MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 30 2020, 10:21 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Tyler E. Burgauer Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana Samuel J. Beasley Evan Matthew Comer Muncie, Indiana Angela Sanchez Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bryant L. Foust, March 30, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1258 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Thomas A. Cannon, Jr., Judge Trial Court Cause No. 18C05-1207-FD-97
Kirsch, Judge.
[1] Bryant Foust (“Foust”) appeals from the trial court’s order that lifted the stay of
a previously-imposed sentence. Foust raises one issue for our review, which we
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 1 of 8 restate as whether the trial court violated his right to due process when it
revoked his stayed sentence for failing to comply with the conditions of the
stay.
[2] We affirm.
Facts and Procedural History [3] On November 5, 2012, in underlying cause number 18C05-1207-FD-97 (“cause
number FD-97”), Foust pleaded guilty to one count of operating a vehicle while
intoxicated, as a Class D felony, and to an habitual substance offender
enhancement. Foust was sentenced to an aggregate term of six years – three
years for the operating while intoxicated count and an additional three years for
the habitual substance offender enhancement. One year of the aggregate
sentence was ordered executed in the Indiana Department of Correction
(“DOC”), and the remaining five years were suspended to probation.
Appellant’s App. Vol 2 at 50.
[4] While serving his probation under cause number FD-97, Foust was charged
with Level 5 felony dealing in methamphetamine in an unrelated Delaware
County case under cause number 18C03-1504-F5-8 (“cause number F5-8”). On
September 28, 2015, he pleaded guilty to the dealing count, and on October 22,
2015, Foust was sentenced to four years executed in the DOC. Ex. at 44. The
trial court recommended that Foust be placed in a DOC facility that provided
purposeful incarceration through a therapeutic community. Id. Upon
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 2 of 8 successful completion of the program, he could file a petition to modify his
sentence. Id.
[5] On June 5, 2015, the State filed under cause number FD-97 a petition to revoke
Foust’s probation. A fact-finding hearing was held on October 26, 2015, and
Foust admitted the allegations contained in the petition. The trial court found
that Foust had violated the terms of his probation and ordered him to serve the
previously-suspended five-year portion of his sentence. The trial court then
stayed the sentence, pending Foust’s completion of the purposeful incarceration
program (“PIP”), which he was ordered to participate in per the sentence he
received in cause number F5-8. The trial court’s sentencing order in cause
number FD-97 reads (in relevant part) as follows:
The [five] years previously ordered to be served on supervised probation is [sic] ordered executed to be served at the Indiana Department of Correction which [five-year] sentence is stayed pending [Foust]’s completion of his executed sentence of Purposeful Incarceration through the Indiana Department of Correction Therapeutic Communities Program under Cause No. [F5-8] and following a modification of [Foust]’s sentence in that cause[, Foust] would be required to complete the Delaware County Forensic Drug Program as the condition of said [five- year] stayed sentence. Upon successful completion of said Forensic Drug Program, the Court will modify [Foust]’s sentence herein and close this cause with [Foust] being released from further supervision hereunder.
Appellant’s App. Vol. 2 at 52.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 3 of 8 [6] In October 2015, Foust was transferred to the Indiana Youth Center
correctional facility (“IYC”), where he became indoctrinated into the hate
group known as the Aryan Brotherhood. Foust was referred to the therapeutic
community substance abuse program on November 24, 2015. He began the
program in March 2016 but was terminated less than one month later after
receiving a disciplinary report for belonging to a “Security Threat Group
(“SGT”)[.]” Tr. at 15. Because of his involvement with an SGT, Foust was
ineligible for a new referral to the program for six months following his
violation. Foust received a second referral to the therapeutic community in
March 2017, but he ultimately refused the program on his own volition.
[7] While incarcerated, Foust’s membership in the Aryan Brotherhood resulted in
multiple disciplinary violations. He received at least ten conduct reports while
housed at IYC for incidents including possession of a controlled substance,
engaging in unauthorized financial transactions, disorderly conduct, and staff or
offender provocation. On September 5, 2017, Foust received a second
disciplinary report for belonging to an SGT. The next day, prison officials
referred Foust for a second substance abuse assessment to determine his
eligibility for therapeutic community programming, but Foust refused the
assessment. At some point during his incarceration, Foust renounced his
membership in the Aryan Brotherhood.
[8] On September 11, 2017, Foust was transferred for disciplinary reasons to the
Correctional Industrial Facility (“CIF”). At CIF, Foust met with his DOC
caseworker who advised him that he would be referred to the therapeutic
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 4 of 8 community substance abuse program. For a third time, however, Foust
declined the referral, requesting that he instead be removed from the referral list
because his “[release] date was less than twelve months” away. Id. at 8. The
caseworker noted in a report that Foust would “not have enough time
remaining [in his sentence] to complete the program but [if he participated in
the program nonetheless,] at least [he would] be on the right track of remaining
sober.” Ex. at 26; Tr. at 15, 39.
[9] Foust was released from prison on July 27, 2018, without successfully
completing the therapeutic community substance abuse program. However, on
July 24, 2018, three days before Foust’s release date, the State filed a motion
under cause number FD-97 to vacate Foust’s stayed sentence. The State
alleged that Foust failed to complete the required PIP for his sentence in cause
number F5-8, and, thus, failed to comply with the trial court’s October 26, 2015
sentencing order that was issued under cause number FD-97. Appellant’s App.
Vol. 2 at 2.
[10] The trial court held a fact-finding hearing on the matter, following which the
court determined that the State proved Foust violated a condition of his stayed
sentence. After a separate dispositional hearing, the court lifted the stay and
ordered Foust to serve the remainder of his previously-stayed five-year sentence
in the DOC. Foust now appeals.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 30 2020, 10:21 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Tyler E. Burgauer Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana Samuel J. Beasley Evan Matthew Comer Muncie, Indiana Angela Sanchez Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Bryant L. Foust, March 30, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1258 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Thomas A. Cannon, Jr., Judge Trial Court Cause No. 18C05-1207-FD-97
Kirsch, Judge.
[1] Bryant Foust (“Foust”) appeals from the trial court’s order that lifted the stay of
a previously-imposed sentence. Foust raises one issue for our review, which we
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 1 of 8 restate as whether the trial court violated his right to due process when it
revoked his stayed sentence for failing to comply with the conditions of the
stay.
[2] We affirm.
Facts and Procedural History [3] On November 5, 2012, in underlying cause number 18C05-1207-FD-97 (“cause
number FD-97”), Foust pleaded guilty to one count of operating a vehicle while
intoxicated, as a Class D felony, and to an habitual substance offender
enhancement. Foust was sentenced to an aggregate term of six years – three
years for the operating while intoxicated count and an additional three years for
the habitual substance offender enhancement. One year of the aggregate
sentence was ordered executed in the Indiana Department of Correction
(“DOC”), and the remaining five years were suspended to probation.
Appellant’s App. Vol 2 at 50.
[4] While serving his probation under cause number FD-97, Foust was charged
with Level 5 felony dealing in methamphetamine in an unrelated Delaware
County case under cause number 18C03-1504-F5-8 (“cause number F5-8”). On
September 28, 2015, he pleaded guilty to the dealing count, and on October 22,
2015, Foust was sentenced to four years executed in the DOC. Ex. at 44. The
trial court recommended that Foust be placed in a DOC facility that provided
purposeful incarceration through a therapeutic community. Id. Upon
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 2 of 8 successful completion of the program, he could file a petition to modify his
sentence. Id.
[5] On June 5, 2015, the State filed under cause number FD-97 a petition to revoke
Foust’s probation. A fact-finding hearing was held on October 26, 2015, and
Foust admitted the allegations contained in the petition. The trial court found
that Foust had violated the terms of his probation and ordered him to serve the
previously-suspended five-year portion of his sentence. The trial court then
stayed the sentence, pending Foust’s completion of the purposeful incarceration
program (“PIP”), which he was ordered to participate in per the sentence he
received in cause number F5-8. The trial court’s sentencing order in cause
number FD-97 reads (in relevant part) as follows:
The [five] years previously ordered to be served on supervised probation is [sic] ordered executed to be served at the Indiana Department of Correction which [five-year] sentence is stayed pending [Foust]’s completion of his executed sentence of Purposeful Incarceration through the Indiana Department of Correction Therapeutic Communities Program under Cause No. [F5-8] and following a modification of [Foust]’s sentence in that cause[, Foust] would be required to complete the Delaware County Forensic Drug Program as the condition of said [five- year] stayed sentence. Upon successful completion of said Forensic Drug Program, the Court will modify [Foust]’s sentence herein and close this cause with [Foust] being released from further supervision hereunder.
Appellant’s App. Vol. 2 at 52.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 3 of 8 [6] In October 2015, Foust was transferred to the Indiana Youth Center
correctional facility (“IYC”), where he became indoctrinated into the hate
group known as the Aryan Brotherhood. Foust was referred to the therapeutic
community substance abuse program on November 24, 2015. He began the
program in March 2016 but was terminated less than one month later after
receiving a disciplinary report for belonging to a “Security Threat Group
(“SGT”)[.]” Tr. at 15. Because of his involvement with an SGT, Foust was
ineligible for a new referral to the program for six months following his
violation. Foust received a second referral to the therapeutic community in
March 2017, but he ultimately refused the program on his own volition.
[7] While incarcerated, Foust’s membership in the Aryan Brotherhood resulted in
multiple disciplinary violations. He received at least ten conduct reports while
housed at IYC for incidents including possession of a controlled substance,
engaging in unauthorized financial transactions, disorderly conduct, and staff or
offender provocation. On September 5, 2017, Foust received a second
disciplinary report for belonging to an SGT. The next day, prison officials
referred Foust for a second substance abuse assessment to determine his
eligibility for therapeutic community programming, but Foust refused the
assessment. At some point during his incarceration, Foust renounced his
membership in the Aryan Brotherhood.
[8] On September 11, 2017, Foust was transferred for disciplinary reasons to the
Correctional Industrial Facility (“CIF”). At CIF, Foust met with his DOC
caseworker who advised him that he would be referred to the therapeutic
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 4 of 8 community substance abuse program. For a third time, however, Foust
declined the referral, requesting that he instead be removed from the referral list
because his “[release] date was less than twelve months” away. Id. at 8. The
caseworker noted in a report that Foust would “not have enough time
remaining [in his sentence] to complete the program but [if he participated in
the program nonetheless,] at least [he would] be on the right track of remaining
sober.” Ex. at 26; Tr. at 15, 39.
[9] Foust was released from prison on July 27, 2018, without successfully
completing the therapeutic community substance abuse program. However, on
July 24, 2018, three days before Foust’s release date, the State filed a motion
under cause number FD-97 to vacate Foust’s stayed sentence. The State
alleged that Foust failed to complete the required PIP for his sentence in cause
number F5-8, and, thus, failed to comply with the trial court’s October 26, 2015
sentencing order that was issued under cause number FD-97. Appellant’s App.
Vol. 2 at 2.
[10] The trial court held a fact-finding hearing on the matter, following which the
court determined that the State proved Foust violated a condition of his stayed
sentence. After a separate dispositional hearing, the court lifted the stay and
ordered Foust to serve the remainder of his previously-stayed five-year sentence
in the DOC. Foust now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 5 of 8 Discussion and Decision [11] Foust argues that he was denied due process when the trial court lifted the stay
of his previously-suspended sentence. Foust maintains that the trial court
ordered him to serve his previously-suspended sentence because the court
determined “he failed to successfully complete a [PIP] on a sentence [issued in]
another court[, i.e., F5-8], which program he was not ordered to successfully
complete in order to maintain his stay.” Appellant’s Br. at 6. Thus, according to
Foust, he was “deprived due process of law.” Id.
[12] Although Foust claims that his due process rights have been violated, his
argument on appeal, essentially, is that, at the time he was sentenced under
cause number F5-8, he was not informed that the stay of the previously-
suspended five-year sentence under cause number FD-97 was conditioned upon
his successful completion of the PIP. According to Foust, the stay of the
previously-suspended sentenced was conditioned upon his serving his executed
sentence under cause number F5-8, not his successful completion of the PIP. We
disagree and conclude that Foust was not denied due process because the
conditions of the stay of his previously-suspended sentence were clearly set
forth in the trial court’s October 26, 2015 order, and he was informed of the
conditions.
[13] The trial court’s October 26, 2015 sentencing order required Foust to complete
“his executed sentence of Purposeful Incarceration through the [DOC]
Therapeutic Communities Program[.]” Appellant’s App. Vol. 2 at 52. Following
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 6 of 8 the modification of that sentence, Foust would then be required to complete the
Delaware County Forensic Drug Program, “as the condition of said [five-year]
stayed sentence.” Id. Upon the successful completion of the drug program, the
trial court would then “modify [Foust]’s sentence herein and close this cause
with [Foust] being released from further supervision hereunder.” Id.
[14] Foust refused to complete the PIP, which failure resulted in his being denied
participation in the Delaware County drug program. As the trial court noted at
sentencing (under cause number FD-97), “[T]hose two things were all
conditions of the sentencing order dated October 26, 2015[,] the consideration
of which was the stayed executed sentence. So, you have breached the bargain, 1 Mr. Foust[.]” Tr. at 58.
[15] When the trial court merely suspends a sentence, the court can still place
reasonable conditions on the defendant’s continued liberty. Sandy v. State, 501
N.E.2d 486, 487 (Ind. Ct. App. 1986). Here, the trial court’s sentencing order
was clear; Foust was well aware of the conditions of the stay of his previously-
suspended sentence, and he failed to comply with the conditions. Accordingly,
his right to due process was not violated when the trial court lifted the stay and
ordered him to serve his previously-suspended sentence.
[16] Affirmed.
1 We note that, at sentencing, the trial court recommended that Foust be placed in a therapeutic community program while serving his five-year executed sentence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 7 of 8 Bailey, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1258 | March 30, 2020 Page 8 of 8