Mark Alan Foutch v. State of Indiana (mem. dec.) , 121 N.E.3d 137 ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 17 2019, 10:03 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
Jennifer A. Joas Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark Alan Foutch, January 17, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1954
v. Appeal from the Jefferson Circuit
Court
State of Indiana, The Honorable Darrell M. Auxier,
Appellee-Plaintiff Judge
Trial Court Cause No.
39C01-1704-F3-373
Altice, Judge.
Case Summary
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[1] Mark A. Foutch appeals the revocation of his placement in community
corrections. He contends that the trial court abused its discretion by ordering
him to serve the remainder of his previously suspended sentence in prison.
[2] We affirm.
Facts & Procedural History
[3] In April 2017, the State charged Foutch with Level 3 felony robbery, Level 5
felony criminal confinement, and Level 6 felony possession of
methamphetamine. Foutch later pled guilty, pursuant to a plea agreement, to
Level 5 felony criminal confinement, and the other two counts were dismissed.
The plea agreement provided for a three-year prison sentence suspended to
community corrections. On October 18, 2017, the trial court accepted the plea
agreement, sentenced Foutch accordingly, and placed him on supervised
probation through Jefferson County Community Corrections for 913 days.
[4] On March 7, 2018, the State filed a verified petition to revoke Foutch’s
community corrections placement. The State alleged that Foutch had violated
his placement by, among other things, committing new criminal offenses,
testing positive for methamphetamine on two separate occasions, and being
noncompliant with Centerstone treatment services. The trial court held a
factfinding hearing on May 2, 2018, regarding the petition.
[5] At the revocation hearing, Ani Bridges, Foutch’s community corrections case
manager, testified that Foutch was provided three drug screens during his
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placement. He failed two of them, testing positive for methamphetamine on
January 31, 2018 and February 14, 2018. Additionally, Bridges testified that
Foutch had been required to participate in substance abuse treatment at
Centerstone. After his third appointment on January 16, 2018, Foutch stopped
attending Centerstone, claiming lack of transportation and “stressors at home”.
Transcript at 16.
[6] Additionally, the State presented evidence that Foutch had been arrested and
charged with new criminal offenses that allegedly occurred near the end of
February 2018. Foutch was charged with possession of methamphetamine,
unlawful possession of a hypodermic needle, criminal mischief, and theft.
Officer Christopher Trapp with the City of Madison Police Department testified
and provided details of the arrest and the evidence and contraband found in
Foutch’s home.1 Foutch bonded out after this new arrest and was placed on
lockdown by community corrections. Thereafter, he had six different days of
electronic monitoring violations. He was arrested and reincarcerated in the
Jefferson County Jail on March 8, 2018.
[7] Foutch testified at the revocation hearing and acknowledged that he was still
having “a little bit” of substance abuse issues at the time he was placed on
community corrections. Id. at 33. He testified that he used methamphetamine
only twice during his time in community corrections and that he did so because
1
Among other things, officers recovered a syringe loaded with methamphetamine from a nightstand in the
bedroom Foutch shared with his girlfriend. A number of other used syringes were also in the same location.
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of life stressors, including unemployment, utilities being shut off, and sick
relatives. Foutch testified that transportation issues kept him from following
through with treatment at Centerstone.
[8] At the conclusion of the evidence, the trial court found that Foutch had violated
the terms of his probation by using illegal drugs. The court noted, specifically,
the two times Foutch tested positive for methamphetamine. Thereafter, at the
sentencing hearing on June 27, 2018, the trial court revoked the balance of
Foutch’s suspended sentence. Foutch now appeals.
Discussion & Decision
[9] It is well established that probation is a matter of grace left to trial court
discretion, not a right to which a criminal defendant is entitled. 2 Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). Once a trial court has exercised its grace by
ordering probation rather than incarceration, the trial court has considerable
leeway in deciding how to proceed. Id. Accordingly, a trial court’s sentencing
decisions for probation violations are reviewable for an abuse of discretion and
reversible only where the decision is clearly against the logic and effect of the
facts and circumstances. Id. “If the court finds the defendant has violated a
condition of his probation at any time before the termination of the
probationary period, and the petition to revoke is filed within the probationary
2
The same is true with respect to placement in a community corrections program. See Monroe v. State, 899
N.E.2d 688, 691 (Ind. Ct. App. 2009) (“Both probation and community corrections programs serve as
alternatives to commitment to the DOC and both are made at the sole discretion of the trial court.”).
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period, then the court may order execution of the sentence that had been
suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App. 2007); see also
Ind. Code § 35-38-2-3(h) (listing three sanctions that may be imposed upon the
finding of a violation: (1) continue the person on probation with or without
modification; (2) extend the probationary period; or (3) order execution of all or
part of the sentence that was suspended at the time of the initial sentencing).
[10] On appeal, Foutch concedes that he violated probation by failing two drug
screens. He contends only that his violation did not warrant a revocation of his
entire suspended sentence. In other words, he claims the trial court abused its
discretion with respect to the sanction imposed. We cannot agree.
[11] We initially observe that Foutch received a tremendous benefit under the
original plea agreement. Not only was a Level 3 felony charge dismissed, but
the agreement provided for him to serve the advisory sentence of three years for
his Level 5 felony offense in community corrections rather than prison. The
trial court accepted the plea agreement despite Foutch’s significant, multi-state
criminal history and prior probation violations.
[12] Instead of seizing upon this opportunity of leniency, Foutch tested positive for
methamphetamine a few months later in January and February 2018.
Additionally, around this same time, he failed to follow through with required
substance abuse treatment and was arrested for new criminal offenses. He was
placed on lockdown after being released from jail on bail and proceeded to
violate his electronic monitoring on several days.
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[13] Before revoking the balance of Foutch’s suspended sentence, the trial court
stated, “[Foutch] has performed poorly while on Community Corrections and
as a result the Court does not feel it is advisable for [him] to remain on
probation.” Transcript at 50. The trial court acted well within its discretion.
[14] Judgment affirmed.
Najam, J. and Pyle, J., concur.
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