Adam Thomas Nowak 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 Mar 27 2018, 9:23 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
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Adam Thomas Nowak, March 27, 2018
Appellant-Defendant, Court of Appeals Case No.
49A04-1710-CR-2482
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Shatrese M. Flowers, Judge
The Honorable
James Snyder, Commissioner
Trial Court Cause No.
49G20-1701-F5-3031
Kirsch, Judge.
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[1] Adam Thomas Nowak (“Nowak”) appeals the revocation of his probation,
contending that the trial court abused its discretion when it imposed the entirety
of two-year suspended sentence.
[2] We affirm.
Facts and Procedural History
[3] On February 27, 2017, Nowak pleaded guilty to one count of Level 6 Felony
possession of methamphetamine. Pursuant to a plea agreement, the trial court
imposed a two-year incarceration, with placement in community corrections for
one year and one year suspended to probation.
[4] Nowak signed a contract with Duvall Residential Center (“Duvall”) which
stated that residents were only to leave Duvall with a pass, that they were only
to go to locations approved and authorized in advance, and that they could
only be gone for the approved length of time.
[5] On August 14, 2017, Nowak received a hospital pass. Because Duvall did not
provide transportation, it allowed one hour for travel each way and three hours
at the hospital for a total of five hours. Nowak left Duvall at 10:27 a.m. and
returned at 6:13 p.m.
[6] A notice of community corrections violation was filed against Nowak on
August 15, 2017. The trial court held a hearing on this and another alleged
violation on October 5, 2017. At the conclusion of the hearing, the trial court
found that the State had proven by a preponderance of the evidence that Nowak
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violated the conditions of his community corrections placement by committing
the offense of trafficking by bringing in a cell phone and failing to abide by the
time conditions of his hospital pass. The court revoked Nowak’s probation and
his community corrections placement and ordered him to serve his entire
previously-suspended two-year sentence in the Indiana Department of
Correction (“DOC”). Nowak now appeals.
Discussion and Decision
[7] Nowak concedes that the evidence presented at the hearing supports the finding
that he violated the conditions of his probation, but he contends that the trial
court abused its discretion because the violation was not so egregious that it
warranted the revocation of his entire two-year previously-suspended sentence.
[8] “‘Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.’” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind.
Ct. App. 2014) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). “The
trial court determines the conditions of probation and may revoke probation if
the conditions are violated.” Id.; see also Ind. Code § 35-38-2-3(a). “Once a trial
court has exercised its grace by ordering probation rather than incarceration,
the judge should have considerable leeway in deciding how to proceed.”
Prewitt, 878 N.E.2d at 188. “If this discretion were not afforded to trial courts
and sentences were scrutinized too severely on appeal, trial judges might be less
inclined to order probation to future defendants.” Id. Accordingly, we review a
trial court’s probation violation determination for an abuse of discretion.
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Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances or when the trial court misinterprets the law.” Jackson, 6 N.E.3d
at 1042.
[9] Probation revocation is a two-step process. Id. “First, the trial court must make
a factual determination that a violation of a condition of probation actually
occurred.” Id. (citing Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008)).
“Second, if a violation is found, then the trial court must determine the
appropriate sanctions for the violation.” Id. A trial court may (1) continue the
defendant on probation; (2) extend the probationary period for not more than
one year beyond the original period; or (3) order all or part of a previously-
suspended sentence to be executed. Ind. Code § 35-38-2-3(g).
[10] To summarize the minimal facts before us, on August 14, 2017, Nowak
obtained a five-hour hospital pass, left Duvall around 10:30 a.m. and returned
about 6:15 p.m. When he returned, he had a backpack and cell phone which
are not allowed in the center.
[11] Nowak testified that he left Duvall on the pass about 10:45 a.m. and returned at
6:13 p.m. He stated that he did not have bus fare and estimated that it took him
two hours to walk to the hospital. He checked into the hospital at 1:56 p.m.
and checked out at 2:33 p.m. with a prescription which he took to the hospital
pharmacy. He called Duvall at 3:10 p.m. from the emergency room to tell them
he was still there. He was told that if he was not back by 5:30 p.m. to call again.
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He went to the pharmacy and waited an hour and forty-five minutes until he
was told his insurance was not approved. He did not have money to pay for the
medication, and the prescription was returned to him. He had checked out
when he left the emergency room, and the pharmacy did not have a check in
procedure so it was not possible to verify how long he was there. According to
Nowak, he left the hospital at about 4:15 p.m. At 5:30 p.m., he stopped at a
grocery to call and tell Duvall he was on his way, but would not be there by
5:30 p.m. Nowak brought the prescription but no medication back to Duvall
with him.
[12] Nowak also testified that he brought the backpack with the cell phone in it
when he was transferred from Jail I to Duvall. Furthermore, he testified that he
retrieved it by asking for it to be brought from the property room at Duvall
when he left for the hospital. He planned to have his baby’s mother pick up
the bag and take it home, but she did not show up at the hospital, and he
returned to Duvall with it. The only items in the bag were the phone and some
articles of clothing.
[13] Nowak testified that he had seen others return from passes with their phones,
and had he been told he could not have a phone at all, he would not have
brought it back to Duvall. Nowak testified that he was only given a verbal pass,
not a written one. Since this was the first time he had left Duvall, he was not
aware of regular procedures and just did what he was told.
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Marcus Robinson (“Robinson”), a Residential Center Officer at Duvall, also
testified. On August 14, 2017, he was searching residents returning from their
passes. When Nowak returned at about 6:48 p.m., he had a book bag with him.
Robinson testified that Nowak was not authorized to take a backpack with him
on the day in question. Chief Thompson would notify the staff when
permission was given to take a bag or other confiscated items out of Duvall, but
he would never allow a resident to bring a confiscated item back in. In
searching the bag, Robinson found a cell phone. Electronic devices are not
allowed at Duvall.
Patricia Montgomery (“Montgomery”) was an employment specialist for
Duvall and was the person responsible for approving Nowak’s hospital pass.
Montgomery testified that she would have explained everything to him because
he was new to Duvall. She also said that he would have been given a written
pass as well as the verbal explanation. That written pass should have been
returned to Duvall along with hospital papers and prescription medications, but
they were not in his file. Montgomery did not have a copy of the written pass
she had issued to Nowak.
[14] Montgomery testified that if a person goes to the pharmacy at the hospital and
does not have insurance to pay for the prescription, the pharmacy keeps the
prescription and refers the individual to the hospital’s “financial people” to find
out if they can get help paying for their medications. Tr. v. 2 at 41. She denied
telling Nowak that he could call himself to say that he would be late. Proper
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procedure was to have a nurse or doctor call to verify he was being held for
some reason.
[15] Montgomery also testified that Nowak did not tell her he did not have money
for the bus. Had he done so, she would have let him use her phone to call a
ride. She also stated that the lockers in the front of Duvall were for those
residents who were working, turning in their paychecks, and without a write-up
within the last 30 days. They were allowed to return to the facility with their
cell phones, but they had to put them into their lockers. Nowak did not have a
locker.
[16] Nowak had prior rules violations at Duvall. Notices of violations were filed
against him on June 17, 2017, August 7, 2017, and August 15, 2017. On
October 3, 2017, a notice of probation violation was filed alleging that he failed
to comply with the terms and conditions of his community corrections
placement. During the hearing on Nowak’s alleged violations that was held on
October 5, 2017, the State presented evidence showing that Nowak was
permitted to leave the community corrections facility on August 14, 2017 for a
hospital visit to obtain prescription medication, that he failed to timely return to
the community corrections facility, and that when he did return, he brought
with him a cell phone. Testimony further showed that it was a violation of the
community corrections rules for a resident to bring a cell phone or any
electronic device into the facility. When he first arrived at Duvall, Nowak had
been furnished with the facility’s rule book, which informed residents that
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electronic devices were not allowed, and there were numerous signs at the
entrance that proclaimed such devices were not allowed inside the center
[17] This instance was not Nowak’s first violation of community corrections
policies, and the trial court had already shown leniency by not imposing his
suspended sentence in his prior revocation proceedings. Nowak’s first violation
of community corrections had been filed because Nowak left home detention
for over a month, and he was placed on strict compliance when he was returned
to community corrections work release.
[18] The trial court’s decision was not clearly against the logic and effect of the facts
and circumstances before it, and the trial court did not abuse its discretion in
revoking Nowak’s probation and imposing the entire previously-suspended
two-sentence.
[19] Affirmed.
[20] Bailey, J., and Pyle, J., concur.
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