MEMORANDUM DECISION May 08 2015, 9:28 am 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, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jill M. Acklin Gregory F. Zoeller McGrath, LLC Attorney General of Indiana Carmel, Indiana Kenneth E. Biggins Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Misty Padgett-Essex, May 8, 2015
Appellant-Defendant, Court of Appeals Cause No. 84A01-1407-CR-309 v. Appeal from the Vigo Superior Court The Honorable Michael Rader, State of Indiana, Judge Appellee-Plaintiff Trial Court Cause No. 84D05-1308- FD-2406
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015 Page 1 of 7 Case Summary
[1] Appellant-Defendant Misty Padgett-Essex (“Padgett-Essex”) was convicted of
theft and received a sentence of three years in November of 2013. Her sentence
was divided into one year of direct placement in home detention with the
remaining two years suspended to probation. After multiple failures to adhere
to the conditions of her home detention, the trial court revoked her direct
placement and probation and ordered her to serve the balance of her previously-
suspended sentence. On appeal, Padgett-Essex does not dispute the revocation
of her home detention and probation, but contends that the trial court abused its
discretion by ordering her to serve the remainder of her previously-suspended
sentence. We affirm.
Facts and Procedural History
[2] In August of 2013, Padgett-Essex was charged with theft, possession or use of a
legend drug without a prescription, and unlawful possession of a hypodermic
syringe, all of which are Class D felonies. She was subsequently sentenced in
November of that year, with her sentence divided as follows: (1) one year of
direct placement in the Vigo County Community Corrections (“VCCC”) home
detention program and (2) two years suspended to probation. On January 26,
2014, Padgett-Essex began home detention with VCCC for her conviction.
[3] On March 5, 2014, Padgett-Essex left her residence without authorization for
two hours and thirteen minutes. She claimed to have received permission from
Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015 Page 2 of 7 VCCC, but could not provide the name of the person with whom she had
spoken, nor could she provide any documentation to substantiate that claim.
[4] On March 9, 2014, Padgett-Essex provided false information to VCCC in
violation of the home detention rules. Padgett-Essex contacted VCCC and
requested permission to go to the grocery store to get medicine. A VCCC
coordinator testified that Padgett-Essex used this as a ploy to “get out of the
house,” knowing that VCCC could not deny her access to medication. Tr. p.
27. The coordinator also testified that “[s]he had used this same tactic several
times.” Tr. p. 27. The coordinator decided to perform a “field check” on
Padgett-Essex during this trip, and found that she had been grocery shopping
instead. Tr. p. 27. When asked to show proof that she had purchased
medication, she claimed that the receipt had inadvertently been thrown away,
and was only able to produce receipts for groceries. Padgett-Essex later
provided a receipt for medication, but the date and time on the receipt showed
that she purchased the medication later in the day, after the inspection by the
field coordinator. As a result of this incident, a non-compliance form was filled
out showing that Padgett-Essex had provided false information to VCCC.
[5] On March 13, 2014, Padgett-Essex visited a hospital where she was treated for
a panic attack. While there, she was given Xanax, and claimed that she could
not recall whether or not she alerted VCCC of her visit to the hospital.
According to VCCC regulations, individuals in home detention are allowed to
attend medical services in an emergency, but they are required to provide
verifying documentation of their trip. Padgett-Essex did not provide any
Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015 Page 3 of 7 substantiating documents to VCCC regarding her March 13, 2014 trip to the
hospital. On March 18, 2014, Padgett-Essex tested positive for
benzodiazepines, while not having a prescription for those drugs, which is also
a violation of home detention rules.
[6] On March 17, 2014, Padgett-Essex was fired from her job with the Vigo County
Commissioner’s Office, which she had gotten via the Volunteer Electronic
Monitoring Program in order to help pay for her community corrections. It
was reported that she had been sleeping at work, having unapproved visitors,
and not meeting the requirements of the program. She was also behind on her
payments to community corrections by $1252.00.
[7] On March 19, 2014, Appellee-Plaintiff the State of Indiana (the “State”) moved
to revoke Padgett-Essex’s home detention and probation. An amended petition
filed on March 27, 2014, stated that Padgett-Essex had violated the conditions
of her home detention by leaving her residence without authorization,
providing false information to VCCC, not contacting VCCC after being
released from the hospital, being fired from her job at the Commissioner’s
Office, being in arrears of her fees by $1252.00, and testing positive during a
drug screen for benzodiazepines. On June 19, 2014, the trial court ordered
Padgett-Essex to serve the balance of her previously-suspended sentence. She
was given a total credit of 140 days for her time on home detention and while
incarcerated. This appeal follows.
Discussion and Decision Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015 Page 4 of 7 [8] Padgett-Essex does not dispute that the trial court had sufficient grounds to
revoke her home detention and probation. Rather, she argues that the
reinstatement of the entire balance of her previously-suspended sentence is an
abuse of the trial court’s discretion where the “probationer was actively seeking
treatment in an effort to become a productive citizen and live a sober life.”
Appellant’s Br. p. 9.
[9] It is well settled that “[p]robation is a matter of grace left to trial court
discretion, not a right to which a criminal defendant is entitled.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). After a trial court orders probation rather
than incarceration, it should have broad discretion in deciding how to proceed.
Id. Indeed, the Indiana statutes governing these discretionary procedures have
codified this position. Under Indiana Code section 35-38-2-3(h), when the
court finds that a person has violated the conditions of her probation, the court
may continue the probation, extend the probation, or order execution of all or
part of that person’s sentence. This same discretion holds true for placement in
community corrections. If a person is found to have violated the terms of her
placement, the court may change the terms of the placement, continue the
placement, or revoke the placement and order the person to serve the remainder
of her sentence. Ind.
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MEMORANDUM DECISION May 08 2015, 9:28 am 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, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jill M. Acklin Gregory F. Zoeller McGrath, LLC Attorney General of Indiana Carmel, Indiana Kenneth E. Biggins Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Misty Padgett-Essex, May 8, 2015
Appellant-Defendant, Court of Appeals Cause No. 84A01-1407-CR-309 v. Appeal from the Vigo Superior Court The Honorable Michael Rader, State of Indiana, Judge Appellee-Plaintiff Trial Court Cause No. 84D05-1308- FD-2406
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015 Page 1 of 7 Case Summary
[1] Appellant-Defendant Misty Padgett-Essex (“Padgett-Essex”) was convicted of
theft and received a sentence of three years in November of 2013. Her sentence
was divided into one year of direct placement in home detention with the
remaining two years suspended to probation. After multiple failures to adhere
to the conditions of her home detention, the trial court revoked her direct
placement and probation and ordered her to serve the balance of her previously-
suspended sentence. On appeal, Padgett-Essex does not dispute the revocation
of her home detention and probation, but contends that the trial court abused its
discretion by ordering her to serve the remainder of her previously-suspended
sentence. We affirm.
Facts and Procedural History
[2] In August of 2013, Padgett-Essex was charged with theft, possession or use of a
legend drug without a prescription, and unlawful possession of a hypodermic
syringe, all of which are Class D felonies. She was subsequently sentenced in
November of that year, with her sentence divided as follows: (1) one year of
direct placement in the Vigo County Community Corrections (“VCCC”) home
detention program and (2) two years suspended to probation. On January 26,
2014, Padgett-Essex began home detention with VCCC for her conviction.
[3] On March 5, 2014, Padgett-Essex left her residence without authorization for
two hours and thirteen minutes. She claimed to have received permission from
Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015 Page 2 of 7 VCCC, but could not provide the name of the person with whom she had
spoken, nor could she provide any documentation to substantiate that claim.
[4] On March 9, 2014, Padgett-Essex provided false information to VCCC in
violation of the home detention rules. Padgett-Essex contacted VCCC and
requested permission to go to the grocery store to get medicine. A VCCC
coordinator testified that Padgett-Essex used this as a ploy to “get out of the
house,” knowing that VCCC could not deny her access to medication. Tr. p.
27. The coordinator also testified that “[s]he had used this same tactic several
times.” Tr. p. 27. The coordinator decided to perform a “field check” on
Padgett-Essex during this trip, and found that she had been grocery shopping
instead. Tr. p. 27. When asked to show proof that she had purchased
medication, she claimed that the receipt had inadvertently been thrown away,
and was only able to produce receipts for groceries. Padgett-Essex later
provided a receipt for medication, but the date and time on the receipt showed
that she purchased the medication later in the day, after the inspection by the
field coordinator. As a result of this incident, a non-compliance form was filled
out showing that Padgett-Essex had provided false information to VCCC.
[5] On March 13, 2014, Padgett-Essex visited a hospital where she was treated for
a panic attack. While there, she was given Xanax, and claimed that she could
not recall whether or not she alerted VCCC of her visit to the hospital.
According to VCCC regulations, individuals in home detention are allowed to
attend medical services in an emergency, but they are required to provide
verifying documentation of their trip. Padgett-Essex did not provide any
Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015 Page 3 of 7 substantiating documents to VCCC regarding her March 13, 2014 trip to the
hospital. On March 18, 2014, Padgett-Essex tested positive for
benzodiazepines, while not having a prescription for those drugs, which is also
a violation of home detention rules.
[6] On March 17, 2014, Padgett-Essex was fired from her job with the Vigo County
Commissioner’s Office, which she had gotten via the Volunteer Electronic
Monitoring Program in order to help pay for her community corrections. It
was reported that she had been sleeping at work, having unapproved visitors,
and not meeting the requirements of the program. She was also behind on her
payments to community corrections by $1252.00.
[7] On March 19, 2014, Appellee-Plaintiff the State of Indiana (the “State”) moved
to revoke Padgett-Essex’s home detention and probation. An amended petition
filed on March 27, 2014, stated that Padgett-Essex had violated the conditions
of her home detention by leaving her residence without authorization,
providing false information to VCCC, not contacting VCCC after being
released from the hospital, being fired from her job at the Commissioner’s
Office, being in arrears of her fees by $1252.00, and testing positive during a
drug screen for benzodiazepines. On June 19, 2014, the trial court ordered
Padgett-Essex to serve the balance of her previously-suspended sentence. She
was given a total credit of 140 days for her time on home detention and while
incarcerated. This appeal follows.
Discussion and Decision Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015 Page 4 of 7 [8] Padgett-Essex does not dispute that the trial court had sufficient grounds to
revoke her home detention and probation. Rather, she argues that the
reinstatement of the entire balance of her previously-suspended sentence is an
abuse of the trial court’s discretion where the “probationer was actively seeking
treatment in an effort to become a productive citizen and live a sober life.”
Appellant’s Br. p. 9.
[9] It is well settled that “[p]robation is a matter of grace left to trial court
discretion, not a right to which a criminal defendant is entitled.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). After a trial court orders probation rather
than incarceration, it should have broad discretion in deciding how to proceed.
Id. Indeed, the Indiana statutes governing these discretionary procedures have
codified this position. Under Indiana Code section 35-38-2-3(h), when the
court finds that a person has violated the conditions of her probation, the court
may continue the probation, extend the probation, or order execution of all or
part of that person’s sentence. This same discretion holds true for placement in
community corrections. If a person is found to have violated the terms of her
placement, the court may change the terms of the placement, continue the
placement, or revoke the placement and order the person to serve the remainder
of her sentence. Ind. Code § 35-38-2.6-5. “Both probation and community
corrections programs serve as alternatives to commitment to the [Department of
Correction] and both are made at the sole discretion of the trial court.” Monroe
v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009).
Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015 Page 5 of 7 [10] Accordingly, we will review a trial court’s decision to revoke probation and its
sentencing decision in a probation revocation proceeding for an abuse of
discretion. Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App. 2005). Because
of similarities between probation and placement with community corrections,
we treat a review of a home detention revocation the same as we do a probation
revocation. Monroe, 899 N.E.2d at 691. “An abuse of discretion occurs where
the decision is clearly against the logic and effect of the facts and
circumstances.” Prewitt, 878 N.E.2d at 188.
[11] Padgett-Essex contends that the trial court abused its discretion by ordering her
to serve the entirety of the balance of her previously-suspended sentence “in a
case where factors suggest that a sanction of less than serving the balance of the
previously-suspended sentence ... would have been appropriate.” Appellant’s
Br. p. 4. She argues that the Indiana Supreme Court has noted that an objective
in sentencing reform is to give favor to those offenders deserving of an earlier
opportunity to be productive citizens. See State v. Brunner, 947 N.E.2d 411, 417
(Ind. 2011). However, Padgett-Essex was given that opportunity when she was
granted placement with community corrections and probation in lieu of
incarceration. Padgett-Essex’s case is now before this court because she chose
not to take advantage of that opportunity.
[12] Padgett-Essex also points out that the Indiana Supreme Court has stated that, in
reviewing and revising sentencing decisions, principles of equity may be
considered. See Woods v. State, 583 N.E.2d 1211, 1213 (Ind. 1992). Specifically,
Padgett-Essex indicates that she had a job at a hotel, had successfully completed
Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015 Page 6 of 7 two prior home detention terms, started drug and alcohol treatment, and
expressed a desire to live her life clean and sober. She states that she was
candid with the court about her struggles with substance abuse and is
addressing it while in jail in order to become a more productive citizen.
[13] Despite the fact that Padgett-Essex was working at a hotel and getting
treatment, there is no abuse of discretion by the trial court. It is readily
apparent that the fault herein lies with Padgett-Essex. “Violation of a single
condition of probation is sufficient to revoke probation.” Wilson v. State, 708
N.E.2d 32, 34 (Ind. Ct. App. 1999). By leaving her home without permission,
providing VCCC with false information, not contacting VCCC upon her release
from the hospital, losing her job with the Commissioner’s Office, falling behind
on her payments to VCCC, and failing a drug screen, Padgett-Essex ran afoul of
the minimal standards of conduct required of her. Padgett-Essex violated
several conditions of her home detention placement, any one of which would
have been sufficient to justify the revocation of that placement in its entirety.
Thus, the trial court’s decision to revoke Padgett-Essex’s placement on home
detention and probation was not an abuse of discretion. If trial courts were not
afforded this discretion and their probation or placement decisions were
frequently second-guessed on appeal, trial judges might be less likely to order
probation or placement going forward. Prewitt, 878 N.E.2d at 188.
[14] The judgment of the trial court is affirmed.
Najam, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Opinion 84A01-1407-CR-00309 |May 8, 2015 Page 7 of 7