Opinion
24A-CR-1305
12-20-2024
Destiny Nichole Richee, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Talisha R. Griffin Matthew D. Anglemeyer Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Alexandria Sons 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable Charles F. Miller, Judge Trial Court Cause No. 49D29-2102-F2-3465
ATTORNEYS FOR APPELLANT
Talisha R. Griffin Matthew D. Anglemeyer Marion County Public Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Alexandria Sons Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
PYLE, JUDGE
Statement of the Case
[¶1] Destiny Nichole Richee ("Richee") appeals the revocation of her probation, arguing that the trial court abused its discretion by ordering her to serve her previously suspended sentence. Concluding that the trial court did not abuse its discretion, we affirm the trial court's judgment.
[¶2] We affirm.
Issue
Whether the trial court abused its discretion by ordering Richee to serve her previously suspended sentence.
Facts
[¶3] In February 2021, the State charged Richee with Count 1, Level 2 felony dealing in a controlled substance; Count 2, Level 2 felony dealing in methamphetamine; and Count 3, Class B misdemeanor possession of marijuana. In April 2021, Richee entered into a plea agreement and pled guilty to two amended charges of Level 5 felony possession of methamphetamine and Class A misdemeanor possession of a controlled substance in exchange for the State's dismissal of three original charges. The plea agreement also provided that Richee would be sentenced to a four (4) year suspended sentence with two (2) years on probation for her Level 5 felony conviction and sentenced to a one (1) year suspended sentence with one (1) year on probation for her Class A misdemeanor conviction. Additionally, the plea agreement provided that these sentences would be served concurrently and that Richee would be required to participate in a substance abuse evaluation and treatment program. The trial court accepted Richee's plea and sentenced her in accordance with the plea agreement.
In Richee's plea agreement, she also agreed to plead guilty, in another cause, to Class A misdemeanor carrying a handgun without a license. Additionally, she agreed to be sentenced to one (1) year executed in community corrections for that offense and to have that sentence be served consecutively to the aggregate suspended sentence from this cause on appeal.
[¶4] At the time of sentencing, the presentence investigation report ("PSI") indicated that then thirty-five-year-old Richee had reported that she had used methamphetamine daily since she was thirty years old and had used marijuana daily since she was seventeen years old. Richee further reported that she did not feel that she had a problem with these drugs. The PSI also indicated that Richee had a prior criminal history, which included a 2010 misdemeanor driving while suspended conviction, a 2019 misdemeanor theft conviction, and a 2020 misdemeanor possession of marijuana conviction that included two probation revocation notices.
[¶5] Richee started her probationary period in October 2021. The following month, Richee tested positive for methamphetamine. Richee also tested positive for methamphetamine in March, April, and June 2022, and she tested positive for THC in March and June 2022. Additionally, Richee failed to submit drug screens in December 2021 and January, February, May, and July 2022. For these non-compliance issues, the probation department "addressed [them] administratively." (App. Vol. 2 at 90).
[¶6] In October 2022, the State filed a notice of probation violation, alleging that Richee had violated her probation by: (1) failing to comply with her required substance abuse evaluation and treatment; and (2) failing to submit to a required drug screen in September 2022. In regard to the first allegation, the State specified that Richee had been referred to a substance abuse treatment program in November 2021 but that she had failed to contact the treatment provider. Additionally, in December 2021, Richee had informed the probation department that she was enrolling in an inpatient program at Fairbanks, but she provided no verification to the probation department. In June 2022, Richee informed the probation department that she was going to report to Fairbanks in a couple of days, but she did not do so. Then on August 4, 2022, Richee told the probation department that she was completing the intake process for the inpatient program at Fairbanks and that she would be in the program for fifteen to thirty days. On August 11, 2022, Fairbanks notified the probation department that Richee had been admitted to the inpatient program on August 4, 2022 but had been "discharged against medical advice" the following day. (App. Vol. 2 at 90). The probation department then referred Richee to an intensive outpatient treatment program at Volunteers of America, which she was scheduled to begin on August 22, 2022. However, Richee failed to report for the program.
[¶7] The trial court scheduled an initial hearing for October 28, 2022, but Richee failed to appear at the hearing. The trial court then issued an arrest warrant. Following Richee's arrest, the trial court held an initial hearing on November 16, 2022. During that hearing, Richee told the trial court that she was currently pregnant and had been on bed rest. During the December 2022 probation violation hearing, Richee and the State entered into an agreed entry, in which Richee agreed to admit to having violated probation as alleged in exchange for being allowed to continue on probation with strict compliance and an added sanction of thirty-two days for time already served. The trial court accepted the parties' agreement.
Richee was pregnant with her third child.
[¶8] A few months later, in May 2023, the State filed a second notice of probation violation, alleging that Richee had violated her probation by: (1) testing positive for methamphetamine on April 18, 2023; and (2) failing to submit to a drug screen in May 2023. During the June 2023 initial hearing, Richee told the trial court that she had had her baby on April 7, 2023. The trial court warned Richee that her alleged use of methamphetamine while having a newborn caused the trial court to "have concerns[.]" (Tr. Vol. 2 at 42).
[¶9] The State amended the second notice of probation violation in July and August 2023 to add the following allegations that Richee had violated her probation by: (3) failing to submit to a drug screen in July 2023; (4) failing to submit to a drug screen in August 2023; (5) failing to communicate truthfully with the probation department; and (6) failing to pay probation fees. In regard to allegation (5), the probation department explained that Richee had submitted to the department a "falsified" hospital letter in which she had stated that she had been admitted to the hospital from July 10, 2023 to August 10, 2023. (App. Vol. 2 at 112). The probation department contacted the hospital's medical records department, which indicated that Richee had not been admitted to the hospital.
[¶10] During the August 16, 2023 probation revocation hearing, the trial court told Richee that it needed to decide "where we go from here." (Tr. Vol. 2 at 46). Richee told the trial court that she had been enrolled in an outpatient program for four months and that she had been attending sessions three times per week. Richee also stated that she had her hospital discharge paperwork at home and that she could provide it to the probation department. The State argued that Richee had lied and had not been attending outpatient treatment as she had indicated and that she had attended only two sessions in one month. The trial court ordered Richee to provide her hospital discharge paperwork to the probation department within two days and stated that it would set the matter for a status hearing. The trial court also told Richee that it was "quickly losing patience" with her and that it was "put up or shut up time[.]" (Tr. Vol. 2 at 52, 53) (internal quotation marks omitted).
[¶11] Richee did not provide the required hospital documents to the probation department as the trial court had ordered. The State then again amended the second notice of probation violation to add the following allegations that Richee had violated her probation by: (7) failing to comply with the trial court's order to provide proof of hospitalization to the probation department; and (8) failing to comply with her required substance abuse evaluation and treatment. Thereafter, the trial court issued a warrant for Richee's arrest.
[¶12] Richee "absconded and disappear[ed] for eight months." (Tr. Vol. 2 at 68). The warrant was served on Richee on April 23, 2024. Immediately thereafter, the State again amended the second notice of probation violation in to add the following allegation that Richee had violated her probation by: (9) failing to report to probation as required.
[¶13] During the May 2024 probation revocation hearing, Richee admitted to all the probation violations as alleged. Richee told the trial court that she was currently thirty-seven weeks pregnant and that she had preeclampsia. She also stated that she had had substance use issues for four or five years but that she had been sober since she was pregnant. Richee asked the trial court to either let her finish her probation with home detention as an added condition or to order her to serve only one year of her previously suspended sentence. The trial court rejected Richee's requests. The trial court noted that when it had "placed [Richee] under oath" and had given her "multiple chances to come clean[,]" she had "continue[d] to lie" and had absconded. (Tr. Vol. 2 at 68). The trial court determined that Richee had violated her probation as alleged and ordered Richee to serve 1,428 days of her previously suspended sentence in the Indiana Department of Correction. The trial court also recommended that Richee be placed in purposeful incarceration and in the "Wee Ones program[,]" which would allow her to keep her child with her. (Tr. Vol. 2 at 68).
The 1,428 days is equal to three (3) years and three hundred and thirty-three (333) days.
[¶14] Richee now appeals.
Decision
[¶15] Richee argues that the trial court abused its discretion by ordering her to serve her previously suspended sentence. We disagree.
[¶16] "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). The trial court determines the conditions of probation and may revoke probation if the conditions are violated. Id. See also IND. CODE § 35-38-2-3(a). Indeed, violation of a single condition of probation is sufficient to revoke probation. Gosha v. State, 873 N.E.2d 660, 663 (Ind.Ct.App. 2007). Upon determining that a probationer has violated a condition of probation, the trial court may "[o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing." IND. CODE § 35-38-2-3(h)(3). "Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed." Prewitt, 878 N.E.2d at 188. "If this discretion were not given to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants." Id. As a result, we review a trial court's sentencing decision from a probation revocation for an abuse of discretion. Id. (citing Sanders v. State, 825 N.E.2d 952, 956 (Ind.Ct.App. 2005), trans. denied). An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id.
[¶17] The record reveals that the trial court had a sufficient basis for its decision to order Richee to serve her previously suspended sentence. Here, Richee initially pleaded guilty to two amended charges of Level 5 felony possession of methamphetamine and Class A misdemeanor possession of a controlled substance in exchange for the State's dismissal of the three original charges, which included two Level 2 felonies. She also agreed to an aggregate suspended sentence of four years with two years on probation and to participate in a substance abuse evaluation and treatment program. Within one month of being placed on probation, Richee tested positive for methamphetamine and THC multiple times, and the probation department "addressed [these noncompliance issues] administratively" instead of filing an official notice of probation violation. (App. Vol. 2 at 90). Thereafter, Richee violated her probation by failing to comply with her required substance abuse evaluation and treatment program and by failing to submit to a required drug screen. She then failed to appear at an initial hearing. The trial court showed Richee leniency by continuing her on probation. Richee, however, squandered this opportunity by violating probation in multiple ways, including testing positive for methamphetamine, failing to submit to multiple drug screens, failing to communicate truthfully with the probation department, and failing to comply with the trial court's order to provide proof of hospitalization. Additionally, Richee "absconded and disappear[ed] for eight months" after the trial court had issued a warrant for her arrest. (Tr. Vol. 2 at 68).
[¶18] Based on the record before us, we conclude that the trial court did not abuse its discretion by ordering Richee to serve her previously suspended sentence. For the foregoing reasons, we affirm the trial court's judgment.
[¶19] Affirmed.
Weissmann, J., and Felix, J., concur.