Justin S. Counceller v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 30, 2020
• Docket: 19A-CR-2150
• Status: Published

Opinion

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, 11:24 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana

Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Justin S. Counceller, March 30, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2150 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Angela G. Warner Sims, Judge Trial Court Cause No. 48C01-1604-F6-783

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020 Page 1 of 10 Case Summary [1] After pleading guilty to Level 6 felony fraud, Justin Counceller began serving

his sentence in the county’s community corrections Continuum of Sanctions

Program (the Program). Counceller was alleged to have violated the rules of

the Program on a number of occasions. Following a hearing, the trial court

found that Counceller violated the rules of his placement and ordered that he

serve the remainder of his sentence in the Indiana Department of Correction

(DOC). Counceller argues that (1) the trial court abused its discretion when it

admitted the testimony of a case manager with the Program, and (2) the trial

court’s finding of a violation was not supported by the evidence.

[2] We affirm.

Facts & Procedural History [3] In January 2016, Counceller made purchases with a credit card belonging to a

deceased man, whom Counceller had known. At some point, Counceller was

identified and arrested, and on April 15, 2016, the State charged him with Level

6 felony fraud. On January 10, 2017, Counceller entered into a plea agreement

which left open the total length of the sentence but capped the executed portion

at eighteen months. On March 27, 2017, the trial court sentenced Counceller to

910 days, 545 executed and 365 days suspended to probation, with Counceller

serving the executed portion of his sentence in the Program. On March 28,

Counceller reported to the Madison County Community Justice Center (CJC)

for intake into the Program’s adult day reporting program. That date,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020 Page 2 of 10 Counceller submitted to a urine screen and tested positive for

methamphetamine, THC, and Suboxone. The Program’s Board voted to place

Counceller into the home detention program and gave him thirty days to

complete the home detention intake requirements, and directed that, until then,

he continue to report to adult day reporting.

[4] A month later, on April 28, an adult day reporting case manager for the

Program filed a petition to terminate Counceller’s participation in the Program

for five alleged violations, including Counceller’s admitted use of marijuana,

suboxone, and methamphetamine. The Program also alleged that Counceller

resisted correctional officers, failed to obtain employment and substance abuse

evaluations, and failed to meet financial obligations of the Program. On May

22, following a hearing, the trial court issued a sanctions order, finding that

Counceller violated the terms of his placement in the Program. The trial court

revoked Counceller’s placement and suspended sentence and ordered him to

serve his sentence in the DOC. However, the court suspended those sanctions

pending successful completion of Drug Court, for which Counceller was later

found to be ineligible. On July 31, pursuant to the agreement of the parties, the

trial court ordered Counceller to serve his remaining sentence on work release

through the Program.

[5] On October 4, 2017, a case manager with the Program filed a petition to

terminate Counceller’s participation in the Program for his failure to schedule

his work release intake, failure to report, and committing a new criminal

offense of misdemeanor resisting law enforcement. The trial court issued a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020 Page 3 of 10 warrant for Counceller’s arrest, and after an October 30 hearing, the trial court

issued a sanctions order, determining that Counceller had violated conditions of

the Program. Pursuant to an agreement of the parties, the trial court imposed

62 days in the Madison County Detention Center, less accrued days and earned

credit time, “resulting in time served.” Appellant’s Appendix Vol. II at 105. The

trial court ordered Counceller to return to the Program.

[6] On June 27, 2019, Counceller was placed in the work release facility as part of

his community corrections sentence. 1 On July 2, 2019, the Program

Coordinator filed a Notice of COS Termination with the court, asking that

Counceller’s placement in the Program be terminated because (1) on June 27 at

11:45 a.m. Counceller was released from the Program facility for medical care

but failed to return, and (2) he committed a new offense, namely Level 6 felony

failure to return (later filed as Cause F6-1708).

[7] The trial court issued a warrant for Counceller’s arrest, which was served on

July 28, 2019. Counceller appeared for an initial hearing on the notice of

termination, and the court set an evidentiary hearing for Aug 19. In addition,

the trial court issued “its standard order of discovery,” which required the State

to file with the court “any . . . documents . . . [that] the prosecuting attorney

1 The record does not explain the lapse in time from late 2017 to Counceller’s placement at the work release facility in June 2019.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020 Page 4 of 10 intends to use in the hearing[.]” Id. at 15, 75. The Program, through the CJC,

timely filed discovery with the court on August 12.

[8] On August 19, 2019, the trial court jointly held an evidentiary hearing on the

alleged violation and a status conference in Cause F6-1708. As evidence of

Counceller’s alleged violation, the State presented testimony from Brandy

Poffenbarger, a case manager with the Program. Poffenbarger testified that she

had not met Counceller and was representing another case manager at the

hearing. When Counceller objected based on Poffenbarger’s lack of personal

knowledge, she testified that the Program keeps a file on every person in the

Program and her knowledge was based on the contents of Counceller’s file.

Counceller objected, arguing, “They haven’t really established . . . that these

record [sic] are kept in the normal course of business, only that they are records

that this lady, who has never met my client, says . . .they keep on each client . .

. [s]o I think there’s a foundational problem.” Transcript at 13-14. The trial

court overruled the objection, and Poffenbarger testified that Counceller was

placed in the work release facility on June 27 and that he “absconded” on the

same day when he left with permission for medical treatment and “never

returned.” Id. at 14. Following cross-examination, the State asked the trial

court to take judicial notice of the Program’s filing of discovery on August 12.

The court granted the request without objection from Counceller.

[9] On August 19, 2019, the trial court issued a sanctions order, determining that

Counceller had violated the terms of the Program as follows:

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020 Page 5 of 10 1. On 6/27/19, Defendant was released for medical care and failed to return to work release [];

2. Defendant failed to behave well in society, to wit: on 6/28/19, Defendant committed a new criminal offense under [F6-1708] [].

Appellant’s Appendix Vol. II at 17. The court ordered Counceller to serve the

remainder of his sentence in the DOC. He now appeals.

Discussion & Decision

I. Admission of Evidence [10] Counceller argues that the trial court abused its discretion when it allowed

Poffenbarger to testify even though she had no personal knowledge of

Counceller or his participation in the Program. Generally, the admission of

evidence is within the trial court’s discretion, and its decisions are only

reviewed for an abuse of that discretion. Holmes v. State, 923 N.E.2d 479, 483

(Ind. Ct. App. 2010). An abuse of discretion occurs if a decision is clearly

against the logic and effects of the facts and circumstances before the court or if

the court has misinterpreted the law. Id.

[11] It is well established that, while a community corrections placement revocation

hearing has certain due process requirements, it is not to be equated with an

adversarial criminal proceeding. Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct.

App. 2009). Rather, its procedures are to be more flexible. Id. We have

explained:

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020 Page 6 of 10 [T]he Indiana Rules of Evidence in general and the rules against hearsay in particular do not apply in community corrections placement revocation hearings. See Ind. Evidence Rule 101(c) (providing that the rules do not apply in proceedings relating to sentencing, probation, or parole). In probation and community corrections placement revocation hearings, therefore, judges may consider any relevant evidence bearing some substantial indicia of reliability. This includes reliable hearsay. The absence of strict evidentiary rules places particular importance on the fact-finding role of judges in assessing the weight, sufficiency and reliability of proffered evidence.

Id. (some internal citations omitted) (emphasis added). Courts may admit

evidence during the hearing that would not be permitted in a full-blown

criminal trial. Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007). This includes

“letters, affidavits, and other material” that would generally not be admissible.

Id.

[12] As our Supreme Court recognized, there are sound policy justifications for such

flexibility. Smith v. State, 971 N.E.2d 86, 91 (Ind. 2012). Alternative sentencing

such as community corrections serves the humane purposes of avoiding

incarceration and permitting the offender to meet the offender’s financial

obligations, “‘but for sentencing alternatives to be viable options for Indiana

judges, judges must have the ability to move with alacrity to protect public

safety when adjudicated offenders violate the conditions of their sentences.’”

Id. (quoting Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999)). Stated differently,

“‘obstacles to revoking an alternative sentence may diminish the likelihood of

community corrections placements being made in the first place.’” Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020 Page 7 of 10 [13] Here, Counceller acknowledges that the Ind. Rules of Evidence do not apply in

community corrections revocation proceedings but asserts that “the hearsay

evidence . . . did not have substantial guarantee of trustworthiness” and should

not have been admitted. Appellant’s Brief at 8. We disagree.

[14] Here, to establish that Counceller violated the terms of his placement, the State

called Poffenbarger, a representative of the Program, to testify. Poffenbarger

testified that she was a case worker with the Program, had worked at the

Madison County CJC in the Program for five years, and was testifying on

behalf of another case worker. Counceller objected to Poffenbarger’s lack of

personal knowledge and to the fact that she was testifying from documents.

The trial court asked for “a foundation” and Poffenbarger testified, “we keep a

file on” each person in the Program and that it was from those records that she

was testifying. Transcript at 13. The trial court overruled Counceller’s objection

and permitted Poffenbarger to testify to the facts recorded in Counceller’s file

surrounding his alleged violation of leaving the Program for medical treatment

and not returning on June 27. Based on the record before us, and given the

flexibility expressly granted to trial courts when determining admissibility of

hearsay in community corrections revocation proceedings, we find that the trial

court did not abuse its discretion when it found that Poffenbarger’s testimony

possessed the necessary indicia of reliability to be admissible. 2 Accordingly,

2 We note that, during the hearing, the trial court took judicial notice of “the discovery and its attachment” that the Program had filed prior to the hearing pursuant to the court’s discovery order. Transcript at 17. The State suggests that Poffenbarger was testifying from the same documents that the Program had filed with the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020 Page 8 of 10 Counceller has failed to show that the trial court abused its discretion when it

permitted Poffenbarger to testify about the events that occurred on June 27.

II. Sufficiency of the Evidence [15] Our standard of review of an appeal from the revocation of a community

corrections placement mirrors that for revocation of probation. Holmes, 923

N.E.2d at 483 (quoting Monroe, 899 N.E.2d at 691). A probation hearing is

civil in nature and the State need only prove the alleged violations by a

preponderance of the evidence. Id. We will consider all the evidence most

favorable to 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 community corrections, we will affirm its

decision to revoke placement. McQueen v. State, 862 N.E.2d 1237, 1242 (Ind.

Ct. App. 2007).

[16] Counceller argues that the trial court abused its discretion in allowing

Poffenbarger to testify from documents of Counceller’s file and because “there

was no other evidence to support the alleged violation[,]” the evidence was

trial court prior to the hearing and of which the trial court took judicial notice, and, therefore, any error in the admission of Poffenbarger’s testimony was harmless. In furtherance of that position, the State filed an Appellee’s Appendix containing, among other things: (1) the Program’s June 27, 2019 conduct report; (2) a work release failure to return checklist; and (3) the probable cause affidavit for Cause F6-1708. However, we do not know with certainty what documents the Program filed pursuant to the court’s discovery order, nor do we know if the documents in Appellee’s Appendix were the same documents from which Poffenbarger was testifying. Because we find Poffenbarger’s testimony was properly admitted, we do not reach the State’s harmless error argument.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020 Page 9 of 10 insufficient. Appellant’s Brief at 10. Having already found that the trial court did

not abuse its discretion in admitting Poffenbarger’s testimony, we now turn to

whether that evidence was sufficient to establish a violation. We find that it

was.

[17] Poffenbarger testified that Counceller was assigned to and placed in the work

release facility on June 27 pursuant to his conviction for fraud. She stated that

Counceller left, that same day, with permission to go to St. Vincent Hospital in

Anderson for medical treatment, but he did not return. When asked on cross-

examination whether anyone from the Program ever spoke to Counceller to

determine whether he might have had a good reason for not returning,

Poffenbarger replied, “He didn’t return to our facility, so we couldn’t have.”

Transcript at 16.

[18] The State presented sufficient evidence for the trial court to find that Counceller

violated the terms of the Program.

[19] Judgment affirmed.

Bradford, C.J. and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020 Page 10 of 10