Opinion
24A-CR-336
10-09-2024
Shane Allen McCammon, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
Attorney for Appellant Yvette M. LaPlante Gonterman & Meyer, LLC Evansville, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Michelle Hawk Kazmierczak 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Vanderburgh Circuit Court The Honorable David D. Kiely, Judge Trial Court Cause Nos. 82C01-2303-F4-1710, 82C01-2208-F6-4498
Attorney for Appellant Yvette M. LaPlante Gonterman & Meyer, LLC Evansville, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Foley, Judge.
[¶1] Shane Allen McCammon ("McCammon") appeals from the trial court's order revoking his probation. He raises the following two restated issues for our review:
I. Whether the trial court abused its discretion in allowing the admission of hearsay evidence in the form of a letter into evidence at his probation revocation hearing; and
II. Whether the State presented sufficient evidence to prove that McCammon recklessly, knowingly, or intentionally failed to pay his probation fees.
[¶2] We affirm.
Facts and Procedural History
[¶3] In August 2022, the State charged McCammon with Level 6 felony possession of methamphetamine and Class A misdemeanor resisting law enforcement in cause number 82C01-2208-F6-4498 ("Cause F6-4498"). McCammon eventually pleaded guilty to Level 6 felony possession of methamphetamine, and on October 5, 2022, he received a one-and-one-half-year sentence, which was suspended to probation.
[¶4] In March 2023, while McCammon was still on probation, the State charged him with new offenses in cause number 82C01-2303-F4-1710 ("Cause F4-1710"), including Level 4 felony burglary, Level 5 felony unlawful carrying of a handgun, Level 6 felony auto theft, Level 6 felony resisting law enforcement, and Class C misdemeanor operating a motor vehicle without ever receiving a license. Under Cause F4-1710, McCammon eventually pleaded guilty to burglary, auto theft, resisting law enforcement, and operating a motor vehicle without ever receiving a license. On July 20, 2023, he was sentenced to two years on each felony count and sixty days on the misdemeanor count, with the sentences to be served concurrently with placement in the Electronic Home Detention Program. On the same day, the trial court revoked McCammon's suspended sentence in Cause F6-4498 for non-compliance with court ordered programs, amended his sentence, and placed him in the Electronic Home Detention Program for one and one-half years, to be served consecutively to the sentence in Cause F4-1710.
[¶5] The cases were consolidated, and on August 31, 2023, the State filed a petition for revocation of McCammon's participation in the Electronic Home Detention Program for reporting more than four hours late for a random drug screen. On September 1, 2023, the State filed an amended petition for revocation because McCammon had a drug screen that was positive for methamphetamine and amphetamine. On September 5, 2023, McCammon admitted to the violations, and the trial court granted the petition to revoke probation. McCammon was ordered to complete inpatient treatment and be returned to work release upon successful completion of treatment. On September 19, 2023, McCammon was transported to Stepping Stone for inpatient treatment.
[¶6] On October 2, 2023, the State filed another petition for revocation of placement because McCammon had been arrested on a "new charge of 'Rape- Intercourse'" and because he was in arrears in the amount of $365.00 for program fees. Appellant's App. Vol. 2 p. 121. On October 16, 2023, the State filed an amended petition for revocation of placement on the Electronic Home Detention Program, adding an additional violation because McCammon had been unsuccessfully discharged from inpatient treatment at Stepping Stone.
[¶7] A hearing on the revocation petition was held on January 10, 2024, at which McCammon appeared pro se with standby counsel. The State withdrew the allegation that McCammon had been arrested on a new charge of "Rape-Intercourse" because that charge had been dismissed and proceeded on the two remaining allegations. At the hearing, Katie Patterson ("Patterson"), the Vanderburgh County Electronic Home Detention Manager, testified that McCammon was a participant in her caseload. She testified that she had provided McCammon with a copy of the Vanderburgh County Community Corrections Therapeutic Home Detention Participant Handbook ("the Handbook") which McCammon read and signed on July 27, 2023. The Handbook contained all the rules, regulations, and expectations of participants in the Electronic Home Detention Program. It specifically provided that "[i]nappropriate conduct [would] not be tolerated" and that a participant was expected to "complete required treatment/educational services" with monthly progress reports from treatment providers. Ex. Vol. 3 p. 6. The Handbook also set forth the participant fee schedule that participants must pay to remain in the program, and it advised that those who were not current with their fees may have a petition to revoke filed and possibly be removed from the program. By signing the Participant Agreement in the Handbook, McCammon agreed to, inter alia, comply with the special conditions stated in the Participant Agreement and acknowledged the fees and that the failure to pay such fees or departure from the program with a balance in arrears may result in the filing of a violation with the court. The Participant Agreement also provided that Vanderburgh Community Corrections was authorized to "direct [the p]articipant to substance abuse treatment" and that "failure to follow through on such directives may result in a violation [being] filed with the [c]ourt." Id. at 10.
[¶8] Patterson testified that, on October 2, 2023, she received a letter from Kevin Groves ("Groves"), the Director of Addiction Services at Southwestern Behavioral Healthcare, notifying her that McCammon had been discharged unsuccessfully from inpatient treatment at Stepping Stone on October 1, 2023 ("the letter"). On October 5, 2023, she also received notes from Southwestern Behavioral Healthcare ("the notes"), which indicated that McCammon was discharged from treatment due to "ongoing inappropriate behaviors [and] failed treatment." Id. at 17. The notes also stated that McCammon made "[n]o progress on treatment goals other than that he maintained abstinence from substances." Id. Patterson explained that both of the alleged violations were considered violations of the rules and conditions for remaining in the Electronic Home Detention Program that McCammon had signed. She also testified that she keeps the records, including the letter and the notes, in the ordinary course of business. When the State moved to admit the letter and the notes as exhibits, McCammon objected to the admission of the letter only. He objected based on the fact that Groves, who wrote and signed the letter, did not testify. The trial court admitted both the letter and the notes.
[¶9] As to the second violation, Patterson testified that, as of October 2, 2023, McCammon was in arrears in the amount of $365.00 in program fees. The amount was a "running total of fees that are charged on the program" for McCammon, and the amount was determined by their finance department. Tr. Vol. 2 p. 78. She explained that this failure to pay fees was considered a violation of the rules in the Participant Agreement that McCammon signed.
[¶10] After reviewing all of the evidence, the trial court found that McCammon violated the conditions of his probation and of the Electronic Home Detention Program when he "failed to complete the substance abuse treatment which was ordered at sentencing" and again "after he used [m]ethamphetamine and [a]mphetamine in violation of program rules." Id. at 85. The trial court went on to state that McCammon was "discharged from treatment due to ongoing inappropriate behavior and failed treatment." Id. The trial court revoked McCammon's placement on Electronic Home Detention in Cause F6-4498 and ordered him to serve one and one-half years in the Indiana Department of Correction ("DOC"). The trial court also revoked McCammon's placement on Electronic Home Detention in Cause F4-1710 and ordered him to serve an aggregate of two years in the DOC. The trial court ordered these sentences to be served consecutively for an aggregate three and one-half years executed in the DOC. McCammon now appeals.
Discussion and Decision
I. Admission of Letter
[¶11] McCammon argues that the trial court abused its discretion when it admitted the letter into evidence at his probation revocation hearing because it contained hearsay statements and because admitting those statements violated his right to confront adverse witnesses under the Sixth Amendment to the United States Constitution. The trial court's decision to admit or exclude evidence in a probation revocation hearing is reviewed on appeal for an abuse of discretion. Figures v. State, 920 N.E.2d 267, 271 (Ind.Ct.App. 2010). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Id.
[¶12] "Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled." Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). A trial court has "discretion whether to grant [probation], under what conditions, and whether to revoke it if conditions are violated." Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007). "A probation revocation proceeding is in the nature of a civil proceeding, and, therefore, the alleged violation need be proved only by a preponderance of the evidence." Jenkins v. State, 956 N.E.2d 146, 148 (Ind.Ct.App. 2011), trans. denied. Moreover, probation revocation hearings generally "allow[] for procedures that are more flexible than in a criminal prosecution," Reyes, 868 N.E.2d at 440, and the Sixth Amendment right to confrontation does not apply to such proceedings, see Smith v. State, 971 N.E.2d 86, 89 (Ind. 2012). In the probation context, a defendant has only a due process right of confrontation, which is much more flexible. Smith, 971 N.E.2d at 90. Accordingly, "courts may admit evidence during probation revocation hearings that would not be permitted in a full-blown criminal trial." Reyes, 868 N.E.2d at 440; see also Ind. Evidence Rule 101(d)(2) (explaining that the Indiana Rules of Evidence are not applicable in probation proceedings). However, as the Indiana Supreme Court has explained, "[t]his does not mean that hearsay evidence may be admitted willy-nilly in a probation revocation hearing." Reyes, 868 N.E.2d at 440. For these reasons, the general rule is that hearsay evidence may be admitted without violating a probationer's right to confrontation if the trial court determines that the hearsay evidence is "substantially trustworthy." Id. at 442. When applying the substantial trustworthiness test, "'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. (quoting United States v. Kelley, 446 F.3d 688, 693 (7th Cir. 2006)) (brackets and ellipsis in original).
[¶13] In this case, we need not analyze whether the hearsay statements in the letter were substantially trustworthy because any error in the admission of the letter was harmless. Indeed, assuming arguendo that the letter was not sufficiently reliable, even in the criminal context, the improper admission of evidence is harmless error when the determination is supported by substantial independent evidence of wrongdoing which satisfies the reviewing court that there is no substantial likelihood the challenged evidence contributed to the determination. Morales v. State, 749 N.E.2d 1260, 1267 (Ind.Ct.App. 2001). We review a federal constitutional error de novo, and any error "must be 'harmless beyond a reasonable doubt.'" Id. (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Thus, in order to find the error to be harmless here, we must determine that the error did not contribute to the court's revocation decision, that is, that the error was unimportant in relation to everything else the court considered. See Furnish v. State, 779 N.E.2d 576, 582 (Ind.Ct.App. 2002) (noting that in determining whether an error was harmless beyond a reasonable doubt that this court "must find that the error did not contribute to the verdict, that is, that the error was unimportant in relation to everything else the jury considered on the issue in question"), trans. denied. It is well settled that any error in admitting evidence will be found harmless where it is merely cumulative of other, properly admitted evidence, even when the alleged error is of constitutional dimension. Fuller v. State, 674 N.E.2d 576, 578 (Ind.Ct.App. 1996)
We note that it is not entirely settled whether the federal constitutional harmless error standard applies in probation revocation proceedings. See Black v. State, 794 N.E.2d 561, 566 (Ind.Ct.App. 2003) (applying the federal constitutional harmless error standard in a probation revocation proceeding because the issue was not argued by the parties, but leaving the question "open for argument in subsequent cases"). We need not resolve the question here, because even under the more rigorous federal standard, we conclude that any error in the trial court's decision to admit the letter was harmless.
[¶14] Here, we find that, in light of the substantial independent evidence of a violation of McCammon's placement, we cannot say the admission of the letter-which was merely cumulative of other evidence-contributed to the trial court's decision to revoke. At the hearing, Patterson testified that McCammon had been provided and signed a copy of the Handbook, which contained all the rules, regulations, and expectations of participants in the Electronic Home Detention Program. The Handbook specifically provided that "[i]nappropriate conduct [would] not be tolerated" and that a participant was expected to "complete required treatment/educational services" with monthly progress reports from treatment providers. Ex. Vol. 3 p. 6. Patterson also testified, without objection by McCammon, that she received the letter on October 2, 2023, notifying her that McCammon had been discharged unsuccessfully from inpatient treatment at Stepping Stone. Further, she also testified that she received the notes several days later, which indicated that McCammon was discharged from treatment due to "ongoing inappropriate behaviors [and] failed treatment" and also stated that he had made "[n]o progress on treatment goals other than that he maintained abstinence from substances." Id. at 17. Patterson explained that McCammon's alleged violations were considered violations of the rules and conditions contained in the Handbook that McCammon had signed. The notes were admitted into evidence without objection by McCammon.
[¶15] In finding that McCammon violated his placement on the Electronic Home Detention Program, the trial court specifically found "that [McCammon] violated the conditions of [his placement] when he failed to complete the substance abuse treatment which was ordered" and that he "was discharged from treatment due to ongoing inappropriate behavior and failed treatment." Tr. Vol. 2 p. 85. This was almost identical language that appeared in the notes. See Ex. Vol. 3 p. 17. Thus, it was not necessary for the trial court to rely upon the letter, as the notes contained substantially the same information contained in the letter, stating that McCammon was discharged from the treatment program and, in fact, contained more detailed reasons why he was discharged. The trial court did not need to rely on the letter to find that McCammon had violated his placement on the Electronic Home Detention Program, and any error in admitting the letter was unimportant in relation to everything else the court considered. See Furnish, 779 N.E.2d at 582. We, therefore, conclude that any error in admitting the letter was harmless.
II. Sufficiency of Evidence for Fees Allegation
[¶16] McCammon argues that the State failed to present sufficient evidence to prove that he recklessly, knowingly, or intentionally failed to pay his fees as required under Indiana Code section 35-38-2-3(g). As stated, above, "[a] probation revocation proceeding is in the nature of a civil proceeding, and, therefore, the alleged violation need be proved only by a preponderance of the evidence." Jenkins, 956 N.E.2d at 148. We do not reweigh the evidence or judge the credibility of witnesses and look only to the evidence which supports the judgment and any reasonable inferences flowing therefrom. Id. If there is substantial evidence of probative value to support the trial court's decision that the probationer committed any violation, revocation of probation is appropriate. Id.
[¶17] McCammon asserts that the State presented no evidence to support a showing under the statute. However, in our review of the record, it does not appear that the trial court considered the alleged violation of McCammon being in arrears in his program fees in its determination that he violated the terms of his placement in Electronic Home Detention. In its finding that McCammon violated his placement, the trial court specifically found "that [he] violated the conditions of [his placement] when he failed to complete the substance abuse treatment which was ordered" and that he "was discharged from treatment due to ongoing inappropriate behavior and failed treatment." Tr. Vol. 2 p. 85. Therefore, McCammon's failure to pay fees was not a reason relied upon by the trial court in determining to revoke his probation. Further, "[v]iolation of a single condition of probation is sufficient to revoke probation." Jenkins, 956 N.E.2d at 148. The trial court found that McCammon had violated the terms of his placement because of his failure to complete court-ordered substance abuse treatment, and McCammon does not challenge the sufficiency of the evidence supporting that violation. We, therefore, conclude that sufficient evidence supported the revocation of McCammon's placement.
Conclusion
[¶18] We find that any error in the admission of the letter into evidence was harmless and that the trial court did not rely upon McCammon's failure to pay program fees in its determination that he violated the terms of his placement in the Electronic Home Detention Program.
[¶19] Affirmed.
Vaidik, J. and Weissmann, J., concur.