Opinion
23A-CR-1690
11-29-2023
Jeremy Lee Miller, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Benjamin Loheide Law Office of Benjamin Loheide Columbus, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine E. Brizzi 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Bartholomew Circuit Court The Honorable Kelly S. Benjamin, Judge Trial Court Cause Nos. 03C01-2112-F5-6464 03C01-2104-F6-2356 Memorandum Decision by Judge Bailey Judges May and Felix concur. Bailey, Judge.
ATTORNEY FOR APPELLANT Benjamin Loheide Law Office of Benjamin Loheide Columbus, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Jeremy Lee Miller appeals the revocation of his probation and the order that he serve 558 days of his previously suspended sentence. We affirm.
Issues
[¶2] Miller presents two issues:
I. Whether there is sufficient evidence that he violated a term of his probation; and
II. Whether the trial court abused its discretion in imposing the 558-day sanction for the probation violation.
Facts and Procedural History
[¶3] On April 18, 2022, Miller pleaded guilty to Possession of Methamphetamine, as a Level 6 felony,[ in Cause F6-2356, and to Burglary, as a Level 5 felony,[ in Cause F5-6464. He received an aggregate six-year suspended sentence with a three-year period of probation. Among the conditions of Miller's probation was a requirement that he not possess or use alcohol, drug paraphernalia, hemp products, poppy seed products, illicit drugs, or an unprescribed controlled substance. He was placed in a residential drug recovery program, with the requirement that he follow the rules of the placement.
I.C. § 35-43-2-1.
[¶4] On April 4, 2023, the State filed a petition to revoke Miller's probation, alleging that he had been terminated from the Wise Path Recovery Center. On May 8, the State filed an amended petition alleging that Miller had been under the influence of a prohibited substance on May 4. On May 24, a hearing was conducted, at which the operations manager of the recovery center testified concerning the circumstances of Miller's discharge; that is, Miller had been asleep standing up, was apparently intoxicated, and had become "combative" after he was confronted. (Tr. Vol. II, pg. 6.) Three other community corrections employees testified that Miller had appeared to be impaired or intoxicated at a work release center on May 4.
[¶5] The trial court found that Miller had violated the terms of his probation by being terminated from his recovery center and employment[ and by "being under the influence as evidenced by his physical appearance and demeanor on May 4, 2023." Appealed Order at 1. On June 22, the court ordered that Miller serve 558 days in the Bartholomew County Jail and be placed back on probation thereafter. Miller now appeals.
The State did not specifically allege that termination from employment constituted a probation violation.
Discussion and Decision
Standard of Review
[¶6] Our Supreme Court has explained:
"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). It is within the discretion of the trial court to determine probation conditions and to revoke probation if the conditions are violated. Id. In appeals from trial court probation violation determinations and sanctions, we review for abuse of discretion. Id. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances, id., or when the trial court misinterprets the law ....
Probation revocation is a two-step process. First, the trial court must make a factual determination that a violation of a condition of probation actually occurred. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Second, if a violation is found, then the trial court must determine the appropriate sanctions for the violation. Id.Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). We will affirm the revocation if, considering only the probative evidence and reasonable inferences therefrom, there is sufficient evidence supporting the conclusion that the probationer is guilty of violating any condition of his probation. Hubbard v. State, 683 N.E.2d 618, 620 (Ind.Ct.App. 1997). We will neither weigh the evidence nor assess witness credibility. Id.
[¶7] As for the imposition of a sanction, Indiana Code Section 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.
Revocation
[¶8] Miller challenges the court's factual determination that he violated his probation by being under the influence of an intoxicant. More specifically, Miller points to an absence of "a failed drug screen or any hard evidence of drug use." Appellant's Brief at 12. Miller argues: "In order to revoke a person's probation, the trial court should have required more tangible evidence than beliefs or suspicions." Id. at 13.
[¶9] Robin Winters, a community corrections supervisor, testified that Miller had been housed at a work release center after his discharge from the recovery center, and the work release staff had assumed responsibility for the administration of suboxone to Miller. Regarding the events of May 4, Winters testified to the following. Miller was given his prescribed dose of suboxone at noon. The facility protocol was that the recipient be observed taking the dose. Miller then left for three or four hours to search for a job, having been fired the previous day from construction work, due to declining performance and being found asleep on heavy equipment. At 4:16 p.m., Miller appeared for a meeting with Winters. He appeared to Winters to be "perfectly fine" and was behaving normally. (Tr. Vol. II, pg. 21.) After that one-hour meeting, Miller left for a group meeting. When Miller returned to the work release facility at 8:29 p.m., there had been a "mark[ed] change," that is, he appeared "unsteady" and "not normal." (Id. at 23.) Winters opined that Miller had been "clearly under the influence." (Id. at 29.)
[¶10] Jacob Hill, the lead residential officer at a Bartholomew County community corrections facility, testified that Winters had contacted him on May 4 to request that Miller be "run through the scanner of [the] jail intake" to look for contraband. (Id. at 35.) No contraband was found on Miller's person. However, Hill observed that Miller had slurred speech and bloodshot eyes. Hill described Miller as "veering." (Id. at 36.) As Hill and Miller walked from one facility to the other, Miller swayed and said things that "did not make sense." (Id.) At one point, Miller leaned upon a post.
[¶11] Dennis Prior, a residential supervisor at the work release center, testified that he had viewed footage of Miller coming into the lobby on the evening of May 4. Prior testified that he was personally familiar with Miller and Miller was acting "not normal." (Id. at 43.) Prior observed that Miller "couldn't keep his head up." (Id. at 41.)
[¶12] Miller now points to his own testimony that he had experienced enhanced effects from the suboxone administered on May 4 because he had declined the medication on the previous three days. However, the State presented evidence that Miller had received his prescribed dose of suboxone at noon on May 4 and he had acted normally during a late afternoon meeting. Miller appeared impaired upon his 8:29 p.m. return to the work release center, eight and one-half hours after taking his suboxone dose. There was also testimony that Miller's apparent impairment and belligerent demeanor had earlier led to his discharge from a recovery center. In short, Miller presents a request to reweigh the evidence, which we will not do. Hubbard, 683 N.E.2d at 620. Sufficient evidence supports the revocation decision.
Sanction
[¶13] Miller contends that the sanction imposed upon him is too harsh because he had been accepted into a treatment facility and was "absolutely interested in going into treatment." Appellant's Brief at 14. Additionally, he argues that the trial court mistakenly believed he had hoarded doses of suboxone and taken several at once.
[¶14] Our review of the record indicates that Miller expressed a willingness to pursue additional treatment. However, the record also indicates that Miller, who has twelve prior felony convictions and nine prior misdemeanor convictions, has been unsuccessful in the past when placed in treatment programs, community corrections, and work release.
[¶15] At the sanction hearing, Miller provided an explanation for his demeanor on May 4, 2023; that is, he claimed that he experienced enhanced effects from suboxone after a three-day abstinence. At bottom, he argues that he engaged in one form of medication manipulation while the trial court believed he engaged in another form. But, regardless of any manipulation by Miller of his prescribed medication, the trial court was persuaded from the testimony that Miller consumed an unauthorized substance. He has shown no abuse of the trial court's discretion in selecting a sanction.
Conclusion
[¶16] Sufficient evidence supports the revocation of Miller's probation, and the order that he serve 558 days of his previously suspended sentence does not amount to an abuse of discretion.
[¶17] Affirmed.
May, J., and Felix, J., concur.