MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 17 2016, 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 Daniel K. Whitehead Gregory F. Zoeller Yorktown, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jayme Michelle Dollens, June 17, 2016 Appellant-Defendant, Court of Appeals Case No. 48A04-1510-CR-1707 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark K. Dudley, Appellee-Plaintiff Judge Trial Court Cause No. 48C06-1408-FB-1432
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016 Page 1 of 6 [1] Jayme Dollens appeals the trial court’s order imposing her previously-stayed
sentence after she was terminated from the Madison County Drug Court
Program (Drug Court). Dollens argues that she was denied the right to select
her attorney of choice and that her guilty plea was involuntary. Finding no
error, we affirm.
Facts [2] On October 7, 2014, Dollens pleaded guilty to three counts of class B felony
dealing in a narcotic and one count of Level 5 felony dealing in a narcotic. She
also admitted to being an habitual offender. Dollens agreed that she would be
sentenced to an aggregate term of twenty years imprisonment but that the
sentence would be stayed to allow her to participate in Drug Court. If Dollens
successfully completed Drug Court, her sentence would have been stayed
permanently. Among the Drug Court conditions is the following:
the State specifically reserves the right to unilaterally rescind, revoke and withdraw from this agreement in the event the Participant commits, or is charged with, another criminal offense, or in the event the Drug Court Judge determines that the Participant has committed a violation of a term or condition of bond while Participant is a drug court participant.
Appellant’s App. p. 75
[3] The trial court entered the sentencing order on November 10, 2014. Two days
later, Hamilton County filed a new criminal case. Dollens began participating
in Drug Court on November 18, 2014. On February 5, 2015, Hamilton County
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016 Page 2 of 6 filed a second criminal case against Dollens. Drug Court stayed its supervision
of Dollens on March 5, 2015, so that she could deal with the new criminal
charges. Hamilton County placed Dollens on probation in one of the cases on
April 6, 2015. At that time, Drug Court stayed Dollens’s active participation in
its program and transferred supervision of Dollens to the Hamilton County
Probation Department.1 On May 18 and June 16, 2015, Dollens provided urine
screens that were positive for benzodiazepines and suboxone.2
[4] On August 25, 2015, a Drug Court case manager filed a notice of termination
request, alleging that Dollens had violated the terms of Drug Court by engaging
in criminal behavior, violating her probation in one of the Hamilton County
cases, and producing the two positive urine screens. The trial court continued
the appointment of the public defender who had represented Dollens during her
trial. Counsel appeared with Dollens at the September 1, 2015, hearing, at
which time the trial court scheduled an evidentiary hearing for September 22,
2015.
[5] At the hearing on September 22, 2015, Dollens informed the court that she
wished to hire a private attorney and requested a continuance of “[m]aybe a
couple weeks, a month or something” to retain counsel. Tr. 23-24. This was
1 At the hearing, a Drug Court employee explained that this occurred because they did not want Dollens to have to be supervised simultaneously by two different counties. The requirements of Hamilton County would be substantially similar to the requirements of Drug Court, including regular urine screens and substance abuse treatment. As a result, Drug Court determined that the best course would be for Dollens to be supervised by Hamilton County while she was on probation. Tr. p. 43-45. 2 She later admitted that she did not have prescriptions for these substances.
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016 Page 3 of 6 the first time Dollens had indicated (to either the trial court or her public
defender) that she wished to hire private counsel. The trial court denied the
motion for a continuance, noting that Dollens had been given ample
opportunity in the preceding weeks to hire counsel. At the hearing, Dollens
admitted that she had used illicit drugs and provided two positive drug screens
during her probation in Hamilton County. The trial court found that Dollens
had violated the conditions of Drug Court and imposed the balance of the
previously-stayed twenty-year sentence. Dollens now appeals.
Discussion and Decision I. Denial of Continuance [6] First, Dollens argues that the trial court’s denial of her request for a continuance
constituted a denial of the right to counsel of her choice guaranteed by the Sixth
Amendment to the United States Constitution. The determination of whether
to grant a defendant’s request for a continuance for the purpose of hiring
counsel immediately before trial is a matter within the sound discretion of the
trial court. Gilliam v. State, 650 N.E.2d 45, 50 (Ind. Ct. App. 1995). We note
that Dollens did not raise a constitutional argument to the trial court and has,
therefore, waived the argument on appeal.
[7] Waiver notwithstanding, we note that in this case, Dollens knew at the time of
the September 1, 2015, initial hearing that she would be represented by the
same public defender who had represented her during trial. She also knew that
there was an evidentiary hearing scheduled for September 22. But at no point
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016 Page 4 of 6 during the intervening three weeks did she mention to the public defender or the
trial court that she wished to retain private counsel, nor did she make any actual
attempts to reach out to and retain an attorney. Instead, the morning of the
hearing, she made the request for the first time. Under these circumstances, we
cannot say that the trial court erred—or violated her constitutional rights—by
denying her request for a continuance.3 See Lewis v. State, 730 N.E.2d 686, 689
(Ind. 2000) (holding that the right to counsel of choice must be exercised at “the
appropriate stage of the proceedings” and emphasizing that “it is within a trial
court’s discretion to deny a last-minute continuance to hire new counsel”).
II. Guilty Plea [8] Dollens also contends that the State breached the plea agreement, resulting in
an involuntary plea. Essentially, she argues that because the Drug Court stayed
its supervision of her while she was under the supervision of Hamilton County
probation, she did not have the opportunity to participate in Drug Court
afforded to her by the plea agreement. Initially, we note that a criminal
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 17 2016, 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 Daniel K. Whitehead Gregory F. Zoeller Yorktown, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jayme Michelle Dollens, June 17, 2016 Appellant-Defendant, Court of Appeals Case No. 48A04-1510-CR-1707 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark K. Dudley, Appellee-Plaintiff Judge Trial Court Cause No. 48C06-1408-FB-1432
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016 Page 1 of 6 [1] Jayme Dollens appeals the trial court’s order imposing her previously-stayed
sentence after she was terminated from the Madison County Drug Court
Program (Drug Court). Dollens argues that she was denied the right to select
her attorney of choice and that her guilty plea was involuntary. Finding no
error, we affirm.
Facts [2] On October 7, 2014, Dollens pleaded guilty to three counts of class B felony
dealing in a narcotic and one count of Level 5 felony dealing in a narcotic. She
also admitted to being an habitual offender. Dollens agreed that she would be
sentenced to an aggregate term of twenty years imprisonment but that the
sentence would be stayed to allow her to participate in Drug Court. If Dollens
successfully completed Drug Court, her sentence would have been stayed
permanently. Among the Drug Court conditions is the following:
the State specifically reserves the right to unilaterally rescind, revoke and withdraw from this agreement in the event the Participant commits, or is charged with, another criminal offense, or in the event the Drug Court Judge determines that the Participant has committed a violation of a term or condition of bond while Participant is a drug court participant.
Appellant’s App. p. 75
[3] The trial court entered the sentencing order on November 10, 2014. Two days
later, Hamilton County filed a new criminal case. Dollens began participating
in Drug Court on November 18, 2014. On February 5, 2015, Hamilton County
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016 Page 2 of 6 filed a second criminal case against Dollens. Drug Court stayed its supervision
of Dollens on March 5, 2015, so that she could deal with the new criminal
charges. Hamilton County placed Dollens on probation in one of the cases on
April 6, 2015. At that time, Drug Court stayed Dollens’s active participation in
its program and transferred supervision of Dollens to the Hamilton County
Probation Department.1 On May 18 and June 16, 2015, Dollens provided urine
screens that were positive for benzodiazepines and suboxone.2
[4] On August 25, 2015, a Drug Court case manager filed a notice of termination
request, alleging that Dollens had violated the terms of Drug Court by engaging
in criminal behavior, violating her probation in one of the Hamilton County
cases, and producing the two positive urine screens. The trial court continued
the appointment of the public defender who had represented Dollens during her
trial. Counsel appeared with Dollens at the September 1, 2015, hearing, at
which time the trial court scheduled an evidentiary hearing for September 22,
2015.
[5] At the hearing on September 22, 2015, Dollens informed the court that she
wished to hire a private attorney and requested a continuance of “[m]aybe a
couple weeks, a month or something” to retain counsel. Tr. 23-24. This was
1 At the hearing, a Drug Court employee explained that this occurred because they did not want Dollens to have to be supervised simultaneously by two different counties. The requirements of Hamilton County would be substantially similar to the requirements of Drug Court, including regular urine screens and substance abuse treatment. As a result, Drug Court determined that the best course would be for Dollens to be supervised by Hamilton County while she was on probation. Tr. p. 43-45. 2 She later admitted that she did not have prescriptions for these substances.
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016 Page 3 of 6 the first time Dollens had indicated (to either the trial court or her public
defender) that she wished to hire private counsel. The trial court denied the
motion for a continuance, noting that Dollens had been given ample
opportunity in the preceding weeks to hire counsel. At the hearing, Dollens
admitted that she had used illicit drugs and provided two positive drug screens
during her probation in Hamilton County. The trial court found that Dollens
had violated the conditions of Drug Court and imposed the balance of the
previously-stayed twenty-year sentence. Dollens now appeals.
Discussion and Decision I. Denial of Continuance [6] First, Dollens argues that the trial court’s denial of her request for a continuance
constituted a denial of the right to counsel of her choice guaranteed by the Sixth
Amendment to the United States Constitution. The determination of whether
to grant a defendant’s request for a continuance for the purpose of hiring
counsel immediately before trial is a matter within the sound discretion of the
trial court. Gilliam v. State, 650 N.E.2d 45, 50 (Ind. Ct. App. 1995). We note
that Dollens did not raise a constitutional argument to the trial court and has,
therefore, waived the argument on appeal.
[7] Waiver notwithstanding, we note that in this case, Dollens knew at the time of
the September 1, 2015, initial hearing that she would be represented by the
same public defender who had represented her during trial. She also knew that
there was an evidentiary hearing scheduled for September 22. But at no point
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016 Page 4 of 6 during the intervening three weeks did she mention to the public defender or the
trial court that she wished to retain private counsel, nor did she make any actual
attempts to reach out to and retain an attorney. Instead, the morning of the
hearing, she made the request for the first time. Under these circumstances, we
cannot say that the trial court erred—or violated her constitutional rights—by
denying her request for a continuance.3 See Lewis v. State, 730 N.E.2d 686, 689
(Ind. 2000) (holding that the right to counsel of choice must be exercised at “the
appropriate stage of the proceedings” and emphasizing that “it is within a trial
court’s discretion to deny a last-minute continuance to hire new counsel”).
II. Guilty Plea [8] Dollens also contends that the State breached the plea agreement, resulting in
an involuntary plea. Essentially, she argues that because the Drug Court stayed
its supervision of her while she was under the supervision of Hamilton County
probation, she did not have the opportunity to participate in Drug Court
afforded to her by the plea agreement. Initially, we note that a criminal
defendant may not challenge the validity of a guilty plea on direct appeal;
instead, she must file a petition for post-conviction relief to address the issue.
M.Y. v. State, 681 N.E.2d 1178, 1179 (Ind. Ct. App. 1997). Moreover, Dollens
made absolutely no argument to the trial court regarding her guilty plea—she did
3 As an aside, we note that Dollens was represented vigorously and ably by the public defender, who made an admirably compelling argument in a case in which the primary evidence was his client’s own admissions of illicit drug use. In no way can she complain about the representation she received at this hearing.
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016 Page 5 of 6 not move to withdraw the plea or raise any argument during or after the
termination hearing regarding her guilty plea. We find, therefore, that even if
she were entitled to raise this argument in this proceeding, she has waived it.
[9] Waiver notwithstanding, we note that a Drug Court employee testified at the
hearing that the reason it stayed its direct supervision of Dollens was so that she
would not have to face double monitoring by two counties simultaneously. Tr.
p. 43-45. If anything, this simplification of obligations and requirements to
fulfill was designed to help Dollens succeed. And we note that it was Dollens’s
own actions—of continued criminal behavior—that led to this consequence.
Under these circumstances, we find no error with respect to Dollens’s guilty
plea.
[10] The judgment of the trial court is affirmed.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016 Page 6 of 6