Jerry L. Berkley, Jr. v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 09 2019, 10:25 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
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General
Brooklyn, Indiana Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jerry L. Berkley, Jr., December 9, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1555
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Michael Rader,
Appellee-Plaintiff Judge
Trial Court Cause Nos.
84D05-1604-F5-1029
84D05-1406-CM-1566
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1555 | December 9, 2019 Page 1 of 7
Case Summary
[1] Jerry L. Berkley, Jr. appeals the trial court’s order revoking his probation and
executing the balance of his suspended sentence of six years. He argues that the
trial court abused its discretion in ordering him to serve his full six-year
sentence in the Indiana Department of Correction (“DOC”). Finding no error,
we affirm.
Facts and Procedural History
[2] On April 18, 2016, in cause number 84D05-1604-F5-1029, the State charged
Berkley with four counts: class A misdemeanor operating a vehicle while
intoxicated; class A misdemeanor operating a vehicle with an ACE of .15 or
more; level 5 felony operating a motor vehicle after forfeiture of license for life;
and level 6 felony operating a vehicle while intoxicated based on a prior
conviction under cause number 84D05-1406-CM-1566. The State also filed a
notice of intent to seek habitual vehicular substance offender status, alleging
that Berkley had three previous convictions for operating a vehicle while
intoxicated, one in 2015 and two in 2000. On March 27, 2017, Berkley agreed
to plead guilty to level 6 felony operating a vehicle while intoxicated and to the
habitual vehicular substance offender enhancement. The trial court sentenced
Berkley to a total of seven years, two years for the level 6 felony conviction and
five years for the enhancement, with one year to be served on home detention
and six years suspended to formal probation. Appellant’s App. Vol. 2 at 87.
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[3] On October 14, 2017, the State filed a petition to revoke home detention
placement, alleging that Berkley had violated the terms of his placement by
failing to maintain contact as required by Vigo County Community
Corrections, refusing to submit to testing three times, and possessing or using a
controlled substance, based on one of his drug screens testing positive for Spice.
Id. at 96-97. On November 2, 2017, Berkley admitted that he violated the terms
of his home detention placement. Id. at 108. The trial court found that Berkley
violated the terms of his home detention placement and ordered that he be
evaluated by Community Corrections for placement in the Home Detention
Program. Community Corrections determined that Berkley was not
appropriate for placement in the Home Detention Program. Id. at 109-10.
Berkley then served the remaining time of his home detention in Vigo County
Jail.
[4] On January 10, 2018, Berkley started formal probation. Id. at 109-11. On
August 14, 2018, the State filed a notice of probation violation, alleging that
Berkley failed to report to Adult Probation and failed to provide proof of
enrollment at Substance Abuse Treatment. The trial court issued an amended
order, directing that Berkley be evaluated for placement in the Jail Linkage
Program, but that placement was determined to be inappropriate for Berkley.
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On October 4, 2018, the trial court then ordered that Berkley be evaluated for
placement at Club Soda. 1 Berkley was accepted into Club Soda.
[5] On March 14, 2019, the State filed an amended notice of probation violation,
alleging that Berkley had been charged with class B misdemeanor public
intoxication and class B misdemeanor possession of a synthetic drug or a
synthetic drug lookalike. Id. at 135. On May 15, 2019, the State filed a second
amended notice of probation violation, alleging that Berkley tested positive for
Spice three times, failed to report for drug screens five times, failed to call the
drug screen notification system four times, and failed to report to his probation
officer. Id. at 139.
[6] On May 23, 2019, the trial court held a probation violation hearing. Berkley
admitted that he failed the drug screen and that he had a substance abuse
problem. The trial court found that Berkley violated the conditions of
probation by failing three drug screens, failing to call the drug screen
notification system four times, and failing to report to the probation officer.
Regarding a suitable sanction for the violations, Berkley’s probation officer
indicated that either work release or home detention would be appropriate. Tr.
Vol. 2 at 9. The State agreed and requested that Berkley be placed on home
detention for one year. Id. at 10. Berkley informed the court that he had
arranged to be readmitted to Club Soda for a 180-day program and asked to be
1
Apparently, Club Soda is some type of residential facility that offers recovery programs for sober living.
Appellant’s App. Vol. 2 at 130.
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allowed to enter the program. In determining sanctions, the trial court noted
that this was Berkley’s fourth conviction for driving while intoxicated and that
treatment programs that had been offered to him had apparently been
unsuccessful. Id. In addition, the trial court explained,
[T]he problem that I see is [your] … behavior puts the public at
risk. So we’ve, you know we’ve tried the usual things. It doesn’t
seem to be working… I think you need to go over to the DOC
and go through one of their programs and at least get a wake up
call that the community is not going to tolerate … repeat drunk
driving. I mean what am I supposed to do? Wait until you kill
somebody?
Id. at 11. The trial court revoked Berkley’s probation and ordered him to serve
the balance of his six-year suspended sentence in the DOC. The trial court also
ordered that a modification of Berkley’s sentence be considered upon his
successful completion of a clinically indicated addiction recovery treatment
program. This appeal ensued.
Discussion and Decision
[7] Probation is a matter of grace left to the trial court’s sound discretion, not a
right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184,
188 (Ind. 2007). The trial court sets the conditions of probation and may
revoke probation if the probationer violates those conditions. Id. We review a
trial court’s probation violation determination for an abuse of discretion.
Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014). An abuse of
discretion occurs where the trial court’s decision is clearly against the logic and
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effect of the facts and circumstances before it or where the trial court
misinterprets the law. Id. In determining whether a trial court has abused its
discretion, we neither reweigh evidence nor judge witness credibility. Ripps v.
State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2014). Instead, we consider
conflicting evidence in the light most favorable to the trial court’s ruling. Id.
[8] Probation revocation is a two-step process, wherein the trial court first makes a
factual determination as to whether the probationer violated the terms of his
probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). The violation of a
single condition of probation is sufficient to revoke probation, Snowberger v.
State, 938 N.E.2d 294, 296 (Ind. Ct. App. 2010), and the violation need not
involve a criminal act. See, e.g., Stephens v. State, 818 N.E.2d 936, 938 (Ind.
2004) (where violation consisted of missing two psychosexual counseling
sessions). Once the trial court has found that even a single violation has been
committed, the court may impose one or more of the following sanctions: (1)
continue probation, with or without modifying or enlarging the conditions; (2)
extend the probationary period for not more than one year beyond the original
probationary period; or (3) order execution of all or part of the sentence that
was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(h).
[9] Here, the trial court was well within its statutory authority to order execution of
all six years of Berkley’s previously suspended sentence. Nevertheless, Berkley
argues that the trial court’s sanction of the maximum allowable sentence in the
harshest placement possible amounts to an abuse of discretion because his
probation officer and the prosecutor opined that home detention or work
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release for a year or more was the appropriate disposition and Berkley had
arranged for enrollment in a 180-day addiction treatment program and had
obtained secure housing and employment. We are unpersuaded.
[10] The record shows that Berkley has been convicted of operating while
intoxicated four times. He has been offered probation and treatment programs
but has not been able to curb his behavior and seemingly does not understand
the danger he presents to himself and others. The trial court determined that
Berkley had committed thirteen violations of his probation. Disturbingly, the
vast majority of the violations are related to his drug usage. It is clear that
Berkley requires something more than has already been offered to help him
overcome his substance abuse issues and to emphasize that driving while
intoxicated is unacceptable. While incarcerated, Berkley will be offered an
addiction recovery treatment program. His successful completion of that
program may result in a modification of his sentence. Under the circumstances
presented here, we cannot say that the trial court abused its discretion in
ordering Berkley to serve the balance of his suspended sentence in the DOC.
Accordingly, we affirm.
[11] Affirmed.
May, J., and Pyle, J., concur.
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