Tammy Lee Montgomery v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
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:
JESSE R. POAG GREGORY F. ZOELLER
Newburgh, Indiana Attorney General of Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
FILED
Aug 16 2012, 8:20 am
CLERK
IN THE of the supreme court,
court of appeals and
tax court
COURT OF APPEALS OF INDIANA
TAMMY LEE MONTGOMERY, )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1201-CR-26
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Mary Margaret Lloyd, Judge
Cause Nos. 82D02-0909-FD-850 and 82D02-1104-FD-395
August 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
This is a case of a probationer who simply cannot stay away from drugs. While
serving probation on a class D felony conviction for driving while suspended, Tammy Lee
Montgomery violated probation and tested positive for an array of drugs. She was convicted
of two new class D felony counts of drug possession, for which she was sentenced to
probation and drug treatment programs. However, she continued to test positive for illegal
substances. Eventually, she signed a form admitting that she had used a controlled substance
without a valid prescription, whereupon the court granted petitions to revoke her probation
and remanded her to the Department of Correction (“DOC”).
Montgomery now appeals, claiming that the evidence is insufficient to support the
trial court’s finding that she violated her probation. We affirm.
Facts and Procedural History
In 2010, Montgomery pled guilty to class D felony driving while suspended causing
injury in cause number 82D02-0909-FD-850 (“Cause 850”). Her two-year sentence was
suspended to probation, and the trial court ordered her to pay restitution and perform
community service. In March 2011, the probation department filed a petition to revoke her
probation, alleging that she had tested positive for methamphetamine, oxycontin, methadone,
and benzodiazepines and had failed to pay restitution or perform community service as
ordered.
Two weeks later, the State charged Montgomery with two counts of class D felony
unlawful possession or use of a legend drug in cause number 82D02-1104-FD-395 (“Cause
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395”). The next day, the probation department filed a second petition to revoke her probation
in Cause 850, alleging that she had committed a new criminal offense. She admitted to the
allegations in the probation revocation petition, and the trial court granted the petition,
ordering her to serve one year on drug abuse probation service (“DAPS”) and to pay
restitution. That same day, she pled guilty to the drug offenses in Cause 395 and was
sentenced to two concurrent eighteen-month terms, with the first six months on electronic
home detention and the remainder on DAPS.
In June 2011, Montgomery failed her drug tests, and the community corrections
department filed a petition to revoke her probation in Cause 395. The trial court eventually
revoked her home detention and sentenced her to six months in the county jail followed by
the remainder of her DAPS commitment. In September 2011, she tested positive for
methadone and signed an admission stating that she took it without a valid prescription.
On September 13, 2011, the probation department filed probation revocation petitions
in Causes 850 and 395. The trial court issued a bench warrant, but Montgomery was not
apprehended. She did not appear in court until December 29, 2011. During the intervening
months, she missed one scheduled office appointment and seven random drug tests. At her
revocation hearing, she presented an August 2009 note from her doctor’s file, which stated
that the doctor had refilled prescriptions for methadone, xanax, and zanaflex to replace pills
that her husband had allegedly stolen. She stated that in 2009, her doctor had given her a
prescription for 330 methadone pills to take as needed for pain, but that she had ceased
taking them when she started taking oxycodone. Tr. at 22-24. She explained that she
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resumed taking methadone when she found out that her probation conditions prohibited her
from taking oxycodone. Although she had no independent recollection of signing the form in
which she admitted to taking methadone without a valid prescription, she authenticated her
signature and admitted that her probation officer had given her a copy of the DAPS rules and
had gone over them with her. DAPS Rule 6 states, “For a prescription to be considered valid,
the purchase date must be within 30 days.” State’s Ex. 2.
In January 2012, the trial court found that Montgomery violated her probation and
granted the revocation petitions, sentencing her to two consecutive one-year terms in the
DOC. This appeal ensued. Additional facts will be provided as necessary.
Discussion and Decision
Montgomery asserts that the evidence is insufficient to support the trial court’s finding
that she violated her probation. Probation is not a right; instead, it is a matter of grace in the
nature of a favor or a conditional liberty. Cooper v. State, 917 N.E.2d 667, 671 (Ind. 2009).
The trial court determines the conditions of probation and has the discretion to revoke
probation if the probationer violates those conditions. Id. Because a probation revocation
proceeding is civil in nature, the State must prove a violation by a preponderance of
evidence. Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006). In conducting our
review of Montgomery’s sufficiency claim, we consider only the evidence and reasonable
inferences most favorable to the judgment without reweighing evidence or judging witness
credibility. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). If there is substantial evidence
of probative value to support the trial court’s decision to revoke probation, we will affirm.
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Id. at 639-40.
Here, the trial court found that Montgomery had violated her probation by unlawfully
using controlled substances.1 At the revocation hearing, probation officer Melinda Littell
testified that on August 29, 2011, she witnessed as Montgomery signed two documents: the
rules of probation and the drug and alcohol testing agreement. Tr. at 9. Both documents
explicitly prohibited Montgomery from unlawfully using controlled substances. States’s Exs.
1, 2. Littell testified that when Montgomery tested positive for oxycodone in August 2011,
she told Montgomery that her two-month old prescription for oxycodone was no longer valid
because prescriptions were only valid for thirty days. Id. at 12. Littell also stated that when
she asked Montgomery if she was taking any other prescription medications, she said there
were “no other prescriptions.” Id. Less than two weeks later, Montgomery tested positive
for methadone and admitted to taking two methadone pills without a valid prescription. Id. at
12-14. To the extent she argues that she had a valid 2009 prescription for the methadone and
had no recollection of signing the admission form indicating that she took it without a valid
prescription, we note her authenticated signature on the form as well as her admissions (1)
that Littell read the DAPS rules to her; and (2) that she received a copy of the DAPS
agreement, which states that prescriptions are only valid for thirty days after the purchase
date. Tr. at 23, 25-26; State’s Exs. 2, 3. We also note Montgomery’s explanation that she
only resumed taking methadone after she found out that she could not take oxycodone while
1
Rule 3 of the probation order states, in part, that the probationer shall “[n]ot unlawfully use, possess,
sell, or dispense any drug identified as a Controlled Substance[.]” Appellant’s App. at 57.
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on probation. However, Littell explained to her that her two-month-old prescription for
oxycodone was too old to be considered valid. In now claiming that she was unaware that
her 2009 prescription was no longer valid, Montgomery invites us to reweigh evidence and
judge witness credibility, which we may not do.
Based on the foregoing, we conclude that the evidence is sufficient to support the trial
court’s finding that Montgomery violated her probation. Accordingly, we affirm.
Affirmed.
RILEY, J., and BAILEY, J. concur.
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