jr. Hutson Legal Attorney General of Indiana Jeffersonville, Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brittany Erin Hoak, October 4, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1094 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Bradley B. Jacobs, Appellee-Plaintiff Judge Trial Court Cause Nos. 10C02-1403-FA-26 10C02-1711-F5-300
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 1 of 9 [1] Brittany Hoak appeals the three-year sentence imposed by the trial court after
she pleaded guilty to Level 5 Felony Possession of Methamphetamine,1 arguing
that the sentence was inappropriate in light of the nature of the offense and her
character. She simultaneously appeals the trial court’s revocation of her
probation in a separate cause, arguing that revocation is unwarranted and that
the imposition of a full suspended sentence is improper. Finding that the
sentence is not inappropriate and no other error, we affirm.
Facts
[2] Hoak has experienced significant hardships throughout her life. She has
endured sexual and emotional abuse, has lost custody of her only son to her
estranged mother, and has been diagnosed with multiple psychological
disorders. Guilty Plea Tr. Def. Ex. A p. 4-8. Additionally, Hoak currently
suffers from Spinal Stenosis, a ruptured disk in her neck, and a herniated disk in
her lower back. Id. Hoak is a drug addict who has been in and out of the
Indiana criminal justice system on multiple drug-related charges for many
years, though she has yet to receive court-ordered substance abuse treatment.
Id. at 9.
1 Ind. Code § 35-48-4-6.1(b)(2).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 2 of 9 [3] On March 31, 2014, Hoak was charged with Class A felony dealing in
methamphetamine and Class B felony possession of methamphetamine in
Cause Number 10C02-1403-FA-26 (Cause FA-26).
[4] On August 25, 2014, she entered into a plea agreement with the State in Cause
FA-26. Pursuant to the agreement, she would plead guilty to the Class B felony
possession charge, the State would dismiss the Class A felony dealing in
methamphetamine charge, and she would be sentenced to ten years in the
Department of Correction with four years suspended to strict probation. The
terms of Hoak’s probation expressly state that she could not possess any
controlled substances. Guilty Plea Tr. p. 10-12.
[5] Hoak began her term of probation on May 12, 2017. On November 14, 2017,
the Jeffersonville Police Department responded to a call and found Hoak at a
motel. The police discovered methamphetamine on her person, which was a
direct violation of her probation.
[6] Shortly thereafter, the State charged Hoak with Level 6 felony possession of
methamphetamine, Class C misdemeanor possession of paraphernalia, and
Level 5 felony possession of methamphetamine in Cause Number 10C02-1711-
F5-300 (Cause F5-300). On December 5, 2017, the State also filed a petition in
Cause FA-26 to revoke Hoak’s probation based on these new charges.
[7] On January 18, 2018, Hoak entered into a guilty plea agreement in Cause F5-
300, pursuant to which she pleaded guilty to the Level 5 felony possession of
methamphetamine charge in exchange for the dismissal of the other charges.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 3 of 9 She also admitted to violating probation in Cause FA-26 because she had
possessed a controlled substance. The plea agreement left the matter of
sentencing up to the trial court’s discretion.
[8] On April 9, 2018, the trial court sentenced Hoak in Cause F5-300 to three years
of fixed imprisonment with the Department of Correction on the Level 5 felony
possession of methamphetamine charge. It also revoked her probation in Cause
FA-26 and imposed her remaining suspended sentence of 294 days. Sentencing
Tr. p. 36-37. The trial court considered the aggravating factor of Hoak’s
extensive prior criminal history and the mitigating factor of her abuse and
trauma in arriving at its decision. Id. Hoak now appeals.2
Discussion and Decision
[9] Hoak presents two arguments on appeal: (1) the three-year sentence in Cause
F5-300 is inappropriate in light of the nature of the offense and her character;
and (2) the trial court improperly imposed her 294-day suspended sentence
when it revoked her probation in Cause FA-26.
2 These two separate cases now come before this Court in this consolidated appeal.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 4 of 9 I. Appropriateness
[10] We first address Hoak’s argument that the trial court inappropriately sentenced
her to three years of fixed imprisonment in Cause F5-300. Specifically, Hoak
argues that we should revise her sentence to a three-year, fully suspended
sentence so long as she participates in the rehabilitative Recovery Works
Program or a similar drug treatment program. She believes that further
incarceration will only exacerbate her drug habits since she has yet to receive
any substance abuse treatment.
[11] Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . if,
after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” Additionally, the defendant bears the burden of persuading us
that her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006).
[12] The maximum sentence possible for committing a Level 5 felony conviction is
six years and the minimum sentence is one year. Indiana Code § 35-50-2-6(b).
The advisory sentence, which the trial court imposed in this case, is three years.
Id.
[13] First, as to the nature of the offense, Hoak pleaded guilty to possession of
methamphetamine while on probation for pleading guilty to possession of
methamphetamine. Hoak not only violated the express terms of probation, but
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 5 of 9 she also pleaded guilty to a crime she had already committed in the past.
Moreover, Hoak is a repeat offender who has a long criminal history involving
the possession and distribution of controlled substances. Guilty Plea Tr. Def.
Ex. A. p. 9-10. Specifically, she has multiple prior convictions for possession of
methamphetamine. Id. We do not find that the nature of the offense renders the
sentence inappropriate.
[14] Second, as to the character of the offender, Hoak correctly states that she has
yet to receive any court-ordered substance abuse treatment. Additionally, Hoak
has endured significant obstacles throughout most of her life. We are not
unaware of the grievous path on which Hoak has trekked up until this point.
We recognize the hardships that come from addiction, sexual abuse, physical
and emotional trauma, and all other difficulties Hoak has experienced in her
life.
[15] However, we do not find that the original three-year sentence was inappropriate
under Indiana Appellate Rule 7(B). Hoak’s possession of methamphetamine
conviction was egregious because she simultaneously violated the terms of
probation and committed an offense of which she had previously been
convicted in the past. In balancing that determination with the nature of Hoak’s
character as a person in need of true substance abuse treatment, we cannot say
that the trial court’s decision to impose the advisory three-year sentence was
inappropriate. In sum, we will not revise Hoak’s sentence pursuant to Indiana
Appellate Rule 7(B).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 6 of 9 [16] We also take this moment to point out that despite myriad drug-related contacts
with the criminal justice system over many years, Hoak was never ordered to
complete a substance abuse treatment program. We encourage trial courts to
consider assisting individuals struggling with substance abuse with
rehabilitative measures.
II. Probation Revocation
[17] We next address Hoak’s argument that the trial court improperly imposed her
294-day suspended sentence when it revoked her probation in Cause FA-26.
Specifically, Hoak argues that (1) the State failed to prove that she violated a
term of her probation; and (2) the State’s imposition of the full balance of her
previously suspended sentence as sanction for violating probation was
inappropriate.
[18] We will overturn a trial court’s decision to revoke probation and a trial court’s
sentencing decision in a probation revocation proceeding only if the decisions
are against the logic and effect of the facts and circumstances before it. Marsh v.
State, 818 N.E.2d 143, 144 (Ind. Ct. App. 2004).
[19] First, Hoak argues that the State failed to prove that she violated her probation.
An Indiana court must follow a two-step process to revoke someone’s
probation: (1) the court must make a factual determination that a violation of a
condition of probation actually occurred; and (2) if a violation occurred, then
the trial court must determine if the violation warrants revocation of the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 7 of 9 probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Thereafter, if a
proper violation is found and revocation is appropriate, the court may properly
order 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).
[20] It is clear from the record that Hoak violated a condition of her probation,
namely, a prohibition on possessing controlled substances. Indeed, in her guilty
plea agreement in Cause F5-300, she admitted that she possessed
methamphetamine on November 14, 2017. Hoak does not contest this fact.
Rather, Hoak argues that the State did not prove beyond a reasonable doubt
that she actually violated the terms of her probation because at the guilty plea
hearing, the State did not present any witnesses or exhibits.
[21] It is well established that a probation revocation proceeding is not criminal but
rather civil in nature, Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009),
and consequently, there is no requirement to prove essential elements beyond a
reasonable doubt. Instead, the State must prove the violation by a
preponderance of the evidence. I.C. § 35-38-2-3(f). Here, Hoak’s admission that
she possessed methamphetamine while on probation is sufficient evidence to
support the trial court’s finding that she violated a condition of her probation.
[22] Second, Hoak argues that imposing the full balance of her previously suspended
sentence as a sanction for violating probation is inappropriate. Her argument is
not persuasive. Indiana Code section 35-38-2-3(h)(3) plainly states that a court
may reimpose all or part of a sentence that was suspended at the time of initial
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 8 of 9 sentencing. Furthermore, we have held on numerous occasions that an
imposition of the full balance of a previously suspended sentence as a sanction
for violating probation is not improper. See, e.g., Castillo v. State, 67 N.E.3d 661,
665 (Ind. Ct. App. 2017) (holding that trial court did not err when it ordered
defendant to serve two and one-half years of his previously suspended sentence
as a sanction for violating probation); see also I.C. § 35-38-2-3(h)(3) (providing
that trial court may order execution of all or part of previously suspended
sentence after revoking probation).
[23] It appears that Hoak would like to have it both ways. She plainly admits to
violating the terms of her probation so that she can receive a lighter sentence for
pleading guilty in Cause F5-300, but she simultaneously does not want such
evidence to be used to determine her sanction for violating the very same terms
of her probation in Cause FA-26. In short, Hoak’s arguments are unavailing.
[24] The judgments of the trial courts are affirmed.
May, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1094 | October 4, 2018 Page 9 of 9