Bradley L. Stout, Jr. v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 27 2020, 8:10 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
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Tina L. Mann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bradley L. Stout, Jr., August 27, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-954
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D01-1305-FC-1574
Najam, Judge.
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Statement of the Case
[1] Bradley L. Stout, Jr. appeals his sentence following the trial court’s revocation
of his placement in a work release program. Stout presents a single issue for
our review, namely, whether the trial court abused its discretion when it
ordered him to serve the balance of his previously suspended sentence in the
Vigo County Jail.
[2] We affirm.
Facts and Procedural History
[3] On May 8, 2013, Stout was placed in a work release program as a pretrial
placement for a prior offense. However, Stout fled from that placement on May
27. Accordingly, the State charged him with escape, as a Class C felony.
Thereafter, Stout entered into a plea agreement in which he agreed to plead
guilty to failure to return to lawful detention, as a Class D felony. On August
12, the court accepted Stout’s guilty plea and sentenced him to three years
suspended to probation. 1
[4] Just over one month later, on September 20, the State filed a notice of probation
violation in which it alleged that Stout had failed a drug test. The State later
amended that notice to include allegations that Stout had failed another drug
1
In the same plea agreement, Stout pleaded guilty to conversion, as a Class A misdemeanor, for the prior
offense. The court sentenced Stout to one year suspended to probation for that offense, which sentence was
to run consecutive to his sentence for failure to return to lawful detention.
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test, failed to enroll in a drug program, failed to submit to drug screens, and
committed invasion of privacy. Stout admitted to the allegations, and the court
returned him to probation. On November 10, 2014, the State filed another
notice of probation violation and alleged that Stout had tested positive for
illegal drugs on several occasions, failed to report to work, and failed to engage
in a drug program. Stout again admitted to the violations, and the court
ordered him to participate in a jail linkage program. Stout successfully
completed that program, and the court returned him to probation.
[5] Thereafter, on March 14, 2016, the State filed another notice of probation
violation. In that notice, the State alleged that Stout had violated the terms of
his probation when he committed theft and possession of a controlled
substance. In a plea agreement, Stout admitted that he had violated the terms
of his probation. The court returned Stout to probation.
[6] Then, in 2017, the State alleged that Stout had again violated the terms of his
probation when he missed thirteen drug screens, failed drug tests, and failed to
report to probation. On November 20, Stout failed to appear for a hearing. As
a result, the trial court issued an arrest warrant, which remained active for two
years until it was served on September 26, 2019. The court then held a fact-
finding hearing on the State’s petition on October 28. Following the hearing,
the court found that Stout had violated the terms of his probation and ordered
him to serve the remainder of his sentence on work release.
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[7] On March 12, 2020, the State filed a petition to revoke Stout’s placement on
work release. In that petition, the State alleged that Stout had committed
thirteen violations. Specifically, the State alleged that Stout had: tested positive
for drugs on three occasions; been in unauthorized areas; possessed a lighter on
multiple occasions; been disrespectful to a corrections officer; failed to
participate in a mandatory cleaning; possessed a cigarette; possessed a “green
leafy synthetic lookalike substance”; and failed to submit to a drug test.
Appellant’s App. Vol. II at 108.
[8] Following a hearing, the court found that Stout had violated the terms of his
placement. The court then stated that it did not “have a lot of choices here. I
don’t have work release available . . . . I don’t have in-home detention
available. I don’t have DOC available. You are doing an executed sentence.
There’s no probation on this. I’m not going to return you to probation.” Tr. at
52. Accordingly, the court ordered Stout to serve the balance of his previously
suspended sentence in the Vigo County Jail. This appeal ensued.
Discussion and Decision
[9] Stout appeals the trial court’s order that he serve the balance of his previously
suspended sentence. We begin by noting that placement in community
corrections is a “matter of grace” and a “conditional liberty that is a favor, not a
right.” Toomey v. State, 887 N.E.2d 122, 124 (Ind. Ct. App. 2008). Further,
“[b]oth probation and community corrections programs serve as alternatives to
commitment in the DOC and both are made at the sole discretion of the trial
court.” Holmes v. State, 923 N.E.2d 479, 482 (Ind. Ct. App. 2010).
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[10] This Court treats a petition to revoke placement in a community corrections
program the same as a petition to revoke probation. See Cox v. State, 706
N.E.2d 547, 549 (Ind. 1999). Upon finding that a defendant has violated a
condition of his placement, the trial court may “revoke the placement and
commit the person to the county jail or department of correction for the
remainder of the person’s sentence.” Ind. Code § 35-38.2.6-5(a)(4) (2020). We
review the trial court’s sentencing decision following the revocation of
probation for an abuse of discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct.
App. 2006). An abuse of discretion occurs “only where the trial court’s
decision is clearly against the logic and effect of the facts and circumstances”
before the court. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam).
[11] On appeal, Stout does not dispute that he repeatedly violated the conditions of
his probation and work release program. Instead, he asserts that the trial court
abused its discretion when it ordered him to serve the balance of his previously
suspended sentence because his placement was only revoked due to “several
technical violations,” and because he was not taking his “mental health
medication” at the time he entered the work release program. Appellant’s App.
at 9. He further asserts that the mother of his children had become unemployed
“as a result of the shuttering of businesses during the pandemic” and that he
needed to work to support their children. Id. at 9-10. In essence, he maintains
that, “[g]iven the nonviolent and minor nature” of his original offense and
subsequent violations, “and considering the risk inmates face[] from the
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coronavirus while incarcerated,” the court should have placed him back on
probation. Id. at 10.
[12] But the trial court’s judgment is supported by substantial evidence and was
within the court’s discretion. From the time the court placed Stout on
probation, he repeatedly violated the terms of his placement. Indeed, the State
filed numerous notices of probation violations between September 20, 2013,
which was just over one month after he was initially placed on probation, and
2016 for allegations that included failed drug tests, missed drug tests, failure to
engage in a drug treatment program, and the commission of new crimes. But
each time, the court showed leniency and returned him to probation.
[13] Then, in 2017, the State filed another notice of probation violation after Stout
missed drug screens, failed drug screens, and failed to report to probation.
Stout failed to appear for a hearing, and the court issued an arrest warrant,
which remained active for two years. Once Stout finally appeared before the
court, the court again found that he had violated the terms of his probation and
placed him in a work release program. Less than six months later, Stout
committed thirteen more acts that each constituted a violation of his placement.
In other words, since the case began in 2013, the trial court repeatedly showed
Stout leniency and gave him opportunities to avoid incarceration, but Stout
continued to violate the terms of his placement.
[14] We acknowledge that the coronavirus has caused a global pandemic and has
resulted in millions of people, including the mother of Stout’s children, losing
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their jobs. However, that does not change the fact that Stout had numerous
opportunities to avoid incarceration and remain working to support his family.
Instead, Stout chose to repeatedly violate the terms of his placement. The
court’s order that he serve the balance of his previously suspended sentence is
supported by the record and was well within the trial court’s discretion. We
affirm the court’s judgment.
[15] Affirmed.
Bradford, C.J., and Mathias, J., concur.
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