Christopher McGregor v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 26 2018, 6:07 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William Byer, Jr. Curtis T. Hill, Jr.
Byer & Byer Attorney General of Indiana
Anderson, Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher McGregor, February 26, 2018
Appellant-Defendant, Court of Appeals Case No.
48A02-1708-CR-1998
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C04-1407-FA-1189
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018 Page 1 of 6
Case Summary
[1] Christopher McGregor appeals the trial court’s revocation of his placement in
work release. We affirm.
Issue
[2] McGregor raises one issue, which we restate as whether the evidence was
sufficient to demonstrate that he violated a term of his work release.
Facts
[3] In July 2014, McGregor was charged with Class A felony attempted murder,
Class B felony aggravated battery, and Class D felony criminal recklessness. In
April 2015, McGregor pled guilty to Class B felony aggravated battery, and the
trial court sentenced him to nine years in the Department of Correction with
three years suspended. The trial court ordered one year of the executed
sentence to be served in a work release program.
[4] McGregor began his work release placement on April 5, 2017. In May 2017, a
petition to terminate his placement in work release was filed because he was
intoxicated at the work release center. The trial court found that he had
violated the terms of his placement, returned him to work release, revoked one
year of his suspended sentence, and ordered him to serve that additional year in
the Continuum of Sanction Program.
[5] On June 26, 2017, McGregor was found with a green, leafy substance hidden in
his sock. On June 28, 2017, McGregor was found with a green, leafy substance
Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018 Page 2 of 6
hidden in the crotch of his underwear. When asked what the substance was,
McGregor replied that it was “K2 Spice” that was left over after a previous
arrest. Ex. at 9. Additionally, McGregor was alleged to have been in arrears
for his work release fees. Another petition to terminate McGregor’s work
release was filed.
[6] At a hearing in July 2017, McGregor admitted that he was in arrears in the
amount of $321.66. Regarding the possession of spice, the State called Steven
Perry, case manager at the work release center, to testify. The State moved to
admit Exhibits 1 and 2, which were probable cause affidavits regarding the
spice incidents, and McGregor did not object to their admission. The probable
cause affidavits were prepared by two different officers. Perry testified that he
saw the substance officers found in McGregor’s sock and that he believed it to
be spice. McGregor testified that the substance found on June 26, 2017, was
located in a common area, not his sock, and that the substance found on June
28, 2017, did not belong to him. The trial court found that McGregor violated
the terms of his work release, revoked his suspended sentence, and ordered that
his executed sentence be served in the DOC. McGregor now appeals.
Analysis
[7] McGregor argues that the trial court erred by finding that he violated the terms
of his work release. 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. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). “A defendant
is not entitled to serve a sentence in either probation or a community
Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018 Page 3 of 6
corrections program.” Id. “Rather, placement in either is a ‘matter of grace’
and a ‘conditional liberty that is a favor, not a right.’” Id. (quoting Million v.
State, 646 N.E.2d 998, 1002 (Ind. Ct. App. 1995)).
While a community corrections placement revocation hearing
has certain due process requirements, it is not to be equated with
an adversarial criminal proceeding. Id. at 549-50. Rather, it is a
narrow inquiry, and its procedures are to be more flexible. Id.
This is necessary to permit the court to exercise its inherent
power to enforce obedience to its lawful orders. Id. Accordingly,
the Indiana Rules of Evidence in general and the rules against
hearsay in particular do not apply in community corrections
placement revocation hearings. See id. at 550-51; see also Ind.
Evidence Rule 101(c) (providing that the rules do not apply in
proceedings relating to sentencing, probation, or parole). In
probation and community corrections placement revocation
hearings, therefore, judges may consider any relevant evidence
bearing some substantial indicia of reliability. Cox, 706 N.E.2d at
551. This includes reliable hearsay. Id. The absence of strict
evidentiary rules places particular importance on the fact-finding
role of judges in assessing the weight, sufficiency and reliability
of proffered evidence. Id. This assessment, then, carries with it a
special level of judicial responsibility and is subject to appellate
review. Id. Nevertheless, it is not subject to the Rules of
Evidence nor to the common law rules of evidence in effect prior
to the Rules of Evidence. Id.
Our standard of review of an appeal from the revocation of a
community corrections placement mirrors that for revocation of
probation. Id. A probation hearing is civil in nature and the
State need only prove the alleged violations by a preponderance
of the evidence. Id. We will consider all the evidence most
favorable to supporting the judgment of the trial court without
reweighing that evidence or judging the credibility of the
witnesses. Id. If there is substantial evidence of probative value
Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018 Page 4 of 6
to support the trial court’s conclusion that a defendant has
violated any terms of probation, we will affirm its decision to
revoke probation. Id.
Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009).
[8] McGregor argues that Perry did not observe the substances on McGregor and
that the officers responsible for making the probable cause affidavits did not
testify. McGregor relies on his own testimony that the substance in the first
incident was found in a common area and that he does not know anything
about the second substance. In his reply brief, he argues that the probable cause
affidavits “do not comprise reliable hearsay and do not possess the requisite
guarantee of reliability.” Appellant’s Reply Br. p. 4.
[9] McGregor did not object to the admission of the probable cause affidavits, and
we held in Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006), that a
probable cause affidavit bore “substantial indicia of reliability such that the trial
court did not err in taking judicial notice of it.” In support of his argument that
the probable cause affidavits were not reliable, McGregor relies on Baxter v.
State, 774 N.E.2d 1037 (Ind. Ct. App. 2002), trans. denied. However, Baxter
addressed an uncertified, unverified law enforcement incident report, not a
probable cause affidavit. Baxter is not applicable here. The probable cause
affidavits admitted here were substantially reliable.
[10] The probable cause affidavits were evidence that the spice was found in
McGregor’s sock and underwear and that McGregor stated the spice found in
Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018 Page 5 of 6
his underwear was left over from a prior arrest. McGregor’s arguments to the
contrary are merely requests that we reweigh the evidence, which we cannot
do. There is sufficient evidence to support a reasonable inference that
McGregor actually possessed spice on two occasions. McGregor also admitted
that he failed to pay his required fees. The trial court did not err by finding that
McGregor violated the terms of his placement in work release.
Conclusion
[11] The trial court did not err by revoking McGregor’s placement in work release.
We affirm.
[12] Affirmed.
Najam, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018 Page 6 of 6