MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 07 2018, 10:05 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tanner Cripe, September 7, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-452 v. Appeal from the Noble Circuit Court State of Indiana, The Honorable Michael J. Kramer, Appellee-Plaintiff Judge Trial Court Cause No. 57C01-1612-F5-85
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 1 of 15 [1] Tanner Cripe appeals his termination from the Noble County Drug Court
Program and his sentence for Level 5 Felony Burglary1 and Level 6 Felony
Theft.2 He argues that the drug court erred by denying him due process during
his termination hearing and by not considering certain mitigating factors during
sentencing, and that his sentence is inappropriate in light of the nature of the
offenses and his character. Finding no error, and that his sentence is not
inappropriate, we affirm.
Facts [2] On July 16, 2016, a private home security camera recorded Cripe walking from
his garage to a neighboring structure in Kendallville owned by Thomas Taner.
Cripe entered the structure through an unlocked door and took several items,
including a drill, drill bits, flashlight, GPS unit, gloves, and a ratchet set. He
then returned to his own garage. The same camera later recorded him leaving
his home for work.
[3] Later that day, Kendallville police officers stopped Cripe. They searched his
home, finding several items taken from Taner’s property. The police also found
items that belonged to other people that had been reported stolen in earlier theft
cases, including a purse that contained a paycheck payable to Cayla Blackshire
and Blackshire’s driver’s license, and a wallet that contained a driver’s license
1 Ind. Code § 35-43-2-1. 2 I.C. § 35-43-4-2(a)(1).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 2 of 15 belonging to Brent Wagner. Both Blackshire and Wagner had reported these
items stolen from their vehicles earlier in the day.
[4] On July 18, 2016, the State charged Cripe with Level 6 felony theft for stealing
Blackshire’s and Wagner’s property. On July 21, 2016, the State charged Cripe
under a separate cause number with Level 5 felony burglary for entering
Taner’s property and stealing tools. The causes were consolidated on
September 22, 2016.
[5] On November 2, 2016, Cripe was referred to the Noble County problem solving
court, and on November 30, 2016, he was accepted into the program. On
December 7, 2016, Cripe entered into a Problem Solving Court Participation
Agreement with the State. In this agreement, Cripe agreed to participate in the
drug court’s programs, and in exchange for his successful completion of the
programs, the State would dismiss all charges. The agreement required Cripe to
attend and successfully complete all assigned education, treatment,
intervention, and service programs; to truthfully answer all reasonable questions
asked by the problem solving court team members; to not consume any alcohol;
and to not be arrested, charged, cited, or convicted of any violation of the law.
The agreement’s special conditions also required Cripe to complete an intensive
outpatient program as directed by the court; to attend four support group
meetings per week in the first phase of the program and as directed by the court
thereafter; and to reside at a halfway facility until further order of the court.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 3 of 15 [6] Also on December 7, 2016, Cripe pleaded guilty to the charges and entered the
problem solving drug court program. Cripe then violated the terms of his
participation agreement five times:
• On February 1, 2017, the drug court found that Cripe violated a no contact order. The drug court advised Cripe that violating a no contact order could be a criminal offense that could end his participation in drug court and lead to jail. The trial court ordered Cripe to attend “Courage to Change” classes through probation. • On March 22, 2017, the drug court found that Cripe again contacted the individual he was not allowed to contact and sentenced him to eight days in jail. • On May 10, 2017, the drug court found that Cripe tested positive for alcohol. The drug court increased the frequency of Cripe’s drug and alcohol screens and ordered him to attend a meeting3 every day for the next ninety days. • On June 7, 2017, the drug court found that Cripe missed a meeting. Cripe stated that he missed it because he did not write it down in his book. The drug court increased Cripe’s meeting requirement to a meeting every day for 100 days and ordered him to reside at Pilot House, a men’s shelter. On June 28, 2017, the drug court learned that Cripe had been dishonest about why he had missed the meeting and sentenced him to fourteen days in jail. • On September 20, 2017, the drug court found that Cripe again violated his agreement4 and sentenced him to forty days in jail, followed by six months of home detention.
3 The record does not specify what kind of meeting Cripe was required to attend. 4 The record does not reveal exactly how Cripe violated his participation agreement. The trial court stated that “you’ve been sanctioned multiple times for this same thing and you just keep going back to it.” Tr. Vol. II p. 152.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 4 of 15 [7] On November 21, 2017, the probation department filed a drug court violation
report stating that Cripe was going to be evicted from Pilot House that day;5 the
report recommended a hearing to determine whether Cripe had violated the
terms of his participation agreement and whether it should be modified or
revoked. A hearing took place on November 22, 2017, during which the drug
court told Cripe that the drug court team would be meeting to discuss whether
he should be terminated from the program. The drug court also told Cripe that
someone involved with the program would talk with him about the process.
The drug court asked Cripe whether he had any questions, to which Cripe
replied, “No sir, thank you.” Tr. Vol. II p. 174.
[8] The termination hearing took place on November 29, 2017, during which the
following exchange occurred:
Court: The Drug Court team has decided that you be terminated from Drug Court. Do you want an attorney to represent you?
Cripe: Um, at this point let’s just move forward to sentencing it would be wasting the Court’s time to ask for an attorney I’ve already pled guilty in this case.
Court: You just want to represent yourself and admit that you violated.
5 The record does not reveal the reason for Cripe’s eviction.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 5 of 15 Cripe: Yeah.
Id. at 177. The drug court terminated Cripe’s participation with the drug court
program, ordered a pre-sentence investigation report, scheduled a sentencing
hearing, and told Cripe that a probation officer would talk with him about the
pre-sentence investigation report. The drug court then asked Cripe whether he
had any questions, and Cripe responded, “not at this time.” Id. at 178.
[9] On December 7, 2017, Cripe requested an attorney, and one was appointed for
him. On January 24, 2018, the sentencing hearing took place. During the
hearing, the trial court found Cripe’s involvement with the drug court program
to be a mitigating factor; in its sentencing order, it found potential hardship
suffered by Cripe and/or Cripe’s dependents by his imprisonment to be another
mitigating factor. The trial court found that Cripe’s lengthy criminal history,
which includes previous convictions for burglary and theft, to be an aggravating
factor. The trial court then sentenced Cripe to concurrent terms of six years for
burglary and two and one-half years for theft, with two years executed, three
years in community corrections, and one year on probation. Cripe now
appeals.
Discussion and Decision I. Due Process [10] Cripe argues that he did not receive minimum due process during the hearing
that resulted in the termination of his participation in the drug court program.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 6 of 15 Specifically, he claims that he received inadequate notice of the alleged program
violation for which he was terminated and was deprived of his right to counsel.
[11] The drug court program is a forensic diversion program akin to community
corrections, and we will review the termination of placement in a drug court
program as we do a revocation of placement in community corrections. Withers
v. State, 15 N.E.3d 660, 663 (Ind. Ct. App. 2014). Our Court has stated that:
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. The similarities between the two dictate this approach. 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. A defendant is not entitled to serve a sentence in either probation or a community corrections program. Rather, placement in either is a matter of grace and a conditional liberty that is a favor, not a right.
While a community corrections placement revocation hearing has certain due process requirements, it is not to be equated with an adversarial criminal proceeding. Rather, it is a narrow inquiry, and its procedures are to be more flexible. This is necessary to permit the court to exercise its inherent power to enforce obedience to its lawful orders. . . .
Id. at 663-64.
[12] Indiana Code section 33-23-16-14.5 governs the termination of an individual’s
participation in a problem solving court program. The statute provides:
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 7 of 15 (c) The problem solving court judge or other hearing officer shall conduct a hearing concerning an alleged violation of a condition of a problem solving court program as follows:
***
(3) The individual who is alleged to have committed the violation is entitled to:
(A) receive written notice of the alleged violation;
(B) obtain the disclosure of evidence against the individual;
(C) confront and cross-examine witnesses; and
(D) be represented by counsel.
I.C. § 33-23-16-14.5.
[13] Cripe first contends that he did not receive adequate written notice of the
alleged violation that led to the termination of his participation in drug court.
The drug court violation report filed by a probation officer stated that:
On November 20, 2017, this Officer was advised that Mr. Cripe is going to be evicted from the Pilot House program on November 21, 2017.
Appellant’s App. Vol. II p. 53.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 8 of 15 [14] This notice was sufficient to apprise Cripe of the alleged violation—that he was
going to be evicted from the Pilot House. Although Cripe contends that the
report does not specify how an eviction could violate the terms of his
participation agreement, one of the special conditions of his participation
agreement was that he had to reside at a halfway facility until further order of
the court; Cripe’s pending eviction was in violation of this condition. Cripe
does not dispute that he was evicted, nor does he contend that he was evicted
for a reason that should not have resulted in the drug court finding a violation
of his participation agreement. Rather, he simply speculates that he could have
been evicted for a reason that would not have resulted in a violation.
[15] Moreover, at both the November 22 and 29 hearings, Cripe was given
opportunities to ask questions; he did not ask any at either hearing. Cripe had
appeared before the drug court multiple times during his time with the program
and had asked questions during at least one previous hearing. Then, at the
November 29 hearing, Cripe admitted to the violation. It is reasonable to infer
that because Cripe asked no questions and admitted to the violation that he
knew and understood his violation. We find, therefore, that Cripe did not
receive inadequate notice of his alleged violation.
[16] Cripe also contends that he was deprived of his right to counsel. At the
November 22, 2017, hearing, the following exchange took place:
Court: The Drug Court team has decided that you be terminated from Drug Court. Do you want an attorney to represent you?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 9 of 15 Cripe: Um, at this point let’s just move forward to sentencing it would be wasting the Court’s time to ask for an attorney I’ve already pled guilty in this case.
Court: You just want to represent yourself and admit that you violated.
Cripe: Yeah.
Tr. Vol. II p. 177.
[17] Cripe argues that this exchange does not show that his waiver of his right to
counsel was knowing, voluntary, and intelligent. To support his assertion, he
analyzes the Poynter factors that this Court considers when determining whether
a waiver of counsel is knowing, voluntary, and intelligent. See Poynter v. State,
749 N.E.2d 1122 (Ind. 2001). But the Poynter factors apply to waiver of counsel
for a criminal defendant entitled to the Sixth Amendment right to counsel at
trial. See Poynter, 749 N.E.2d at 1125-28. An individual participating in a
problem solving drug court is not entitled to the full array of constitutional
rights afforded to defendants at trial, including the Sixth Amendment right to
counsel. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999) (discussing due process
rights for a hearing on a petition to revoke placement in community
corrections). Consequently, Cripe’s right to counsel is bestowed by statute
rather than by constitution. A waiver of a statutory right requires less inquiry
than a waiver of a constitutional right. This is because, for sentencing
alternatives such as problem solving drug courts “to be viable options for
Indiana judges, judges must have the ability to move with alacrity to protect
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 10 of 15 public safety when adjudicated offenders violate the conditions of their
sentences.” Id. at 550. In other words, “obstacles to revoking an alternative
sentence may diminish the likelihood of [the alternative sentence] being made
in the first place.” Id.
[18] The drug court asked Cripe whether he wanted an attorney; when Cripe
declined, the drug court confirmed that Cripe wanted to represent himself.
While Cripe takes issue with the court’s semantics, the record shows that Cripe
invited the court to move forward with his case. Further, Cripe has significant
experience with the criminal justice system, including previous participation
with another problem solving drug court program from which he was also
terminated. In other words, Cripe knew he could have obtained an attorney,
and he intentionally decided to forego having one on November 22. That Cripe
later wrote to the court to ask for an attorney further shows that Cripe knew
that he had a right to an attorney. We find no error with Cripe’s waiver of his
right to counsel at this hearing.6
6 Cripe also contends that his admission to the violation is invalid because he was deprived of his right to counsel. Because we find no error with his waiver of right to counsel, we do not find that his admission was invalid. Cripe then contends that the cumulative effect of the lack of notice and counsel resulted in his being deprived of his required hearing. Based on our conclusions, we find this argument unavailing.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 11 of 15 II. Mitigating Factors [19] Cripe also argues that the trial court erred by not considering two mitigating
factors: Cripe’s guilty plea and the undue hardship Cripe’s dependents would
suffer upon his imprisonment.
[20] Sentencing decisions rest within the sound discretion of the trial court.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g on other
grounds at 875 N.E.2d 218. A trial court may err in its decision if it is clearly
against the logic and effect of the facts and circumstances before the court. Id.
A trial court may err by finding aggravating or mitigating factors that are not
supported by the record, by omitting factors that are clearly supported by the
record and advanced for consideration, or by finding factors that are improper
as a matter of law. Id. at 490-91. “An allegation that the trial court failed to
identify or find a mitigating factor requires the defendant to establish that the
mitigating evidence is both significant and clearly supported by the record.” Id.
at 493.
[21] Our Supreme Court has held “that a defendant who pleads guilty deserves
‘some’ mitigating weight be given to the plea in return.” Anglemyer v. State, 875
N.E.2d 218, 220 (Ind. 2007) (quoting McElroy v. State, 865 N.E.2d 584, 591
(Ind. 2007)). A trial court may attribute little weight to a guilty plea when the
plea “does not demonstrate the defendant’s acceptance of responsibility or
when the defendant receives a substantial benefit in return for the plea.” Id. at
221. A defendant’s decision to plead guilty may be merely pragmatic when the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 12 of 15 evidence is strong against him and thus, his guilty plea is not a mitigating
factor. Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005).
[22] Here, Cripe received a substantial benefit in return for his plea because he was
able to enroll in the drug court program and receive help and treatment for his
problems. Further, Cripe’s guilty plea appears to be merely pragmatic because
there was already strong evidence against him. A camera recorded Cripe
entering and taking several items from his neighbor’s property. A search of
Cripe’s garage revealed the items he took from that property and other items
that had been reported stolen in separate theft cases. The trial court did not err
by declining to find Cripe’s guilty plea to be a mitigating factor.
[23] As for the undue hardship Cripe’s dependents may suffer by his imprisonment,
the trial court did find that factor to be mitigating. Although the trial court did
not mention it during the sentencing hearing, the court included it as a
mitigating factor in its written sentencing order. And while the trial court found
Cripe’s participation in the drug court program to be a mitigating factor during
the sentencing hearing, it did not include that in its sentencing order.
[24] This Court is not confined to either the oral sentencing statement or the written
sentencing order to determine what the trial court found as mitigating and
aggravating factors; instead, we examine both to determine the trial court’s
conclusions. McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). Here, because
the trial court found one mitigating factor during sentencing that was not
included in its sentencing order, and one mitigating factor in its sentencing
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 13 of 15 order that was not mentioned during the hearing, it is reasonable to conclude
that the trial court found both factors to be mitigating. Therefore, the trial court
did not err by not finding any undue hardship on Cripe’s dependents to be a
mitigating factor, because the trial court did, in fact, find it to be a mitigating
factor.
III. Sentence [25] Cripe next argues that the sentence is inappropriate in light of the nature of the
offenses and his character pursuant to Indiana Appellate Rule 7(B). In
considering an argument under Rule 7(B), we must “conduct [this] review with
substantial deference and give ‘due consideration’ to the trial court's decision—
since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and
not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d
1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.
2013)) (internal citations omitted).
[26] Cripe was convicted of Level 5 felony burglary, for which he faced a term of
one to six years imprisonment, with an advisory term of three years. Ind. Code
§ 35-50-2-6(b). The trial court imposed a six-year term. Cripe was also
convicted of Level 6 felony theft, for which he faced a term of six months and
two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-
7(b). The trial court imposed a sentence of two and one-half years. The trial
court ordered the sentences to run concurrently with two years executed, three
years on community corrections, and one year on probation. Had the trial
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 14 of 15 court ordered consecutive terms, Cripe would have received a sentence of eight
and one-half years.
[27] With respect to the nature of the offenses, Cripe burglarized a neighbor’s
property and stole several valuable items from that neighbor. Cripe also broke
into two vehicles, stealing the wallets of each vehicle’s owner.
[28] With respect to Cripe’s character, Cripe now has four felony convictions for
burglary and four felony convictions for theft. He also has a felony conviction
for possession of a controlled substance and misdemeanor convictions for
possession of an alcoholic beverage, driving while suspended, and false
informing. Cripe has repeatedly failed to take advantage of the leniency in
sentencing and the opportunities for rehabilitation that he has received. Most
notably, during his previous participation in a drug court program, he violated
the terms of his placement at least four times, resulting in him serving two years
in the Department of Correction. His violations in the instant case show that
he failed to learn from either of his experiences with a drug court program and
is unable or unwilling to reform his behavior.
[29] Under these circumstances, we find that the sentence imposed by the trial court
is not inappropriate in light of the nature of the offenses and Cripe’s character.
[30] The judgment of the trial court is affirmed.
May, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018 Page 15 of 15