MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 16 2019, 8:26 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General Madison, Indiana Indianapolis, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Heather Gutzwiller, August 16, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-701 v. Appeal from the Ripley Superior Court State of Indiana, The Honorable Jeffrey Sharp, Appellee-Plaintiff Judge Trial Court Cause Nos. 69D01-1807-CM-207 69D01-1808-CM-218
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019 Page 1 of 7 [1] Heather Gutzwiller appeals the trial court’s order that she serve the remainder
of her sentence incarcerated after she violated probation. We affirm.
Facts and Procedural History [2] On January 15, 2019, Gutzwiller entered guilty pleas to two counts of Class A
misdemeanor operating a vehicle while intoxicated 1 stemming from two
different 2018 cause numbers (“CM-207” and “CM-218”). The trial court
sentenced Gutzwiller to 365 days with 243 days suspended to probation under
CM-218, to be served consecutive to 365 days with 363 days suspended to
probation under CM-207, for an aggregate sentence of 730 days with 606 days
suspended to probation. Gutzwiller received 124 days of credit for pre-trial
detention. One of the terms of Gutzwiller’s probation was that she abstain from
drug and alcohol use.
[3] On January 22, 2019, the State alleged Gutzwiller violated her probation
because she tested positive for alcohol and methamphetamine. On January 24,
Gutzwiller admitted she violated her probation, and the trial court revoked her
probation and ordered her to serve 602 days on home detention. As part of the
terms of her in-home detention, Gutzwiller was ordered to abstain from alcohol
and illegal substances and to complete the Court’s Addiction and Drug Services
program.
1 Ind. Code § 9-30-5-2(b).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019 Page 2 of 7 [4] On January 29, 2019, the State alleged Gutzwiller committed a Community
Corrections violation by consuming alcohol. On February 1, 2019, the State
filed a Request to Convert Home Detention. On February 27, 2019, the trial
court held a hearing regarding the alleged Community Corrections violation.
Gutzwiller admitted she violated the terms of her in-home detention by
consuming alcohol. The trial court granted the State’s motion to covert
Gutzwiller’s in-home detention into incarceration, ordering Gutzwiller to serve
an aggregate sentence of 483 days incarcerated.
Discussion and Decision [5] Probation 2 is a favor granted by the State, not a right to which a criminal
defendant is entitled. Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App.
2005), trans. denied. A court may order execution of all or part of the sentence
that was suspended at the time of the initial sentencing if the court finds the
person has violated a condition at any time before termination of that
probationary period. Ind. Code § 35-38-2-3(h).
[6] The conditions for probation and whether to revoke probation when those
conditions are violated are left to the discretion of the trial court. Heaton v.
2 Gutzwiller alleges error in the trial court’s revocation of her probation. We note, however, that Gutzwiller appeals from the trial court’s revocation of her Community Corrections placement. Because “[w]e 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), we address Gutzwiller’s argument as she has framed it.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019 Page 3 of 7 State, 984 N.E.2d 614, 616 (Ind. 2013). We review probation violation
determinations and sanctions for an abuse of discretion. Id. An abuse of
discretion occurs if the decision is “‘clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.’” K.S. v. State, 849 N.E.2d 538, 544 (Ind.
2006) (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). “We
will second-guess the fact-finding court only when it responds to that factual
context in an unreasonable manner.” Tapia v. State, 753 N.E.2d 581, 585 (Ind.
2001).
[7] Gutzwiller argues the trial court abused its discretion when it revoked the entire
portion of her suspended sentence and converted her placement to incarceration
because she has mental health problems, she admitted to the violations, and she
did not have a significant criminal record. However, Gutzwiller violated the
terms of her probation by consuming alcohol and methamphetamine less than a
week after she was sentenced. When the trial court placed her on in-home
detention through Community Corrections, it also ordered her to complete the
Court’s Addiction and Drug Services program. Less than a week after her
placement on in-home detention, Gutzwiller violated the terms of the program
by using alcohol. When asked why she did not complete the Court’s Addition
and Drug Services program, Gutzwiller testified “[n]ot all programs work the
same for each individual” and she did not like the structure of the program so
she just “gave up.” (Tr. Vol. II at 39.) Based thereon, we cannot say the trial
Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019 Page 4 of 7 court abused its discretion when it ordered Gutzwiller to serve the remainder of
her suspended sentence incarcerated.
[8] Gutzwiller argues the facts of her case are similar to those in Puckett v. State, 956
N.E.2d 1182, 1188 (Ind. Ct. App. 2011), and Johnson v. State, 62 N.E.3d 1224,
1232 (Ind. Ct. App. 2016), two cases in which our court determined the trial
court had abused its discretion when it revoked each defendant’s probation and
ordered the suspended sentences executed. Both Puckett and Johnson are
distinguishable.
[9] In Puckett, we reversed the trial court’s order that Puckett serve his sentence
executed after he violated probation because in its order “the trial court plainly
and repeatedly expressed its displeasure with Puckett’s original plea
agreement.” Puckett, 956 N.E.3d at 1187. We determined, “[a] trial court’s
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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 Aug 16 2019, 8:26 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General Madison, Indiana Indianapolis, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Heather Gutzwiller, August 16, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-701 v. Appeal from the Ripley Superior Court State of Indiana, The Honorable Jeffrey Sharp, Appellee-Plaintiff Judge Trial Court Cause Nos. 69D01-1807-CM-207 69D01-1808-CM-218
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019 Page 1 of 7 [1] Heather Gutzwiller appeals the trial court’s order that she serve the remainder
of her sentence incarcerated after she violated probation. We affirm.
Facts and Procedural History [2] On January 15, 2019, Gutzwiller entered guilty pleas to two counts of Class A
misdemeanor operating a vehicle while intoxicated 1 stemming from two
different 2018 cause numbers (“CM-207” and “CM-218”). The trial court
sentenced Gutzwiller to 365 days with 243 days suspended to probation under
CM-218, to be served consecutive to 365 days with 363 days suspended to
probation under CM-207, for an aggregate sentence of 730 days with 606 days
suspended to probation. Gutzwiller received 124 days of credit for pre-trial
detention. One of the terms of Gutzwiller’s probation was that she abstain from
drug and alcohol use.
[3] On January 22, 2019, the State alleged Gutzwiller violated her probation
because she tested positive for alcohol and methamphetamine. On January 24,
Gutzwiller admitted she violated her probation, and the trial court revoked her
probation and ordered her to serve 602 days on home detention. As part of the
terms of her in-home detention, Gutzwiller was ordered to abstain from alcohol
and illegal substances and to complete the Court’s Addiction and Drug Services
program.
1 Ind. Code § 9-30-5-2(b).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019 Page 2 of 7 [4] On January 29, 2019, the State alleged Gutzwiller committed a Community
Corrections violation by consuming alcohol. On February 1, 2019, the State
filed a Request to Convert Home Detention. On February 27, 2019, the trial
court held a hearing regarding the alleged Community Corrections violation.
Gutzwiller admitted she violated the terms of her in-home detention by
consuming alcohol. The trial court granted the State’s motion to covert
Gutzwiller’s in-home detention into incarceration, ordering Gutzwiller to serve
an aggregate sentence of 483 days incarcerated.
Discussion and Decision [5] Probation 2 is a favor granted by the State, not a right to which a criminal
defendant is entitled. Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App.
2005), trans. denied. A court may order execution of all or part of the sentence
that was suspended at the time of the initial sentencing if the court finds the
person has violated a condition at any time before termination of that
probationary period. Ind. Code § 35-38-2-3(h).
[6] The conditions for probation and whether to revoke probation when those
conditions are violated are left to the discretion of the trial court. Heaton v.
2 Gutzwiller alleges error in the trial court’s revocation of her probation. We note, however, that Gutzwiller appeals from the trial court’s revocation of her Community Corrections placement. Because “[w]e 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), we address Gutzwiller’s argument as she has framed it.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019 Page 3 of 7 State, 984 N.E.2d 614, 616 (Ind. 2013). We review probation violation
determinations and sanctions for an abuse of discretion. Id. An abuse of
discretion occurs if the decision is “‘clearly against the logic and effect of the
facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.’” K.S. v. State, 849 N.E.2d 538, 544 (Ind.
2006) (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). “We
will second-guess the fact-finding court only when it responds to that factual
context in an unreasonable manner.” Tapia v. State, 753 N.E.2d 581, 585 (Ind.
2001).
[7] Gutzwiller argues the trial court abused its discretion when it revoked the entire
portion of her suspended sentence and converted her placement to incarceration
because she has mental health problems, she admitted to the violations, and she
did not have a significant criminal record. However, Gutzwiller violated the
terms of her probation by consuming alcohol and methamphetamine less than a
week after she was sentenced. When the trial court placed her on in-home
detention through Community Corrections, it also ordered her to complete the
Court’s Addiction and Drug Services program. Less than a week after her
placement on in-home detention, Gutzwiller violated the terms of the program
by using alcohol. When asked why she did not complete the Court’s Addition
and Drug Services program, Gutzwiller testified “[n]ot all programs work the
same for each individual” and she did not like the structure of the program so
she just “gave up.” (Tr. Vol. II at 39.) Based thereon, we cannot say the trial
Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019 Page 4 of 7 court abused its discretion when it ordered Gutzwiller to serve the remainder of
her suspended sentence incarcerated.
[8] Gutzwiller argues the facts of her case are similar to those in Puckett v. State, 956
N.E.2d 1182, 1188 (Ind. Ct. App. 2011), and Johnson v. State, 62 N.E.3d 1224,
1232 (Ind. Ct. App. 2016), two cases in which our court determined the trial
court had abused its discretion when it revoked each defendant’s probation and
ordered the suspended sentences executed. Both Puckett and Johnson are
distinguishable.
[9] In Puckett, we reversed the trial court’s order that Puckett serve his sentence
executed after he violated probation because in its order “the trial court plainly
and repeatedly expressed its displeasure with Puckett’s original plea
agreement.” Puckett, 956 N.E.3d at 1187. We determined, “[a] trial court’s
belief that a sentence imposed under such an agreement was ‘too lenient’ is not
a proper basis upon which to determine the length of a sentence to be imposed
following a revocation of probation.” Id. That is not what happened here, as
the trial court did not comment on Gutzwiller’s underlying plea agreement and
Gutzwiller does not allege the judge relied on his personal feelings when
determining her placement after she violated the terms of her Community
Corrections placement.
[10] In Johnson, our court reversed the trial court’s order that Johnson serve the
remainder of his sentence incarcerated following a violation of the rules of his
Community Corrections placement. Johnson, 62 N.E.3d at 1231. Johnson,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019 Page 5 of 7 who suffered from well-documented mental and cognitive difficulties which
made him unable to fully understand some of the terms of his placement, was
sentenced to seven years executed to home detention and four years suspended
to probation for Level 3 felony neglect of a dependent resulting in serious bodily
injury. 3 After he had completed almost a year of home detention, Community
Corrections alleged he strayed from an approved location as part of his home
detention and that he had left his apartment without authorization.
Additionally, Johnson had not promptly paid his Community Corrections fees.
For these violations, the trial court ordered the remainder of the seven-year
portion of Johnson’s sentence served in the Department of Correction. Id. at
1227-29. We held:
[U]nder the circumstances reflected in the record, including the level of Johnson’s functioning and his resources, his previous successful placement on work release, the nature of the violation, and the severity of the court’s sentence, we conclude that the trial court abused its discretion in finding that Johnson’s violation warranted serving the entirety of the remaining portion of his executed sentence in the [Department of Correction].
Id. at 1231.
[11] In comparison, Gutzwiller was not successful in completing even a month on
probation or Community Corrections, she did not indicate she had cognitive
disabilities which made her unable to understand the requirements of her
3 Ind. Code § 35-46-1-4.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019 Page 6 of 7 probation or Community Corrections placement, and her violations were
numerous and directly related to a continuing substance abuse problem. Based
thereon, we cannot say the trial court abused its discretion when it ordered
Gutzwiller to serve the remainder of her suspended sentence incarcerated.
Conclusion [12] The trial court did not abuse its discretion when it ordered Gutzwiller to serve
the remainder of her suspended sentence incarcerated after she violated both
probation and her Community Corrections placement within two months of
being sentenced. Accordingly, we affirm.
[13] Affirmed.
Najam, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-701 | August 16, 2019 Page 7 of 7