Matthew Keene Goodwin v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Aug 24 2016, 8:13 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ian O’Keefe Gregory F. Zoeller
Chicago, Illinois Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew Keene Goodwin, August 24, 2016
Appellant-Defendant, Court of Appeals Case No.
79A05-1510-CR-1790
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D01-1108-FA-19
May, Judge.
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[1] Matthew Keene Goodwin appeals the revocation of his probation. He raises
three issues, which we consolidate and restate as:
1. Whether the trial court abused its discretion when it found he
violated his probation; and
2. Whether the trial court abused its discretion by revoking part
of his suspended sentence in favor of Purposeful Incarceration
at the DOC. 1
The State cross-appeals for clarification of the disposition. We affirm the
revocation and remand for clarification of the dispositional order.
Facts and Procedural History
[2] On April 2, 2012, Goodwin pled guilty to Class C felony possession of a
narcotic drug 2 and Class D felony operating while intoxicated with a prior
conviction. 3 He also admitted to a habitual substance abuse allegation. 4 On
April 27, 2012, he was “sentenced to 11.5 years with 6.5 executed to include 3
1
The Indiana Department of Correction (IDOC) and the Indiana Court systems began a cooperative project
called Purposeful Incarceration wherein the judge sentences “chemically addicted offenders” to the program
at the IDOC and notes it will “consider a sentence modification” if the offender successfully completes it.
Marley v. State, 17 N.E.3d 335, 338 (Ind. Ct. App. 2014) (quoting http://www.in.gov/idoc/2798.htm), trans.
denied.
2
Ind. Code § 35-48-4-6(a) (2006).
3
Ind. Code § 9-30-5-3(a)(1) (2008).
4
Ind. Code § 35-50-2-10(b) (2006).
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years at TCCC [Tippecanoe County Community Corrections]. The Court
suspend[ed] 5 years to probation.” (Appellee’s Supp. App. at 9.) 5
[3] On March 12, 2015, the State filed a Petition to Revoke Probation. After a
hearing, the court revoked 180 days of Goodwin’s suspended sentence as it
found Goodwin had “violated the terms and conditions of probation by failing
to follow Tippecanoe County Probation Department’s drug screening policy
and by failing to maintain contact with the Tippecanoe County Probation
Department.” (Appellant’s App. at 14.) After serving the 180 days, Goodwin
was to return to probation. As a condition of probation, the trial court ordered
the defendant shall provide a drug screen at the Tippecanoe
County Probation Department on July 6, 2015. Further,
defendant to provide proof of application to a substance abuse
residential facility. If rejected from a residential facility the
defendant shall file said rejection information with the Court.
The defendant shall also file proof of the defendant having taken
steps to attempt to re-enroll at Ivy Tech Community College.
The defendant shall submit to a substance abuse evaluation and
follow all recommends [sic] and attend no fewer than three (3)
NA/AA meetings per week for the first six (6) months and
provide proof of same.
(Id. at 15.)
5
The sentencing order was not included in either party’s Appendix. We found the pronounced sentence in
the CCS included in the State’s Supplemental Appendix.
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[4] On July 1, 2015, Goodwin was released from the DOC. He immediately
reported to probation officer Charles Nielander at the Tippecanoe County
Probation Department. Nielander reviewed the probation requirements with
Goodwin and gave him until July 6, 2015, to “come up with the funds to pay
for the drug screen.” (Tr. at 4.) Nielander also told Goodwin it was necessary
for him to fill out a new application for Home With Hope, 6 even though he had
an application with him, which he had completed in April, 2015.
[5] When Goodwin reported on July 6, 2015, he did not provide proof of a drug
screen or evidence he had reapplied to Home With Hope. Nielander spoke
with Home With Hope’s director later that week and was told they were
holding a bed for Goodwin but had been unable to reach Goodwin at the
numbers they had for him. Nielander was to see Goodwin on July 13, 2015, for
a probation appointment, so Nielander told the Home With Hope director he
would send Goodwin to her after the appointment. Goodwin did not appear at
his appointment with Nielander.
[6] The State filed another petition to revoke probation on July 16, 2015, alleging
Goodwin had failed to appear at the July 6, 2015, appointment and had
absconded. It later corrected the petition to allege he had “reported but failed
to provide proof of taking the drug screen as required,” “fail[ed] to provide
6
Home With Hope operates in the Lafayette area and “provides a continuum of care, often following
primary treatment or detox for alcoholism and other drug addiction[.]” Home With Hope,
http://www.homewithhope.org (last visited Aug. 12, 2016).
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proof that he remain[ed] in contact with the Home with Hope [sic] and
followed through with the application process,” and “fail[ed] to report for his
scheduled appointment on July 13, 2015[.]” (Appellant’s App. at 23.)
[7] At his revocation hearing, Goodwin denied the violations. He claimed
Nielander had told him a drug screen conducted through the Department of
Child Services (DCS) would suffice. He claimed he had taken a copy of the
application he had filled out in April, 2015, to Home With Hope and they had
made a copy of it. He admitted he missed the probation appointment because
“I was working on doing my three meetings a week, the Judge ordered me to
do and I just, between looking for a job, and with meetings, I just lost track.”
(Tr. at 13.) The trial court found Goodwin had
violated the terms of his probation by failing to provide proof of
taking the drug screen as required[,] . . . by failing to provide
proof that he remained in contact with the Home With Hope and
followed through with the application process[,] . . . [and] by
failing to report for his scheduled appointment on July 13, 2015.
(Appellant’s App. at 28.)
[8] At the disposition hearing, on September 25, 2015, it became clear that due to
his prior revocation of probation, and past fees resulting from same, Goodwin
was not eligible to re-enter TCCC. The State had also informed the trial court
that Goodwin had been arrested when officers were “dispatched [to] an
intoxicated person who could barely stand up.” (Tr. at 19.) Even though
Goodwin asked to be returned to probation, the trial court found a pattern of
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Goodwin’s inability to maintain contact with probation and follow the drug
screen policies. After noting it believed Goodwin was “high when [he] was
picked up in [this current revocation],” (id. at 32), the trial court thought “the
only way of getting [Goodwin] through,” (id.) was to return him to the DOC to
complete the Purposeful Incarceration program and to then serve “a year
supervised, six months unsupervised” probation. (Id. at 35.)
[9] When asked about his drug and alcohol meetings, Goodwin stated he had been
going but that “I didn’t have no [sic] sign in sheets, I asked Mr. Nielander for a
sign in sheet which he never gave me.” (Id. at 26.) He had not attempted to re-
enroll at Ivy Tech. When asked with whom he lived, Goodwin said, “A
friend.” (Id. at 27.) When asked the name of the friend, Goodwin said, “John
Smith.” (Id.) These responses, along with the circumstances of Goodwin’s
arrest, prompted the judge to comment,
I don’t believe you. John Smith, really, really? Maybe it is a
John Smith that resides at 12th and Greenbush, but you hadn’t
been doing anything that you were required to do. . . . I think
you need help . . .[.] I think purposeful incarceration [sic] may be
the only way of getting you through the -- and it’s up to you. If
you successfully complete the program then you’re out.
(Id. at 30-32.)
[10] The trial court noted Community Corrections would be ideal, but Goodwin
was not eligible for it because he failed its drug screen and did not pay its fees.
The trial court then sentenced Goodwin to three years in the DOC’s Purposeful
Incarceration program, with one and one half years on probation.
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Discussion and Decision
[11] When a trial court finds a person has violated a condition of probation, the trial
court may continue the person on probation, extend the probationary period, or
order execution of all or part of the sentence that was originally suspended.
Ind. Code § 35-38-2-3(g). Probation revocation proceedings are civil in nature
and, therefore, alleged violations need be proven by only a preponderance of
the evidence. Ind. Code § 35-38-2-3(e). In evaluating the sufficiency of
evidence to support probation violations, we will not reweigh evidence or
determine witness credibility. King v. State, 642 N.E.2d 1389, 1393 (Ind. Ct.
App. 1994). Rather, we look only to the evidence most favorable to the State.
Id. The violation of a single condition of probation is sufficient to support
revocation. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). We
review the sanction imposed in a probation revocation proceeding for abuse of
discretion. Podlusky v. State, 839 N.E.2d 198, 200 (Ind. Ct. App. 2005).
Probation Violation
[12] Goodwin asserts the trial court abused its discretion by finding he violated his
probation because he did not provide proof of taking the drug screen; because
he failed to provide proof he had remained in contact with Home With Hope
and completed the application process; and because he failed to report to his
appointment on July 13, 2015.
[13] Goodwin went to his probation appointment on July 6, 2015, but Nielander
testified he “never received any proof that [Goodwin] did a drug screen on July
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6th.” (Tr. at 4.) Goodwin asserts he was told he could provide evidence of a
DCS drug screen. Nielander testified he did not tell Goodwin the probation
department would accept a drug screen from DCS. Even if he did, Goodwin
never provided such evidence.
[14] Although Nielander told Goodwin to re-apply with Home With Hope, the
probation department never received proof of an application or proof of
maintenance of contact. The director from Home With Hope told Nielander
that Goodwin did “fill out an application,” (id. at 5), but she had been unable to
contact Goodwin using the contact numbers Goodwin had provided to inform
him they were holding a bed. Goodwin contends he had gone to Home With
Hope on July 1, 2015, but they accepted a copy of the original application filled
out in April, 2015. However, because of the $300 entry fee associated with
Home With Hope, he was unable to start its program immediately. Even if the
application was started, Goodwin never provided proof of it to the probation
department and did not maintain contact with Home With Hope.
[15] When Goodwin missed his July 13, 2015 appointment, Nielander also
attempted to contact him at the phone numbers provided but they “were not in
service at that time.” (Id. at 6.) Goodwin admitted he missed the appointment
on July 13, 2015.
[16] The trial court did not abuse its discretion in finding by a preponderance of
evidence Goodwin violated probation. See Gosha, 873 N.E.2d at 663 (a single
violation is sufficient to support revocation). Goodwin’s arguments to the
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contrary are invitations to reweigh the evidence, which we cannot do. See, e.g.,
Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005) (appellate court will
not reweigh the evidence from a probation revocation hearing), trans. denied.
Sanction
[17] Goodwin asserts missing his probation appointment was a minor violation, and
the punishment for that violation should be revised. Even if it was “minor,” it
was not the only violation. Goodwin’s probation was revoked because he did
not provide proof of a drug screen, did not stay in contact with Home With
Hope, did not provide proof of his application status with Home With Hope,
and missed a probation appointment.
[18] Goodwin contends “[t]he trial court abused its discretion by sentencing
Goodwin to the DOC because Goodwin did not have the financial means to
pay for [TCCC].” (Appellant’s Br. at 12) (capitalization removed). Goodwin
cites Runyon v. State, 939 N.E.2d 613 (Ind. 2010), as the basis of his argument.
However, Runyon applies only when a court revokes conditional release due
merely to the offender’s inability to pay fines. See Ind. Code § 35-38-2-3(m)
(“Failure to pay fines or costs (including fees) required as a condition of
probation may not be the sole basis for commitment to the department of
correction.”).
[19] This is not why the trial court sent Goodwin to the DOC Purposeful
Incarceration program. The trial court stated specifically, “I think purposeful
incarceration [sic] may be the only way of getting you through the—and it’s up
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to you.” (Tr. at 32.) While the trial court considered TCCC, Goodwin told the
court he owed TCCC money and he had “failed a drug screen.” (Id.) As such,
TCCC was unwilling to accept him back into its program. While Goodwin
argued for return to probation, the trial court dismissed that idea because of
Goodwin’s pattern of behavior, which led it to believe he needed closer
supervision. See Sanders, 825 N.E.2d at 957 (given “ample basis for its
decision,” a trial court’s order to serve a suspended sentence is not an abuse of
discretion). As such, we find no abuse of discretion in the trial court’s order for
Goodwin to spend time in the DOC’s Purposeful Incarceration Program.
Cross-Appeal
[20] The State argues the trial court’s disposition of this matter is unclear. Goodwin
does not reply to this assertion. In such a case, we do not assume the burden of
making the argument for him. Instead, we apply a less stringent standard of
review. Pettiford v. State, 504 N.E.2d 324, 326 (Ind. Ct. App. 1987). To obtain
remand, the State need only establish the trial court committed prima facie error.
Id. In this context, prima facie means at first sight, on first appearance, or on the
face of it. Id. However, we still review the evidence in the light most favorable
to the judgment and will remand only if error is demonstrated in the record and
by the State’s brief. Id.
[21] At the hearing, the trial court recognized the “total time left was four and a half
years.” (Tr. at 33.) It then sentenced Goodwin to “the three years.” (Id. at 34.)
When the State requested clarification as to the remaining year and a half, the
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trial court stated “If there’s a modification we’ll deal with it at that time. I see,
a year supervised, six months unsupervised.” (Id. at 35.)
[22] On that same day, the trial court entered an order reflecting Goodwin is
“sentenced to the Indiana Department of Correction for a period of three (3)
years to be directly placed in Purposeful Incarceration.” (App. at 30.)
Although the order notes the trial court will “consider modification of the
sentence on successful completion of Purposeful Incarceration,” (id.), it does
not reflect the trial court’s statement regarding one year of supervised probation
and six months of unsupervised probation. This order also stated the April 27,
2012, sentencing order would “remain in full force and effect,” (id. at 31), but
that does not clarify how Goodwin should spend his remaining time on
probation.
[23] The trial court thereafter entered two abstracts of judgment but neither clarified
the conflict between the oral and written sentences. 7 When there is conflict
between the trial court’s statements, we may remand for clarification. Ramos v.
State, 869 N.E.2d 1262, 1264 (Ind. Ct. App. 2007). Accordingly, we remand for
the trial court to clarify the sanction imposed on Goodwin.
Conclusion
7
The State filed a Motion to Correct Error, but the case was removed from the trial court’s jurisdiction by the
present appeal.
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[24] As the State proved Goodwin violated his probation and the trial court did not
abuse its discretion in the sanction, we affirm. However, due to the ambiguity
as to the punishment imposed, we remand for clarification.
[25] Affirmed and remanded.
Baker, J., and Brown, J., concur.
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