Michael Morrisey v. State of Indiana

Opinion

Pursuant to Ind. Appellate Rule 65(D), Oct 07 2013, 6:08 am

Oct 07 2013, 6:08 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:

KEVIN WILD GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana

ANDREW FALK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

MICHAEL MORRISEY, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-1304-CR-146 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Lisa F. Borges, Judge Cause No. 49G04-1201-FC-4618

October 7, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

GARRARD, Senior Judge Michael Morrisey challenges the sufficiency of the evidence supporting the trial

court’s revocation of his community corrections placement. We affirm.

Morrisey pleaded guilty to Class C felony criminal confinement, Class D felony

strangulation, and Class D felony battery. The trial court accepted the plea, entered

judgments of conviction, and sentenced him to an aggregate term of four years. Two

years were ordered to be served in the Department of Correction followed by two years in

community corrections. The court also ordered him to complete twenty-six weeks of

domestic violence counseling.

Morrisey began his community corrections placement at Duvall Residential Center

in October 2012. In January 2013, the State filed a notice of community corrections

violation, which alleged that Morrisey: (1) failed to comply with a court-ordered

substance abuse treatment program; (2) failed to enroll in court-ordered domestic

violence counseling; and (3) violated Duvall Residential Center rules. The first and third

violations alleged that Morrisey was in possession and under the influence of synthetic

drugs. Regarding the failure to enroll in court-ordered domestic violence counseling, the

notice stated, “In an office visit with Community Supervision Manager Jaime Sherls on

11/30/[2]012, the defendant was informed that he would have to be enrolled in Domestic

Violence classes by 12/28/2012. As of 1/25/2013, the defendant has failed to enroll in

court ordered Domestic Violence Counseling.” Appellant’s App. p. 59.

The trial court held a hearing, at the start of which it noted that the first and third

allegations needed to be resolved. As to the second, it stated, “The Defendant has

admitted that he failed to enroll in court-ordered Domestic Violence Counseling

2 according to my notes, okay.” Tr. p. 3. Morrisey, by counsel, responded, “That’s what I

have in mine too, Judge.” Id. Morrisey asked the State what it was recommending as a

sanction, and when he learned the State wanted him to serve the remainder of his

sentence at the Department of Correction, he decided to continue to a contested hearing.

Id. at 7, 10.

The State presented evidence on each of the allegations. William Beck, a

community corrections employee, testified about Morrisey’s failure to enroll in court-

ordered domestic violence counseling. Beck stated that despite being advised in an office

visit that he needed to get into domestic violence counseling, Morrisey had not done so

by January 25, 2013.

Morrisey testified in his own defense, addressing only the synthetic drug

allegations. Neither the State’s nor Morrisey’s closing arguments addressed the

substance of the domestic violence counseling allegation. In fact, Morrisey explicitly

stated, “[W]hatever you’re going to do, Judge, you’re going to do because my client

already admitted that he did not enroll in Domestic Violence Counseling. He admitted it

to this Court. The only thing we’re contesting is whether or not he was trafficking, the

specific allegation, in some sort of illegal possession of synthetic marijuana or some

illegal substance . . . .” Id. at 34-35.

The trial court found that the evidence regarding the synthetic drugs did not rise to

the necessary level of proof. However, it noted Morrisey’s admission to the domestic

violence counseling allegation and further found that Morrisey’s own testimony proved

he had violated other Duvall Residential Center rules: he was off his bunk during count,

3 had cigarettes in his possession, and failed to stay in a location as ordered by a Duvall

employee. The court thus determined that Morrisey had violated the conditions of his

community corrections placement, revoked that placement, and ordered him to serve the

balance of his sentence in the Department of Correction.

The sole issue Morrisey presents for our review is whether the evidence is

sufficient to support the revocation of his community corrections placement. We review

the revocation of a community corrections placement in the same manner as a revocation

of probation. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). That is, a community

corrections revocation hearing is civil in nature, and the State need only prove the alleged

violations by a preponderance of the evidence. Id. We consider the evidence most

favorable to the trial court’s judgment without reweighing the evidence or judging the

credibility of the witnesses. Id. We affirm the revocation if there is substantial evidence

of probative value to support the trial court’s conclusion that the defendant has violated

any terms of the community corrections placement. Id.

In challenging the sufficiency of the evidence, Morrisey claims that the only

evidence regarding the domestic violence counseling allegation was inadmissible

hearsay. He also argues that the Duvall rules violations found by the court were not

included in the notice of community corrections violation and, in any event, were not

supported by sufficient evidence or were too minor to justify revocation. We decline to

address these claims because statements made by both Morrisey and the trial court during

the hearing indicate that Morrisey admitted he failed to enroll in court-ordered domestic

violence counseling.

4 Morrisey now argues that he did not admit the domestic violence counseling

allegation to the court. However, his unequivocal statements at the hearing that he had so

admitted bars any challenge to the violation here. See Baugh v. State, 933 N.E.2d 1277,

1280 (Ind. 2010) (“Under the invited error doctrine, a party may not take advantage of an

error that she commits, invites, or which is the natural consequence of her own neglect or

misconduct.” (internal quotation omitted)).

Violation of a single condition of a community corrections placement is sufficient

to revoke that placement. See Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App. 2011),

trans. denied. Morrisey’s admitted failure to enroll in court-ordered domestic violence

counseling is thus sufficient to sustain the revocation of his community corrections

placement.

Affirmed.

MAY, J., and CRONE, J., concur.