Mark Novak v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 24 2018, 6:40 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
Mary P. Lake Curtis T. Hill, Jr.
La Porte, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark Novak, January 24, 2018
Appellant-Defendant, Court of Appeals Case No.
46A05-1707-CR-1581
v. Appeal from the La Porte Circuit
Court
State of Indiana, The Honorable Thomas J.
Appellee-Plaintiff Alevizos, Judge
Trial Court Cause Nos.
46C01-1209-FA-453
46C01-1211-FA-540
Baker, Judge.
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[1] Mark Novak appeals the trial court’s order revoking his probation. He asserts
that the order violated his due process rights and that the trial court erred by
executing the entirety of his suspended sentences with the Indiana Department
of Correction (DOC). Finding no due process violation and no error, we
affirm.
Facts
[2] On September 4, 2012, the State charged Novak with Class A felony possession
of a narcotic drug. Pursuant to a written plea agreement, on January 10, 2013,
Novak pleaded guilty to Class B felony possession of a narcotic drug.
Following a February 21, 2013, sentencing hearing, the trial court sentenced
him to six years, with three years executed in the DOC, one year in work
release, one year on electronic monitoring, and one year suspended to
probation.
[3] On November 2, 2012, in an unrelated cause, Novak was charged with Class A
and B felony dealing in a Schedule I controlled substance. On April 26, 2013,
pursuant to another written plea agreement, the State dismissed the Class A
felony charge and Novak pleaded guilty to Class B felony dealing in a Schedule
I controlled substance. On the same day, the trial court sentenced him to six
years, with two years suspended to probation and the executed portion to be
served consecutively to his first sentence. Under the terms of Novak’s
probation for both causes, he was not permitted to travel outside Indiana
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without an order from the trial court; he was not permitted to use, purchase, or
possess illegal drugs; and he was required to submit to alcohol and drug tests.
[4] On April 4, 2014, Novak filed a motion to modify his sentence under the
second cause and, on August 1, 2014, the trial court granted the motion and
modified the remainder of the executed portion of his sentence to work release,
beginning December 7, 2014. On April 13, 2015, LaPorte County Community
Corrections filed a petition to revoke Novak’s placement, alleging that on three
occasions in March 2015, he failed to report to work or return to the work
release center. On July 14, 2015, after admitting to the violations at a hearing,
Novak was sentenced to six months in the LaPorte County Jail. After serving
that time, he returned to work release.
[5] On November 10, 2015, Novak was asked to submit to a drug test, and he
admitted that it would likely come back positive for heroin and prescription
drugs. Novak tested positive for heroin. On December 2 and 9, 2015, the
probation department filed petitions to revoke Novak’s suspended sentences
under the second and first causes, respectively. On January 15, 2016, the trial
court held a hearing on both petitions and issued a bond order, releasing Novak
on his own recognizance and ordering him to report to probation and a
program aimed at helping those with substance abuse problems. On the same
day, Novak was referred to the Swanson Center and he completed his intake
there. His probation officer testified that, besides his intake, she had not
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received any confirmation that he had attended classes or otherwise completed
the program.1 Tr. Vol. III p. 7, 11-13.
[6] On March 21, 2016, Novak submitted to another drug test, which was positive
for amphetamines; consequently, on April 5, 2016, the probation department
filed a second petition to revoke under the second cause and, on April 15, 2016,
the trial court issued a warrant for his arrest.
[7] After learning about the warrant and without contacting anyone, Novak
absconded to Texas. In April 2017, Novak was arrested in Texas and
extradited to Indiana. On May 26, 2017, the probation department filed a third
petition to revoke under both causes, alleging that Novak had left the state
without a trial court order.
[8] On June 8, 2017, the trial court held a hearing on the petitions. At the hearing,
Novak testified that he had a substance abuse problem and admitted that he had
used heroin and amphetamines and left the state without an order from the trial
court. Appellant’s Br. p. 8. After hearing testimony from Novak and his
probation officer, the trial court found that he had violated the terms of his
probation for “not cooperating fully with Swanson Center, by missing
probation appointment meetings, by absconding to the State of Texas . . . , and
by testing positive for drugs while on probation.” Appellant’s App. Vol. II p.
1
She also testified that Novak failed to attend two scheduled probation appointments on December 4 and 15,
2015. Tr. Vol. III p. 10.
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233. The trial court also noted that Novak failed to take advantage of his
sentence modification and that the court believed that a “structured
environment” was the “best defense against further relapses.” Tr. Vol. III p. 27.
Accordingly, the trial court revoked Novak’s probation in both causes and
ordered him to serve the remainder of the suspended portions of his sentences—
a total of three years—with the DOC. Novak now appeals.
Discussion and Decision
I. Due Process
[9] First, Novak contends that the trial court violated his due process rights. It is
well established that “probationers are not entitled to the full array of
constitutional rights afforded defendants at trial.” Lightcap v. State, 863 N.E.2d
907, 910 (Ind. Ct. App. 2007). However, among other things, a probationer is
entitled to written notice of the alleged violation. Wann v. State, 997 N.E.2d
1103, 1105 (Ind. Ct. App. 2013).
[10] Novak contends that two of the bases upon which the trial court relied—the
failure to cooperate with Swanson Center and missing probation appointment
meetings—were not listed in the petitions to revoke; he argues that,
consequently, he never received written notice of these violations and that it
was improper for the trial court to base its decision on them.
[11] A court may revoke a defendant’s probation if “the person has violated a
condition of probation during the probationary period” and the petition to
revoke was timely filed. Ind. Code § 35-38-2-3(a). We have found the lack of
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notice on one probation violation harmless when the probationer is found to
have violated another condition of probation where adequate notice was
provided. E.g., Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005).
[12] In this case, it is undisputed that the terms of Novak’s probation did not permit
him to use drugs or leave the state without an order from the trial court. It is
also undisputed that the petitions to revoke expressly identified these
conditions. Appellant’s App. Vol. II p. 46, 187, 217. Further, Novak admitted
to taking heroin and amphetamines and leaving the state without an order from
the trial court. Appellant’s Br. p. 8. Thus, even if Novak did not receive notice
of the other violations, because he admitted to violations for which he received
written notice, any error was harmless. See Bussberg, 827 N.E.2d at 44.
[13] Novak argues that the failure to provide written notice on these two grounds
was not harmless because the trial court was particularly “disturbed” by the
allegations and, consequently, put undue emphasis on these violations.
Appellant’s Br. p. 12. He notes that the two bases at issue were the first on the
order and that the trial court specifically questioned the probation officer about
these offenses. He speculates that the trial court may not have sentenced him to
the entirety of his suspended sentences had evidence of these violations not
been admitted. He also insists that the lack of notice compromised his ability to
put up a defense, because he was not prepared to prove exactly how many
classes he had attended at Swanson Center.
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[14] We find little merit in Novak’s arguments. Novak cites to no portion of the
record nor do we find any that suggests that the trial court was particularly
fixated on Novak’s alleged non-compliance with Swanson Center or missed
probation appointments. In any event, there is no prejudice to Novak with
respect to the Swanson Center because he admitted that he stopped attending
the classes altogether after he absconded to Texas.
[15] In sum, because Novak admitted to violations for which he received adequate
written notice, the trial court’s order did not violate his due process rights.
II. Placement with the DOC
[16] Next, Novak contends that the trial court erred by executing the balance of his
suspended sentences. Probation is a matter of grace left to the trial court’s
discretion rather than a right to which a defendant is entitled, and we will not
reverse the trial court’s decision unless the decision is clearly against the logic
and effect of the facts and circumstances. Prewitt v. State, 878 N.E.2d 184, 188
(Ind. 2007). A trial court may revoke a defendant’s probation for violation of a
single condition of his probation, e.g., Pierce v. State, 44 N.E.3d 752, 755 (Ind.
Ct. App. 2015), and, once a violation is found, the trial court may execute all or
part of a suspended sentence, I.C. § 35-38-2-3(h)(3).
[17] Here, Novak admitted to violating his probation three times, but nonetheless
argues that the trial court erred and was excessively harsh when it executed the
suspended portions of his sentences. He emphasizes that this was the most
severe choice available, that it was the first time his probation had been
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revoked, and that the trial court heavily relied on the bases for which he claims
he received deficient notice. He also claims that the decision is unduly severe
because his positive test for amphetamines was the result of a mistake and
because he went to Texas to see previously unmet family. We find his
arguments unpersuasive.
[18] Initially, we note that the trial court repeatedly provided Novak with leniency.
First, the trial court placed him on work release early by modifying his
sentence. Despite this opportunity, just months after this placement, he
violated its terms by failing to report to work or the work release center on three
occasions. Still, the trial court only sentenced Novak to six months in jail and
allowed him to return to work release afterwards. Novak squandered this
chance as well by testing positive for heroin; yet, in its bond order, the trial
court released Novak on his own recognizance and referred him to a program
aimed at helping those with substance abuse problems to get the help he
needed. However, Novak then fled to Texas after his positive test for
amphetamines.
[19] Further, Novak admitted that he was drug-free while in the DOC but that,
within two months of his placement with community corrections, he had tested
positive for heroin, supporting the trial court’s conclusion that Novak’s sobriety
will be best served in the DOC. And Novak admitted that he made a calculated
decision to abscond to Texas because he was scared and embarrassed of the
situation and he has offered no reason why his family reunion prevented him
from contacting probation or the court for the better part of a year.
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[20] In sum, because Novak admitted to taking drugs and leaving the state while on
probation, the trial court did not err by revoking his probation. Furthermore,
considering the trial court’s repeated attempts to provide leniency, Novak’s
continued failure to take advantage of these opportunities, and his most recent
decision to abscond to Texas for the better part of a year, we cannot say that the
trial court’s decision to execute the suspended portions of his sentences with the
DOC was clearly against the logic and effect of the facts and circumstances.
[21] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
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