Franklin Allen v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 29 2017, 9:29 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Curtis T. Hill, Jr.
Kokomo, Indiana Attorney General of Indiana
Tyler Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Franklin Allen, November 29, 2017
Appellant-Defendant, Court of Appeals Case No.
34A02-1706-CR-1289
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Jr., Judge
Trial Court Cause No.
34D01-1105-FA-417
Robb, Judge.
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Case Summary and Issue
[1] In 2012, Franklin Allen was sentenced to twenty years in the Indiana
Department of Correction (“DOC”) for possession of cocaine, a Class B felony.
His sentence was suspended and he was released to probation in 2014. The
State thereafter filed a petition to revoke Allen’s probation alleging Allen failed
to submit to required urine screens on several occasions and tested positive for
the presence of alcohol or controlled substances on several other occasions.
Following a hearing, the trial court revoked Allen’s probation and ordered him
to serve the balance of his previously suspended sentence. Allen appeals,
raising one issue for our review, which we restate as whether the trial court
abused its discretion in determining the sanction for his violation. Concluding
the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
[2] In 2011, the State charged Allen with one count of Class A felony dealing in
cocaine, two counts of Class B felony dealing in cocaine, and one count of
Class D felony intimidation. In 2012, Allen pleaded guilty to possession of
cocaine as a Class B felony pursuant to a Drug Court Participation Agreement
that provided judgment and sentencing would be deferred while Allen
participated in a drug court program. If Allen successfully completed the
program, the case would be dismissed. If he failed to complete the program,
the trial court would enter judgment of conviction and Allen would be
sentenced at the trial court’s discretion. Allen violated the agreement twice
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within the first month and the drug court filed a notice of intent to terminate
him from the drug court program. Following a hearing, the trial court
terminated Allen’s participation in drug court and sentenced him to twenty
years of incarceration at the DOC. However, the court indicated its willingness
to modify Allen’s sentence if he successfully completed a therapeutic
community program at the DOC. After Allen successfully completed a DOC
purposeful incarceration program in 2013, the trial court suspended his sentence
and released him to supervised probation. Allen then successfully completed a
local re-entry program in 2015, and the trial court further modified his sentence
to require only three years of his suspended sentence be served on supervised
probation.
[3] The terms of Allen’s probation provided that he was not to consume or possess
any controlled substance except those prescribed by a physician and that he was
to submit to alcohol and drug testing as requested. On June 6, 2016, the State
filed a petition to revoke Allen’s probation, alleging a series of failed (five times)
and missed (four times) drug screens since January 16, 2016. A warrant was
issued for Allen’s arrest. On June 23, 2016, the parties agreed that Allen would
be released from custody on the condition he immediately report to and
successfully complete an inpatient treatment program. Allen was taken into
custody at some point after that date and released again on August 5, 2016,
with the condition he immediately report to and successfully complete a VA
inpatient treatment program. A second petition to revoke was filed on April 12,
2017, alleging an additional failed drug screen.
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[4] Following a fact-finding hearing on May 18, 2017, the trial court revoked
Allen’s probation and ordered that he execute the balance of his sentence.
Allen now appeals.
Discussion and Decision
I. Standard of Review
[5] Probation revocation is a two-step process: first, the court must make a factual
determination that a violation of a condition of probation occurred; then, if a
violation is proven, the court must determine if the violation warrants
revocation of probation. Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App.
2016). The State need only prove the alleged violations by a preponderance of
the evidence. Ind. Code § 35-38-2-3(f). Once the trial court has determined that
probation should be revoked, imposing a sanction for the probation violation
lies within the sound discretion of the trial court, and we will reverse only for an
abuse of that discretion. Hickman v. State, 81 N.E.3d 1083, 1085 (Ind. Ct. App.
2017). A trial court abuses its discretion by ruling in a manner that is clearly
against the logic and effect of the facts and circumstances before it, or by
misinterpreting the law. Id. If the court finds that a person has violated even a
single condition of probation, the court may impose one or more sanctions,
including ordering execution of all or part of a suspended sentence. Ind. Code §
35-38-2-3(h).
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II. Sanction
[6] At Allen’s probation revocation hearing, Megan Enright, Allen’s probation
officer, testified. The allegations of the notice of probation violation were that
Allen had missed or failed several drug tests. Enright testified that she had
received the results of several drug tests showing Allen had used cocaine and/or
alcohol. On cross-examination, Enright was asked if Allen had performed
reasonably well for almost a year in probation until the urine screen issue at the
beginning of 2016. Enright disagreed, noting Allen completed the re-entry
program sometime between April and July 2015 and had a positive drug screen
at the end of August. Allen was also instructed to call about an intensive
outpatient program (“IOP”) in August 2015:
Q: Did he do the IOP assessment?
A: Yes.
Q: Did he go through IOP treatment?
A: I do not think he completed that. March 24th, 2016 we
agreed that IOP was not working for him and that he needed to
go to the VA for in-patient substance abuse treatment.
Id. at 9-10. Ultimately, Enright did not believe that continued probation would
be appropriate because of Allen’s habitual relapses even after completing a
given course of treatment. Allen also testified and when asked if he completed
the IOP program Enright referenced, stated that he did. He acknowledged his
relapses, including a relapse in 2016 when he was using cocaine. The trial court
found the State had established by a preponderance of the evidence that Allen
had violated the terms of his probation and heard evidence regarding an
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appropriate sanction. Allen again testified, revealing several health issues,
acknowledging he was a longtime drug user, and stating that although he
“keep[s] trying to overcome this . . . I just keep falling short . . . .” Transcript at
15. Allen’s counsel conceded some length of punishment was in order but
argued that the full fourteen years remaining on his sentence was not
appropriate, asking instead for three years executed. The trial court stated the
court had “done literally everything that’s available to give Mr. Allen the
structure and support to meet his various and sundry . . . needs and nothing
we’ve tried has been successful.” Id. at 16. Accordingly, the court agreed with
Enright that probation was no longer a viable option and sentenced Allen to
serve the remainder of his sentence in DOC.
[7] Allen does not contest the revocation of his probation, acknowledging he had
consumed illegal substances in violation of the rules of his probation. See Brief
of Appellant at 9. Instead, Allen argues that he should not have been ordered
to serve the entirety of his original sentence in the DOC for two reasons: 1)
Enright “lied” when she testified he had not completed the IOP program, Br. of
Appellant at 9, and 2) after Allen completed the re-entry program, the trial
court modified his sentence to require that only three years of his suspended
sentence be served on supervised probation; therefore, his executed sentence
should be no longer than those three years.
[8] As for Enright’s testimony, she did not testify that Allen did not complete the
IOP program; she testified that she did not “think” Allen completed the
program. Tr. at 9. Even if Enright was mistaken, her statement is not a “lie,”
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as Allen tries to color it. Further, even if the trial court had been unequivocally
informed that Allen had completed the program, we cannot agree with Allen’s
assertion that the trial court “would have exercised its discretion . . . to sentence
him to a lesser sentence[.]” Br. of Appellant at 9. Allen was allegedly involved
in the IOP in March of 2016, and yet he also started testing positive for drugs
and alcohol in March of 2016 and tested positive several times thereafter.
Finally, Allen’s completion of an IOP program was not at issue in the probation
revocation proceeding, as the only allegations concerned missed or failed drug
screens. Given all of Allen’s violations during and after any such program, we
cannot say the trial court would have or should have imposed a lesser sanction.
[9] As for Allen’s argument that because he only had three years of supervised
probation, he should only be ordered to serve three years executed for violation
of his probation, he offers no authority supporting such a proposition. Allen
was given a twenty-year executed sentence, after first being given the
opportunity to avoid a criminal conviction and sentence altogether. The trial
court suspended Allen’s sentence after less than two years of incarceration to
supervised probation, then modified his sentence to require that he “serve three
(3) years of the suspended sentence” on supervised probation. Appendix of
Appellant, Volume 3 at 26. To the extent Allen argues he believed his sentence
as a whole had been modified to three years, the record does not support this
assertion. Allen was always subject to a twenty-year sentence and the trial
court had the discretion to order him to serve any or all of the remainder of that
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twenty-year sentence upon finding a violation and revoking his probation. Ind.
Code § 35-38-2-3(h)(3).
[10] Finally, in general, we note the sanction imposed by the trial court was not an
abuse of discretion. In the five years this case was before the trial court, Allen
had failed to successfully complete a drug court program. He began using drugs
again almost immediately after successfully completing purposeful
incarceration and a re-entry program in July 2015 as evidenced by Enright’s
testimony that he failed a drug screen on August 27, 2015. He was ordered to
complete two different inpatient treatment programs and was unable to
successfully complete either program. In sum, Allen was offered many
opportunities to avoid re-incarceration and failed to avail himself of any of
them. The trial court’s order that Allen serve the entirety of his previously
suspended sentence was not against the logic and effect of the facts and
circumstances presented here.
Conclusion
[11] The sanction imposed by the trial court upon finding that Allen had violated his
probation was not an abuse of discretion. The judgment of the trial court is
affirmed.
[12] Affirmed.
Riley, J., and Pyle J., concur.
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