Opinion
24A-CR-331
10-23-2024
Michelle VanMeter, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Courtney Staton 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable Samuel R. Keirns, Magistrate Trial Court Cause No. 02D04-0709-FA-68
ATTORNEY FOR APPELLANT
Gregory L. Fumarolo
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[¶1] Michelle VanMeter appeals the trial court's revocation of her probation and the subsequent sanction imposed. She contends that the trial court abused its discretion when it (1) denied her request to continue her probation revocation hearing and (2) ordered her to serve the balance of her previously suspended sentence. Finding that the trial court did not abuse its discretion, we affirm.
Facts and Procedural History
[¶2] On September 13, 2007, the State charged VanMeter with two counts of class A felony child molesting, one count of class C felony child molesting, and two counts of class B felony sexual misconduct with a minor. The State alleged that between June 2006 and April 2007, VanMeter engaged in inappropriate sexual conduct with a thirteen-year-old child, a fifteen-year-old child, and an adult who was mentally disabled. As a result, VanMeter became pregnant and gave birth to a daughter.
[¶3] On January 15, 2008, VanMeter pled guilty, pursuant to a plea agreement, to one count each of class A felony child molesting, class B felony sexual misconduct with a minor, and class D felony sexual battery. On February 29, the trial court sentenced VanMeter to an aggregate term of forty years, with thirty years executed in the Indiana Department of Correction (DOC), ten years suspended, and five years suspended to formal probation. Her sentence ran consecutive to a sentence imposed for a conviction of class A felony child molesting in a separate case.
[¶4] VanMeter began her probation for the instant case on March 25, 2021. Conditions of her probation included that she maintain full-time employment, participate in and successfully complete a certified sexual perpetrator treatment program, not have contact with any child under eighteen years old, and not access the internet. However, on May 13, the probation department filed a petition to revoke VanMeter's probation, alleging that she violated the conditions of her probation by accessing the internet, having contact with a minor, and failing to maintain full-time employment. On May 17, the trial court issued a warrant for VanMeter's arrest, and she was arrested on June 24. At a hearing held on October 15, VanMeter admitted to violating the terms of her probation. On October 19, the trial court revoked three years of her previously suspended sentence and ordered her to serve the time in the DOC.
[¶5] VanMeter was released from the DOC on September 22, 2022, and returned to probation. At some point, VanMeter began a sex offender treatment program (the Program) at Headwaters Counseling (Headwaters). She completed phase one of the Program and was participating in phase two. However, in August 2023, VanMeter was placed on a "zero tolerance" status because she missed a program session. App. Vol. 2 at 182. On November 7, VanMeter was suspended from the Program. That day, she attended a program session and was asked "if she was prepared to present [her] task ... in ten minutes[, and] she answered no." Tr. Vol. 2 at 10. VanMeter was suspended from the Program because she was not "prepared to present her task, which [wa]s a requirement of all participants in [phase two] of the program[,]" and because she had previously been placed on zero-tolerance status. App. Vol. 2 at 174.
[¶6] On November 9, 2023, the probation department filed a petition to revoke VanMeter's probation, alleging that this time she had violated the conditions of her probation by failing to complete the Program. On November 14, a warrant was issued for her arrest, and she was arrested that same day.
[¶7] A probation revocation hearing was held on January 9, 2024. Shortly before the hearing took place, VanMeter's counsel initiated a reinstatement process with Headwaters to have VanMeter reinstated to the Program. Based upon the request for reinstatement and defense counsel's understanding that VanMeter would admit to violating her probation, counsel suggested that the State "cancel" the witnesses it had subpoenaed for the hearing. Tr. Vol. 2 at 8.
[¶8] At the January 9 hearing, the State informed the trial court that it had "called off [its] witnesses[.]" Id. VanMeter's counsel told the trial court that the parties had a "potential disposition" for the revocation matter. Id. at 7. However, counsel asked the court to continue the hearing for a few days because he was "waiting [for an] answer [from] Headwaters about [VanMeter's] request for reinstatement" to the Program. Id. The court agreed to postpone VanMeter's hearing for a couple hours to allow the parties an opportunity to contact Headwaters.
[¶9] Later that day, the trial court recalled VanMeter's case, and VanMeter's counsel informed the court that the parties had not received an answer from Headwaters regarding the reinstatement. VanMeter then admitted that she had violated the conditions of her probation by failing to complete the Program. VanMeter's counsel argued, however, that VanMeter had simply misunderstood the question she had been asked during the session. Counsel explained that when VanMeter answered "no" when asked if she was prepared to present her task, she meant that she did not believe she had enough time left in the session to present her task fully.
[¶10] VanMeter's probation officer, Andrew Davison, also addressed the trial court. He told the court that the probation department was "recommending revocation of her probation." Id. at 13. Davison explained that VanMeter "was well aware" that she had been "placed on zero tolerance [and that] one of the specific rules is that you cannot pass on a task." Id.
[¶11] VanMeter then addressed the trial court regarding her suspension from the Program. She told the court,
The night that I [participated] in [the] group [session], I ended up having a panic attack, and my parole officer had told me that I wasn't taking my therapy seriously, which I was thinking about, ... and when my group leader said do you have a task to present in ten minutes, all I kept thinking was 'in ten minutes, no I can't do this in ten minutes because I won't get the feedback, and I don't have time to present it.' I did tell her- and so, yes, I did answer no.. So, I did explain to her that I couldn't do it in ten minutes.. But, yes, I did have my task with me, but I did only answer 'no'[.]Id. at 14.
[¶12] At the conclusion of the hearing, the trial court determined that VanMeter's suspended sentence should be revoked. The court sanctioned her by terminating the remainder of her probation, revoking the balance of her previously suspended sentence, and ordering her to serve seven years in the DOC.
[¶13] On January 12, 2024, VanMeter filed a motion, asking the trial court to "reconsider its order .. revoking her probation." Appellant's App. Vol. 2 at 193. VanMeter claimed that Headwaters was willing to reinstate her to the Program and that the parties were awaiting confirmation of the reinstatement. On January 23, VanMeter supplemented her January 12 motion and attached a letter from Headwaters indicating that it "would consider having [VanMeter] return to [the] program . conditional on her agreement and follow through with all of her zero tolerance requirements[.]" Id. at 199. Following a hearing on the matter held on January 26, the court denied VanMeter's motion. VanMeter now appeals.
Discussion and Decision
Section 1 - The trial court did not abuse its discretion by denying VanMeter's request to continue the probation revocation hearing.
[¶14] VanMeter argues that the trial court abused its discretion when it denied her request to continue the January 9 probation revocation hearing. There is no evidence in the record, and VanMeter does not argue, that she was entitled to a continuance as a matter of right, and so "the trial court's decision is given substantial deference and is reviewable only for abuse of discretion." Laster v. State, 956 N.E.2d 187, 192 (Ind.Ct.App. 2011) (quoting Elmore v. State, 657 N.E.2d 1216, 1218 (Ind. 1995)). As such, "there is always a strong presumption that the trial court properly exercised its discretion." Id. An abuse of discretion occurs when the ruling is "clearly against the logic and effect of the facts and circumstances." Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
[¶15] Our supreme court has held that whether the trial court abused its discretion in denying a non-statutory motion for continuance is "potentially a two-step inquiry." Ramirez v. State, 186 N.E.3d 89, 96 (Ind. 2022). First is the question of whether the court evaluated the parties' diverse interests that would be impacted by changing the schedule. Id. Second-even if the court did not properly balance the parties' interests-we "assess whether the court's denial resulted in prejudice." Id.; see also Vaughn v. State, 590 N.E.2d 134, 136 (Ind. 1992) (finding that basis for reversal requires a "determination of resulting prejudice"); Evans v. State, 855 N.E.2d 378, 386-87 (Ind.Ct.App. 2006) (specifying that defendants must show they were prejudiced because of trial court's denial of their motion), trans. denied (2007). "A defendant can establish prejudice by making specific showings as to why additional time was necessary and how it would have benefitted the defense." Ramierz, 186 N.E.3d at 96.
[¶16] VanMeter contends that the trial court should have delayed the January 9 hearing for a few days to allow her time to obtain an answer from Headwaters as to whether the facility would reinstate her to its sex offender program and that by denying the continuance, the court "prevented [her] from presenting crucial evidence[.]" Appellant's Br. at 11. VanMeter also argues that she "showed good cause" for the continuance; she "was not being dilatory" in requesting the continuance; and she "showed that [a continuance] would not prejudice the State" because she admitted that she had violated her probation. Id. We do not find VanMeter's arguments persuasive.
[¶17] VanMeter's counsel applied for her reinstatement to the Program a week before the January 9 hearing, and counsel did not request a continuance until the start of the hearing. The trial court postponed the hearing for a few hours so that the parties could attempt to obtain confirmation from Headwaters regarding VanMeter's reinstatement to the Program. The trial court was aware of the potential reinstatement. However, in determining that VanMeter's probation should be revoked, the court's focus was on the fact that she had been placed on a zero-tolerance status and had not completed the sex offender program. Indeed, the court told the parties,
The whole idea behind [the] sex offender treatment program is rehabilitation. If it becomes clear that [VanMeter's] not going to complete that then this whole probation thing is for nothing. If we're not going to seek the rehabilitation that matters most. So, I guess I don't understand how somebody who knows that she's on zero tolerance at Headwaters is not prepared at Headwaters and doing what she's supposed to be doing.Tr. Vol. 2 at 12.
[¶18] VanMeter subsequently filed a motion to reconsider and attached a letter from Headwaters, indicating that VanMeter would be allowed to rejoin the Program upon certain conditions. The trial court held a hearing on the matter and considered the letter and the parties' respective arguments. Ultimately, the court denied the motion to reconsider its decision to revoke VanMeter's probation.
[¶19] It was VanMeter's burden on appeal to demonstrate that she was prejudiced by the denial of her continuance request. We conclude, however, that she has failed to meet her burden. Because VanMeter has failed to demonstrate that she was prejudiced by the denial of her request for a continuance, she has failed to overcome the presumption of correctness of the trial court's ruling on the motion. See Laster, 956 N.E.2d at 192. Accordingly, we find no abuse of the trial court's discretion in denying VanMeter's request for a continuance.
To the extent that VanMeter contends that the trial court violated her due process rights by denying her continuance request, she has waived this issue for our review by failing to present a cogent argument. See generally Ind. Appellate Rule 46(A)(8)(a) (providing that appellant's brief "must contain the contentions of the appellant on the issues presented, supported by cogent reasoning").
Section 2 - The trial court did not abuse its discretion by ordering VanMeter to serve the balance of her previously suspended sentence following the revocation of her probation.
[¶20] We now address VanMeter's argument that the trial court abused its discretion when it ordered her to serve the balance of her previously suspended sentence after revoking her probation. VanMeter deems the seven-year sanction to be disproportional in light of her "accomplishments while on probation." Appellant's Br. at 17.
[¶21] Probation is a matter of grace and a conditional liberty that is a favor, not a right. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). "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. Indiana Code Section 35-38-2-3(h) offers the trial court the following options when it finds a defendant has violated the terms of her probation: (1) "[c]ontinue the person on probation, with or without modifying or enlarging the conditions[,]" (2) "[e]xtend the person's probationary period for not more than one (1) year beyond the original probationary period[,]" or (3) "[o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing."
[¶22] We review a trial court's selection of a sanction for an abuse of discretion. Overstreet v. State, 136 N.E.3d 260, 263 (Ind.Ct.App. 2019), trans. denied (2020). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances. Id.
[¶23] Here, as a condition of her probation, VanMeter was required to successfully complete a certified sexual perpetrator treatment program, and she admitted that she had failed to do so. Also, this was the second time VanMeter had violated her probation. Under these circumstances, the trial court was well within its discretion to order VanMeter to serve the balance of her previously suspended sentence. The judgment of the trial court is affirmed.
Affirmed.
Bradford, J., and Tavitas, J., concur.