Andrew Wann v. State of Indiana

Nov 05 2013, 5:49 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRISTINA M. TRENT GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANDREW WANN, )
)
Appellant-Defendant, )
)
vs. ) No. 32A01-1303-CR-123
)
STATE OF INDIANA, )
)
Appellee-Plaintiff, )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Mark A. Smith, Judge
Cause No. 32D04-0905-CM-228
November 5, 2013
OPINION – FOR PUBLICATION
BAILEY, Judge
Case Summary
Andrew Wann (“Wann”) appeals an order revoking his probation and ordering
that he serve 90 days of a 365-day suspended sentence. We affirm.
Issues
Wann presents two issues for review:
I. Whether the trial court admitted a urinalysis report in violation of
Wann’s due process rights as a probationer; and
II. Whether the order that he serve 90 days of his suspended sentence
contravenes statutory authority.
Facts and Procedural History
On November 10, 2009, Wann pled guilty to Possession of Marijuana, as a Class
A misdemeanor. He was sentenced to 365 days of imprisonment, all suspended to
probation. As conditions of his probation, Wann agreed to drug testing and also that
toxicology results obtained by a probation officer would be admissible in revocation
proceedings.
After testing positive for marijuana use, Wann was arrested. He was released on
bond the following day, admitted to a probation violation, and was ordered to serve 30
days of his suspended sentence (with credit for one day actually served and one day of
good time credit). He was released and returned to probation.
The State filed a second Notice of Probation Violation, alleging that Wann had
tested positive for marijuana use on September 16, 2010. Nearly two years later, on July
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13, 2012, Wann was arrested. He was released from jail on August 7, 2012 to await a
hearing.1
At the evidentiary hearing conducted on March 12, 2013, Wann argued that he had
effectively served 308 days of his suspended sentence by serving 308 days of probation
and, when aggregated with his 82 days of imprisonment, his misdemeanor sentence had
been fully served. The trial court found that Wann was still on probation when he
violated a term of his probation by using marijuana. Wann’s probation was revoked and
he was ordered to serve 90 days of his previously-suspended sentence in the Hendricks
County Jail.
Discussion and Decision
I. Toxicology Report
Wann contends that the trial court improperly admitted hearsay evidence in
determining whether he had violated a term of his probation. Over Wann’s hearsay
objection, a probation officer was permitted to testify that Wann had “tested positive” for
marijuana. (Tr. 3.) Contemporaneously, the trial court admitted as an exhibit a
toxicology report from Redwood Toxicology Laboratory indicating that Wann’s screen of
September 16, 2010 had shown “positive” results for marijuana. (St. Ex. 2.) Wann now
asserts that the documentary evidence was not substantially trustworthy so as to satisfy
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This resulted in credit for 26 days of actual incarceration and 26 days good time credit, for an aggregate
of 52 days. Combined with the prior 30 days, Wann’s total period of incarceration was 82 days.
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his due process rights as a probationer. In particular, he suggests that an affidavit from
the testing toxicologist was required.2
A probation revocation hearing is not equivalent to an adversarial criminal
proceeding. Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999). However, the Due Process
Clause applies to probation revocation proceedings, and the due process rights of a
probationer include: “written notice of the claimed violations, disclosure of the evidence
against him, an opportunity to be heard and present evidence, the right to confront and
cross-examine witnesses, and a neutral and detached hearing body[.]” Id. at 549.
Because probation revocation procedures “are to be flexible, strict rules of
evidence do not apply.” Id. The scope of the right to confrontation as defined in
Crawford v. Washington, 541 U.S. 36 (2004), does not apply in such proceedings. Reyes
v. State, 868 N.E.2d 438, 440 n.1 (Ind. 2007). In Cox, the Court held that judges could
consider hearsay “bearing some substantial indicia of reliability,” but declined to adopt a
particular approach to determining that reliability. 706 N.E.2d at 551. Subsequently, in
Reyes, the Indiana Supreme Court adopted a “substantial trustworthiness” test. 868
N.E.2d at 440.
In Reyes, the State had filed a notice of probation violation alleging that Reyes
had violated his probation by testing positive for cocaine. Id. at 439. At a hearing, the
State submitted the affidavit of the scientific director of the laboratory that conducted the
urinalysis of Reyes’s sample, together with related documents. Id. The director did not
testify at the hearing, and Reyes objected to the affidavits as hearsay and claimed that the
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He does not develop a separate argument with respect to the admissibility of the probation officer’s
testimony.
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admission of the affidavit without live testimony would violate his right of confrontation.
Id. The trial court admitted the affidavits and revoked Reyes’s probation. Id. The
probation revocation was affirmed by the Indiana Supreme Court. Id. at 443.
In reaching its decision, the Court observed that hearsay evidence may not be
admitted “willy-nilly.” Id. at 440. However, although there may sometimes be no
adequate alternative to live testimony, due process does not prohibit substitutes where
appropriate, including affidavits, depositions, and documentary evidence. Id. (citing
Gagnon v. Scarpelli, 411 U.S. 778, 782-83 n.5 (1973)). Where the State has shown that
the hearsay “bears substantial guarantees of trustworthiness,” the State need not
additionally show good cause for not producing live testimony. Id. at 441. The trial
court must evaluate the reliability of the hearsay evidence and, ideally, the trial court
should explain on the record why the hearsay is reliable and why that reliability is
substantial enough to supply good cause for not producing live witnesses. Id. at 442.
Here, probation officer McCleese3 testified that he had observed the administration
of the drug screen to Wann and that the sample was then sealed, labeled, and sent to
Redwood Toxicology Laboratory for testing. According to McCleese, similar tests were
administered by his department and sent to Redwood Toxicology on a routine basis. The
trial court concluded that the report was admissible. Wann now contends that the trial
court’s conclusion is erroneous, because the hearsay evidence in his case falls short of the
level of trustworthiness of that submitted in Reyes. He implicitly argues that the
3
In the record, the probation officer is identified only by his surname.
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“substantial trustworthiness” test of Reyes requires an affidavit and a scientific opinion
validating drug screen results. We discern no such requirement in Reyes.4
Moreover, Wann ignores a crucial distinction between his circumstances and those
present in Reyes. Wann had signed an agreement containing the provision: “You shall
submit to alcohol and drug tests when requested by the Probation Department or any Law
Enforcement Officer. You shall waive any objection to the admissibility of the results of
the test as they are received by the Court into evidence at any Revocation Hearing.”
(State’s Ex. 1.) That is, Wann agreed in advance to the admissibility of the test results
and made no claim in probation revocation proceedings that the admissibility agreement
is unenforceable. Wann has thus not demonstrated that the trial court admitted the
toxicology report in contravention of his due process rights.
II. Order to Serve 90 Days of Sentence
Probation may be revoked for a violation of a probation condition. Runyon v.
State, 939 N.E.2d 613, 616 (Ind. 2010). Indiana Code Section 35-38-2-3(h) provides as
follows:
If the court finds that the person has violated a condition at any time before
termination of the period, and the petition to revoke is filed within the
4
A panel of this Court has recently concluded that the record of probation revocation proceedings
supported a determination of substantial trustworthiness of “a routine report demonstrating that
[appellant] had tested positive for marijuana.” Williams v. State, 937 N.E.2d 930, 934 (Ind. Ct. App.
2010). The urinalysis had been performed by the president of the company handling Williams’s home
detention, the report contained a signed chain of custody signed by Williams and the president, and an
employee of the home detention company had testified and explained the report and the date and time of
sample collection. Id.; see also Holmes v. State, 923 N.E.2d 479, 484 (Ind. Ct. App. 2010) (substantial
trustworthiness existed for urinalysis report where the toxicologist affirmed under penalty of perjury that
the sample was received under controlled conditions and processed in accordance with laboratory
standard operating procedures and the scientist affirmed that the sample was handled in accordance with
applicable requirements).
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probationary period, the court may impose one (1) or more of the following
sanctions:
(1) Continue the person on probation, with or without modifying or
enlarging the conditions.
(2) Extend the person’s probationary period for not more than one
(1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended
at the time of initial sentencing.
Generally speaking, as long as the trial court follows the procedures outlined in Indiana
Code Section 35-38-2-3, the trial court may properly order execution of a suspended
sentence. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006).
Here, however, Wann argues that the order that he serve of a portion of his
previously-suspended sentence contravenes other statutory authority. Wann had served
308 days on probation prior to his violation. By the time of the revocation hearing, he
had been incarcerated for a total of 82 days (inclusive of good time credit). He claims
that his sentence has been fully served and the order for 90 days imprisonment violates
the statutory maximum of Indiana Code section 35-50-3-1, which provides in relevant
part:
The court may suspend any part of a sentence for a misdemeanor. . . .
However, the combined term of imprisonment and probation for a
misdemeanor may not exceed one (1) year.
He directs our attention to Jennings v. State, 982 N.E.2d 1003 (Ind. 2013). Appellant
Jennings, convicted of a Class B misdemeanor, had been sentenced to 30 days executed
time, 150 days suspended, and 360 days of probation; on appeal he challenged the
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sentence as in excess of the statutory maximum of section 35-50-3-1 and thus illegal. Id.
at 1004. The Court was asked to decide whether a suspended sentence was part of the
term of imprisonment. See id.
Wann asserts that our Supreme Court determined in Jennings that the trial court
may not order an executed sentence and term of probation that aggregate to more than
one year but “to the best of Wann’s knowledge, there is no case law discussing how this
provision should be interpreted as applied to revocations of probation, after a term of
probation has already been served.” Appellant’s Brief at 7. He urges a construction such
that a suspended sentence is “run concurrently with probation on a misdemeanor
conviction.” Appellant’s Brief at 8.
Wann is correct insofar as he observes that Jennings clarified: “a combined term
of probation and imprisonment may not exceed one year, notwithstanding the maximum
term of imprisonment for the misdemeanor.” 982 N.E.2d at 1005. Additionally, our
Supreme Court specifically held that the phrase “term of imprisonment” embodied in
Indiana Code Section 35-50-3-1, for purposes of misdemeanor sentencing, does not
include suspended time. Id. at 1005-06. “For the purpose of Indiana Code § 35-50-3-1,
‘term of imprisonment’ means the total amount of time a misdemeanant is incarcerated.”
Id. at 1009. Ultimately, the Court remanded Jennings’ case “for imposition of a
probationary period consistent with this opinion, not to exceed 335 days – the difference
between one year (365 days) and the 30 days Jennings was ordered to serve in prison.”
Id.
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The State does not dispute that Wann was on probation for 308 days or imprisoned
for 82 days. Rather, the State argues that Wann’s “days of probation” are not included in
the “term of imprisonment” limited by Indiana Code § 35-50-1-3 and that Wann has not
“served his sentence” by having been on probation. State’s Brief at 11.
As a threshold matter, we observe that the statute construed in Jennings deals with
the trial court’s imposition of a misdemeanor sentence. Wann is not directly appealing
his 365-day sentence as exceeding the misdemeanor statutory maximum. Instead, he
seeks to extrapolate language from Jennings to calculate his time served in a manner that
would lead to the conclusion that he was no longer subject to any period of incarceration
by the time of his probation revocation hearing. Wann requests that we determine that
for each day he served on probation he also served one day of his suspended sentence. In
other words, he would be credited with having been on probation 308 days and having
served 308 days of his suspended sentence (in addition to serving 82 days of his
suspended sentence while in actual confinement). Thus, in his view, no day of his
suspended sentence remained.
At first blush, there appears to be language in Jennings supportive of Wann’s
position: “[p]robation and suspended sentences are widely imposed concurrently in order
to ensure the probationer’s good behavior. The two work in concert. … A suspended
sentence, in effect, is a form of probation.” Jennings, 982 N.E.2d at 1008.5 Importantly,
5
The Court also observed that, in prior case-law, “probation and suspended sentence were considered
together as two parts of the same whole.” Jennings, 982 N.E.2d at 1006 (citing Smith v. State, 621
N.E.2d 325 (Ind. 1993).
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however, Jennings involved an allegation that the sentence imposed exceeded statutory
authority and did not overrule any probation revocation statute.
Consistent with the reasoning of Jennings, Wann as a misdemeanant was subject
at his sentencing hearing to a maximum term of 365 days, all executed, all on probation,
or divisible between probation and imprisonment. He received a sentence within that
statutory range. See I.C. § 35-50-3-1. Subsequently, the issues before the trial court
considering the probation revocation petition were whether the petition to revoke was
timely filed, whether Wann was on probation on September 16, 2010 – the date of the
drug screen – and whether he violated a term of his probation.
From the date of Wann’s November 10, 2009 sentence to his September 16, 2010
violation, 308 days had elapsed. The State alleged the violation within the probationary
period, and subsequently proved the violation. Accordingly, the options of Indiana Code
section 35-38-2-3(h) were available to the trial court, including an order for “execution of
all or part of the sentence that was suspended at the time of initial sentencing.” The trial
court acted within its statutory discretion to order that Wann serve 90 days in jail.
Conclusion
Wann has not shown that he was denied due process by the admission of hearsay
evidence at the probation revocation hearing. Additionally, the order that he serve 90
days of his previously-suspended sentence does not contravene statutory authority.
Affirmed.
MAY, J., and BRADFORD, J., concur.
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