Jeffrey Hickman v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 29 2017, 8:24 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffery Hickman, June 29, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1603-CR-551
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Michael Rader,
Appellee-Plaintiff. Judge
Trial Court Cause Nos.
84D05-1211-FD-3627
84D05-1210-FD-3404
Brown, Judge.
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[1] Jeffery Hickman appeals the trial court’s order finding that he violated the terms
of drug court, entering judgments of conviction, and sentencing him. Hickman
raises one issue which we revise and restate as whether the court erred or
abused its discretion in entering judgments of conviction and sentencing him.
We affirm.
Facts and Procedural History
[2] On October 25, 2012, the State charged Hickman under cause number 84D05-
1210-FD-3404 (“Cause No. 3404”) with: Count I, operating a vehicle while
intoxicated endangering a person as a class A misdemeanor; and Count II,
operating a vehicle while intoxicated endangering a person as a class D felony.
On November 19, 2012, the State charged Hickman under cause number
84D05-1211-FD-3627 (“Cause No. 3627”) with: Count I, operating a vehicle
while intoxicated endangering a person as a class A misdemeanor; Count II,
resisting law enforcement as a class D felony; Count III, resisting law
enforcement as a class A misdemeanor; and Count IV, operating a vehicle
while intoxicated endangering a person as a class D felony.
[3] On April 10, 2013, Hickman entered into an “OVWI DRUG COURT
AGREEMENT” addressing both Cause No. 3404 and Cause No. 3627.
Appellant’s Appendix Volume 2 at 35. The agreement provided that Hickman
would enter a plea of guilty under Cause No. 3404 to Count II, operating a
vehicle while intoxicated endangering a person as a class D felony, and under
Cause No. 3627 to Count IV, operating a vehicle while intoxicated endangering
a person as a class D felony. The agreement provided that all other counts
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would be dismissed and that entry of judgments of conviction and imposition of
sentence were postponed for a period of thirty-six months from the date of the
guilty plea. It also provided that Hickman acknowledged that compliance with
the Drug Court Program required abstinence from alcohol and all controlled
substances listed in Schedules I, II, III, IV, and V of the Indiana Code and that
he participate fully in a program of substance abuse treatment and counseling.
The agreement stated that if Hickman satisfactorily complied with the
conditions, then upon the expiration of thirty-six months from the entry of the
guilty plea, the prosecutor would consent to the court entering an order
allowing Hickman to withdraw his guilty plea, and if the court allowed the
withdrawal, the prosecutor would then move for dismissal. The agreement
further provided:
5. The Defendant understands that by entering this agreement he
. . . consents to the jurisdiction of the Court over his . . . person
for the period of 36 months from the entry of a guilty plea.
6. In the event the Prosecutor has probable cause to believe that
there has been a violation of any of the conditions upon which
the entry of a judgment of conviction and the imposition of
sentence have been deferred, the Prosecutor may file a written
motion with the Court requesting the entry of a judgment of
conviction on the Defendant’s plea of guilty and sentencing. The
Prosecutor’s motion shall set forth the date, the place, and the
nature of the alleged violation of any condition upon which the
entry of judgment and the imposition of sentence were
postponed. The Court may issue either a summons to appear or
a warrant for the Defendant’s arrest and shall conduct an
evidentiary hearing to decide whether a condition has been
violated by the Defendant as alleged in the motion. The
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Defendant shall be entitled to be represented by an attorney at
the hearing. If the Court finds that a violation has occurred then
the Court may immediately enter a judgment of conviction on
the Defendant’s plea of guilty, and the Court may immediately
impose a sentence according to the statutory guidelines.
*****
9. The Defendant understands and agrees that failure to appear
for court dates, treatment appointments, or urinalysis testing, and
positive urinalysis test results constitute violations of the
conditions of the Agreement and will result in imposition of
sanctions, a warrant being issued for his or her arrest, and may
result in termination from the program.
Id. at 37-38.
[4] On December 16, 2015, the court held a hearing at which Hickman and his
lawyer were present. The court stated: “Okay, now you were to screen at Club
Soda on December 8th and it says here, screened a day late with a positive for
opiates that were confirmed.” Transcript at 72. After some discussion, the
court stated: “We got a confirmed screen here, so I am going to assess twenty-
four hours of community service and I want some of that done by January 6th,
but not necessarily all of it.” Id. at 73-74.
[5] On December 21, 2015, the State filed a petition to enter judgment of
conviction. The petition alleged that Hickman violated the terms of the
agreement by failing drug testing on December 9, 2015, by testing positive for
opiates.
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[6] On December 30, 2015, Hickman filed a motion to dismiss the State’s petition
and argued that any additional sanctions or punishment beyond the twenty-four
hours of community service ordered at the December 16, 2015 hearing would a
violate res judicata and double jeopardy principles.
[7] On January 11, 2016, the court held a hearing and addressed Hickman’s
motion to dismiss. The court stated in part: “It hasn’t been litigated. I haven’t
heard anything.” January 11, 2016 Transcript at 2. The court also referred to
the December 16, 2015 hearing as a status hearing and stated: “I can’t just ex
parte, State not here, do something and then say oh by the way, sorry, your
petition is void, it’s dismissed. I can’t do that.” Id. at 4. The court stated that it
“issued a sanction and a punishment after having heard evidence from not the
deputy prosecutor, but from an agent of the state, that there was an allegation of
a positive test.” Id. at 6. The prosecutor stated: “No, no, that’s not an agent of
the state, that is an arm of the court. That is not an agent of the state.” Id. The
court stated: “I think it’s the court talking to itself, I tend to agree with that.”
Id. The court scheduled an evidentiary hearing for February 8, 2016. After a
continuance, the court held an evidentiary hearing on February 22, 2016.
[8] On February 25, 2016, the court entered an order finding that Hickman violated
the terms of the Drug Court as follows:
[Hickman] tested positive on a drug screen on December 9, 2015.
The Court finds [Hickman] has a history of deception.
[Hickman] advised he volunteered to enroll in the Community
Christian Counseling Program and maintain compliance with
that program while in the Drug Court Program. The Court is
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advised [Hickman] failed to appear on three (3) separate
appointments made by that program and has not followed up
with any further appointments or counseling. Further,
[Hickman] did not keep an appointment with Choices Consulting
on January 11, 2016.
Appellant’s Appendix Volume 2 at 71. The court entered judgments of
conviction under Cause Nos. 3404 and 3627 and sentenced Hickman to three
years under Cause No. 3404 and a consecutive sentence of three years under
Cause No. 3627.
Discussion
[9] The issue is whether the trial court erred or abused its discretion in entering
judgments of conviction and sentencing Hickman. Hickman argues that the
imposition of twenty-four hours of community service and his sentence
constitute a violation of the prohibition against double jeopardy. He
alternatively argues that the doctrine of res judicata bars relitigation.
[10] The State contends that the principles of double jeopardy are inapplicable to
drug court revocation proceedings and that, even if a double jeopardy analysis
was applicable, the record shows that Hickman was revoked from drug court
for more than one positive drug screen. The State also argues that its
revocation petition and subsequent proceeding were not barred by res judicata
because the issues in the two sanction proceedings were entirely different and
the State did not seek or secure the community service sanction imposed by the
trial court.
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[11] Ind. Code § 33-23-16-5 defines a “drug court” as “a problem solving court
focused on addressing the substance abuse issues of defendants or juveniles in
the criminal justice system . . . .” Ind. Code § 33-23-16-8 defines a “problem
solving court” as “a court providing a process for immediate and highly
structured judicial intervention for eligible individuals . . . .” “A problem
solving court and [its] accompanying services . . . are available only to
individuals over whom the court that established the problem solving court has
jurisdiction.” Ind. Code § 33-23-16-12(a). 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).
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.
Id. at 663-664 (quoting Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App.
2009)). Generally, we will review a trial court’s sentencing decisions for drug
court violations for an abuse of discretion. Id. at 665. An abuse of discretion
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occurs where the decision is clearly against the logic and effect of the facts and
circumstances. Id. We review a trial court’s legal conclusions regarding double
jeopardy de novo. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011).
[12] Generally, defendants “who plead guilty to achieve favorable outcomes give up
a plethora of substantive claims and procedural rights, such as challenges to
convictions that would otherwise constitute double jeopardy.” Debro v. State,
821 N.E.2d 367, 372 (Ind. 2005) (quoting Lee v. State, 816 N.E.2d 35, 40 (Ind.
2004) (quotation omitted)). See id. (observing that the agreement the defendant
reached with the State provided him with the significant benefit of the
possibility of no criminal conviction for his admitted criminal conduct and
holding that the defendant could not be heard to complain following his failure
to fulfill his part of the agreement).
[13] The OVWI Drug Court Agreement provided that Hickman understood and
agreed that a positive urinalysis test result constitutes a violation of the
conditions of the agreement and “will result in imposition of sanctions, a
warrant being issued for his or her arrest, and may result in termination from
the program.” Appellant’s Appendix Volume 2 at 38. The agreement also
provided that the prosecutor may file a written motion requesting entry of
judgment of conviction and that, if the court finds that a violation occurred, it
may immediately enter a judgment of conviction on Hickman’s plea of guilty.
The agreement Hickman reached with the State provided him with a significant
benefit, the possibility of no criminal conviction for his admitted criminal
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conduct. Even assuming that Hickman did not waive his argument, we cannot
say that reversal is warranted.
[14] The Fifth Amendment to the United States Constitution provides that no
person shall “be subject for the same offense to be twice put in jeopardy of life
or limb.” Article 1, Section 14 of the Indiana Constitution provides that “[n]o
person shall be put in jeopardy twice for the same offense.”
[15] As we have noted, “Drug Court is a forensic diversion program akin to
community corrections and probation.” Withers, 15 N.E.3d at 665. In Childers
v. State, 656 N.E.2d 514, 517 (Ind. Ct. App. 1995), trans. denied, we held that a
violation of a condition of probation does not constitute an offense within the
purview of double jeopardy analysis and that the double jeopardy clause was
not implicated by a second probation revocation hearing. In McQueen v. State,
862 N.E.2d 1237, 1243 (Ind. Ct. App. 2007), we stated that “[r]evocation
proceedings are based upon violations of probation conditions rather than upon
the commission of a crime, and the finding of whether a defendant has
complied with these conditions is a question of fact and not an adjudication of
guilt.” We also held in McQueen that a violation of a condition of community
corrections does not constitute an offense within the purview of double
jeopardy analysis. 862 N.E.2d at 1244. Based upon our decisions in Childers
and McQueen, we find unpersuasive Hickman’s argument that the trial court
violated double jeopardy. See also Johnson v. State, 512 N.E.2d 1090, 1092 (Ind.
1987) (rejecting the appellant’s claim that the trial court erred in placing him in
double jeopardy because of the State’s moving forward in a probation
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revocation proceeding on the same charges in the criminal case); Kincaid v.
State, 736 N.E.2d 1257, 1259 (Ind. Ct. App. 2000) (holding that a violation of a
condition of probation does not constitute an offense within the purview of
double jeopardy analysis), reh’g denied; Shumate v. State, 718 N.E.2d 1133, 1135
(Ind. Ct. App. 1999) (holding that the Double Jeopardy Clause does not apply
to probation revocation proceedings and that the trial court did not violate the
Double Jeopardy Clause by subjecting the defendant to a second probation
revocation hearing); Ashba v. State, 570 N.E.2d 937, 940 (Ind. Ct. App. 1991)
(observing that the law in this jurisdiction is well settled that a violation of a
condition of probation does not constitute an offense for purposes of double
jeopardy), aff’d by 580 N.E.2d 244 (Ind. 1991), cert. denied, 503 U.S. 1007, 112 S.
Ct. 1767 (1992).
[16] With respect to Hickman’s argument regarding res judicata, the Indiana
Supreme Court has held that “[r]es judicata is a legal doctrine intended ‘to
prevent repetitious litigation of disputes that are essentially the same, by
holding a prior final judgment binding against both the original parties and their
privies.’” Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 993 (Ind. 2014)
(quoting Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013)). “It applies ‘where
there has been a final adjudication on the merits of the same issue between the
same parties.’” Id. (quoting Gayheart v. Newnam Foundry Co., Inc., 271 Ind. 422,
426, 393 N.E.2d 163, 167 (1979)). The Indiana Supreme Court has said:
Stated in more detail:
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1. the former judgment must have been rendered by a court of
competent jurisdiction;
2. the former judgment must have been rendered on the merits;
3. the matter now in issue was or might have been determined in
the former suit; and
4. the controversy adjudicated in the former suit must have been
between the parties to the present action or their privies.
Id. (citing Chemco Transp., Inc. v. Conn, 527 N.E.2d 179, 181 (Ind. 1988)). If any
element is absent, res judicata does not apply. Id.[17] We addressed a similar issue in Montgomery v. State, 58 N.E.3d 279 (Ind. Ct.
App. 2016). In that case, the trial court sentenced Montgomery to thirteen
years with five years suspended and ordered that he serve the final four years of
his nonsuspended term on “active adult probation.” 58 N.E.3d at 280. On
June 19, 2015, the trial court assigned Montgomery from the Indiana
Department of Correction to the Allen County Community Transition Program
and ordered him to comply with certain conditions of reentry. Id. In its order,
the court informed Montgomery that, “[i]f probation was imposed in the
original sentence, then the defendant shall report to the Probation Department
as directed . . . .” Id. On August 27, the State filed a petition to revoke
Montgomery’s placement in the transition program and alleged in part that he:
Did not maintain good behavior. On or about August 24, 2015[,]
the defendant is alleged to have committed the offense of
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Interfering with a Drug or Alcohol Screening Test and
Possession of a Devi[c]e or Substance Used to Interfere with a
Drug or Alcohol Screening, a Class B misdemeanor as referenced
in cause number 02D05-1508-CM-3278.
Id. On August 31, the trial court revoked Montgomery’s placement in the
transition program, further revoked sixty days of actual credit time from
Montgomery’s sentence, and then referred him to the Allen County Probation
Department “for further action.” Id. On September 2, the State filed its
petition to revoke Montgomery’s probation. Id. In particular the State alleged
that Montgomery:
1. Did not maintain good behavior. On August 31, 2015, the
defendant was terminated from the Re–Entry Program while
serving the executed portion of his sentence.
2. Did not maintain good behavior. On August 24, 2015, the
defendant is alleged to have committed the offense of Interfering
with a Drug or Alcohol Screening Test, a Class B Misdemeanor,
as referenced in the affidavit of probable cause in cause number
02D05-1508-CM-3278.
Id. The trial court revoked Montgomery’s probation and ordered him to serve
five years in the Department of Correction. Id.
[18] On appeal, Montgomery argued that the court’s revocation of both his
placement in the transition program and his probation violated the doctrine of
res judicata. Id. at 281. We noted that probation was a matter of grace left to
trial court discretion. Id. We held:
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We cannot agree that the trial court’s subsequent revocation of
Montgomery’s probation was barred by its prior revocation of his
placement in the transition program. In the language of res
judicata, the matter in issue before the court during the probation
revocation proceedings—Montgomery’s placement on
probation—was simply not the same matter in issue before the
court during the revocation proceedings on his placement in the
transition program. And we are not persuaded by Montgomery’s
suggestion that the court was obliged to consider and determine
those two separate matters once and for all during the revocation
proceedings for his placement in the transition program.
Placement on probation and placement in a community
transition program are not one and the same, and the court’s
consideration of those options is not mutually exclusive. Rather,
those options are two of many tools in the trial court’s toolbox
for the court’s use in the administration and supervision of a
defendant’s sentence, over which the court has continuing
jurisdiction. We conclude that the trial court’s revocation of
Montgomery’s probation was not barred by res judicata and was
not otherwise an abuse of the trial court’s discretion.
Accordingly, we affirm the trial court’s judgment.
Id. at 281-282.
[19] Here, at the December 16, 2015 status hearing, the court discussed Hickman’s
positive screen for opiates and ordered that he complete twenty-four hours of
community service. We cannot say that the matter of a sanction under the
Drug Court program at the December 16, 2015 hearing was the same matter at
issue following the State’s petition to enter judgment of conviction where the
court considered other Drug Court violations as well in terminating Hickman
from the program and entering judgments of conviction. See Montgomery, 58
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N.E.3d at 281-282. We also observe that the prosecutor was not present at the
December 16, 2015 status hearing. We cannot say that the controversy
previously adjudicated was between the parties to the present action.
Accordingly, we cannot say that res judicata barred the entry of judgments of
conviction.
Conclusion
[20] For the foregoing reasons, we affirm the trial court’s entry of judgments of
conviction in Cause No. 3404 and Cause No. 3627.
[21] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
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