Opinion
24A-CR-45
08-21-2024
Jamie D. Weldon, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Donald R. Shuler Barkes Kolbus Rife & Shuler LLP Goshen, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Jennifer Anwarzai 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Elkhart Superior Court The Honorable Teresa L. Cataldo, Judge Trial Court Cause No. 20D03-2008-F5-210
ATTORNEY FOR APPELLANT
Donald R. Shuler
Barkes Kolbus Rife & Shuler LLP
Goshen, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Indianapolis, Indiana
Jennifer Anwarzai
Deputy Attorney General
Indianapolis, Indiana
Judges Brown and Pyle concur.
MEMORANDUM DECISION
May, Judge.
[¶1] Jamie D. Weldon appeals following the revocation of her placement in community corrections. She argues the trial court abused its discretion by revoking her placement and ordering her to serve incarcerated all but two years of her remaining sentence. Because Weldon, who was in treatment for addiction and serving a sentence for possession of illegal drugs, violated her placement by possessing alcohol, we affirm.
Facts and Procedural History
[¶2] On August 28, 2020, the State charged Weldon with Level 5 felony possession of less than 5 grams of methamphetamine. Weldon pled guilty on April 4, 2022. On June 20, 2022, the trial court sentenced Weldon to six years: three to be served at the Indiana Department of Correction ("IDOC") and three suspended. The trial court's order indicated the trial court might modify Weldon's sentence if she successfully completed a program called Recovery While Incarcerated.
[¶3] Weldon completed Recovery While Incarcerated on June 16, 2023, and moved for a sentence modification. The trial court granted the modification of sentence and ordered the remainder of Weldon's executed sentence be served with Elkhart County Community Corrections ("ECCC"). The trial court's order warned that "[t]he court imposes zero tolerance and advises the defendant of the consequences for failing to abide by [ECCC's] parameters." (App. Vol. 2 at 121.) The trial court ordered Weldon to participate in therapeutic evaluations and treatment, obtain a sponsor or recovery coach, seek out local support groups and attend ninety meetings in ninety days, schedule an addictions evaluation and complete the assessment within ninety days, and complete any recommended follow-up treatment. Additionally, Weldon was prohibited from spending time with friends or family who use drugs and/or alcohol, and she was not allowed to consume or possess alcohol or drugs on her person, in her vehicle, or in her home. On September 22, 2023, Weldon signed a contract acknowledging and agreeing to the conditions of the electronic monitoring program, including the court's zero tolerance policy.
[¶4] On October 24, 2023, ECCC Field Officers William Herrera and Perla Albarran conducted a home visit and searched Weldon's residence. The Field Officers found four full bottles of Angry Orchard Hard Cider, which contained alcohol, in violation of the ECCC contract condition that prohibited Weldon from possessing or consuming alcohol. On October 26, 2023, ECCC filed a petition notifying the trial court of the violation.
[¶5] On December 21, 2023, the trial court held a hearing on the alleged violation of community corrections placement and found Weldon violated the terms of her placement. The trial court revoked Weldon's placement and ordered Weldon to serve all but two years of her remaining time in IDOC. The trial court ordered the two suspended years served on probation.
Discussion and Decision
[¶6] Weldon argues the trial court abused its discretion when it revoked her placement in community corrections and ordered her back to IDOC for all but two years of her remaining sentence. "For the purpose of appellate review, we treat a hearing on a petition to revoke a placement in a community corrections program the same as we do a hearing on a petition to revoke probation." Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh'g denied. Probation and community corrections programs are alternatives to the IDOC that are made available to convicted persons at the sole discretion of the trial court. McQueen v. State, 862 N.E.2d 1237, 1242 (Ind.Ct.App. 2007). A defendant is not entitled to either alternative, and placement therein is a "matter of grace" and a "conditional liberty that is a favor, not a right." Cox, 706 N.E.2d at 549.
[¶7] When reviewing a revocation of probation, we review first whether the trial court abused its discretion in finding a violation and then whether the court abused its discretion in imposing the sanction therefor. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Weldon admitted at the revocation hearing that there was alcohol in her home in direct violation of her community corrections conditions. She challenges only the trial court's sanction and argues the trial court failed to consider the "mitigating" evidence she submitted regarding the circumstances of her violation. (Appellant's Br. at 10.) In support of her argument, she cites Woods, 892 N.E.2d at 640.
[¶8] In Woods, our Indiana Supreme Court reviewed the application of a "strict compliance" probation agreement between Woods and the State. Id. In reliance on that strict compliance provision, the trial court refused to allow Woods an opportunity to explain the violations. Id. at 639. Our Supreme Court held that "even a probationer who admits the allegations against him must still be given an opportunity to offer mitigating evidence suggesting that the violation does not warrant revocation." Id. at 641 (citing United States v. Holland, 850 F.2d 1048, 1051 (5th Cir. 1998) (per curium)). Unlike Woods, Weldon was provided an opportunity to explain her violation to the trial court and ask for leniency. Weldon explained:
I'm praying that you give me some leniency. I didn't - my parents are older and my mom took claim to [the alcohol] immediately. . . And, yes, I am ashamed that maybe I should have checked the house more; but, like I said, my family, my parents are older and I haven't seen them pick up a drink in I don't know how long. So my dad just had a heart attack back in September; so alcohol was not even - didn't come to mind. And so that's an oversight on my behalf, but I hope that you can show me some leniency and give me another chance because I really am trying to do what is right, and I'm trying to get on with my life and move past my mistakes.(Tr. Vol. 2 at 53.) Because Weldon was given an opportunity to explain and request leniency, Woods does not apply here.
[¶9] When the trial court determines there has been a violation of the terms of community corrections, it has discretion to "revoke the placement and commit the person to the county jail or department of correction for the remainder of the person's sentence." Ind. Code. § 35-38-2.6-5(b) (regarding violation of direct placement in community corrections). In determining the appropriate sanction for a violation, "trial courts are not required to balance aggravating and mitigating circumstances." Killebrew v. State, 165 N.E.3d 578, 582 (Ind.Ct.App. 2021), trans. denied. ECCC Field Officers found four full bottles of Angry Orchard Hard Cider in Weldon's home, which violated the ECCC contract condition prohibiting Weldon from possessing alcohol. While Weldon points to extenuating circumstances that suggest the alcohol belonged to other people who resided in Weldon's house, the trial court was not required to believe Weldon's explanation or show her leniency based thereon. Because Weldon had been convicted of possession of illegal drugs and was in treatment for addiction, we cannot say the trial court abused its discretion when it revoked her placement after she had alcohol in her house. See id. (holding trial court did not abuse its discretion when it revoked the defendant's probation following a single probation violation).
Conclusion
[¶10] The trial court did not abuse its discretion when it revoked Weldon's community corrections placement and ordered her to serve all but two years of her remaining time in the IDOC. We accordingly affirm.
[¶11] Affirmed.
Brown, J., and Pyle, J., concur.