Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata, Jan 30 2014, 7:03 am
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW R. WILKINSON GREGORY F. ZOELLER
Gibson Law Office Attorney General of Indiana
Lafayette, Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
EDWARD LEE MATTHYS, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1303-CR-217
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy Williams, Judge
Cause No. 79D01-0403-FA-8
January 30, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Edward Lee Matthys (Matthys), appeals his termination
from the Tippecanoe County Re-Entry Court Program (Re-Entry Program) and
subsequent placement in the Indiana Department of Correction (DOC).
We affirm.
ISSUES
Matthys raises two issues on appeal, which we restate as:
(1) Whether the hearing conducted by the trial court on June 27, 2012, satisfied the
requirements of due process under Indiana Code section 33-23-16-14.5; and
(2) Whether the sentence handed down by the trial court was inappropriate in light
of Indiana Appellate Rule 7(B).
FACTS AND PROCEDURAL HISTORY
On the morning of February 26, 2004, Matthys was arrested in Tippecanoe
County, Indiana. He was subsequently charged with one Count of dealing
methamphetamine, a Class B felony, Ind. Code § 35-48-4-1(a); one Count of dealing
methamphetamine, a Class A felony, I.C. § 35-48-4-1(b); two Counts of dealing in a
schedule II controlled substance, a Class B felony, I.C. § 35-48-4-2(a); two Counts of
possessing methamphetamine, a Class C felony, I.C. § 35-48-4-6(b)(1)(A); four Counts
of operating an illegal drug lab, a Class D felony, I.C. § 35-48-4-14.5(c)(d); two Counts
of possessing marijuana, a Class A misdemeanor, I.C. § 35-48-4-11; and resisting law
enforcement, a Class A misdemeanor, I.C. § 35-44-3-3(a). On November 19, 2004,
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Matthys pled guilty to dealing methamphetamine as a Class B felony, possessing
methamphetamine as a Class C felony, dealing methamphetamine as a Class A felony,
operating an illegal drug lab as a Class D felony, and possessing marijuana as a Class A
misdemeanor.
On February 10, 2005, Matthys received an aggregate sentence of forty years
imprisonment, with twenty-six years executed at the DOC, five years suspended to
supervised probation, and nine years suspended to unsupervised probation. On August
24, 2011, Matthys was admitted to the Re-Entry Program, and the remainder of his
executed sentence was stayed upon his successful completion of the program. On
February 24, 2012, Matthys was eighteen minutes late for a mandatory appointment at
Riggs Medical Clinic, where the policy states that tardiness of fifteen minutes or more
counts as a missed appointment. On March 4, 2012, Matthys failed to appear for a
required check-in at Community Corrections. On March 5, 2012, the Re-Entry court
advised Matthys that he was being placed in jail for a “time out,” and a hearing would
follow to determine his status in the Re-Entry Program. (Appellant’s App. p. 41).
On May 3, 2012, the State filed a Notice of Termination from Re-Entry Program
and Motion for Sentencing. On June 27, 2012, the trial court conducted a hearing on the
State’s motion. Following this hearing, the trial court ordered each party to submit
proposed findings of fact and conclusions of law. The State complied with this order on
July 6, 2012. On July 9, 2012, Matthys presented his proposed findings of fact and
conclusions of law to the trial court.
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On August 30, 2012, the trial court issued an order adopting almost all of Matthys’
proposals and conclusions, including his proposed termination from the Re-Entry
Program. The trial court’s order included the following:
8. The [c]ourt concludes that termination is not an appropriate sanction for
the two rule violations that have been shown.
9. The [c]ourt further concludes that although no hearing was conducted
by the presiding authority over the Re-Entry . . . Program as provided
in Paragraph 3(g) of the Request for Agreed Modification of Sentence
and Re-Entry Court Acceptance, the evidence indicates that [Matthys]
was terminated from the Re-Entry Program sometime between April 2,
2012 and April 16, 2012. The [c]ourt further concludes that sending
[Matthys] back to the Re-Entry . . . Program which has already rejected
him is not a feasible option.
10. Accordingly, the [c]ourt does now ORDER [Matthys] remanded to the
[DOC] pursuant to his Sentencing Order of February 10, 2005.
11. Pursuant to Indiana Code [section] 35-38-1-17(b), the [c]ourt may
modify [Matthys’] sentence to place [Matthys] into Community
Corrections at a level to be determined by them for the remaining
balance of his executed sentence, and the [c]ourt finds [Matthys] may
file a Motion for Modification of Placement for its consideration.
(Appellant’s App. p. 43). On September 5, 2012, Matthys filed a Motion for
Modification of Placement. On October 9, 2012, the trial court granted Matthys’ motion,
ordering that the remainder of his sentence be executed in Tippecanoe County
Community Corrections.
Matthys now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
For purposes of appellate review, Indiana treats a hearing on a petition to revoke a
placement in a community corrections program the same as it does a hearing on a petition
to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999) (footnote omitted)
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(citing Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998), trans. denied). Indiana
Code section 35-38-2.6-2 defines a “community corrections” program as “a program
consisting of residential and work release, electronic monitoring, day treatment, or day
reporting[.]” “Community corrections programs” therefore include the Re-Entry
Program in which Matthys was enrolled. See I.C. § 33-23-16-8 (defining “problem
solving court”); I.C. § 33-23-16-9 (defining “reentry court” as a specific type of problem
solving court). The State’s burden of proof in probation revocation and similar
proceedings is to prove the alleged violations by a preponderance of the evidence.
Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995). We do not reweigh the evidence, but
consider all the evidence most favorable to supporting the judgment of the trial court. Id.
I. Due Process
Matthys contends that he was denied due process because the trial court’s hearing
on June 27, 2012 was not held until after he had already been effectively terminated from
the Re-Entry Program. “A defendant at a probation revocation hearing is not endowed
with all the same rights he possessed prior to his conviction.” Isaac v. State, 605 N.E.2d
144, 148 (Ind. 1992). Similarly, a defendant facing termination from a problem solving
court program is not guaranteed the same due process of law as a defendant facing a
revocation of probation. Compare I.C. § 33-23-16-14.5 (describing the due process
requirements for termination of participation in a problem solving court program), with
I.C. § 35-38-2-3 (describing the due process requirements for probation revocation).
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While the two processes are comparable enough to share a standard of review, they are
not identical.
Moreover, at no time did the State’s action violate the statutory requirements for
Matthys’ termination from the Re-Entry Program. On March 5, 2012, Matthys was
remanded into custody following his alleged violations of Re-Entry Program rules, and
pursuant to Indiana Code section 33-23-16-14.5(b)(1). On May 3, 2012, Matthys
received written notice of his alleged violations, pursuant to Indiana Code section 33-23-
16-14.5(c)(3)(A). On June 27, 2012, the trial court conducted a hearing, pursuant to
Indiana Code section 33-23-16-14.5(c), that included Matthys’ representation by counsel,
the presentation of the evidence against him, and the opportunity to confront and cross-
examine witnesses. The trial court subsequently found that Matthys had committed two
technical violations of Re-Entry Program rules. Matthys then proposed that regardless of
the inappropriateness of his termination, he should not be returned to the Re-Entry
Program, and the trial court agreed.
This court has acknowledged that “[o]rdinarily, due process ‘requires some kind of
hearing before the State deprives a person of liberty or property.’” Myers v. Coats, 966
N.E.2d 652, 658 (2012) (quoting Zinermon v. Burch, 494 U.S. 113, 127 (1976))
(emphasis added). However, section 33-23-16-14.5(c) imposes no temporal
requirements, providing only that the “problem solving court judge or other hearing
officer shall conduct a hearing concerning an alleged violation.” While the timing of
operations and ultimate hearing in Matthys’ case may have been unorthodox, they were
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not statutorily prohibited. Furthermore, on June 27, 2012, during the hearing before the
trial court, Matthys did not claim he had been denied due process up to that point.
Rather, he informed the trial court that it would be hearing the issue of his termination
from the Re-Entry Program in addition to the issue of his sentencing. No one questioned
the propriety of this course of action, and the trial court recapitulated its agenda before
proceeding: “[W]hat we’re doing is allowing [the court] to make the decision as to
whether or not [Matthys] should be terminated from re-entry and then if so . . . . what we
do, does that sound right?” (Transcript pp. 1-2). The record indicates no disagreement
on this point. Based on the evidence before us, we cannot conclude that Matthys was
denied due process.
II. Sentencing
Next, Matthys contends that the trial court’s sentence was inappropriate. He
invokes Appellate Rule 7(B), which states: “The [appellate] [c]ourt may revise a
sentence authorized by statute if, after due consideration of the trial court’s decision, the
[appellate] [c]ourt finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender.” We have further clarified that “[b]efore we
may revise a sentence, the defendant must ‘demonstrate that his sentence is inappropriate
in light of both the nature of his offenses and his character.’” Gil v. State, 988 N.E.2d
1231, 1237 (Ind. Ct. App. 2013) (quoting Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct.
App. 2008) (emphasis in original).
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While Matthys notes the “technical” nature of his offenses, he offers nothing
regarding his character. Instead, he relies solely on the trial court’s conclusion that
“termination is not an appropriate sanction for the two rule violations that have been
shown.” (Appellant’s App. p. 43). Matthys submitted the following sentencing proposal
for the trial court’s consideration: “[T]he fairest solution would be to modify [Matthys’]
sentence to Community Corrections at a level to be determined by them for a time period
that would finish up at about the same time [Matthys] would have graduated from the Re-
Entry Program had he not been prematurely rejected.” (Appellee’s App. p. 10). The trial
court, however, rejected this proposal and instead sentenced him to the DOC for the
remainder of his sentence. Matthys now attempts to characterize this rejection as
inappropriate, claiming that the trial court improperly sentenced him to the DOC “instead
of placing Matthys back into the Re-Entry Program.” (Appellant’s Br. p. 6).
Far from being inappropriate, the trial court’s decision to remand Matthys to the
DOC was the only legitimate option available. Matthys had signed an agreement prior to
his placement in the Re-Entry Program. Section 3(j) of that agreement reads, in relevant
part: “[I]n the event of the defendant’s rejection from the . . . Re-Entry Program, the
defendant’s stayed sentence . . . shall be ordered served in the [DOC], without any
modification, appeal or post-conviction petition.” (Appellant’s App. p. 35).1
1
In its Brief, the State appears to challenge the subsequent Order for Modification of Placement issued by
the trial court on October 9, 2012. However, this issue is not properly before us. Matthys’ Notice of
Appeal only appeals the “Order Entered on August 30, 2012.” (Appellant’s App. p. 47). The State did
not pursue its own appeal of the Order for Modification of Placement.
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Therefore, we conclude that the sentence was not inappropriate, as it was
compelled by the agreement that Matthys had signed on August 24, 2011, prior to his
admission to the Re-Entry Program.
CONCLUSION
Based on the foregoing, we conclude that Matthys was not deprived of due
process, nor did the trial court sentence him inappropriately.
Affirmed.
MAY, J. concurs
VAIDIK, C.J. concurs in result
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