FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DOUGLAS R. LONG GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
Aug 26 2014, 9:45 am
IN THE
COURT OF APPEALS OF INDIANA
ANN WITHERS, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-1403-CR-130
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable David A. Happe, Judge
Cause Nos. 48C04-1207-FB-1287 and 48C04-1208-FD-1440
August 26, 2014
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Ann Withers appeals the termination of her placement in the Madison County Drug
Court program and reinstatement of her sentences in causes 48C04-1207-FB-1287 (“Cause
1287”) and 48C04-1208-FD-1440 (“Cause 1440”). She argues that the trial court committed
fundamental error in taking judicial notice of attendance reports in her Drug Court file and
abused its discretion in terminating her placement and reinstating her sentences. We
conclude that the trial court was authorized to take judicial notice of the attendance reports
pursuant to Indiana Evidence Rule 201(b)(5) and did not abuse its discretion in terminating
her placement and reinstating her sentences. Therefore, we affirm.
Facts and Procedural History
In Cause 1287, the State charged Withers with Count I, class B felony dealing in
methamphetamines; Count II, class D felony possession of methamphetamine: Count III,
class D felony possession of two or more chemical reagents/precursors with intent to
manufacture controlled substance; and Count IV, class D felony maintaining a common
nuisance. In Cause 1440, the State charged Withers with Count I, class D felony neglect of a
dependent; Count II, class A misdemeanor battery; and Count III, class B misdemeanor false
informing. Withers and the State entered a plea agreement in which Withers pled guilty in
Cause 1287 to Counts I and III and in Cause 1440 to Count I. The State dismissed the
remaining counts. The trial court sentenced Withers to an aggregate term of eight years in
Cause 1287, with four years executed and four suspended, and to eighteen months executed
in Cause 1440 to be served consecutive to the sentence in Cause 1287.
2
Pursuant to the plea agreement, the trial court stayed execution of Withers’s sentences
on the condition that she participate in and successfully complete the Madison County
Problem Solving Courts program.1 The sentencing order further provided that upon
Withers’s completion of the program, her judgment would be vacated and the causes
dismissed and that her failure to complete the program would result in the stay being lifted
and the sentences executed.
In April 2013, Withers entered the Drug Court program,2 one of Madison County’s
Problem Solving Courts. Melissa Reyes served as Withers’s case manager. Among other
things, Withers was required to attend drug counseling and mental health therapy and
undergo regular drug screens. In February 2014, Reyes filed a notice requesting Withers’s
termination from the Drug Court program, to which she attached several reports. One was a
“Problem Solving Courts Violation/Infraction Sheet” for Withers, indicating that she failed to
attend mental health therapy on December 10, 2013, December 12, 2013, and January 9,
2014. Appellant’s App. at 149. Reyes also attached individual reports (“the Attendance
Reports”) from three different licensed clinical social workers reporting Withers’s absence
from mental health therapy on the aforementioned dates. Id. at 150, 151, 154. Below the
1
“‘[P]roblem solving court’ means a court providing a process for immediate and highly structured
judicial intervention for eligible individuals.” Ind. Code § 33-23-16-8.
2
“‘[D]rug court’ means a problem solving court focused on addressing the substance abuse issues of
defendants or juveniles in the criminal justice system.” Ind. Code § 33-23-16-5.
3
signature line on each report was a typed statement that the report was electronically signed
by the social worker issuing the report.3
The trial court held a hearing on the termination request. The trial court took judicial
notice of its file, including the notice of termination request and the attachments thereto. Tr.
at 12. Reyes testified that Withers “had several missed treatments, no calls/no shows.” Id. at
6, 9. Reyes also testified that she had attached all the documents in her file for Withers that
she had received from the health care organization providing Withers’s counseling and
treatment. Id. at 7. Reyes testified that sometimes she would permit Withers to miss
treatment for work, but at some point she told Withers that she could not miss any more
therapy sessions for work. Id. at 12-13. Reyes further testified that Withers had not failed
any drug screens but that Withers’s problem with her Drug Court program had more to do
with her attitude. Withers admitted in her testimony that she had “attendance issues” with
her therapy. Id. at 24.
The trial court found that Withers had committed four violations of her treatment plan:
she failed to attend therapy on December 10, 2013, December 12, 2013, December 13, 2013,
3
The State asserts that the Attendance Records were electronically signed. Withers contends that
there is nothing resembling a signature on the documents to authenticate them. We observe that “electronic
signature” is defined numerous times in the Indiana Code depending upon the context in which the electronic
signature is to be used. See Ind. Code §§ 5-24-2-2 (State and Local Administration), 16-18-2-106.3 (Health),
25-26-13-2 (Professions and Occupations), 26-2-8-102(10) (Commercial Law); 35-33-5-8 (Criminal Law and
Procedure). Thus, there is not a single definition, and it is unclear which definition, if any, would be
applicable to the social workers providing care to Withers as part of the Drug Court program. Here, the record
is silent as to the methodology or process used by the social workers to implement the use of electronic
signatures. Given the growth of Problem Solving Courts in the State, this is a topic that is ripe for the
legislature’s consideration.
4
and January 9, 2014.4 The trial court opined that Withers did not seem to have the insight to
understand what she had done wrong, and therefore it did not believe that she would be
successful in the Drug Court program. The trial court terminated Withers from the Drug
Court program, lifted the stay, and reinstated her sentences.
Discussion and Decision
Section 1. Judicial Notice
Withers appeals the termination of her placement in the Drug Court program. The
Drug Court program is a forensic diversion program akin to community corrections, and we
will review the termination of placement in a Drug Court program as we do a revocation of
placement in community corrections.
For purposes 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. The similarities between the two
dictate this approach. Both probation and community corrections programs
serve as alternatives to commitment to the [Department of Correction] and
both are made at the sole discretion of the trial court. A defendant is not
entitled to serve a sentence in either probation or a community corrections
program. Rather, placement in either is a matter of grace and a conditional
liberty that is a favor, not a right.
While a community corrections placement revocation hearing has
certain due process requirements, it is not to be equated with an adversarial
criminal proceeding. Rather, it is a narrow inquiry, and its procedures are to
be more flexible. This is necessary to permit the court to exercise its inherent
4
The trial court appears to have relied on the Madison County Problem Solving Courts
Violation/Infraction Sheet. The violation/infraction sheet references missed treatments for “Dec13,” which the
trial court may have misread as December 13, 2013. Appellant’s App. at 149. The other missed dates are set
forth as “10Dec13,” “12Dec13,” and “9Jan14.” Id. In addition, the document to which the violation/infraction
sheet refers to for the “Dec13” entry is a monthly report for December 2013, and it does not show a failure to
appear for December 13, 2013, but rather contains a comment section stating generally that Withers has
attendance problems. Id. at 152. Therefore, it appears that “Dec13” refers to attendance issues during
December 2013.
5
power to enforce obedience to its lawful orders. Accordingly, the Indiana
Rules of Evidence in general and the rules against hearsay in particular do not
apply in community corrections placement revocation hearings. See … Ind.
Evidence Rule 101(c) (providing that the rules do not apply in proceedings
relating to sentencing, probation, or parole). In probation and community
corrections placement revocation hearings, therefore, judges may consider any
relevant evidence bearing some substantial indicia of reliability. This includes
reliable hearsay. The absence of strict evidentiary rules places particular
importance on the fact-finding role of judges in assessing the weight,
sufficiency and reliability of proffered evidence. This assessment, then, carries
with it a special level of judicial responsibility and is subject to appellate
review. Nevertheless, it is not subject to the Rules of Evidence nor to the
common law rules of evidence in effect prior to the Rules of Evidence.
Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009) (citations and quotation marks
omitted).
Withers argues that the trial court erred in taking judicial notice of the Attendance
Reports that indicated that she did not attend mental health therapy on December 10, 2013,
December 12, 2013, and January 9, 2014, and were purportedly electronically signed by the
social workers. Withers acknowledges that she did not object at the hearing and contends
that the error is fundamental. See Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007)
(“[F]ailure to object at trial constitutes waiver of review unless an error is so fundamental
that it denied the accused a fair trial.”). We conclude that no error occurred in taking judicial
notice of the Attendance Reports, let alone fundamental error.
Withers’s argument that judicial notice of the Attendance Reports was improper
ignores Indiana Evidence Rule 201(b)(5), which provides in relevant part that a court may
judicially notice a law, including “records of a court of this state.” The Attendance Records
were records of the Drug Court, prepared under its supervision and as part of its treatment
6
program for Withers. Thus, the trial court was authorized to take judicial notice of them
pursuant to Evidence Rule 201(b)(5). See In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App.
2012) (in parental rights termination proceeding, trial court did not err in taking judicial
notice of court records in CHINS proceeding); In re Paternity of P.R., 940 N.E.2d 346, 350
(Ind. Ct. App. 2010) (in modification of custody proceeding, trial court did not err in taking
judicial notice of court records in protective order proceeding filed by mother against former
boyfriend). We observe that the judicial notice of the Attendance Records does not mean
that the facts within them were conclusive; the parties were free to contest the facts. See
Twin Lakes Reg’l Sewer Dist. v. Teumer, 992 N.E.2d 744, 748 (Ind. Ct. App. 2013) (“[W]hile
a party’s pleading may be judicially noticed, the facts in those pleadings are not necessarily
subject to judicial notice.”). Judicial notice of facts is governed by Evidence Rule 201(a).
Although Withers ignored Evidence Rule 201(b)(5), we briefly address her argument
that judicial notice of the Attendance Records was improper because it violated her due
process rights. We note that “the due process right applicable in probation revocation
hearings allows for procedures that are more flexible than in a criminal prosecution.” Reyes
v. State, 868 N.E.2d 438, 440 (Ind. 2007). As in probation and community corrections
revocation proceedings, in a termination of participation in Drug Court proceeding, the rules
against hearsay do not apply, and the trial court may consider hearsay evidence bearing some
substantial indicia of reliability. See Monroe, 899 N.E.2d at 691. Although the parties
dispute whether the Attendance Records were actually electronically signed by the social
workers, we observe that these records were submitted to Withers’s case manager in the Drug
7
Court program as part of the regularly conducted activity of the program. See Tr. at 7 (Reyes
testimony that she attached all the documents in her file for Withers that she received from
the health care organization providing Withers’s counseling and treatment). Thus, the
Attendance Records constitute reliable hearsay evidence for purposes of a hearing on the
termination of participation in a Drug Court program. See Williams v. State, 937 N.E.2d 930,
934-35 (Ind. Ct. App. 2010) (concluding that report documenting defendant’s compliance
with electronic monitoring was substantially trustworthy); Ind. Evidence Rule 803(6)
(providing that records of a regularly conducted activity are not excluded by the rule against
hearsay). Further, although “the trial court did not make an explicit determination of
substantial trustworthiness on the record, we observe that the failure to do so is not fatal
where the record supports such a determination.” Id. at 935.
Finally, even if the trial court had erred in judicially noticing the Attendance Reports,
any error was harmless. Reyes testified that Withers missed several therapy sessions, and
Withers testified that she had attendance issues. Thus, there was independent evidence of
Withers’s violations of the Drug Court program.
Given our conclusion that the trial court did not err in taking judicial notice of the
Attendance Records, we need not address Withers’s assertion that her counsel provided
ineffective assistance in failing to object thereto. See Overstreet v. State, 877 N.E.2d 144,
155 (Ind. 2007) (“[T]o prevail on a claim of ineffective assistance due to the failure to object,
the defendant must show an objection would have been sustained if made.”). In addition, we
8
need not address her argument that without the Attendance Records the evidence was
insufficient to support her violations.
Section 2. Sentencing
Withers also challenges the trial court’s decision to terminate her participation in the
Drug Court program and reinstate her sentences. As we have noted, Drug Court is a forensic
diversion program akin to community corrections and probation. We will review a trial
court’s sentencing decisions for Drug Court violations for an abuse of discretion. See Prewitt
v. State, 878 N.E.2d 184, 188 (Ind. 2007) (probation case). “An abuse of discretion occurs
where the decision is clearly against the logic and effect of the facts and circumstances.” Id.
Indiana Code Section 33-23-16-14.5(e) provides,
[I]f the problem solving court judge or hearing officer finds that an
individual participating in a problem solving court program has violated a
condition of the program, the problem solving court judge or hearing officer
may:
(1) continue the individual’s participation in the problem solving court
program with or without modifying or expanding the individual’s
conditions for participating in the problem solving court program; or
(2) terminate the individual’s participation in the problem solving court
program.
Indiana Code Section 33-23-16-14(b) provides,
When an individual’s participation in a problem solving court program
under this section has been terminated as provided under section 14.5 of this
chapter, the problem solving court shall:
(1) enter a judgment of conviction against the individual;
9
(2) refer the individual’s case back to the court that referred the case to
the problem solving court to allow the referring court to enter a
judgment of conviction against the individual; or
(3) otherwise dispose of the case.
Here, the sentencing order provided that Withers’s failure to complete the Problem
Solving Court program would result in the stay being lifted and the sentence executed. The
evidence showed that Withers missed therapy sessions that the Drug Court had determined
were necessary for her mental health and long-term abstinence from drug use. The trial court
listened to Withers’s testimony and concluded that her attitude would prevent her from
complying with the program that the Drug Court had designed for her. We are unpersuaded
that the trial court abused its discretion in terminating Withers’s participation in the Drug
Court program. Pursuant to the plea agreement, upon termination of her participation, the
trial court was required to lift the stay and reinstate her sentences. Therefore, we affirm.
Affirmed.
RILEY, J., and MATHIAS, J., concur.
10
Ann Withers v. State of Indiana
Combined Opinion