Dominique L. Gooden 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 Dec 13 2017, 8:53 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr. Curtis T. Hill
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dominique L. Gooden, December 13, 2017
Appellant-Defendant, Court of Appeals Case No.
02A05-1708-CR-1999
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1209-FD-1385
Bradford, Judge.
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Case Summary
[1] Appellant-Defendant Dominique L. Gooden was sentenced to two years of
incarceration suspended to probation after she pled guilty to two counts of class
D felony receiving stolen property. On November 13, 2015, a verified petition
for revocation was filed by the State. On December 28, 2015, Gooden admitted
to the violation of her probation and she was placed in the drug court diversion
program (“DCDP”).
[2] On July 10, 2017, a verified petition to terminate Gooden’s participation in the
DCDP was filed by the State. Gooden admitted to two of the three alleged
violations, and she was revoked from DCDP. On July 11, 2017, an amended
petition for revocation of probation was filed based upon the revocation from
DCDP, which the trial court granted on July 13, 2017. On August 15, 2017,
the trial court ordered Gooden to serve her aggregate two-year sentence.
Gooden contends that the trial court abused its discretion in ordering her to
execute her previously suspended sentence. Because we disagree, we affirm.
Facts and Procedural History
[3] On September 28, 2012, the State charged Gooden with three counts of Class D
felony receiving stolen property. On January 17, 2013, Gooden entered into a
plea agreement pursuant to which she pled guilty to two of the charges against
her while the third charge was dismissed. On February 15, 2013, Gooden was
sentenced to an aggregate two-year sentence suspended to probation.
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[4] On February 11, 2015, Gooden’s probation was extended for one year due to
her failure to pay her fees and restitution. On November 13, 2015, the State
filed a verified petition for revocation of probation alleging that Gooden had
committed a new offense of theft in October of 2015, had not maintained full-
time employment, and had not paid fees or restitution in a timely manner. On
December 28, 2015, Gooden admitted the violations of the terms of her
probation, her admissions were taken under advisement, and she was placed in
the DCDP.
[5] A verified petition to terminate Gooden’s participation in the DCDP was filed
on July 10, 2017. In the petition, the State alleged that Gooden had purchased
and ingested heroin and had tested positive for morphine or codeine. The State
also alleged that Gooden had failed to comply with the medication-assisted
treatment at Bowen Center. Gooden admitted to purchasing and ingesting
heroin and to testing positive for morphine and codeine, but denied being non-
compliant with medication-assisted treatment. The trial court revoked Gooden
from DCDP stating “we’re up into the 30s of second chances based on your
participation and where we’ve been.” Tr. Vol. II p. 10. The court further noted
Gooden’s “continued use,”1 “lack of progress in treatment,” and that she had
overdosed repeatedly. Tr. Vol. II p. 10. On July 11, 2017, an amended verified
1
Gooden had ten positive drug screens while participating in the DCDP.
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petition for revocation of probation was filed based upon the revocation from
DCDP, which the trial court granted on July 13, 2017.
[6] On August 15, 2017, the trial court ordered Gooden to serve her suspended
two-year sentence. The trial court noted Gooden’s contact with the juvenile
court system, juvenile drug treatment, administrative probation, three felony
convictions, and one misdemeanor conviction. Tr. Vol. II p. 25. The trial court
further noted the fact that Gooden had been given the benefit of probation,
multiple attempts at treatment, and the DCDP, which Gooden “failed
miserably[,]” in imposing Gooden’s two-year sentence. Tr. Vol. II p. 25.
Discussion and Decision
[7] Probation is a “matter of grace” and a “conditional liberty that is a favor, not a
right.” Marsh v. State, 818 N.E.2d 143, 146 (Ind. Ct. App. 2004) (quoting Cox v.
State, 706 N.E.2d 547, 549 (Ind. 1999)). We review a trial court’s probation
revocation for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 956
(Ind. Ct. App. 2005), trans. denied. If the trial court finds that the person
violated a condition of probation, it may order the execution of any part of the
sentence that was suspended at the time of initial sentencing. Stephens v. State,
818 N.E.2d 936, 942 (Ind. 2004). Proof of a single violation of the conditions
of probation is sufficient to support the decision to revoke probation. Bussberg v.
State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005).
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[8] An abuse of discretion occurs where the decision is clearly against the logic and
effect of the facts and circumstances. Prewitt v. State, 878 N.E.2d 184, 187 (Ind.
2007). As long as the proper procedures have been followed in conducting a
probation revocation hearing, “the trial court may order execution of a
suspended sentence upon a finding of a violation by a preponderance of the
evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999). The
“[c]onsideration and imposition of any alternatives to incarceration is a ‘matter
of grace’ left to the discretion of the trial court.” Monday v. State, 671 N.E.2d
467, 469 (Ind. Ct. App. 1996).
[9] Gooden argues that trial court abused its discretion because her penalty does
not match her offense. Gooden further argues, among other things, that the
trial court should have considered her efforts to treat her addiction. Under the
circumstances of this case, Gooden has failed to establish an abuse of
discretion. There are no allegations that the proper procedures were not
followed in this case, and Gooden admitted that she violated the terms of her
probation by purchasing and ingesting heroin and testing positive for morphine
and codeine. It is worth noting, again, that this was not Gooden’s first
opportunity to reform her behavior while on probation, indicating that she is a
high risk to reoffend.
[10] Moreover, Gooden’s history with the juvenile and criminal justice systems
indicates that the solutions attempted at this point have not been effective in
deterring her from further criminal activity. Gooden has been given countless
opportunities to address her substance-abuse issues. Specifically, the trial court
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sanctioned Gooden seven times before revoking and imposing the suspended
sentence, but she continued to use and overdose. As noted by the trial court,
Gooden was “way past second chances” given all of her past probation
violations and failure to reform. Tr. Vol. II pp. 9–10. Given Gooden’s history
of criminal activity and failed attempts to address her substance abuse, we find
no fault with the trial court’s rationale. Gooden has failed to establish an abuse
of discretion.
[11] We affirm the judgment of the trial court.
Robb, J., and Crone, J., concur.
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