FILED
Jul 08 2016, 8:24 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Gregory F. Zoeller
Lawrenceburg, Indiana Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brad L. Sullivan, July 8, 2016
Appellant-Defendant, Court of Appeals Case No.
16A01-1512-CR-2175
v. Appeal from the Decatur Superior
Court
State of Indiana, The Honorable Matthew D.
Appellee-Plaintiff. Bailey, Judge
Trial Court Cause No.
16D01-1408-F6-568
Brown, Judge.
Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016 Page 1 of 12
[1] Brad L. Sullivan appeals the revocation of his community corrections
placement. Sullivan raises one issue which we revise and restate as whether the
trial court abused its discretion in revoking his placement in community
corrections. We reverse and remand.
Facts and Procedural History
[2] On September 14, 2015, Sullivan and the State executed a plea agreement
which provided that Sullivan would plead guilty to intimidation as a level 6
felony, criminal trespass as a class A misdemeanor, and battery as a class A
misdemeanor in this cause, and battery as a class A misdemeanor in another
cause. The plea agreement further provided that Sullivan would be sentenced
in this cause to twenty-four months for intimidation, to one year each for
criminal trespass and for battery, and that the sentences would run
concurrently. It provided he would be sentenced for battery in the other cause
to ninety-two days, and that credit time would be applied to this sentence
resulting in it being served in full. The plea agreement further stated:
18 months shall be served as an initial executed sentence on
electronically monitored home detention, so long as the
defendant establishes and maintains eligibility through
Community Corrections, including abiding by all rules of home
detention and remaining current on fees. . . . If the defendant
fails to establish eligibility the sentence will be served in the
Decatur County Jail.
*****
The defendant has been advised that the Court has discretion to
determine the sanction if the defendant has been found to have
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violated the rules and guidelines of Community Corrections.
The defendant hereby waives this right and agrees that if found to
have violated these rules or otherwise become ineligible (except
for non-payment of fees due to a change in economic
circumstances) then the remaining portion of the defendant’s
executed sentence shall be served at the Decatur County Jail.
Appellant’s Appendix at 46.
[3] At a guilty plea hearing on September 14, 2015, Sullivan pled guilty pursuant to
the plea agreement, and the court imposed an aggregate sentence of two years
with eighteen months to be served on home detention and the balance to be
served on supervised probation. In its judgment of conviction, the court stated:
“If the defendant has not been approved for home detention by October 20,
2015, then the defendant shall report to the Decatur County Jail on that date to
serve the sentence as an executed sentence in the Indiana Department of
Correction.” Id. at 43.
[4] On October 23, 2015, Decatur County Community Corrections filed a petition
to revoke community corrections placement alleging Sullivan violated the
conditions of his placement by not reporting to start home detention as
described in an attached affidavit and incident report.
[5] On October 29, 2015, the court held an initial hearing on the petition at which
Sullivan stated that he had paperwork that proves he was in the Columbus
Regional Mental Health Unit and from there went to St. Vincent’s Stress Center
and that he was institutionalized and could not report. Sullivan further stated
that he “got a hold of [his counsel], and [his] social worker at Columbus
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Regional Mental Health Unit was supposed to contact [his counsel] and fax
him the paperwork for that.” Transcript at 23. He stated that he “was told that
[he] had [$270] up front to start [his] house arrest,” that he “had the house
phone and the house check, everything approved,” that “[e]verything’s been
done, but [he] had to have the two hundred and seventy (270) up front,” that he
“was under the assumption that that was out of [his] bond money and stuff,”
that “that’s the only reason [he] had kind of a nervous break about it,” that he
had “proof that states that [he] was not able to contact him” and that he “was in
a[n] institution.” Id. at 23-24. He also stated that “[i]t seems like every time I
start to get on the right medications and on the right path, I’m throwed (sic)
back in here, and then I’m taken off the medications and have to restart
everything all over again, and given my conditions, it’s [] pretty serious.” Id. at
24. The court informed Sullivan that, if he was found to be in violation, the
court could continue his placement or could order all or a part of his previously
suspended sentence to be served in the Indiana Department of Correction (the
“DOC”). The court entered a denial of the allegations on behalf of Sullivan
and scheduled a revocation hearing.
[6] On November 12, 2015, the court held the revocation hearing, at which the
State presented the testimony of the Director for Decatur County Community
Corrections who stated that, “after Court, [Sullivan] did come in, and we gave
him a Court date of October twentieth (20th) to start his[] home detention,”
that there was no additional contact with Sullivan prior to October 20th, and
that Sullivan did not begin home detention on or before October 20th. Id. at 30.
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On cross-examination, the Director indicated that Sullivan had already been
approved for community corrections, that if Sullivan were to report he “would
be able to be hooked up,” and that he would have no problem accepting
Sullivan to the program if the court ordered. Id. at 31.
[7] Sullivan testified and acknowledged his report date of October 20th and stated
that he was in a mental health facility at the time for “post traumatic distress
disorder and major depressive disorder.” Id. at 33. He indicated that he would
report immediately if the court were to allow it and that he would have no
problem financially because he still had bond to pay for that and he had a job
waiting for him when he was released. On cross-examination, Sullivan
indicated he went to Columbus Regional on the 15th and was released from
there on the 17th, and from there he went directly to St. Vincent’s through
Medicab. When asked if he was allowed to use a telephone at either of the
facilities, Sullivan replied that “I was at Columbus through one of my
counselors, and I contacted my legal representative, . . . , and I was under the
impression that he was gonna contact the Court and Community Corrections,”
and when asked if he contacted community corrections, he answered “I was
unable to.” Id. at 34. He testified he was released from St. Vincent’s on
October 21st and that he was under the impression that his counsel “had taken
care of everything, then by the time I was able to contact him again, he had
moved to South Carolina, I believe it was.” Id. at 35. When asked why he was
unable to contact community corrections, Sullivan testified that he was under
the impression it was taken care of by his counsel because his counsel “said he
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would fax the uh, Community Corrections and fax the Court.” Id. On redirect,
Sullivan indicated that it was just a misunderstanding that he did not know his
new report date. Sullivan’s counsel informed the court that he had contacted
Sullivan’s previous legal counsel, who told him that “he thought he had faxed
over medical documentation to the Prosecutor’s Office,” that “that’s where he
told me to try to get the records he had um, and doesn’t appear that it came
through,” and “that was my understanding as well, that that had been done, but
I have not been able to obtain his medical records.” Id. at 36.
[8] The court then addressed the deputy prosecutor and stated, “as I look through
this plea agreement, this looks like one of those where, if they violate the plea
agreement, specifies they do the whole thing,” and the deputy prosecutor said
that the “State’s position is he violated, and he does the remainder of the
sentence at the jail.” Id. at 37. The deputy prosecutor also stated “[z]ero
tolerance probation is just quite common, and it’s always been upheld,” and the
court replied: “Really? Hmm.” Id. The court found Sullivan in violation of the
conditions of his community corrections placement on home detention by not
beginning his placement as ordered, revoked his placement, and ordered that he
serve his time at the Indiana Department of Correction. The court’s written
order states: “As required by the terms of the Plea Agreement filed and
accepted on September 14, 2015, the Court now orders that [Sullivan’s] entire
18 month community corrections sentence be revoked, and [Sullivan] shall
serve the 18 months as an executed sentence at the Indiana Department of
Correction.” Appellant’s Appendix at 63.
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Discussion
[9] The issue is whether the trial court abused its discretion in revoking Sullivan’s
placement in community corrections. Placement in community corrections is
at the sole discretion of the trial court. Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct.
App. 2014) (citation omitted), trans. denied. 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. Holmes v. State, 923 N.E.2d 479, 482 (Ind. Ct. App. 2010) (citation
omitted). Probation revocation is a two-step process. Ripps v. State, 968 N.E.2d
323, 326 (Ind. Ct. App. 2012). First, the trial court must make a factual
determination that a violation of a condition of probation actually occurred. Id.
Then, if a violation is proven, the trial court must determine if the violation
warrants revocation of the probation. Id. (citing Woods v. State, 892 N.E.2d 637,
640 (Ind. 2008)). “However, 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. (citing Woods,
892 N.E.2d at 640).
[10] Sullivan asserts that the predetermined sanction in his plea agreement that he
serve his entire sentence in jail for any rule violation was improper as a matter
of law and deprived him of a number of his constitutional rights including his
right to due process. He further argues that the court abused its discretion in
enforcing the provision, that he did not purposefully violate community
corrections’ rules, that circumstances beyond his control created the situation
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which led to the minor rule violation, and that the State presented no
compelling facts to justify implementation of such a harsh sentence. He also
argues that he had taken steps to be hooked up on home detention, that he was
in a mental health hospital on the day he was to report, that he and his social
worker contacted his trial attorney, that his trial attorney believed he had faxed
commitment information to the prosecutor’s office, and that community
corrections was still willing to accept Sullivan into the program.
[11] The State responds that Sullivan did not substantiate his testimony with any
medical records and failed to explain why he did not follow up with community
corrections or his attorney for six days after he returned home. It further argues
that, because Sullivan was approved for community corrections, he had the
information necessary to contact community corrections himself, and that, in
light of the facts he did not speak directly with his attorney while hospitalized,
did not have confirmation that his attorney had taken care of everything, and
did not contact community corrections during or after his hospitalization, it was
not unreasonable for the court to determine that Sullivan had violated a
condition of his community corrections placement. In his reply brief, Sullivan
maintains that in essence the State’s argument is that, no matter what
agreement he entered, the court must uphold it, and he contends that this case
is a good example of the unfairness that can result in such a scenario, namely,
that he must go to jail even though he had good reason for not surrendering
himself to begin his home detention.
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[12] We note that Sullivan does not dispute that he did not report as required on
October 20, 2015. Rather, he maintains the court abused its discretion in
imposing such a harsh sentence under the circumstances including among other
factors that he was in a mental health hospital on the day he was to report. In
Woods, Woods was placed on probation that the parties referred to as “strict
compliance,” which the deputy prosecutor explained as meaning “[a]ny other
violation of any terms or conditions of his probation will result in full backup of
15 years.” Woods, 892 N.E.2d at 639. The State alleged Woods failed to report
for urinalysis drug testing, failed to report to the probation department, and
failed to make a good-faith effort to pay fees, and the trial court revoked his
probation. Id. The Indiana Supreme Court held:
In one sense all probation requires “strict compliance.” That is
to say probation is a matter of grace. And once the trial court
extends this grace and sets its terms and conditions, the
probationer is expected to comply with them strictly. If the
probationer fails to do so, then a violation has occurred. But
even in the face of a probation violation the trial court may
nonetheless exercise its discretion in deciding whether to revoke
probation.
In any event the very notion that violation of a probationary term
will result in revocation no matter the reason is constitutionally
suspect. For example, failure to pay a probation user fee where
the probationer has no ability to pay certainly cannot result in a
probation revocation. And what of a probationer not reporting
to his probation officer because he was in a coma in a hospital?
Or consider a failed urinalysis test because of prescription
medication a probationer is taking on orders from his treating
physician. Although not a defense to revocation, lack of volition
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is often a factor pertinent to a disposition in a revocation
proceeding.
We acknowledge that telling a defendant that he is on “strict
compliance” is a dramatic way of putting him on notice that he is
on a short leash and has been given one final chance to “get his
act together.” Nonetheless due process requires that a defendant
be given the opportunity to explain why even this final chance is
deserving of further consideration.
Id. at 641 (citations omitted).
[13] Sullivan testified as to the reasons he believed his violation did not warrant
revocation of his placement. At the October 29, 2015 hearing, Sullivan stated
that he was in the Columbus Regional Mental Health Unit, later went to St.
Vincent’s Stress Center, and at the time could not report. He further stated that
he “got a hold of” his counsel, and his social worker at Columbus Regional was
supposed to contact his counsel and fax him paperwork, and that he had his
house and house phone approved for home detention. Transcript at 23. At the
November 12, 2015 hearing, Sullivan testified that he went to Columbus
Regional on October 15, 2015, and directly to St. Vincent’s through Medicab
on October 17, 2015, and that he was in a mental health facility on the date he
was to report to community corrections. Sullivan again testified that he had
contacted his legal representative and was under the impression that he would
contact the court and community corrections, and he testified, when asked if he
contacted community corrections, that he “was unable to.” Id. at 34.
Additionally, Sullivan’s counsel informed the court that Sullivan’s previous
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legal counsel had informed him that “he thought he had faxed over medical
documentation to the Prosecutor’s Office.” Id. at 36.
[14] The provision of Sullivan’s plea agreement which essentially provided that any
non-fee violation would automatically result in the revocation of his
community corrections placement is constitutionally suspect. See Woods, 892
N.E.2d at 641 (observing that “the very notion that violation of a probationary
term will result in revocation no matter the reason is constitutionally suspect”).
While Sullivan admitted to not reporting to community corrections on October
20, 2015, he “must still be given an opportunity to offer mitigating evidence
suggesting that the violation does not warrant revocation,” Ripps, 968 N.E.2d at
326 (citing Woods, 892 N.E.2d at 640), and he offered evidence that his house
and phone were approved for home detention, that he was hospitalized at the
time he was to report, and that he was under the impression his counsel would
contact the court and community corrections. The deputy prosecutor argued
for “[z]ero tolerance probation” and the trial court’s written order reflects the
court’s belief that it was required to revoke Sullivan’s placement by the terms of
the plea agreement. Id. at 37.
[15] Based on the totality of the circumstances, including the nature of the violation
and sanction, we conclude the trial court abused its discretion in finding that
Sullivan’s violation warranted revoking his community corrections placement
and in ordering him to serve eighteen months in the DOC. See Ripps, 968
N.E.2d at 325-326 (observing that Ripps violated a condition of his probation
by failing to inform people living at his place of residence of his sex offender
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status, discussing Woods and the Court’s disapproval of “strict compliance”
probation where any violation will automatically result in revocation, noting
that Ripps suffered from health issues, was attempting to adhere to his
probation conditions and taking steps to correct the violation, and was in
violation by living about twenty feet too close to a public library and some
ambiguity existed in how the distance was measured, and holding that given the
circumstances it was unreasonable for the trial court to determine Ripps’s
violation warranted revoking his probation).
Conclusion
[16] For the foregoing reasons, we reverse the order of the trial court revoking
Sullivan’s placement in community corrections and remand for placement in
community corrections.
[17] Reversed and remanded.
Baker, J., and May, J., concur.
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Brad L. Sullivan v. State of Indiana
Combined Opinion