Curtis L. Bass v. State of Indiana , 2012 Ind. App. LEXIS 401 ( 2012 )

FOR PUBLICATION
FILED
Jul 18 2012, 8:21 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM S. FRANKEL, IV GREGORY F. ZOELLER
Wilkinson, Goeller, Modesitt, Attorney General of Indiana
Wilkinson & Drummy, LLP
Terre Haute, Indiana MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CURTIS L. BASS, )
)
Appellant-Defendant, )
)
vs. ) No. 84A01-1110-CR-473
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable John T. Roach, Judge
Cause Nos. 84D01-1001-FB-291
84D01-0912-FB-3885
July 18, 2012
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Curtis L. Bass (“Bass”) challenges the ten-year sentence imposed upon his plea of
guilty to two counts of Burglary, as Class B felonies, and also appeals a subsequent order
revoking his community corrections placement and committing him to the Indiana
Department of Correction (“the DOC”) for six years. We affirm.
Issues
Bass presents three issues for review:
I. Whether his advisory sentence is inappropriate;
II. Whether the trial court admitted urinalysis reports in violation of Bass’s
due process rights as a probationer; and
III. Whether the revocation is supported by sufficient evidence.
Facts and Procedural History
On August 3, 2011, Bass pled guilty to two counts of Burglary. On August 19, 2011,
he was given concurrent sentences of ten years, with four years suspended to formal
probation and six years to be served in direct placement to community corrections or in-home
detention. Subsequently, Bass was appointed a public defender to perfect an appeal of his
sentence.
On September 22, 2011, the State filed a Petition to Revoke Direct Placement,
alleging that Bass had, on September 8, 2011, tested positive for methamphetamine. On
October 12, 2011, Bass was granted permission to file a belated notice of appeal addressing
the propriety of his sentence. On October 18, 2011, the trial court conducted a hearing on the
placement revocation petition. Following the hearing, Bass’s probation and placement were
revoked and he was ordered to serve six years of his sentence in the DOC. On October 31,
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2011, Bass filed an Amended Notice of Appeal to include a challenge to the revocation.
Discussion and Decision
I. Sentence
A person who commits a Class B felony has a sentencing range of between six and
twenty years, with the advisory sentence being ten years. Ind. Code § 35-50-2-5. Bass
received two advisory sentences, to be served concurrently. Four years were suspended to
probation.
Under Indiana Appellate Rule 7(B), this “Court may revise a sentence authorized by
statute if, after due consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character of the
offender.” In performing our review, we assess “the culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to light in a
given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). A defendant ‘“must
persuade the appellate court that his or her sentence has met th[e] inappropriateness standard
of review.”’ Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
The nature of Bass’s offenses is that he burglarized two homes. From one home, that
of a deployed soldier, Bass stole at least forty guns and ammunition. The stolen guns had an
estimated value of over $10,000. Some of the guns were then traded for drugs, thereby
placing weapons in the hands of drug dealers. The second burglary involved the violation of
the home of a family friend.
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As for the character of the offender, Bass pled guilty, which reflects favorably on his
character. See Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995) (“[T]he fact that [the
defendant] pled guilty demonstrates his acceptance of responsibility for the crime and at least
partially confirms the mitigating evidence regarding his character”). However, he also
received a benefit, in that two other charges were dismissed with prejudice. Prior to
sentencing, Bass had sought substance abuse treatment and had cooperated with the
Department of Child Services to regain custody of his children. He testified that he had, at
the time of sentencing, been clean of drugs for eighteen months.
Bass has a criminal history, commencing in 1991, which includes two prior felony
convictions and three misdemeanor convictions. He was on probation for a domestic battery
conviction when he committed the present offenses. He has a long history of substance
abuse and committed the instant crimes to fund his illegal drug use.
In light of the nature of the offenses and the character of the offender, we do not find
Bass’s advisory sentences, with four years suspended, to be inappropriate.
II. Admission of Evidence-Probation Revocation
Bass contends that the trial court improperly admitted hearsay evidence in determining
whether he had violated a term of his probation and placement. Over Bass’s objection, a
community corrections case manager was permitted to testify that Bass had “tested positive”
for methamphetamine. (Tr. 5.) Contemporaneously, the trial court admitted as exhibits two
toxicology reports from Redwood Toxicology Laboratory indicating that Bass’s screens of
September 8 and 20, 2011 had each shown “positive” results for amphetamines, specifically
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methamphetamines. (St. Ex. 2-3.) Bass asserts that the documentary evidence was not
substantially trustworthy so as to satisfy his due process rights as a probationer.1
A probation revocation hearing is not equivalent to an adversarial criminal
proceeding. Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999). However, the Due Process
Clause applies to probation revocation proceedings, and the due process rights of a
probationer include: “written notice of the claimed violations, disclosure of the evidence
against him, an opportunity to be heard and present evidence, the right to confront and cross-
examine witnesses, and a neutral and detached hearing body[.]” Id. at 549.
Because probation revocation procedures “are to be flexible, strict rules of evidence
do not apply.” Id. The scope of the right to confrontation as defined in Crawford v.
Washington, 541 U.S. 36 (2004), does not apply in such proceedings. Reyes v. State, 868
N.E.2d 438, 440 n.1 (Ind. 2007). In Cox, the Court held that judges could consider hearsay
“bearing some substantial indicia of reliability,” but declined to adopt a particular approach
to determining that reliability. 706 N.E.2d at 551. Subsequently, in Reyes, the Indiana
Supreme Court adopted a “substantial trustworthiness” test. 868 N.E.2d at 440.
In Reyes, the State had filed a notice of probation violation alleging that Reyes had
violated his probation by testing positive for cocaine. Id. at 439. At a hearing, the State
submitted the affidavit of the scientific director of the laboratory that conducted the urinalysis
of Reyes’s sample, together with related documents. Id. The director did not testify at the
hearing, and Reyes objected to the affidavits as hearsay and claimed that the admission of the
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Bass had not, as a condition of his in-home placement, agreed that toxicology results obtained by a probation
officer would be admissible in revocation proceedings.
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affidavit without live testimony would violate his right of confrontation. Id. The trial court
admitted the affidavits and revoked Reyes’s probation. Id. The probation revocation was
affirmed by the Indiana Supreme Court. Id. at 443.
In reaching its decision, the Court observed that hearsay evidence may not be admitted
“willy-nilly.” Id. at 440. However, although there may sometimes be no adequate alternative
to live testimony, due process does not prohibit substitutes where appropriate, including
affidavits, depositions, and documentary evidence. Id. (citing Gagnon v. Scarpelli, 411 U.S.
778, 782-83 n.5 (1973)). Where the State has shown that the hearsay “bears substantial
guarantees of trustworthiness,” the State need not additionally show good cause for not
producing live testimony. Id. at 441. The trial court must evaluate the reliability of the
hearsay evidence and, ideally, the trial court should explain on the record why the hearsay is
reliable and why that reliability is substantial enough to supply good cause for not producing
live witnesses. Id. at 442.
Here, community corrections case manager Cierra Fox (“Fox”) testified that drug
screens were administered to Bass pursuant to the rules of the in-home detention program.
Fox explained the procedure implemented: Bass had urinated in a container in the presence
of a correctional officer, the cup was security sealed and labeled, and it was then placed in a
bag to be sent to Redwood Toxicology for testing.
According to Fox, similar tests were administered by her department and sent to
Redwood Toxicology between twenty and sixty times per week. Reports were generated by
Redwood Toxicology at the request of Vigo County Community Corrections; the reports
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were then maintained as community corrections records. Fox stated that, to the best of her
knowledge, Redwood Toxicology was a certified lab; however, she lacked personal
knowledge of its certification.
The trial court concluded that a “regular urinalysis report prepared by a company
whose professional business it is to conduct such tests” was sufficiently trustworthy. (App.
105.) Bass argues that the trial court’s conclusion is erroneous, because the hearsay evidence
in his case falls short of the level of trustworthiness of that submitted in Reyes. Bass
observes that the affidavit at issue in Reyes included the opinion of the director that “Reyes
would have had to use cocaine some time in the 72 hours prior to collection.” Id. at 439.
According to Bass, his case is distinguishable from that of Reyes in that (1) “no
affidavits from anyone at the laboratory were offered” and (2) “the test results do not state
that Bass used methamphetamine and the only sworn testimony came from someone who
knows nothing about the laboratory’s procedures and reliability.” Appellant’s Brief at 12.
Thus, Bass implicitly argues that the “substantial trustworthiness” test of Reyes requires an
affidavit and a scientific opinion validating drug screen results. We discern no such
requirement in Reyes.
Moreover, a panel of this Court has recently concluded that the record of probation
revocation proceedings supported a determination of substantial trustworthiness of “a routine
report demonstrating that [appellant] had tested positive for marijuana.” Williams v. State,
937 N.E.2d 930, 934 (Ind. Ct. App. 2010). The urinalysis had been performed by the
president of the company handling Williams’s home detention, the report contained a signed
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chain of custody signed by Williams and the president, and an employee of the home
detention company had testified and explained the report and the date and time of sample
collection. Id.; see also Holmes v. State, 923 N.E.2d 479, 484 (Ind. Ct. App. 2010)
(substantial trustworthiness existed for urinalysis report where the toxicologist affirmed
under penalty of perjury that the sample was received under controlled conditions and
processed in accordance with laboratory standard operating procedures and the scientist
affirmed that the sample was handled in accordance with applicable requirements).
The absence of an affidavit from a toxicologist or laboratory employee does not render
drug test results inadmissible in probation revocation proceedings where there is otherwise a
substantial guarantee of trustworthiness. Here, the substantial guarantee of trustworthiness
was provided by a case manager’s testimony. She was familiar with and described the
urinalysis collection and chain of custody procedures; she testified that the laboratory which
had generated Bass’s urinalysis report was the laboratory used to generate twenty to sixty
reports per week for Vigo County Community Corrections. The reports identify the
collecting and processing individuals, and contain detailed information about the testing time.
Each report is accompanied by a document signed by Bass and by the collecting officer,
acknowledging that the sample was sealed and secured in Bass’s presence. We conclude that
the trial court did not contravene Bass’s due process rights when it admitted the State’s
exhibits.
II.Sufficiency of the Evidence to Support Revocation
A reviewing court treats a petition to revoke a placement in a community corrections
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program the same as a petition to revoke probation. Cox v. State, 706 N.E.2d at 549.
Community corrections is “a program consisting of residential and work release, electronic
monitoring, day treatment, or day reporting[.]” Ind. Code § 35-38-2.6-2. A defendant is not
entitled to serve a sentence in either probation or a community corrections program. Monroe
v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009). Rather, such placement is a “matter of
grace” and a “conditional liberty that is a favor, not a right.” Million v. State, 646 N.E.2d
998, 1002 (Ind. Ct. App. 1995).
Probation may be revoked for violation of a probation condition. Runyon v. State,
939 N.E.2d 613, 616 (Ind. 2010). The State must prove the violation by a preponderance of
the evidence. Id. If a defendant violates the terms of his placement in community
corrections, the court may, after a hearing:
(1) Change the terms of the placement.
(2) Continue the placement.
(3) Revoke the placement and commit the person to the department of
correction for the remainder of the person’s sentence.
Ind. Code § 35-38-2.6-5.
The State presented evidence that Bass twice tested positive for methamphetamines.
The State established that Bass violated a term of his probation and placement – he did not
remain law-abiding and drug-free. Pursuant to Indiana Code Section 35-38-2.6-5(3), the trial
court had the option of revoking Bass’s placement and committing him to the DOC to serve a
portion of his sentence. The probation revocation decision is supported by sufficient
evidence.
Conclusion
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Bass has not persuaded us that his ten-year aggregate sentence, with four years
suspended to probation, is inappropriate. Bass was not denied due process by the admission
of hearsay evidence at the placement revocation hearing, and the decision to revoke Bass’s
probation and order a portion of his sentence executed is supported by sufficient evidence.
Affirmed.
ROBB, C.J., and MATHIAS, J., concur.
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