MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Mar 09 2017, 7:35 am
precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Logansport, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justin Rhymer, March 9, 2017
Appellant-Defendant, Court of Appeals Cause No.
09A04-1607-CR-1708
v. Appeal from the Cass Circuit Court
The Honorable Leo T. Burns, Judge
State of Indiana, Trial Court Cause No. 09C01-1007-
FB-3
Appellee-Plaintiff.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Justin Rhymer (Rhymer), appeals the trial court’s denial
of his motion for sentence modification.
[2] We affirm.
ISSUE
[3] Rhymer presents one issue on appeal, which we restate as follows: Whether the
trial court abused its discretion in denying Rhymer’s motion for sentence
modification.
FACTS AND PROCEDURAL HISTORY
[4] On July 28, 2010, the State filed an Information, charging Rhymer with one
Count of dealing in methamphetamine, a Class B felony. On January 9, 2014,
Rhymer pleaded guilty to the dealing charge. Rhymer’s plea agreement
provided that the trial court would sentence Rhymer to ten years; with six years
executed in Cass County Community Corrections, and four years suspended to
probation. On February 6, 2014, the trial court held a joint plea and sentencing
hearing. The trial court accepted Rhymer’s guilty plea and subsequently
sentenced Rhymer in accordance with the plea agreement. Shortly after
Rhymer’s sentencing, Cass County Community Corrections referred Rhymer to
serve his sentence in White County Community Corrections. On February 12,
2014, White County Community Corrections accepted Rhymer into their
program.
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[5] On February 3, 2015, Cass County Community Corrections requested a status
report on Rhymer. White County Community Corrections responded by
stating that after reviewing their records, it showed that Rhymer had never
made contact or reported to serve his sentence. A warrant was issued and
Rhymer was arrested. On April 7, 2015, based on Rhymer’s failure to report to
White County Community Corrections, the trial court issued a sentence
modification order sentencing Rhymer to serve his ten-year sentence in the
DOC, with four years suspended to probation. In the amended abstract of
judgement for Rhymer’s sentence modification dated April 22, 2015, the trial
court noted that Rhymer was eligible for Purposeful Incarceration. 1
[6] On June 30, 2015, Rhymer wrote a letter to the trial court stating, in part,
Upon my arrival in the DOC, I was informed by my case worker that I
am in fact not considered Purposeful Incarcerated. My abstract of
judgment is correct but my sentencing order does not state the
information and wording that the DOC requires to consider an
1
According to the Indiana Department of Correction’s website:
In 2009 the Indiana Department of Correction (IDOC) began a cooperative project with Indiana
Court Systems called Purposeful Incarceration (P.I.). The Department works in collaboration with
Judges who can sentence chemically addicted offenders and document that they will “consider a
sentence modification” should the offender successfully complete an IDOC Therapeutic
community. This supports the Department [of] Correction and the Judiciary to get addicted
offenders the treatment that they need and work collaboratively to support their successful re-entry
into society.
Purposeful Incarceration, http://www.in.gov/idoc/2798.htm (last visited Feb. 22, 2017).
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offender for Purposefully Incarcerated. Enclosed with this letter is a
Verified Motion to Set an Order for Purposeful Incarceration.
(Appellant’s App. Vol. II, p. 133). On August 7, 2015, the trial court issued an
order stating, in part, that
a. [Rhymer’s] executed term of six (6) years is to be served with the
Indiana Department of Correction[] as Purposeful Incarceration.
b. That as a term of Purposeful Incarceration the Indiana Department
of Correction[] is to enroll [Rhymer] in appropriate Therapeutic
Community Program. That [Rhymer] is to abide by the terms and
conditions of his assigned program. That once successfully completed,
the Court will modify [Rhymer’s] remaining executed term of sentence
to the Community Transition Program and Community Corrections.
If [Rhymer] fails to successfully complete his assigned program he will
serve the entire executed term of sentence in the Indiana Department
of Correction[].
c. That upon completion of his assigned Therapeutic Community
Program it is the responsibility of [Rhymer] and Council [sic] to notify
the Court and schedule a hearing. At this point the Court will verify
that [Rhymer] successfully completed the assigned program and
generate an order modifying [Rhymer’s] remaining term of
incarcerated sentence to the Community Transition Program and
Community Corrections.
(Appellant’s App. Vol. II, pp. 134-35). On March 15, 2016, the DOC indicated
that Rhymer had completed therapy at the Westville Therapeutic Community.
Rhymer subsequently earned a time cut of 183 days. On March 24, 2016,
Rhymer informed the trial court of his accomplishment and he requested
modification of his sentence, i.e., that he be allowed to serve the remainder of
his sentence in community corrections.
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[7] Even though Rhymer had completed therapy, the DOC noted in its case notes
that Rhymer had become uncooperative and was not adhering to the facility’s
rules. On March 29, 2016, Bradley Stigler (Stigler), a caseworker with
Westville Correctional Facility, wrote to the trial court stating that immediately
after Rhymer completed his therapy, he become uncooperative and was
removed from the Therapeutic Community Facility. On April 20, 2016,
without a hearing, the trial court denied Rhymer’s request. On May 11, 2016,
Rhymer filed a motion for a hearing. On July 14, 2016, the trial court held
Rhymer’s sentencing modification hearing and denied Rhymer’s request based
on the DOC’s case notes and Stigler’s letter dated March 29, 2016.
Notwithstanding its denial of Rhymer’s petition for modification of sentence,
because Rhymer appeared pro se, the trial court scheduled another hearing for
July 21, 2016, in order to afford Rhymer another opportunity to present his case
yet again with the help of an appointed counsel. On July 21, 2016, at the start
of the hearing, the trial court stated
We were on the record last week and the Court made a record with
respect to [] Rhymer’s current situation. The Court made a reference
to the plea agreement that was filed in this case and the fact that based
on [] Rhymer’s pleadings made a determination that he was entitled to
appear and make a case for a modification of his sentence . . .all
indications to the Court were that [] Rhymer has documentation from
the Department of Corrections [sic] that he did, in fact, complete the
therapeutic component, the court read into the record the statement by
one of the officers or one of the therapist at the Department of
Correction, and told you, Mr. Rhymer that I had denied your motion
for modification based on that. You refiled and the court came to the
same conclusion last week, but [] in order to make sure due process
applies because we do have a written plea agreement in this case, I
appointed counsel for you so that you could come back today to see if
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there was anything that needs to be presented that was overlooked last
time.
(Tr. pp. 26-27). At the hearing, Rhymer testified that
I was in my room on the wing where [I] shouldn’t have been filling out
a request form to get some hygiene products from the DOC because
they had lost all my property when I [] went to court in White County
for custody over my daughter. After that, I had already filed, or asked
to be moved [by] [] department of labor, [] and I was just waiting to be
moved and I, I was removed after that with [] no warning basically, I
was just removed.
(Tr. p. 29). The State’s argument was that even though Rhymer had completed
the therapeutic program at Westville Correctional Facility, Rhymer had failed
to abide by the facility’s rules. The State claimed that the trial court ultimately
had the discretion to interpret the August 7th Order, i.e., whether Rhymer had
successfully completed his assigned therapeutic program before generating an order
modifying Rhymer’s sentence. At the close of the evidence, the trial court
denied Rhymer’s sentence modification request, and continued his placement in
the DOC.
[8] Rhymer now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] Rhymer argues that the trial court abused its discretion by denying his petition
to change his placement from the DOC to community corrections. We review
a trial court’s decision regarding modification of a sentence for an abuse of
discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). An abuse of
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discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before the court or when the court
misinterprets the law. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).
[10] As noted, in 2010, Rhymer committed the offense of dealing in
methamphetamine, a Class B felony, and in February 2014, he pled guilty to
the offense. Following his guilty plea, the trial court sentenced him to ten years
in the DOC, with four years suspended to probation. Rhymer’s plea agreement
stipulated that, if eligible, Rhymer could serve his executed six-year sentence in
community corrections. On February 18, 2014, Cass County Community
Corrections approved Rhymer for admittance into the White County
Community Corrections. It is undisputed that Rhymer failed to report to White
County Community Corrections to serve his sentence in 2014. On February
13, 2015, the State informed the trial court of Rhymer’s sentence violation.
Rhymer was arrested, and in April 2015, Rhymer’s sentence was modified.
Specifically, instead of serving his six-year executed sentence in community
corrections, the trial court ordered Rhymer to serve his sentence in the DOC.
The record shows that when Rhymer reported to the DOC to serve his
sentence, he was informed that he was eligible for Purposeful Incarceration;
however, because his sentencing order had not indicated that he was eligible for
Purposeful Incarceration, he filed a motion with the trial court to have an order
issued. On August 7, 2015, the trial court issued an order clarifying that
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Rhymer’s executed six-year sentence was to be served in the Purposeful
Incarceration program. 2
[11] Turning to Rhymer’s main argument—that the trial court abused its discretion
in denying his request to serve the remainder of his sentence in community
corrections—as noted, we review a trial court’s decision pertaining to
sentencing modification for abuse of discretion, and an abuse of discretion
occurs when the trial court’s decision is clearly against the logic and effect of
the facts and circumstances before the court. See Heaton, 984 N.E.2d at 616.
Rhymer’s core argument is placed on the fact that the August 7th Order
specified that upon completion of the “Therapeutic Community Program,” the
trial court would modify his sentence and direct that his remaining term of six-
years be served in community corrections. (Appellant’s App. Vol. II, p. 134).
[12] Its undisputed that Rhymer completed the therapeutic program in March 2016,
and as obligated by the August 7th Order, he notified the trial court of his
accomplishment. The State argues that even though Rhymer completed the
2
In his appellate brief, Rhymer states that “[f]ollowing [his] violation of Community Corrections in February
2014, [him], [his] Attorney, the State of Indiana, and Cass [] Community Corrections reached an agreement
on a modified sentence.” (Appellant’s Br. p. 11). Accordingly, Rhymer states that the August 7th Order “is
essentially a written plea agreement.” (Appellant’s Br. p. 13). Rhymer’s argument that the August 7th Order
is more or less a plea agreement, is inaccurate and unsound. The record shows that Rhymer desired an order
from the trial court so as to enable the DOC to transfer him to the Purposeful Incarceration program, and the
August 7th Order did exactly that.
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program, Rhymer was entitled to a sentence modification only after the trial
court had verified Rhymer’s completion of the program to the satisfaction of the
DOC. In support of its argument, the State directs us to paragraph (c) of the
August 7th Order, stating
That upon completion of his assigned Therapeutic Community
Program it is the responsibility of [Rhymer] and Council [sic] to notify
the Court and schedule a hearing. At this point the Court will verify
that [Rhymer] successfully completed his assigned program and generate an
order modifying [Rhymer’s] remaining term of incarcerated sentence to
the Community Transition Program and Community Corrections.
(Appellant’s App. Vol. II, 135). (emphasis added). The State claims “[b]y the
time the trial court could verify Rhymer’s completion of therapy, Rhymer had
breached the terms and conditions of his “assigned program” and had been
removed from the Westville Therapeutic Community. (State’s Br. p. 13). In
support of its claim, the State directs us to the DOC’s case notes dated March
23, 2016, stating that
Rhymer is being discharged for non-compliance with the program
expectations for participation and conduct after refusing to get out of
bed and participate in programming. The misconduct was
documented as follows;
. . .Counselor did a walk through on the dorm to check for room
compliance and to make sure the wing was clear as there was
programming going on. . . . Rhymer was found to be in his room
sitting on his bunk. Counselor asked [Rhymer] why he was back in his
room and he said he was just relaxing. This isn’t the first time he has
been found on the wing and he was asked if he wanted to continue to
be in the program last week. [Rhymer] stated that he wanted to stay
and that he agreed to the program.
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. . . [Rhymer] continues [] to be non-compliant and there have been
several complaints from other peers on the dorm that he is not
programming. [Rhymer] is a green dot and appears to have the
attitude that he doesn’t have to do anything anymore (note: Green dot
means he has completed all the program requirements to be eligible for
the time cut.”
(Appellant’s App. Vol. II, p. 141). Following Rhymer’s cited violations of the
Westville Therapeutic Community rules, on March 29, 2016, Stigler, a
caseworker with the facility, wrote to the trial court stating
immediately upon application of his time cut. . . . Rhymer became
uncooperative with the program and refused to participate in any
further activities related to this program. He was removed from the
program on 3/23/2016 due to his refusal to continue to follow
Therapeutic Community rules. His refusal reveals a lack of
application of Program lessons and related cognitive improvements
that indicate he is merely time cut motivated.
(Appellant’s App. Vol. II, p. 149). Rhymer argues that the alleged acts of
misconduct transpired after he had completed his therapeutic program.
Rhymer states in his appellate brief, the “State will argue that [he] refused to
continue participating in further programing [sic] after filing his request for a
transfer, but there was absolutely no requirement that” he had to “continue to
participate in programming [sic] after successfully completing” the therapeutic
program. (Appellant’s Br. p. 14). We disagree.
[13] Turning to the record, we note that the August 7th Order, incorporated a
requirement that Rhymer was to “abide by the terms and conditions of his
assigned program.” (Appellant’s App. Vol. II, p. 135). Two days after Rhymer
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completed the therapy program, Westville Therapeutic Community generated a
report stating that Rhymer “continues to be assigned to this program as
mentor.” (Appellant’s App. p. 146). Here, we find that even though Rhymer
had made great strides in completing his therapy program, he “remained
assigned” to the Westville Therapeutic Community and he had to abide by the
rules. (Appellant’s App. Vol. II, p. 135). As evidenced by the August 7th Order,
the trial court had the discretion to determine what would count as a successful
completion. When the trial court had the chance to verify Rhymer’s
completion of his assigned therapeutic program, it was faced with the
dichotomy reports of Rhymer’s completed therapy and Rhymer’s negative
behavior in the facility. Rhymer’s bad behavior was referenced in the DOC’s
case notes and Stigler’s letter to the court. Based on the above, we find that the
trial court’s decision to deny Rhymer’s placement from the DOC to community
correction was within its discretion and does not contravene the logic and facts
before the court. Accordingly, we find no abuse of discretion, and we refuse to
disturb Rhymer’s current placement in the DOC.
CONCLUSION
[14] Based on the foregoing, we conclude that the trial court did not abuse its
discretion in denying Rhymer’s motion for sentence modification.
[15] Affirmed.
[16] Crone, J. and Altice, J. concur
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Justin Rhymer v. State of Indiana (mem. dec.)
Combined Opinion