MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 02 2016, 5:56 am 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, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven E. Ripstra Gregory F. Zoeller Ripstra Law Office Attorney General of Indiana Jasper, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Maxine Lauren Kemper, March 2, 2016 Appellant-Defendant, Court of Appeals Case No. 82A01-1508-CR-1104 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Wayne S. Appellee-Plaintiff. Trockman, Judge The Honorable Kristina Hamby Weiberg, Pro Tem Trial Court Cause No. 82D02- 1504-FD-1896 and 82D02-1504- FA-1897
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016 Page 1 of 6 [1] Maxine Lauren Kemper pled guilty to various felony counts and, pursuant to
the plea agreement, entered the Vanderburgh County Day Reporting Drug
Court (Drug Court). She subsequently violated the terms of her Drug Court
commitment on more than one occasion. As a result, the trial court entered
various sanctions against Kemper. On appeal, she argues that the sanctions
imposed were too severe and thus constitute an abuse of discretion.
Facts & Procedural History
[2] On December 5, 2013, the State charged Kemper with class D felony theft and
class D felony assisting a criminal. Thereafter, on May 5, 2014, the State
charged her under a separate cause number with class A felony dealing in
methamphetamine, class C felony possession of methamphetamine, class D
felony possession of methamphetamine, class D felony possession of
paraphernalia, class D felony possession of a controlled substance, and class A
misdemeanor possession of marijuana.
[3] On April 2, 2015, Kemper pled guilty pursuant to a written plea agreement to
theft, assisting a criminal, and possession of methamphetamine, all as class D
felonies. The five remaining charges were dismissed. The agreement provided
that the trial court would withhold judgment of conviction for eighteen months
in order to provide Kemper the opportunity to complete Drug Court. If she
successfully completed Drug Court, the three charges to which she pled guilty
would be dismissed. On the other hand, if she failed Drug Court, the trial court
would then enter judgment of conviction on the three D felony counts.
Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016 Page 2 of 6 [4] Kemper tested positive for methamphetamine on May 11, 2015. A petition to
revoke placement was taken under advisement but never filed because Kemper
entered and successfully completed the detox and residential phase of Drug
Court. She began the aftercare portion of the program on June 17, 2015.
[5] On June 26, 2015, Deputy John Helfrich conducted a home visit at Kemper’s
listed address. Two juvenile males – Kemper’s brothers – answered the door
and informed the deputy that Kemper no longer lived at the residence. They
indicated that she was staying with her boyfriend. Thereafter, Deputy Helfrich
spoke with Kemper on the phone. Kemper initially indicated that she was
living at the listed address but eventually admitted that she had been staying
with a girlfriend. Upon further questioning, Kemper acknowledged that a male
with a criminal drug history was also staying there. Kemper said she had an
appointment with her case manager – Andrea Hillgoth – that afternoon, and
Deputy Helfrich told her to keep that appointment. He then informed Hillgoth
of the situation. When she met with Hillgoth later that day, Kemper admitted
that she had not been staying at her listed address for the last five days.
[6] Hillgoth filed a petition to revoke on June 30, 2015, as a result of Kemper’s
violation of the rules of Drug Court. Specifically, Kemper had failed to notify
Hillgoth within twenty-four hours of her change in address. Following an
evidentiary hearing on July 7, 2015, the trial court found that Kemper had
violated the rules of Drug Court. As a sanction, the court ordered her to spend
a night in jail and write a paper explaining the importance of transparency in
Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016 Page 3 of 6 recovery. Kemper served her night in jail on July 10, 2015, and was released
the following day.
[7] Three days later, Kemper tested positive for alcohol and was immediately taken
into custody until her revocation hearing on July 21, 2015. At the hearing,
Kemper admitted the violation and asked that she be released from jail and
returned to Counseling for Change. In addition to time served and a directive
to follow the recommendations of her case manager, the trial court ordered
Kemper to adhere to a curfew1 and report to Counseling for Change.
Discussion & Decision
[8] Kemper challenges the sanctions imposed by the trial court on July 7 and 21,
2015. She asserts that the sanctions constitute an abuse of discretion because
they were “too severe” in light of all the facts and circumstances. Appellant’s
Brief at 6. In this regard, she describes her first violation as “definitional and
technical in nature” and her second violation as “a minor relapse”. Id. at 6, 4.
[9] Drug Court is a forensic diversion program akin to community corrections and
probation. Withers v. State, 15 N.E.3d 660, 665 (Ind. Ct. App. 2014).
Accordingly, we review a trial court’s sentencing decisions for Drug Court
violations for an abuse of discretion. Id. We will find an abuse of discretion
1 Kemper was directed to be at her listed address between 9:00 p.m. and 6:00 a.m.
Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016 Page 4 of 6 only where the decision is clearly against the logic and effect of the facts and
circumstances. Id.
[10] Upon finding that Kemper violated a condition of Drug Court, the trial court
was permitted to:
(1) continue the individual’s participation in [Drug Court] with or without modifying or expanding the individual’s conditions for participating in [Drug Court]; or
(2) terminate the individual’s participation in [Drug Court].
Ind. Code Ann. § 33-23-16-14.5(e). Despite repeated violations, the court
decided to continue Kemper in Drug Court with certain modifications.
[11] After the first finding of a violation, the court adopted the sanction suggested by
the case manager and ordered Kemper to serve one night in jail and write a
paper regarding the importance of transparency in recovery. Kemper
challenges this sanction as too severe for a violation that is definitional and
technical in nature. We are not persuaded that the trial court abused its
discretion in this regard. The evidence establishes that within days of
completing the residential portion of the program and entering aftercare,
Kemper began staying somewhere other than her listed residence, along with a
man with a criminal drug history. She stayed there for five days before Deputy
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 02 2016, 5:56 am 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, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven E. Ripstra Gregory F. Zoeller Ripstra Law Office Attorney General of Indiana Jasper, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Maxine Lauren Kemper, March 2, 2016 Appellant-Defendant, Court of Appeals Case No. 82A01-1508-CR-1104 v. Appeal from the Vanderburgh Superior Court State of Indiana, The Honorable Wayne S. Appellee-Plaintiff. Trockman, Judge The Honorable Kristina Hamby Weiberg, Pro Tem Trial Court Cause No. 82D02- 1504-FD-1896 and 82D02-1504- FA-1897
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016 Page 1 of 6 [1] Maxine Lauren Kemper pled guilty to various felony counts and, pursuant to
the plea agreement, entered the Vanderburgh County Day Reporting Drug
Court (Drug Court). She subsequently violated the terms of her Drug Court
commitment on more than one occasion. As a result, the trial court entered
various sanctions against Kemper. On appeal, she argues that the sanctions
imposed were too severe and thus constitute an abuse of discretion.
Facts & Procedural History
[2] On December 5, 2013, the State charged Kemper with class D felony theft and
class D felony assisting a criminal. Thereafter, on May 5, 2014, the State
charged her under a separate cause number with class A felony dealing in
methamphetamine, class C felony possession of methamphetamine, class D
felony possession of methamphetamine, class D felony possession of
paraphernalia, class D felony possession of a controlled substance, and class A
misdemeanor possession of marijuana.
[3] On April 2, 2015, Kemper pled guilty pursuant to a written plea agreement to
theft, assisting a criminal, and possession of methamphetamine, all as class D
felonies. The five remaining charges were dismissed. The agreement provided
that the trial court would withhold judgment of conviction for eighteen months
in order to provide Kemper the opportunity to complete Drug Court. If she
successfully completed Drug Court, the three charges to which she pled guilty
would be dismissed. On the other hand, if she failed Drug Court, the trial court
would then enter judgment of conviction on the three D felony counts.
Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016 Page 2 of 6 [4] Kemper tested positive for methamphetamine on May 11, 2015. A petition to
revoke placement was taken under advisement but never filed because Kemper
entered and successfully completed the detox and residential phase of Drug
Court. She began the aftercare portion of the program on June 17, 2015.
[5] On June 26, 2015, Deputy John Helfrich conducted a home visit at Kemper’s
listed address. Two juvenile males – Kemper’s brothers – answered the door
and informed the deputy that Kemper no longer lived at the residence. They
indicated that she was staying with her boyfriend. Thereafter, Deputy Helfrich
spoke with Kemper on the phone. Kemper initially indicated that she was
living at the listed address but eventually admitted that she had been staying
with a girlfriend. Upon further questioning, Kemper acknowledged that a male
with a criminal drug history was also staying there. Kemper said she had an
appointment with her case manager – Andrea Hillgoth – that afternoon, and
Deputy Helfrich told her to keep that appointment. He then informed Hillgoth
of the situation. When she met with Hillgoth later that day, Kemper admitted
that she had not been staying at her listed address for the last five days.
[6] Hillgoth filed a petition to revoke on June 30, 2015, as a result of Kemper’s
violation of the rules of Drug Court. Specifically, Kemper had failed to notify
Hillgoth within twenty-four hours of her change in address. Following an
evidentiary hearing on July 7, 2015, the trial court found that Kemper had
violated the rules of Drug Court. As a sanction, the court ordered her to spend
a night in jail and write a paper explaining the importance of transparency in
Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016 Page 3 of 6 recovery. Kemper served her night in jail on July 10, 2015, and was released
the following day.
[7] Three days later, Kemper tested positive for alcohol and was immediately taken
into custody until her revocation hearing on July 21, 2015. At the hearing,
Kemper admitted the violation and asked that she be released from jail and
returned to Counseling for Change. In addition to time served and a directive
to follow the recommendations of her case manager, the trial court ordered
Kemper to adhere to a curfew1 and report to Counseling for Change.
Discussion & Decision
[8] Kemper challenges the sanctions imposed by the trial court on July 7 and 21,
2015. She asserts that the sanctions constitute an abuse of discretion because
they were “too severe” in light of all the facts and circumstances. Appellant’s
Brief at 6. In this regard, she describes her first violation as “definitional and
technical in nature” and her second violation as “a minor relapse”. Id. at 6, 4.
[9] Drug Court is a forensic diversion program akin to community corrections and
probation. Withers v. State, 15 N.E.3d 660, 665 (Ind. Ct. App. 2014).
Accordingly, we review a trial court’s sentencing decisions for Drug Court
violations for an abuse of discretion. Id. We will find an abuse of discretion
1 Kemper was directed to be at her listed address between 9:00 p.m. and 6:00 a.m.
Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016 Page 4 of 6 only where the decision is clearly against the logic and effect of the facts and
circumstances. Id.
[10] Upon finding that Kemper violated a condition of Drug Court, the trial court
was permitted to:
(1) continue the individual’s participation in [Drug Court] with or without modifying or expanding the individual’s conditions for participating in [Drug Court]; or
(2) terminate the individual’s participation in [Drug Court].
Ind. Code Ann. § 33-23-16-14.5(e). Despite repeated violations, the court
decided to continue Kemper in Drug Court with certain modifications.
[11] After the first finding of a violation, the court adopted the sanction suggested by
the case manager and ordered Kemper to serve one night in jail and write a
paper regarding the importance of transparency in recovery. Kemper
challenges this sanction as too severe for a violation that is definitional and
technical in nature. We are not persuaded that the trial court abused its
discretion in this regard. The evidence establishes that within days of
completing the residential portion of the program and entering aftercare,
Kemper began staying somewhere other than her listed residence, along with a
man with a criminal drug history. She stayed there for five days before Deputy
Helfrich discovered her absence from her listed address and alerted her case
manager. In light of this clear violation, the trial court could have imposed a
much greater sanction than it did. Cf. Podlusky v. State, 839 N.E.2d 198, 203
Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016 Page 5 of 6 (Ind. Ct. App. 2005) (affirming the revocation of probation for defendant’s
“seemingly minor violation of moving back to her former residence, knowing
that the probation office had the address, and not immediately notifying her
probation officer of this change”).
[12] Kemper’s second violation came shortly on the heels of her first. Within three
days after serving a night in jail for the first violation, she drank alcohol and
failed a urinalysis. The rules of Drug Court expressly provide that there will be
sanctions for positive urinalyses, including removal from the program. Rather
than removing Kemper, the court ordered her to return to Counseling for
Change – the sanction requested by Kemper – and imposed a curfew requiring
her to be home every night from 9:00 p.m. to 6:00 a.m. Under the
circumstances, this sanction was not an abuse of discretion. Cf. Crump v. State,
740 N.E.2d 564, 573 (Ind. Ct. App. 2000) (upholding revocation of probation
where defendant violated probation by consuming alcohol), trans. denied.
[13] Judgment affirmed.
[14] Robb, J. and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016 Page 6 of 6