Kristol Toms v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 23, 2013
• Docket: 49A05-1211-CR-585
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, May 23 2013, 8:30 am

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana ANGELA N. SANCHEZ Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

KRISTOL TOMS, ) ) Appellant-Defendant, ) ) vs. ) No. 49A05-1211-CR-585 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark D. Stoner, Judge The Honorable Jeffrey L. Marchal, Master Commissioner Cause No. 49G06-1107-FC-49497

May 23, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge Kristol Toms appeals the revocation of her placement in community corrections

for committing a new offense and violating the terms of her placement. Toms raises one

issue, which we revise and restate as:

I. Whether the evidence is sufficient to revoke Toms’s placement in the community corrections program; and

II. Whether the court violated Toms’s due process rights in revoking her placement.

We affirm.

FACTS AND PROCEDURAL HISTORY

In December 2011, pursuant to a plea agreement, Toms pled guilty to intimidation

as a class C felony and theft as a class D felony. In January 2012, the court sentenced

Toms to concurrent terms of four years for the class C felony and 545 days for the class

D felony. The court ordered that Toms would serve 180 days in the Department of

Correction followed by 1,280 days on community corrections work release and to comply

with all rules, regulations, treatment recommendations, and procedures of community

corrections.

On October 2, 2012, a Notice of Community Corrections Violation was filed

alleging that, since Toms’s arrival at Volunteers of America - Theodora House on July 9,

2012, Toms had received two conduct reports. The Notice alleged that Toms “was issued

a conduct report for Threatening: Communicating to another person a plan to physically

harm, harass, or intimidate that person or someone else.” Appellant’s Appendix at 68.

The Notice further alleged that, on another day, Toms “received a second conduct report

for Use/Possession of Tobacco and Unauthorized Possession of Food Items.” Id. The

Notice stated that Toms was actively participating in mental health treatment and was 2 taking her medications as prescribed. The Notice further provided that “[a]t this time,

due to the incident regarding allegations of threatening, Theodora House is requesting

[Toms’s] removal from the facility.” Id.

On October 25, 2012, the court held an evidentiary hearing at which the parties

presented evidence and arguments. The State presented the testimony of Monet Orr, a

case manager at Theodora House, regarding the conduct reports related to Toms. Orr

testified that Toms violated “B231,” a “B offense,” when “she threatened –

communicated to another CO that she was going to physically harm, intimidated her in

the process of an incident.” Transcript at 4, 9. Orr testified that she read the entire

conduct report to Toms and that Toms admitted to the conduct and felt bad about it. Orr

indicated that this type of conduct was previously communicated as being unacceptable.

Orr further indicated that Toms was serving her sentence in a mental health component of

the Theodora House, “had been diagnosed with bipolar and depression,” and was

currently attending her treatments and taking her medications. Id. at 6.

The court asked Orr about the specific nature of the threat, Orr offered to read the

conduct report, and the court agreed. The report stated that in September 2012 Toms

“approached Station A to sign out on a job search pass to Burger King,” that “this writer

[Ms. Graham] made contact with Burger King to see if they were hiring” and “Burger

King only accepts applications online,” and that “[t]his writer informed Toms of this

information.” Id. at 6-7. The report provided that “Toms got upset and started saying

this MF’g place is getting on her nerves and that she would walk out this door and that

this writer was always F’g with her.” Id. at 7. The report stated “[t]his writer gave

resident Toms a direct order to return to her dorm room,” that “Toms stated that she was 3 not going to her dorm room,” and that “[i]nstead resident Toms picked up the pay phone

on the east end of the building, in hearing distance of this writer in Station A, stating that

she would not be able to take her pass out because this B---- had called Burger King and

they said only online.” Id. The report further provided: “Then she, Toms, said I know

meddling B----, she is just a desk clerk, not a case manager. As resident Toms continued

to talk, she . . . also stated that she was going to kick Ms. Graham’s MF’g A-S-S. Yeah,

she thinks I won’t kick her A-S-S but I will.” Id. The report stated that “[a]t this time,

this writer called supervisor [] Washington to come to Station A because the situation

was getting out of control.” Id.

The court then asked Orr about the allegation regarding the second conduct report,

and Orr testified that “those instances are C offenses and . . . it stated that the CO

Washington saw [] Toms place the bag of food behind the iron fence,” that Toms “was

out . . . with her child at the playground and . . . there was a gentleman that came and

brought food over by the fence,” that “[t]here’s a fence that cuts off our area and the gas

station is behind it,” that “[t]he gentleman basically brought over food and other items

over the fence,” and that “Toms took possession of those items and also was found with

cigarettes at the time, smoking on the playground.” Id. at 8. Orr indicated that this

conduct was a violation of the rules, that the tobacco and food violations were considered

class C offenses, that it would take four class C offenses before a violation was filed, and

that Toms had a “B offense and it’s threatening and that’s a very serious offense.” Id. at

9.

Toms then testified and, when asked by her counsel whether she “admit[ted] to

this officer that you said these things,” responded affirmatively and indicated that she had 4 apologized. Id. at 10. Toms testified that she talked to Graham about the incident, that

Toms apologized to Graham, and that Graham apologized to her “for checking on the um,

calling and she was like she won’t do it again.” Id. Toms indicated that, when she made

the comments on the phone, she was not talking directly to Graham, that she “didn’t do

anything to her,” and that she did not “mean it.” Id. at 11.

The court took judicial notice of the fact that Toms was on a community

corrections sentence in part due to her conviction for intimidation. The court then found

Toms in violation of her community corrections placement as the State had proven that

she violated the rules of the Theodora House. The court issued a written order finding

that “[b]ased upon the evidence presented the Court finds that [Toms] has violated the

terms of her placement as specified in allegation one (1) of the Notice of Community

Corrections Violation by threatening physical harm on a [] Theodora House staff member

and by possessing tobacco and certain food items without authorization of the work

release facility.” Appellant’s Appendix at 69. The court found that allegation was

proven by a preponderance of the evidence, revoked Toms’s placement in community

corrections, and ordered that Toms serve the previously-suspended portion of her

sentence in the Department of Correction. The court awarded Toms credit for days

served while incarcerated in the Marion County Jail and Marion County Community

Corrections and credit time.

DISCUSSION

I.

The first issue is whether the evidence is sufficient to revoke Toms’s placement in

the community corrections program. Toms contends that the only evidence was the 5 testimony of a case manager at the facility where she was placed summarizing a report of

another worker, that the report “showed only that [] Toms, who was in a mental health

component at the facility, [] was overheard in a phone call to a third party saying she

would ‘kick [the worker’s] ass,’” and that “[s]uch a statement to a third party cannot be

considered a threat of violence to the worker.” Appellant’s Brief at 4-5. Toms argues

that “[i]t is clear from the evidence that no threat was directly communicated to the staff

member,” that “[a]lthough the phone conversation was within earshot of that staff

member, the record does not disclose whether the comment was intended to be heard by

the facility worker or whether that worker was eaves dropping [sic] on the phone

conversation,” and that “[i]n any event the comment was directed to a third party, so

there is no showing [] Toms ever told the staff employee she was going to cause any

harm to her.” Id. at 6-7. Toms further argues that the State did not present evidence of

the rules of the facility or the rule Toms was alleged to have violated, that “it is

reasonable to require that any threat of violence actually be made to the person at whom

it is directed,” and that “[e]vidence of comments to a third party in an overheard phone

conversation is not the substantial evidence of probative value required to support the

revocation.” Id. at 7.

The State maintains that the evidence is sufficient to sustain the revocation of

Toms’s placement, that Toms admitted to making the statements in question, that the

report filed by Graham described how Toms became angry after she refused to give her

permission to leave the facility, that Toms “said the facility was on her nerves, threatened

to leave, accused Graham of ‘always F’g with her,’” refused Graham’s order to return to

her room, and “went to a nearby payphone instead.” Appellee’s Brief at 7. The State 6 argues that, while Toms claims she did not make the statements while talking into the

payphone directly to Graham or intend to act on them, “the description of Toms’s

violation was defined in the Notice of Community Corrections Violation as

‘[c]ommunicating to another person a plan to physically harm, harass, or intimidate that

person or someone else,’” and that Toms’s “conduct clearly fits this definition.” Id. The

State also argues that the trial court could reasonably conclude that Toms did intend for

Graham to hear the comments Toms made on the phone and for her to be threatened or

intimidated by them, that Toms had already made hostile statements directly to Graham,

and that Toms made the statements on the phone immediately after a confrontation and

within earshot of Graham. The State further asserts that Toms does not dispute on appeal

the second violation alleged in the Notice of Community Corrections Violation related to

the use and possession of tobacco and unauthorized food items.

Placement in community corrections is at the sole discretion of the trial court.

Toomey v. State, 887 N.E.2d 122, 124 (Ind. Ct. App. 2008) (citing Ind. Code § 35-38-

2.6-3(a) (a court “may . . . order a person to be placed in a community corrections

program as an alternative to commitment to the department of correction”)). Ind. Code §

35-38-2.6-5 provides:

If a person who is placed under this chapter violates the terms of the placement, the court may, after a hearing, do any of the following:

(1) Change the terms of the placement.

(2) Continue the placement.

(3) Revoke the placement and commit the person to the department of correction for the remainder of the person’s sentence.

7 For purposes of appellate review, 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. Holmes v. State, 923 N.E.2d 479, 482 (Ind. Ct. App. 2010) (citing

Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied). 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. (citing Cox, 706 N.E.2d at 549 (quoting Million v. State, 646 N.E.2d 998,

1002 (Ind. Ct. App. 1995) (internal quotation omitted))). Thus our standard of review of

an appeal from the revocation of a community corrections placement mirrors that for

revocation of probation. Id. at 483 (citing Cox, 706 N.E.2d at 551). A probation hearing

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

of the evidence. Cox, 706 N.E.2d at 549. 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 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, we will affirm its decision to revoke probation. Id. The violation of a single

condition is sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct.

App. 1999). We have observed that the commission of a crime while serving time in the

community corrections program is always grounds for revocation, even if the sentencing

court fails to notify the person of such condition, because persons in the program should

know that they are not to commit additional crimes during their placement. Toomey v.

State, 887 N.E.2d 122, 125 (Ind. Ct. App. 2008) (citing Decker v. State, 704 N.E.2d

1101, 1103 (Ind. Ct. App. 1999), trans. dismissed). 8 Here, the record shows that Toms violated the rules of the Theodora House. Orr

testified that she read the entire conduct report related to Toms’s interaction with Graham

and comments immediately afterwards on the phone to Toms and that Toms admitted to

the conduct. Orr also indicated that the conduct was previously communicated as being

unacceptable. The conduct report stated that, after Graham informed Toms that Burger

King accepted applications online only, Toms became “upset and started saying this

MF’g place is getting on her nerves and that she would walk out this door” and that

Graham “was always F’g with her.” Transcript at 7. Toms then went to a payphone

which was within the hearing distance of Graham’s station and stated, referring to

Graham, that “I know meddling B----, she is just a desk clerk, not a case manager,” that

“she was going to kick Ms. Graham’s MF’g A-S-S,” and “she thinks I won’t kick her A-

S-S but I will.” Id. We also observe that, on appeal, Toms does not assert that the

evidence presented by the State was insufficient to show that she possessed tobacco and

certain food items without authorization in violation of the rules of Theodora House.

Based upon the facts most favorable to the trial court’s judgment, we conclude that

the trial court as the finder of fact could reasonably find by a preponderance of the

evidence that Toms violated the rules of her placement in community corrections. We

conclude the trial court did not err or abuse its discretion in revoking Toms’s placement

in community corrections and ordering her to serve the previously-suspended portion of

her sentence in the Department of Correction. See Toomey, 887 N.E.2d at 124-125

(holding the defendant violated the terms of his community corrections placement and

affirming the revocation of the defendant’s community corrections placement and

commitment to the Department of Correction to serve his sentence). 9 II.

The next issue is whether the court violated Toms’s due process rights in revoking

her placement. Toms asserts that the trial court’s oral and written statement revoking

placement was inadequate and did not afford her due process of law. Toms argues that

the trial court’s written and oral statement fail to cite the evidence relied on or the reasons

for revoking the placement, that “simple due process would require disclosure of the

specific evidence upon which the court relied,” and that, “in view of the fact that [she]

was placed in a mental health unit [], it seems especially important to know whether the

court took into consideration the mental health issues of [] Toms and what impact they

[sic] had on the decision to revoke her placement.” Appellant’s Brief at 8-9. The State

maintains that the trial court’s revocation statement satisfied due process, that the court’s

written statement “clearly shows that the court revoked [Toms’s] placement because it

found that she had threatened [Toms’s] case manager and also because she possessed

contraband items,” that “[o]f the two violations detailed in the transcript, one was

expressly admitted, and the other went unrefuted,” and that it is “abundantly clear what

reason the court had for revoking [Toms’s] placement at the Theodora House, and due

process was satisfied.” Appellee’s Brief at 10.

As previously stated, for purposes of appellate review, 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, 706 N.E.2d at 549. Although

probationers are not entitled to the full array of constitutional rights afforded defendants

at trial, the Due Process Clause of the Fourteenth Amendment does impose procedural

and substantive limits on the revocation of the conditional liberty created by probation. 10 Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). The minimum requirements of due

process that inure to a probationer at a revocation hearing include: (a) written notice of

the claimed violations of probation; (b) disclosure of the evidence against him; (c) an

opportunity to be heard and present evidence; (d) the right to confront and cross-examine

adverse witnesses; and (e) a neutral and detached hearing body. Id.

Due process requires a written statement by the fact finder regarding the evidence

relied upon and the reasons for the revocation. Washington v. State, 758 N.E.2d 1014,

1018 (Ind. Ct. App. 2001). This requirement may be satisfied by placement of the

transcript of the evidentiary hearing in the record if the transcript contains a clear

statement of the trial court’s reasons for revoking probation. Id.

Here, the transcript of the October 25, 2012 evidentiary hearing discloses that Orr

testified as to the two conduct reports related to the allegations against Toms and read the

report related to the statements made by Toms directly to the Theodora House worker and

by Toms on the phone about the worker. Orr and Toms were questioned by counsel for

both parties and by the court. The transcript further shows that the court verbally found

Toms in violation of her community corrections placement as the State had proven that

she violated the rules of the Theodora House. The court also issued a written order

finding that “[b]ased upon the evidence presented the Court finds that [Toms] has

violated the terms of her placement as specified in . . . the Notice of Community

Corrections Violation by threatening physical harm on a [] Theodora House staff member

and by possessing tobacco and certain food items without authorization of the work

release facility.” Appellant’s Appendix at 69.

11 Based upon the transcript and the trial court’s order, we conclude that the court did

not fail to provide an adequate written statement and that reversal on this basis is not

warranted. See Washington, 758 N.E.2d at 1018 (noting that the transcript of the

revocation hearing had been placed in the record and clearly disclosed the court’s basis

for revoking the defendant’s probation).

CONCLUSION

For the foregoing reasons, we affirm the trial court’s revocation of Toms’s

placement in community corrections.

Affirmed.

RILEY, J., and BRADFORD, J., concur.