Opinion
24A-CR-805
08-22-2024
John Burnett, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Ryan D. Bower Washington County Public Defender's Office Salem, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Washington Superior Court The Honorable Dustin Houchin, Judge Trial Court Cause No. 88D01-2307-CM-484
ATTORNEY FOR APPELLANT Ryan D. Bower Washington County Public Defender's Office Salem, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE.
[¶ 1] John Burnett appeals the revocation of his probation. He contends the trial court abused its discretion in revoking the balance of his suspended sentence. He further argues that the court abused its discretion in admitting certain hearsay evidence during his revocation hearing and that the drug screening callin system used by the probation department violated his due process rights. We affirm.
Facts and Procedural History
[¶ 2] In July 2023, the State charged Burnett with operating a motor vehicle endangering a person as a class A misdemeanor and operating a vehicle while intoxicated as a class C misdemeanor. On November 8, 2023, Burnett pled guilty to the class A misdemeanor charge in exchange for dismissal of the remaining charge. The plea agreement provided that Burnett would be sentenced to 365 days, with 307 days suspended to probation and credit of 29 days for actual time already served. The trial court accepted the agreement and sentenced Burnett accordingly. As part of the terms and conditions of his probation, the court ordered Burnett to abstain from alcohol and drug use, participate in random drug and alcohol testing, and complete certain drug and alcohol rehabilitation programs.
[¶ 3] On February 19, 2024, the State filed a petition to revoke Burnett's probation. The State alleged that on December 12, 2023, Burnett was given information and written instructions on how to use the "Washington County Drug Screen Call-In Program" to participate in the screening process; on January 15, 2024, Burnett failed to report for a required drug screen and he did not call into the drug screen line on that date; on January 23, Probation Officer Melanie Kuntz questioned Burnett about his failure to call and Burnett claimed he "totally forgot" that he was supposed to report through the call-in program; Kuntz reminded Burnett of the process and again provided him with verbal and written instructions; and as of February 16, 2024, Burnett had failed to call the drug screen line for twenty-one days in violation of the terms of his probation. Appellant's Appendix Volume II at 28-29. As for the conditions that he complete certain rehabilitation programs and not consume any alcohol or drugs, the State alleged that on December 12, 2023, and multiple dates in January 2024, Burnett tested positive for alcohol consumption; on multiple dates Burnett missed scheduled screens; and from December 13, 2023, through February 16, 2024, he failed to enroll in or complete required rehabilitation programs.
[¶ 4] The court held a revocation hearing on March 11, 2024. Chief Probation Officer Myra Albertson testified and explained that probationers are required to call in daily to determine if they are required to submit a drug and alcohol screen and when to visit the probation department to do the scheduled screen. Albertson stated that Burnett failed to call daily or report for scheduled tests as required. Although no positive alcohol screens were entered into evidence, Albertson testified without objection that Burnett took a baseline test on December 12, 2023, that was positive for alcohol, that he again tested positive for alcohol on January 23, 2024, and he tested positive for alcohol on the date he was arrested for this probation violation, February 26, 2024. Burnett testified and admitted to consuming alcohol during his probationary period but claimed his doctor had advised him that "a glass of wine with my meal every evening would help my heart" and "I started doing it. It was just an off and on thing. It wasn't really every night." Transcript Volume II at 17. In response to the evidence presented by the State that he failed to report to probation and missed countless scheduled tests, Burnett testified that, "[a]t the beginning[,]" he did not understand the call-in procedure for obtaining the testing schedule. Id. at 22. However, he admitted that he continued to miss scheduled tests even after the call-in procedure was thoroughly explained to him a second time.
Regarding the State's evidence that he had failed to complete the Turning Point rehabilitation program as required by the terms of his probation, Burnett was evasive and made excuses, with his counsel ultimately arguing that he technically had until the end of the probationary period, September 2024, to complete the program.
[¶ 5] The trial court entered its order on March 12, 2024. In relevant part, the court found Burnett to be "untruthful" due to the "absurdity" of some his testimony, he was "evasive, manipulative, non-compliant, and failed to take probation seriously[,]" and he "displayed this same behavior and attitude at the hearing in this matter." Appellant's Appendix Volume II at 3. The court found by a preponderance of the evidence that Burnett had violated his probation "by: (1) failing to report as directed; (2) failing to call the drug screen line as directed; (3) [] failing to enroll in treatment options as directed; (4) [] consuming alcohol; and (5) [] lying to and attempting to manipulate the probation department." Id. Due to Burnett's extensive criminal history, lack of good-faith, failure to report, untruthfulness at the hearing, and in the "interest of the safety of the community and of [Burnett] himself[,]" the court found that the "appropriate remedy is for the entirety of the suspended sentence to be served in incarceration." Id. at 3-4. Accordingly, the court revoked Burnett's probation and ordered him to serve the balance of his previously suspended sentence of 307 days.
Discussion
[¶ 6] Burnett does not specifically challenge the sufficiency of the evidence to support the revocation of his probation. Rather, he challenges only the sanction imposed and asserts the trial court abused its discretion in revoking the balance of his suspended sentence because he is "a nonviolent offender on disability who also struggles with addiction[.]" Appellant's Brief at 8. He argues it was an abuse of the court's discretion to impose the "harshest sanction" in this case. Id.
[¶ 7] Before reaching the merits of his challenge to the sanction imposed by the trial court, we note that Burnett makes two additional arguments which the State argues have been waived for appellate review. Burnett suggests that any testimony regarding his failed alcohol screens was inadmissible hearsay and should not have been considered by the court and that the drug screen call-in system utilized by the probation department violated his due process rights. Burnett neither objected to the testimony regarding his failed screens nor raised any due process claim before the trial court regarding the call-in system. It is well-established that a party's failure to make a contemporaneous objection when evidence is introduced at trial waives the issue for appeal. Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010). Indeed, an appellant may not raise issues for the first time on appeal, and the failure to raise an issue before the trial court, including a constitutional issue, results in waiver of the issue for our consideration. See Leonard v. State, 80 N.E.3d 878, 884 n.4 (Ind. 2017) (finding defendant's constitutional claim raised for the first time on appeal to be waived and observing that declining to review a waived issue is a cardinal principle of sound judicial administration). Burnett has waived appellate review of these issues and we turn to his argument challenging the probation revocation sanction.
[¶ 8] We review trial court probation violation determinations and sanctions for an abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The Indiana Supreme Court has explained that, "[o]nce a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed" and that, "[i]f this discretion were not afforded to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants." Prewitt, 878 N.E.2d at 188.
[¶ 9] Ind. Code § 35-38-2-3(h) provides:
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 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.
[¶ 10] When reviewing an appeal from the revocation of probation, we consider only the evidence most favorable to the judgment, and we will not reweigh the evidence or judge the credibility of the witnesses. Vernon v. State, 903 N.E.2d 533, 536 (Ind.Ct.App. 2009), trans. denied. As long as the proper procedures have been followed in conducting a probation revocation hearing, the trial court may order execution of a suspended sentence upon a finding of a violation by a preponderance of the evidence. Goonen v. State, 705 N.E.2d 209, 212 (Ind.Ct.App. 1999).
[¶ 11] Burnett's sole assertion is that he did not deserve the "harshest sanction," and "serving his sentence in an inpatient treatment facility" or "a partial execution of the suspended sentence or extending [his] probationary period" were "more suitable" options due to the "nature of [his] violations." Appellant's Brief at 6, 8. However, given the considerable leeway afforded the trial court in fashioning an appropriate sanction upon revocation of probation, and the trial court's detailed and thoughtful order explaining its reasoning, we cannot say the trial court abused its discretion in ordering execution of Burnett's suspended sentence.
[¶ 12] For the foregoing reasons, we affirm the trial court.
[¶ 13] Affirmed.
May, J., and Pyle, J., concur.