Shannon L. Simons v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), Apr 30 2014, 6:37 am
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:
KURT A. YOUNG GREGORY F. ZOELLER
Nashville, Indiana Attorney General of Indiana
LARRY D. ALLEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SHANNON L. SIMONS, )
)
Appellant-Defendant, )
)
vs. ) No. 07A05-1308-CR-436
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE BROWN CIRCUIT COURT
The Honorable Judith A. Stewart, Judge
Cause No. 07C01-1301-FD-15
April 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
After pleading guilty to operating a motor vehicle while intoxicated as a class D
felony, Shannon Lynne Simons was alleged to have committed a violation of the conditions
of her community corrections placement and probation. Simons appeals from the trial court’s
order revoking a portion of her probation, contending that the trial court abused its discretion
by concluding that a violation had occurred, and by ordering that she serve ninety days of her
previously suspended sentence.
We affirm.
On January 15, 2013, Simons was involved in a single-vehicle crash after losing
control of her car, nearly striking another vehicle, and going over an embankment after
striking a guardrail. Upon arriving in response to a call about the accident, Nashville Police
Department Officer Tim True observed that Simons smelled strongly of alcohol, her speech
was slurred, and her eyes were red and watery. Simons was arrested and the charges filed
against her were elevated to class D felonies because she had a prior conviction for operating
a vehicle while intoxicated within five years of the current offense.
Pursuant to a plea agreement, Simons pleaded guilty to class D felony operating a
motor vehicle while intoxicated. The trial court sentenced Simons to 545 days of
incarceration with ninety days executed in a community corrections work-release program.
Of the conditions of her probation, Simons was not to use or possess alcohol, and was not to
“attend any place where you must be 21 years of age to enter except as necessary for
employment.” Appellant’s Appendix at 8, 29 (handwritten addition italicized). Another
condition provided that “[t]he successful completion of any executed time in the above
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sentence is a condition of your probation. You shall comply with all conditions of the Road
Crew/Work Release/House Arrest program(s) and pay all required fees for said programs.”
Id. at 8, 29.
On June 18, 2013, Simons began her work release under the supervision of
community corrections. Simons was employed by a pizza restaurant. On June 22, 2013,
Simons, who smelled of alcohol, returned from work to the community corrections facility.
Simons was tested and her blood alcohol content was measured at a level of .13. The State
filed a petition requesting the revocation of Simons’ probation based upon the positive
alcohol test. The trial court held a hearing at which Simons admitted she had consumed
alcohol and violated the conditions of her work release. The trial court found that Simons
had violated the terms of her placement with community corrections. Simons’s counsel
challenged whether Simons was in violation of the terms of her probation, contending that
the probationary period had not yet begun. The trial court rejected Simons’s counsel’s
argument and the matter proceeded to disposition.
The trial court found that Simons had violated the terms of her suspended sentence
and modified Simons’s probation. The trial court revoked ninety days of Simons’s
suspended sentence, with the provision that if Simons were admitted to an inpatient drug-
treatment program, complied with the treatment, and successfully completed the program,
Simons would not be required to serve the remaining portion of her jail sentence. Simons
now appeals. Additional facts will be supplied as needed.
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Community corrections programs, like probation, serve as alternatives to commitment
to the DOC, and both are made at the sole discretion of the trial court. McQueen v. State, 862
N.E.2d 1237 (Ind. Ct. App. 2007). Placement on probation or in a community corrections
program is a “matter of grace” and a “conditional liberty that is a favor, not a right.” Million
v. State, 646 N .E.2d 998, 1002 (Ind. Ct. App. 1995). We review challenges to the revocation
of placement in a community corrections program using the standard of review we use when
reviewing a revocation of probation. See Monroe v. State, 899 N.E.2d 688 (Ind. Ct. App.
2009). A revocation hearing is civil in nature, and the State need prove an alleged violation
by only a preponderance of the evidence. Id. When reviewing a decision to revoke, we will
not reweigh the evidence or judge the credibility of witnesses, and will consider only the
evidence most favorable to the trial court’s decision. Id. We will affirm the trial court if
there is substantial evidence of probative value supporting revocation. Id.
The record reflects that Simons admitted that she had consumed alcohol in violation of
the conditions of her placement with community corrections, and that admission was
supported by the positive test result indicating a BAC of .13. Simons initialed and signed a
list of conditions in advance of her participation in the work-release program. One of the
conditions was that Simons “shall not use or possess alcohol whatsoever.” Appellant’s
Appendix at 36.
Simons had previously served a period of time on probation for a conviction for
possession of a controlled substance and operating a vehicle while intoxicated. A portion of
Simons’s probation and suspended sentence in that case was revoked because she initially
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failed to complete a substance abuse program and tested positive for opiates, hydrocodone
and methadone specifically, without possessing a valid prescription for them. Simons
eventually completed and was released from her court-ordered outpatient drug treatment
program, but those running the program were unaware that she had failed a drug screen at the
same time she was released from the program. Simons admitted that she had problems
making and keeping appointments for drug abuse treatment, but was eventually able to
complete the program.
On June 18, 2013, Simons’s baseline drug screen resulted in a positive test for
methadone. Simons’s original probation officer, Jennifer Acton, stated that she knew Simons
struggled with addiction, particularly with opiates, which Simons combined with alcohol.
Acton further stated that Simons had never demonstrated a desire to seek help for her
addictions. Simons admitted that she failed her baseline drug screen because she decided to
“party a little bit”. Transcript at 26. There was substantial evidence of probative value
supporting the revocation of Simons’s probation.
Simons argues, however, that although she may have violated a term or condition of
her work release and placement with community corrections, she did not violate a condition
of her probation as her probationary period had not yet begun. Simons focuses on language
contained in the trial court’s order on guilty plea, sentencing, probation, and commitment,
which provides that probation begins “upon release from incarceration.” Appellant’s
Appendix at 7.
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By statute, a trial court may revoke a person’s probation if the person has violated a
condition of probation during the probationary period. Ind. Code Ann. § 35-38-2-3 (West,
Westlaw current with all 2013 legislation). As this court stated in Baker v. State, 894 N.E.2d
594, 596 (Ind. Ct. App. 2008) (quoting Ashba v. State, 570 N.E.2d 937, 939 (Ind. Ct. App.
1991)), regarding when a person’s probationary period begins and considering federal-court
reasoning on the subject, as a matter of “‘sound policy . . . courts should be able to revoke
probation for a defendant’s offense committed before the sentence commences,’” as “‘an
immediate return to criminal activity is more reprehensive than one which occurs at a later
date.’” The statute permits the trial court to terminate probation before a defendant has
completed serving his sentence or may revoke probation before the defendant enters the
probationary phases of his sentence. Ashba v. State, 570 N.E.2d 937 (Ind. Ct. App. 1991). A
defendant’s probationary period begins immediately after sentencing. Baker v. State, 894
N.E.2d 594 (Ind. Ct. App. 2008).
The trial court could have ordered that Simons serve the entirety of her previously
suspended sentence based on the community corrections violation alone. I.C. § 35-38-2.6-5
provides that when a person placed in a community corrections program violated the terms of
the placement, the trial court may, among other things, revoke the placement and commit the
person to the Department of Correction for the remainder of the person’s sentence.
Application of the principle from Ashba to the context of revocation of the community
corrections placement has resulted in the holding that under the language of the statute, there
is nothing expressly limiting a trial court’s discretion to revoke a placement in community
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corrections to those occasions when the violation occurs during the period of placement.
Million v. State, 646 N.E.2d 998 (Ind. Ct. App. 1995).
Simons’s arguments that she was without notice that she could have her probation
revoked because of her behavior in community corrections is unavailing. Simons was given
and signed the terms of her probation on the day she was sentenced. One of those terms
prohibited her use or possession of alcohol, and prohibited her from entering a place where
admittance is allowed only to those who are more than twenty-one years of age, except as
necessary for purposes of employment. Simons was put on notice that the successful
completion of any executed time was a condition of her probation, and that she was required
to be compliant with all conditions of the work-release program. The trial court did not
abuse its discretion by revoking a portion of Simons’s probation.
Judgment affirmed.
MATHIAS, J., and PYLE, J., concur.
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