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

• Court: Indiana Court of Appeals
• Decided: May 10, 2018
• Docket: 32A01-1711-CR-2597
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-CR-2597 | May 10, 2018 Page 1 of 9 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.

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-CR-2597 | May 10, 2018 Page 2 of 9 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.

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-CR-2597 | May 10, 2018 Page 3 of 9 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,

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-CR-2597 | May 10, 2018 Page 4 of 9 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

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-CR-2597 | May 10, 2018 Page 5 of 9 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

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-CR-2597 | May 10, 2018 Page 6 of 9 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.

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-CR-2597 | May 10, 2018 Page 7 of 9 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,

Court of Appeals of Indiana | Memorandum Decision 32A01-1711-CR-2597 | May 10, 2018 Page 8 of 9 621 (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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