Devin M. Reith v. State of Indiana (mem.dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 11 2019, 8:47 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John M. Haecker Curtis T. Hill, Jr.
Auburn, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Devin M. Reith, March 11, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2440
v. Appeal from the DeKalb Superior
Court
State of Indiana, The Honorable Monte L. Brown,
Appellee-Plaintiff. Judge
Trial Court Cause No.
17D02-1702-F5-14
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2440 | March 11, 2019 Page 1 of 13
Case Summary
[1] Devin M. Reith appeals the trial court’s revocation of his probation and the
imposition of his previously-suspended sentence. We affirm.
Issues
[2] Reith raises a single issue on appeal, which we restate as follows:
I. Whether the trial court abused its discretion when it
revoked Reith’s probation.
II. Whether the trial court erred when it imposed Reith’s
previously-suspended sentence.
Facts
[3] On February 22, 2017, Reith struck Evan Rehl in the head with a shovel and
caused Rehl to suffer a deep laceration on the left side of his head. The incident
occurred in DeKalb County. On February 22, 2017, the State charged Reith
with battery, a Level 5 felony. On July 31, 2017, Reith pleaded guilty to one
count of battery, a Level 5 felony. The plea agreement provided the following
“additional, specific” terms: “As a term of probation, [Reith] must get
counseling and apply for Recovery Works.” 1 Appellant’s App. Vol. II p. 31.
1
According to the Family and Social Services Administration’s website:
Recovery Works focuses on pre-incarceration diversion services and post-incarceration
re-entry services, which not only hopes to divert low-level offenders from incarceration to
community services, but to reduce recidivism by 20%, as well. Promoting recovery
through community support and treatment/intervention is critical in reducing the
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[4] At Reith’s guilty plea hearing, the trial court asked defense counsel, “[J]ust so
I’m clear, what counseling is contemplated as a possibility?” Defense counsel
responded, “[P]robation will probably look into that Judge, but, they, they may
contemplate, um, an anger management class and/or, um, some substance
abuse stuff. You know, that’s, that’s how we always end up in these sort of
situations.” Tr. Vol. II p. 12. The trial court then asked Reith, “[Do] you
understand that [ ]?” Id. Reith responded, “Yes.” Id. The trial court accepted
the plea agreement.
[5] At Reith’s sentencing hearing on August 28, 2017, counsel for the State argued
that the attack on Rehl was “somewhat fueled if not largely fueled by a
substance abuse issue[.]” Id. at 20. Defense counsel stated,
. . . [Reith]’s had some subst-some substance abuse, uh, issues.
Um, and substance abuse played a big part in what was going on
this evening . . . . I think . . . the State may have hit the nail right
on the head in that, uh, . . . it’s time to get a handle of things, it’s
time to deal with the substance abuse, and [Reith] has his first
child, uh, coming due in November and, uh, maybe that will also
be, uh, a motivation for some maturity, um, into take, uh, this
substance abuse, uh, counseling, maybe some, some of the other
counseling as recommended seriously.
number of persons with mental health and addiction disorders that are entering our
criminal justice system.
https://www.in.gov/fssa/dmha/2940.htm (last visited Feb. 26, 2019).
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Id. at 21. The trial court sentenced Reith to five years in the Department of
Correction, ordered 248 days to be executed in the Department of Correction,
and suspended four years and 117 days to probation. The court gave Reith 186
actual days of accrued credit time and deemed the executed portion of Reith’s
sentence already served at sentencing. In releasing Reith to probation, the trial
court stated: “. . .[T]here are formal rules of probation, it will include Recovery
Works, that sort of thing. Um, Devin, again, I, I just can’t stress enough the
importance of towing [sic] the line. You’re at the end of the line. Okay?” Id. at
25.
[6] The Rules of Probation entered as to Reith included the following: “You shall
not possess, use, sell, distribute, or have in your control any controlled
substances or synthetic drugs without a prescription”; and “[y]ou shall undergo
an assessment for possible program placement, if assessment is deemed
necessary by the staff with the DeKalb County Courts. You shall satisfactorily
complete any program indicated by [the] assessment.” Appellant’s App. Vol. II
pp. 95-96. Reith signed the written rules of probation that outlined the
conditions of his probation on August 28, 2017. The rules of probation stated,
in part: “You shall undergo assessment for possible program placement, if
assessment is deemed necessary . . . .[y]ou shall satisfactorily complete any
program indicated by assessment.” Id. at 96.
[7] On September 5, 2017, the trial court entered its order and judgment for felony
sentencing, which included the following provisions:
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*****
8. For the conviction of the criminal offense of Battery, a Level 5
Felony, the Court sentences [Reith] to 5 years of incarceration at
the Indiana Department of Correction[ ] or the DeKalb County
Jail 248 days to be served as an executed sentence followed by 4
years and 117 days of suspended sentence upon his compliance
with the Rules, Terms and Conditions of Probation, to be
supervised by the DeKalb County Probation Department.
*****
11. Written Rules of Probation have been reviewed with [Reith]
in open Court, he has signed them promising that he will obey
them, he has been given a copy of' them, and he is Ordered to
comply with them. Said Rules are incorporated herein and made
a part of this Order by reference thereto. Said Rules, which
include a requirement that [Reith] successfully complete the
Recovery Works Program, are incorporated herein and made a
part of this Order by reference thereto.
Id. at 100-01. Reith subsequently underwent an assessment, which yielded
recommendations that Reith should complete anger management classes and a
substance abuse program administered by the Northeastern Center.
[8] On April 25, 2018, Reith tested positive for amphetamine and
methamphetamine. On May 24, 2018, the State filed a petition to revoke
Reith’s probation due to the failed drug tests and his failure to participate in the
Northeastern Center’s substance abuse program.
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[9] The trial court conducted a hearing on the petition to revoke Reith’s probation
on September 10, 2018. Johanna Scott of the DeKalb Probation Department
testified that, as part of his probation, Reith “was ordered to complete an Anger
Management Program and then follow through with Northeastern Center”; and
that, although Reith completed the anger management program, he failed to
complete substance abuse counseling with the Northeastern Center. Tr. Vol. II
p. 40. Under direct examination of probation officer Scott, the following
exchange occurred:
Q. Uh, Ms. Scott, as part of his probation, was [Reith] ordered to
complete the program at the Northeastern Center?
A. Yes, he was ordered to complete an Anger Management
Program and then follow through with Northeastern Center.
Q. All right. Did he complete the rest of program [sic] that you
required?
A. No sir.
Q. All right. And did he go to some of those classes?
A. Yeah, actually he, so according to the reports from
Northeastern Center, he completed, he was scheduled to
complete four (4) anger management groups and then he
attended all four (4) of those. He was also scheduled to complete
twenty five (25) substance abuse groups in which he attended
eleven (11), no-showed on eight (8), and cancelled six (6).
Q. All right. And-
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THE COURT: Which program was that?
THE WITNESS: That’s for the substance abuse group, through
the Northeastern Center.
THE COURT: Okay.
Q. And um, what is, what is, when was the last time he was
actually participating in that program? Can you tell from the
report?
A. The, as far as I can see, the reports state that he has not
returned to services since his last group on January 3rd, 2018.
He did contact his counselor on April 25th and discussed that he
would return to group on May 2nd and he has not done that.
Q. All right. Um, so as far as you can tell, the last contact, actual
appointment he went to, the group that he was supposed to was
January?
A. That’s correct.
Q. Okay. And he said he was gonna (sic) restart in May and he
just didn’t do it?
A. That’s correct.
Q. Since then, do you know if he’s had any contact with
Northeastern Center?
A. Um, according to these reports, no.
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Id. at 40-41. Scott also testified that Reith was not a good candidate to continue
on probation.
[10] In closing remarks to the trial court, defense counsel acknowledged that Reith
“did not successfully complete all of the Northeastern Center [substance abuse
counseling], but he did complete a substantial portion of that and wants to
continue that.” Id. at 51. Reith also addressed the trial court and stated: “I’m
willing to go through with, with the Northeastern Center, uh, complete the rest
of my, my classes that I need to attend.” Id. At the close of the evidence, the
trial court stated:
Um, Devin, while . . . I say this at every probation violation
hearing. While I don’t specifically remember telling you thing
[sic], it’s part of my mantra, it’s part of what I say, it’s part of
what I do at every sentencing hearing. Um, before you sign
those rules of probation, read them over, make certain you
understand them and then if you have any questions, don’t sign
them until you’ve got those questions answered either by the
probation officer or by your lawyer. And the reason I say that is
because, as I continue on to tell people, um, those are rules that
you must abide by and if you fail to do that, there is a price to
pay and I don’t want you to have to pay that price, that’s why I
want you to read ‘em (sic) and understand ‘em (sic) because as I
say, I’m going to hold your feet to the fire and that’s what I’m
going to do. Probation Department is, uh, unwilling to, um,
work with you any further. They think they’ve gone as far as
they can do considering your willingness and your, um,
commitment to the use and, um, clearly you have violated, uh,
the two (2) allegations made in the Petition in that, uh, you failed
to fully participate in the NEC programs and you failed, um, a
chemical test by testing positive for amphetamine and
methamphetamine[.]
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Id. at 54. The trial court then revoked Reith’s probation and ordered him to
serve the balance of his previously-suspended sentence. Reith now appeals.
Analysis
[11] Reith argues that the trial court abused its discretion when it revoked his
suspended sentence and ordered him to serve the remainder of his previously-
suspended sentence. Probation serves as an “alternative[ ] to commitment to
the Department of Correction[,]” and is “[granted] at the sole discretion of the
trial court.” Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied. “Once a
trial court has exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in deciding how to
proceed.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
[12] A trial court determines the conditions of probation and may revoke probation
if the conditions are violated. Id.; see also Ind. Code § 35-38-2-3(a). Violation of
a single condition of probation is sufficient to revoke probation. Gosha v. State,
873 N.E.2d 660, 663 (Ind. Ct. App. 2007). Upon determining that a
probationer has violated a condition of probation, the trial court may “[o]rder
execution of all or part of the sentence that was suspended at the time of initial
sentencing.” I.C. § 35-38-2-3(h)(3).
[13] When reviewing the sufficiency of the evidence to support a probation
revocation, we consider only the evidence most favorable to the judgment
without reweighing the evidence or judging witnesses’ credibility. Figures v.
State, 920 N.E.2d 267, 272 (Ind. Ct. App. 2010). A probation revocation
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hearing is civil in nature, and the State’s burden is to prove the alleged
violations by a preponderance of the evidence. Id. “If there is substantial
evidence of probative value 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. Our Supreme Court has held that “a trial court’s
sentencing decisions for probation violations are reviewable using the abuse of
discretion standard.” Prewitt, 878 N.E.2d at 188. An abuse of discretion occurs
where the decision is clearly against the logic and effect of the facts and
circumstances before the court. Id.
[14] Reith was found to have violated his probation by failing to comply with the
rules of probation by satisfactorily completing substance abuse counseling with
the Northeastern Center. 2 Reith does not appeal the revocation based upon his
use of amphetamine and methamphetamine. Revocation based on one
violation is sufficient. See Gosha, 873 N.E.2d at 663. Nevertheless, we will
address Reith’s argument regarding the trial court’s other basis for revoking his
probation.
[15] Reith contends that “[o]ther than the anger management program which Reith
was ordered to complete and did complete, it is not clear which additional
program he was ordered to complete.” Appellant’s Br. p. 7. We cannot agree.
2
The State did not allege that Reith failed to meet his Recovery Works obligation.
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[16] When the trial court places a person on probation, the court must specify on the
record the conditions of the probation and give the person a written statement
specifying his conditions of probation. I.C. §§ 35-38-2-1; -2.3. “Thus, the law
generally requires that if a person is placed on probation, the trial court must
provide the defendant a written statement containing the terms and conditions
of probation at the sentencing hearing.” Gil v. State, 988 N.E.2d 1231, 1234
(Ind. Ct. App. 2013). However, we have previously held that the trial court’s
failure to provide written probation terms may be harmless error if the
defendant has been orally advised of the conditions and acknowledges that he
understands them. Id.[17] We initially note that, during the trial court’s hearing on the State’s petition to
revoke Reith’s probation, Reith did not assert that the trial court failed to advise
him of an explicit condition of probation. It is well settled that a party may not
present an argument or issue to an appellate court unless the party raised the
same argument or issue before the trial court. See Craig v. State, 883 N.E.2d
218, 220 (Ind. Ct. App. 2008). Therefore, Reith has waived his claim.
[18] Waiver notwithstanding, Reith’s claim fails on the merits. Reith’s signed plea
agreement provided, “[ ]As a term of probation, [Reith] must get counseling . . .
.” Appellant’s App. Vol. II p. 31. The trial court also advised Reith that, as a
term of his probation, he was required to undergo an assessment for services
and satisfactorily complete any programs that were recommended as a result of
the assessment. See Gil, 988 N.E.2d at 1234. Additionally, Reith signed written
rules of probation, which stated: “You shall undergo assessment for possible
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program placement, if assessment is deemed necessary . . . .[y]ou shall
satisfactorily complete any program indicated by [the] assessment.”
Appellant’s App. Vol. II p. 96.
[19] Probation officer Scott testified that Reith was referred for anger management
as well as substance abuse programming. Although Reith completed anger
management classes, he failed to complete substance abuse treatment through
the Northeastern Center and also tested positive for methamphetamine and
amphetamine. The State, thus, proved two probation violations. See Gosha,
873 N.E.2d at 663 (holding that proof of a single violation is sufficient to permit
a trial court to revoke probation). The trial court properly revoked Reith’s
probation.
[20] As for the trial court’s imposition of Reith’s previously-imposed sentence, it is
well-settled that, upon determining that a probationer has violated a condition
of probation, the trial court may “[o]rder execution of all or part of the sentence
that was suspended at the time of initial sentencing.” I.C. § 35-38-2-3(h)(3); see
Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App. 2017) (finding the trial court
did not abuse its discretion in ordering probationer to serve his previously-
suspended sentence after the trial court revoked the probationer’s probation).
[21] In light of the foregoing, the trial court’s revocation of Reith’s probation and
imposition of Reith’s previously-suspended sentence is not clearly against the
logic and effect of the circumstances before the court.
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Conclusion
[22] The trial court did not abuse its discretion when it revoked Reith’s probation
and imposed his previously-suspended sentence. We affirm.
[23] Affirmed.
[24] Baker, J., and May, J., concur.
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