Kathy Sue Reed v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Apr 23 2018, 8:41 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy D. Griner Curtis T. Hill, Jr.
Mishawaka, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kathy Sue Reed, April 23, 2018
Appellant-Defendant, Court of Appeals Case No.
71A03-1710-CR-2448
v. Appeal from the St. Joseph Superior
Court.
The Honorable Jane Woodward
State of Indiana, Miller, Judge.
Appellee-Plaintiff. Trial Court Cause No.
71D01-1512-F6-916
Sharpnack, Senior Judge
Statement of the Case
[1] Kathy Sue Reed appeals the trial court’s finding that she violated the terms of
her probation. We affirm.
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Issue
[2] Reed presents one issue for our review, which we restate as: whether the trial
court erred by finding Reed had violated the terms of her probation.
Facts and Procedural History
[3] In December 2015, Reed was charged with operating a vehicle with an alcohol
1
concentration equivalent of .08 or more, as a Class C misdemeanor, and
operating a vehicle with an alcohol concentration equivalent of .08 or more
2
while having a prior conviction, as a Level 6 felony. Pursuant to a plea
agreement, Reed subsequently pleaded guilty to the Level 6 felony in exchange
for the State’s dismissal of the Class C misdemeanor. The parties agreed to
leave sentencing to the discretion of the trial court but capped the executed
portion of the sentence at twelve months. The court sentenced Reed to a
suspended term of eighteen months and placed her on probation for eighteen
months.
[4] In April 2017, the State filed a petition to revoke Reed’s probation, alleging that
she had violated her probation by testing positive for both marijuana and
cocaine, failing to complete counseling as ordered by the court, and failing to
attend a victim impact panel. Following an evidentiary hearing, the court
1
Ind. Code § 9-30-5-1 (2001).
2
Ind. Code §§ 9-30-5-1 and 3 (2014).
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found that Reed had violated the terms of her probation and ordered that she
serve two weeks in the county jail and then be returned to probation. Reed now
appeals.
Discussion and Decision
[5] Reed contends that the trial court erred by finding she violated her probation
because the evidence presented by the State at the violation hearing was not
substantially trustworthy and should not have been admitted.
[6] Probation is an alternative to imprisonment and is granted in the sole discretion
of the trial court. Davis v. State, 743 N.E.2d 793, 794 (Ind. Ct. App. 2001), trans
denied. A defendant is not entitled to serve a sentence on probation; rather,
such placement is a matter of grace and a conditional liberty that is a favor, not
a right. Id.
[7] A probation revocation hearing is in the nature of a civil proceeding, and the
State must prove an alleged violation only by a preponderance of the evidence.
Ind. Code § 35-38-2-3(f) (2015); Kincaid v. State, 736 N.E.2d 1257, 1259 (Ind.
Ct. App. 2000). A revocation hearing involves a more narrow inquiry than
other criminal proceedings, and its procedures are to be more flexible. Cox v.
State, 706 N.E.2d 547, 550 (Ind. 1999). This flexibility is necessary in order to
permit the court to exercise its inherent power to enforce obedience to its lawful
orders. Id. Our supreme court has further explained:
There are also sound policy justifications for such flexibility.
Alternative sentences such as probation and community
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corrections serve the humane purposes of avoiding incarceration
and of permitting the offender to meet the offender’s financial
obligations. But for sentencing alternatives to be viable options
for Indiana judges, judges must have the ability to move with
alacrity to protect public safety when adjudicated offenders
violate the conditions of their sentences. Put differently,
obstacles to revoking an alternative sentence may diminish the
likelihood of community corrections placements being made in
the first place.
Id.
[8] The decision to revoke a defendant’s probation is a matter within the sound
discretion of the trial court. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008).
Thus, on appeal, we review the trial court’s decision for an abuse of that
discretion. Id.
[9] At Reed’s revocation hearing, Jennifer Weeks, Reed’s probation officer,
testified that drug testing of Reed had revealed positive results for both
marijuana and cocaine. Weeks also testified that she had received a report from
the counseling center indicating that Reed had not attended for several months
and that, due to her failure to attend, she had been discharged. Finally, Weeks
testified that, to her knowledge, Reed had not satisfied her probationary
obligation to attend a victim impact panel. All of this testimony was admitted
without objection by Reed. In addition to Weeks’ testimony, the State offered
Exhibits 1, 2, and 3, which were the lab reports from Reed’s drug tests. Reed
objected to the exhibits, but they were admitted over objection after additional
foundational evidence.
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[10] Indiana Rule of Evidence 101(d)(2) allows for the admission of evidence during
probation revocation hearings that would not be permitted in a full-blown
criminal trial. Yet, “[t]his does not mean that hearsay evidence may be
admitted willy-nilly in a probation revocation hearing.” Reyes v. State, 868
N.E.2d 438, 440 (Ind. 2007). In Reyes, our Supreme Court adopted the
substantial trustworthiness test as the means for determining whether hearsay
evidence should be admitted at a probation revocation hearing. In this test, the
trial court must determine whether the evidence reaches a certain level of
reliability—i.e., whether it has a substantial guarantee of trustworthiness—in
order to be considered at a probation revocation hearing. 868 N.E.2d at 441.
[11] Reed cites the substantial trustworthiness test and argues that the trial court
should not have admitted Weeks’ testimony regarding the drug test results, the
counseling, and the victim impact panel. She also claims that Exhibits 1, 2, and
3 should not have been admitted. We observe, however, that Reed did not
object to any of Weeks’ testimony. Accordingly, she has waived this issue for
appeal. See Marsh v. State, 818 N.E.2d 143, 145 (Ind. Ct. App. 2004) (noting
that, at probation revocation hearing, failure to object to admission of hearsay
evidence waives issue for appeal). Moreover, although Reed objected to the
three exhibits, Weeks had previously testified to the drug test results without
objection. Thus, any error in the admission of the exhibits was harmless as the
information contained in them was the same information contained in Weeks’
testimony, which had already been admitted into evidence. See In re Adoption of
M.A.S., 815 N.E.2d 216, 223 (Ind. Ct. App. 2004) (stating that, even assuming
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evidence was improperly admitted, error was harmless because it was merely
cumulative of other evidence).
Conclusion
[12] We conclude the trial court did not abuse its discretion by admitting the
evidence and finding that Reed violated her probation.
[13] Affirmed.
Baker, J., and Crone, J., concur.
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