FILED
Aug 05 2016, 5:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cory L. Montgomery, August 5, 2016
Appellant-Defendant, Court of Appeals Case No.
02A04-1511-CR-2013
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Samuel R. Keirns,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
02D06-1203-FB-53
Najam, Judge.
Statement of the Case
[1] Cory L. Montgomery appeals the trial court’s revocation of his probation.
Montgomery raises a single issue for our review, namely, whether the trial
court’s revocation of his probation, which followed the court’s revocation of his
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placement in a community transition program, violated the doctrine of res
judicata. It did not. As such, we affirm.
Facts and Procedural History
[2] On July 16, 2012, Montgomery pleaded guilty to dealing in cocaine or a
narcotic drug, as a Class B felony. The trial court sentenced Montgomery to
thirteen years, with five years suspended. The court further ordered
Montgomery to serve the final four years of his nonsuspended term on “active
adult probation.” Appellant’s App. at 29.
[3] On June 19, 2015, the trial court assigned Montgomery from the Indiana
Department of Correction to the Allen County Community Transition
Program, and the court ordered Montgomery to comply with certain conditions
of reentry. In its order, the court informed Montgomery that, “[i]f probation
was imposed in the original sentence, then the defendant shall report to the
Probation Department as directed . . . .” Id. at 64.
[4] On August 24, Montgomery appeared for a urine screen and attempted to use a
urine sample that he had hidden in a condom behind his scrotum during that
screen, but a drug screen technician prevented him from doing so. On August
27, the State filed its petition to revoke Montgomery’s placement in the
transition program. In particular, the State alleged that Montgomery:
1. Did not maintain good behavior. On or about August 24,
2015[,] the defendant is alleged to have committed the offense of
Interfering with a Drug or Alcohol Screening Test and
Possession of a Devi[c]e or Substance Used to Interfere with a
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Drug or Alcohol Screening, a Class B misdemeanor as referenced
in cause number 02D05-1508-CM-3278.
2. On or about August 20, 2015, defendant failed to report
for urine drug screen as instructed.
3. On or about August 21, 2015, defendant failed to report
for urine drug screen as instructed.
4. Defendant failed to complete any of his 24 hours of court
ordered community service by August 13, 2015[,] as instructed.
Id. at 65.
[5] On August 31, the trial court revoked Montgomery’s placement in the
transition program. The court further revoked sixty days of actual credit time
from Montgomery’s sentence. The court then referred Montgomery to the
Allen County Probation Department “for further action.” Id. at 77.
[6] On September 2, the State filed its petition to revoke Montgomery’s probation.
In particular, the State alleged that Montgomery:
1. Did not maintain good behavior. On August 31, 2015, the
defendant was terminated from the Re-Entry Program while
serving the executed portion of his sentence.
2. Did not maintain good behavior. On August 24, 2015, the
defendant is alleged to have committed the offense of Interfering
with a Drug or Alcohol Screening Test, a Class B Misdemeanor,
as referenced in the affidavit of probable cause in cause number
02D05-1508-CM-3278.
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Id. at 78. After a contested evidentiary hearing, the trial court revoked
Montgomery’s probation and ordered him to serve five years in the Department
of Correction. This appeal ensued.
Discussion and Decision
[7] Montgomery appeals the trial court’s revocation of his probation. As our
supreme court has explained:
Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled. The trial court
determines the conditions of probation and may revoke
probation if the conditions are violated. 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. If this discretion were not afforded to
trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation to
future defendants. Accordingly, a trial court’s sentencing
decisions for probation violations are reviewable using the abuse
of discretion standard. An abuse of discretion occurs where the
decision is clearly against the logic and effect of the facts and
circumstances.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted).
[8] Montgomery’s only argument on appeal is that the trial court’s revocation of
both his placement in the transition program and his probation violated the
doctrine of res judicata. According to our supreme court:
Res judicata is a legal doctrine intended “to prevent repetitious
litigation of disputes that are essentially the same, by holding a
prior final judgment binding against both the original parties and
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their privies.” It applies “where there has been a final
adjudication on the merits of the same issue between the same
parties.” Stated in more detail:
1. the former judgment must have been rendered by a
court of competent jurisdiction;
2. the former judgment must have been rendered on the
merits;
3. the matter now in issue was or might have been determined in
the former suit; and
4. the controversy adjudicated in the former suit must have
been between the parties to the present action or their
privies.
If any element is absent, res judicata does not apply.
Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 993 (Ind. 2014) (emphasis
added) (citations omitted).
[9] We cannot agree that the trial court’s subsequent revocation of Montgomery’s
probation was barred by its prior revocation of his placement in the transition
program. In the language of res judicata, the matter in issue before the court
during the probation revocation proceedings—Montgomery’s placement on
probation—was simply not the same matter in issue before the court during the
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revocation proceedings on his placement in the transition program.1 And we
are not persuaded by Montgomery’s suggestion that the court was obliged to
consider and determine those two separate matters once and for all during the
revocation proceedings for his placement in the transition program.
[10] Placement on probation and placement in a community transition program are
not one and the same, and the court’s consideration of those options is not
mutually exclusive. Rather, those options are two of many tools in the trial
court’s toolbox for the court’s use in the administration and supervision of a
defendant’s sentence, over which the court has continuing jurisdiction. We
conclude that the trial court’s revocation of Montgomery’s probation was not
barred by res judicata and was not otherwise an abuse of the trial court’s
discretion. Accordingly, we affirm the trial court’s judgment.
[11] Affirmed.
Vaidik, C.J., and Baker, J., concur.
1
The other elements of res judicata are not at issue here. There is no question that the sentencing court has
continuing jurisdiction over a defendant such that it may modify or revoke his probation, I.C. §§ 35-38-2-1, -
1.8, or placement in a community transition program, I.C. §§ 11-10-11.5-6, 35-38-1-25. The court’s
revocation of either of those placements requires a judgment on the merits of the State’s request for such
revocation. I.C. §§ 11-10-11.5-11.5(b), 35-38-2-1(a)(2). And the State does not suggest on appeal that it was
not represented at both hearings before the trial court. E.g., Becker v. State, 992 N.E.2d 697, 701-02 (Ind.
2013).
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