Stephanie Murry v. State of Indiana

Aug 26 2013, 5:44 am
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:
ELLEN M. O’CONNOR GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEPHANIE MURRY, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1301-CR-39
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kurt M. Eisgruber, Judge
Cause Nos. 49G01-1112-FC-88928, 49G01-1201-CM-1201
August 26, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Stephanie Murry (“Murry”) appeals the revocation of her placement in Marion
County Community Corrections, contending that the trial court abused its discretion in
ordering her to serve the balance of her sentence in the Department of Correction
(“DOC”).
We affirm.
FACTS AND PROCEDURAL HISTORY
In November 2012, Murry pleaded guilty to forgery1 as a Class C felony and
criminal mischief as a Class A misdemeanor2 under two separate cause numbers. The
trial court sentenced her to four years executed on Marion County Community
Corrections (“MCCC”) work release, to be followed by one year on probation. Murry
began her work-release placement on November 30, 2012 at the John P. Craine House
(“Craine House”) in Indianapolis.
On December 12, 2012, around 8:30 a.m., Murry was driven to the City-County
Building for a routine drug screen. When she was unable to produce enough urine for an
accurate test, she returned to Craine House, where staff kept a supply of testing cups for
drug tests. Staff asked Murry to provide a sample, but, when she did, the sample
appeared to be a diluted mixture of urine and water, and was insufficient to register a
result. At 12:31 p.m., staff issued Murry a pass to leave Craine House. The conditions of
the pass were that Murry go to the City-County Building for a third attempt at a drug test,
and that she thereafter report to Methodist Hospital (“Methodist”) to address breathing
1
See Ind. Code § 35-43-5-2.
2
See Ind. Code § 35-43-1-2.
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problems and also obtain a refill of her asthma medication. Murry was instructed to call
Craine House every hour until she returned. Murry left on foot.
As of 5:00 p.m., Murry had not yet called Craine House. Sometime thereafter,
Patricia Gaither (“Gaither”), a correctional family officer at Craine House, called
Methodist to inquire about Murry. Methodist staff informed Gaither that Murry was not
at Methodist. Murry eventually called Craine House around 7:15 p.m. and claimed that
she had been at Methodist for about two hours. After receiving Murry’s call, Gaither
called Methodist around 8:00 p.m. and learned that Murry had not arrived until 7:31 p.m.
Murry returned to Craine House between 9:15 p.m. and 9:30 p.m. She had a
hospital wrist band and a prescription, but no admittance and discharge papers. Upon
arriving at Craine House, Murry handed Gaither a flyer from Methodist, which had the
name of a Methodist employee written on it. Also written on the flyer was a statement
that Murry had been at Methodist from 3:15 p.m. until 8:30 p.m. After receiving the
flyer, Gaither again called Methodist and spoke with the listed employee. That employee
stated that she had neither written her name on the flyer nor given Murry her name.
Gaither then spoke with another Methodist employee, who informed her that Murry had
not arrived at Methodist until 7:31 p.m. and that she had left shortly before 8:30 p.m.
A notice of community corrections violation was filed against Murry. The notice,
in its amended form, indicated that Murry had violated the conditions of an approved
pass and that she had failed to submit to a drug screen. A hearing was held, which
included testimony from Murry and Gaither, and the trial court found both of the
allegations against Murry were true. Murry requested to be returned to Craine House on
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strict compliance, but the trial court revoked Murry’s MCCC placement and ordered her
to serve the balance of her sentence (992 days) in DOC. Murry now appeals.
DISCUSSION AND DECISION
When a person is found to have violated terms of community corrections, the trial
court may, following a hearing: (1) change the terms of the placement; (2) continue the
placement; or (3) revoke the placement and commit the defendant to DOC for the
remainder of her sentence. See Ind. Code § 35-38-2.6-5. For the purposes of reviewing a
revocation, we have determined that the difference between community corrections and
probation is insignificant. Perry v. State, 710 N.E.2d 219, 220-21 (Ind. Ct. App. 1999).
We review a trial court’s revocation of either program for an abuse of discretion. Brown
v. State, 947 N.E.2d 486, 489 (Ind. Ct. App. 2011), trans. denied. An abuse of discretion
will be found only where the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before the court. Hardy v. State, 975 N.E.2d 833, 835 (Ind.
Ct. App. 2012).
Murry does not dispute that she violated community corrections terms; rather,
Murry challenges the trial court’s decision to order her to DOC. She argues that,
although she was warned by the court, that violations of her program could result in
revocation, our Supreme Court disfavors automatic revocation. See Woods v. State, 892
N.E.2d 637, 641 (Ind. 2008) (“[T]he very notion that violation of a probationary term will
result in revocation no matter the reason is constitutionally suspect.”) Murry points to a
recent case, where our Supreme Court observed that “the selection of an appropriate
sanction will depend upon the severity of the defendant’s probation violation . . . .”
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Heaton v. State, 984 N.E.2d 614, 618 (Ind. 2013). There, the court indicated that the
mere technicality of certain violations might warrant a less severe sanction, but that such
a determination is better exercised by the trial court. Id.; see also Ripps v. State, 968
N.E.2d 323, 328 (Ind. Ct. App. 2012) (finding revocation unreasonable where defendant
“was attempting to adhere to his probation conditions” and “was taking steps to correct
the violation” to which he admitted). Murry contends that because she did eventually
return to Craine House, despite hours of being unaccounted for, the nature of her
violation warrants a less severe sanction.
Consistent with our standard of review, we do not find that the trial court erred in
ordering Murry to serve the balance of her sentence in DOC. We have long observed that
a “defendant is not entitled to serve a sentence in either probation or a community
corrections program. Rather, such placement is a matter of grace and a conditional
liberty that is a favor, not a right.” Bass v. State, 974 N.E.2d 482, 488 (Ind. Ct. App.
2012). In making its determination to revoke Murry’s placement with MCCC, the trial
court observed that Murry’s violations occurred quickly, just fourteen days after she
entered the program. Tr. at 27-28. Although Murry notes that she had elimination
problems that affected her ability to provide a urine sample, Murry nevertheless failed to
comply with the conditions of her pass to leave Craine House. Murry failed to follow the
conditions of her pass, lied about her arrival time at Methodist, and submitted false
documents to corroborate her story.
Because Murry’s violations rose above mere technicalities, it was reasonable for
the trial court to conclude that such violations, viewed in context with Murry’s
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underlying crime of a fraudulent nature, warranted a sentence with fewer liberties. The
trial court did not abuse its discretion in ordering Murry to DOC.
Affirmed.
ROBB, C.J., and RILEY, J., concur.
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