Opinion
23A-CR-2994
05-31-2024
Loretta Mitchell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT David W. Stone IV Anderson, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana J.T. Whitehead 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Madison Circuit Court The Honorable Mark K. Dudley, Judge Trial Court Cause No. 48C06-2207-F5-1993
ATTORNEY FOR APPELLANT David W. Stone IV Anderson, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS JUDGE
Case Summary
[¶1] Loretta Mitchell appeals the trial court's order revoking her probation and imposing her previously suspended sentence to be served in the Department of Correction ("DOC"). Mitchell argues that the trial court violated her due process rights by determining this sanction before hearing evidence regarding the probation violation allegations and, thus, failing to conduct the proceedings impartially. We conclude that the trial court did act impartially in revoking Mitchell's probation and that Mitchell's due process rights were not violated. Accordingly, we affirm.
Issue
[¶2] Mitchell raises one issue on appeal, which we restate as whether the trial court failed to impartially conduct the probation revocation proceedings such that Mitchell's due process rights were violated.
Facts
[¶3] On May 5, 2023, Mitchell pleaded guilty to domestic battery by means of a deadly weapon, a Level 5 felony. On June 2, 2023, the trial court sentenced Mitchell to three years, all suspended to probation, with home detention as a condition of probation. On July 18, 2023, the State alleged that Mitchell violated the conditions of her probation by: (1) committing escape, a Level 6 felony; (2) failing to timely report to the probation department; and (3) failing to pay home detention fees. A warrant was issued for Mitchell's arrest, and she was placed in the Madison County Jail pending a hearing on the probation violation allegations.
[¶4] The trial court held a hearing on the probation violation allegations on October 20, 2023. At the beginning of the hearing, defense counsel made a "unique request" that the trial court continue the hearing to allow Mitchell to participate in a "28-day residential program" at the Wooded Glen Recovery Center to address her substance abuse. Tr. Vol. II p. 12. In support of the recovery program, defense counsel stated, "Judge, I'm not asking for this as a sanction.
I'm asking for this before we get to admissions and sanctions." Id. at 22.
[¶5] The following exchange then took place:
COURT: I appreciate that, but Ms. Mitchell has a thirty-two (32) year criminal history, a lifelong addiction problem. [T]o say this [] moment of light occurred [on] October 20th, of 2023, no. I mean there [were] too many opportunities[]. I understand that . . . she has a mental health history. It's been there and, the court, or not this court, but other courts have attempted other interventions and have not been successful. I'm sorry that that's the case because my hope always is [] that the interventions short of a DOC commitment [will] be the solution. [B]ut I can't ignore thirty-two (32) years. I can't ignore that she made it eighteen (18) days, give or take, before she walked away.... And so I'm gonna apply my standard rule. If you don't want to be here, I'm not gonna keep you
here. And so the court's sanction for defendant's admission is to revoke the -
Defense counsel: Judge we didn't admit. I was asking for this as a part of a continuance.
COURT: Uh, darn it. Well you - I've showed my hand now.Id. at 22-23.
[¶6] The trial court then implicitly denied the one-month continuance for the recovery program; however, the trial court granted Mitchell's request for a one-week continuance. On October 27, 2023, the trial court held another hearing, and Mitchell denied the probation violation allegations. The trial court then stated, "I shrunk my head because I played my cards last time," and the trial court scheduled the fact-finding hearing for November 17, 2023.
[¶7] At the fact-finding hearing, Natalie Griner, an employee of the Madison County Probation Department, testified that, on June 20, 2023, she received a "signal" that "indicated that the strap on [Mitchell's] GPS [unit] had been cut." Id. at 32. Officers were dispatched to Mitchell's residence and found the strap and charger located in a trash can. Mitchell testified and admitted that she was not wearing her GPS unit. The trial court found that the State proved Mitchell violated the conditions of her probation by: (1) committing escape by removing her GPS unit; and (2) failing to report to probation. The trial court found, however, that the State did not prove Mitchell failed to pay home detention fees.
[¶8] The trial court proceeded to determine the sanction for Mitchell's probation violations, and defense counsel renewed Mitchell's "request that the sanction be stayed" to allow Mitchell to participate in the recovery program. Id. at 37. The trial court denied that request. The trial court noted that, when Mitchell was originally sentenced, Mitchell presented a "plan [for] moving forward" regarding her substance abuse and criminal activity but had not followed through. Id. at 40. The trial court further noted Mitchell's lengthy criminal history, mental health issues, and that Mitchell "walked away from Home Detention." Id. Accordingly, the trial court revoked Mitchell's probation and imposed Mitchell's previously suspended sentence to be served in the Department of Correction. Mitchell now appeals.
Discussion and Decision
[¶9] Mitchell challenges the probation revocation on due process grounds. "'Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.'" Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). A probation hearing is civil in nature, and the State must prove an alleged probation violation by a preponderance of the evidence. Id.; Ind. Code § 35-38-2-3(f).
[¶10] A hearing on probation violation allegations proceeds in two steps. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). "First, the trial court must make a factual determination that a violation of a condition of probation actually occurred." Id. "Second, if a violation is found, then the trial court must determine the appropriate sanctions for the violation." Id. 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.
[¶11] "While it is correct that probation may be revoked on evidence of violation of a single condition, the selection of an appropriate sanction will depend upon the severity of the defendant's probation violation, which will require a determination of whether the defendant committed a new criminal offense." Heaton, 984 N.E.2d at 618. We review a trial court's determination regarding sanctions for probation violations for an abuse of discretion. Heaton, 984 N.E.2d at 616. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances or when the trial court misinterprets the law. Id.
[¶12] Mitchell does not challenge the trial court's finding that she violated the conditions of her probation. Rather, Mitchell argues that her due process rights were violated because the trial court was "determined to revoke [Mitchell's] suspended sentence prior to evidence of violations," and Mitchell, thus, was "denied a neutral and detached judge." Appellant's Br. p 7.
[¶13] Discussing the due process rights applicable in probation revocation proceedings, this Court has explained:
Probation revocation implicates a defendant's liberty interest, which entitles him to some procedural due process. [Piper v. State, 770 N.E.2d 880, 882 (Ind.Ct.App. 2002), trans. denied] (citing Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600-2601 (1972)). Because probation revocation does not deprive a defendant of his absolute liberty, but only his conditional liberty, he is not entitled to the full due process rights afforded a defendant in a criminal proceeding. Id.
The minimum requirements of due process include: (a) written notice of the claimed violations of probation; (b) disclosure to the probationer of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing body; and (f) a written statement by the factfinder as to the evidence relied on and reasons for revoking probation. Id. (citing Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604).Terrell v. State, 886 N.E.2d 98, 100-01 (Ind.Ct.App. 2008), trans. denied.
[¶14] Additionally, because Mitchell did not raise her due process challenge during the probation revocation proceedings, we review Mitchell's due process challenge for fundamental error. As this Court has explained:
Generally, an issue is waived for appeal if it is not objected to at trial. Tillberry v. State, 895 N.E.2d 411, 415 n.1 (Ind.Ct.App. 2008) [overruled on other grounds by Heaton, 984 N.E.2d 614]. However, if the court made a "fundamental error," meaning an error "so prejudicial to the rights of a defendant that a fair trial is rendered impossible," then the lack of objection does not waive the right on appeal. Wilson v. State, 931 N.E.2d 914, 919 (Ind.Ct.App. 2010[, trans. denied]). The fundamental error rule "applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process." Id. Fundamental error requires that the Respondent show greater prejudice than ordinary reversible error. Id.Beeler v. State, 959 N.E.2d 828, 830 (Ind.Ct.App. 2011), trans. denied.
[¶15] We conclude that Mitchell's due process rights were not violated by the trial court here. A recent decision from this Court observed the "settled" understanding that "an impartial judge is an essential element of Due Process." Stout v. Knotts, 214 N.E.3d 1036, 1042 (Ind.Ct.App. 2023) (citing Chappey v. Storey, 204 N.E.3d 932, 939 (Ind.Ct.App. 2023), trans. denied). We further observed that, "[w]hile we presume judicial officers to be unbiased, our [S]upreme [C]ourt has outlined the conduct expected of Indiana's judicial officers as follows:"
Indiana Judicial Conduct Canon 2 requires a judge to perform the duties of judicial office impartially, competently, and diligently. Judges must be objective and open-minded. A judge shall perform the duties of judicial office . . . without bias or prejudice. A judge shall be patient, dignified, and courteous to litigants. A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned including in circumstances when the judge has a personal bias or prejudice concerning a party.Id. (citing Hollinsworth v. State, 928 N.E.2d 201, 202 (Ind. 2010)) (italics in original).
[¶16] Here, although the trial court jumped the gun at the October 20 hearing when it first indicated that it would revoke Mitchell's probation, the trial court appears to have been under the impression that Mitchell was admitting to the violation allegations. Defense counsel clarified that Mitchell was not admitting to the allegations, and the trial court then gave Mitchell a full and fair opportunity to contest the allegations at the November 17 hearing. Mitchell did not move for a change of judge. At the November 17 hearing, Mitchell admitted that she removed her GPS unit while she was less than three weeks into her home detention sentence, which is a serious violation. The trial court determined that Mitchell violated the conditions of her probation, and Mitchell does not contest this finding.
[¶17] After finding that Mitchell violated the conditions of her probation, the trial court gave Mitchell the opportunity to again explain why the trial court should permit her to participate in the recovery program in lieu of revoking her probation. After listening to Mitchell's argument, the trial court explained that it could not trust Mitchell to follow through on the recovery program and was, instead, revoking Mitchell's probation. The trial court recited as reasons for the revocation the facts that: (1) Mitchell had a lengthy criminal history; and (2) Mitchell had previously presented the trial court with a "plan [for] moving forward" regarding her substance abuse and criminal activity but had not followed through. Tr. Vol. II p. 40. Mitchell's criminal history includes over thirty misdemeanor convictions, multiple felony convictions, multiple previous sentences in the Department of Correction, and over one dozen violations of community corrections placements.
[¶18] The trial court's revocation determination is clearly supported by the facts of this case. The trial court mistakenly stated that it would revoke Mitchell's probation at the October 20 hearing, but the trial court corrected this mistake. We are not persuaded that the trial court acted impartially during the probation revocation proceedings. Accordingly, we conclude that Mitchell's due process rights were not violated.
Conclusion
[¶19] Mitchell's due process rights were not violated during the probation revocation proceedings. Accordingly, we affirm.
[¶20] Affirmed.
Mathias, J., and Weissmann, J., concur.