MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 24 2019, 8:36 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman Curtis T. Hill, Jr.
Of Counsel, Austin & Jones, P.C. Attorney General of Indiana
Indianapolis, Indiana Robert A. Rowlett
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tommie R. Shelton, June 24, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2802
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Lisa F. Borges,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G04-1701-F5-1203
Brown, Judge.
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[1] Tommie R. Shelton appeals the revocation of his placement in community
corrections. We affirm.
Facts and Procedural History
[2] On January 10, 2017, Shelton was charged with Count 1, battery resulting in
bodily injury to a person less than fourteen years of age as a level 5 felony;
Count 2, domestic battery as a level 6 felony; and Count 3, battery resulting in
bodily injury as a class A misdemeanor. A jury found him guilty of Counts 1
and 2, and the court sentenced him to six years with one year suspended for
Count 1 and to two years for Count 2 to be served concurrently. On March 1,
2018, the Community Transition Program (“CTP”) filed a Screening Memo
recommending that he be placed into CTP and “initially . . . into the Work
Release component and moved to other components at the direction of
Community Corrections staff.” 1 Appellant’s Appendix Volume II at 79. On
July 6, 2018, Marion County Community Corrections (“MCCC”) filed a
Notice of Community Corrections Violation indicating that Shelton: “1. on
7/6/2018, failed to comply with the rules and regulations” of MCCC, and “2.
failed to comply with [his] monetary obligation.” Id. at 101. The notice further
stated he was refusing to sign a medical release of information so that staff at
Duvall Residential Center (“DRC”) could effectively communicate with outside
1
In its sentencing order, the court initially ordered that he serve the first two years of the executed sentence
for Count 1 in the Indiana Department of Correction followed by three years in Marion County Community
Corrections “in a component deemed appropriate with movement as deemed appropriate by the agency.”
Appellant’s Appendix Volume II at 49.
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medical providers on his behalf, that physicians were prescribing medications
and he was not taking them as prescribed, and that, “[a]t this time, [he] is
refusing medical assistance and employment.” Id. On July 11, 2018, a Notice
of Probation Violation was filed. On August 3, 2018, an Agreed Entry on
MCCC Violation/Probation Violation was filed which indicated that Shelton
agreed with the allegations “on CCV 1 & 2, VOP 1,” that “Community
Corrections placement continued with component: deemed appropriate by
Community Corrections or as follows: work release w/ medical release, strict
compliance,” and “Continued on Probation for upon [sic] completion of
executed sentence with added conditions: strict compliance.” Id. at 116.
[3] On September 28, 2018, MCCC filed a second Notice of Community
Corrections Violation indicating that Shelton: “1. failed to comply with [DRC]
rules and regulations regarding refusing employment and/or the opportunity to
seek employment” and “2. failed to comply with DRC rules and regulations
regarding refusing a mandatory program.” Id. at 129. On October 3, 2018, a
second Notice of Probation Violation was filed and, on October 26, 2018, the
court held a hearing on the alleged violations. Shelton’s counsel indicated that
Shelton was able to make an admission with explanation to the second
allegation but was unable to make an admission to its first allegation. Patricia
Montgomery, a DRC Employment Specialist, testified that employment is
required for residents and answered in the negative when asked “outside of
medical issues, is there any reason why anyone staying at [DRC] would not be
required to work.” Transcript Volume II at 7. In describing efforts to obtain
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employment for Shelton, she testified regarding three interviews that she had
sent him on in August and September 2018, stated that she received a call from
an employer “before . . . the interview was even completed” and was told that
Shelton had “pulled a recliner off their floor and said that he could not stand,”
and indicated that he had told another employer that he was not able to work
and that he could not stand. Id. at 8. She indicated that she met with him after
the second of the three interviews and told him that he was going to need to
find employment and that Shelton informed her “that not only was he not
working anywhere in America, he was gonna sit on his bunk” and “collect
disability,” “was not going to help clean,” “was not going to do anything,” and
“was not gonna attend any” DRC classes. Id. at 9.
[4] Shannon Bowling, a DRC manager, testified that she had contact with doctors
who treated him and that, at some point, Dr. Sharma “out of IU Ambulatory”
was speaking with Nurse Trina Cornett, she was asked to participate in the
phone call, and Dr. Sharma was placed on speakerphone
where he informed us that there is no medical reason that
[Shelton] is unable to work. There may be stipulations, but those
would not be able to be confirmed because [Shelton] was not
taking his required medication that he should be taking so they
could tell what degree anything was affecting him. So he was not
in compliance with his medical treatment.
Id. at 15. When asked if, “at that point in time, . . . the doctor ha[d] any
restrictions for [Shelton] as far as work” she answered in the negative, and in
response to being asked if “the doctor had cleared him to do any and all work,”
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she stated “[a]bsolutely.” Id. She indicated that she had many one-on-one
conversations with Shelton explaining that, unless there was documentation
that he was disabled, he would need to go to work.
[5] Nurse Cornett testified that she had an LPN license for eighteen years; that
DRC had not received a disability statement from Shelton; that he cannot
provide anything stating he cannot work; and that she and Bowling were
present “with Dr. Sharma [during] his visit.” Id. at 20. She was asked if, at this
point in time, any documentation had been received that would prevent him
from working, and she stated, “Having a disability statement. When we spoke
with Dr. Sharma on the phone, he did say [Bowling] had said reiterated to –.”
Id. at 21. Shelton’s counsel then objected on a hearsay basis to what Dr.
Sharma had said, the court overruled the objection, and Nurse Cornett testified
“Dr. Sharma said – [Bowling] had said, you know, he’d be able to get a job
whenever – any place in the community and he understood that.” Id. After
stating that Shelton “had lots of problems” with not obtaining medication for
pain management, Nurse Cornett indicated she had brought a copy of his
medication administration record, which was later admitted without objection
and showed when medication prescribed by a physician was taken, and that
how often he took the medication “varies month to month” with “no
consistency.” Id. at 21-22. When asked if that “create[d] a problem when
you’re not consistent with pain medication,” she responded affirmatively and
stated “it’s hard for the doctor to do an evaluation based on the medication
you’re taking or not taking.” Id. at 22. During cross-examination the court
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asked Nurse Cornett “with all of these visits back and forth” if there “was ever a
communication to you of a diagnosis made,” and she responded in the
negative. Id. at 26. Defendant’s Exhibit B, a letter dated May 17, 2018, and
signed by Ann D. Zerr, M.D., was admitted, and states that Shelton “is having
significant pain and morning stiffness” and “is being evaluated for serious forms
of arthritis” and that “[f]or the next two weeks he is only able to stand or walk
for 15 minutes at a time.” Exhibits Volume at 6.
[6] The court found Shelton “uncooperative with” DRC in “providing them with
requested documents,” that he “did not comply even after the Court had to
intervene without pressure from the management” at DRC, and that he was
disrespectful with staff. Transcript Volume II at 59. Finding him in violation, it
ordered the “four years of backup time” be executed at the DOC. Id. at 60.
Discussion
[7] Shelton first argues that the trial court abused its discretion and committed
fundamental error in admitting certain hearsay statements. Generally, we review
the trial court’s ruling on the admission or exclusion of evidence for an abuse of
discretion. Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We
reverse only where the decision is clearly against the logic and effect of the facts
and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied.
Even if the trial court’s decision was an abuse of discretion, we will not reverse if
the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.
Ct. App. 1999), reh’g denied, trans. denied. We further note that failure to object to
the admission of evidence normally results in waiver and precludes appellate
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review unless its admission constitutes fundamental error. See Whatley v. State,
908 N.E.2d 276, 280 (Ind. Ct. App. 2009) (citing Cutter v. State, 725 N.E.2d 401,
406 (Ind. 2000), reh’g denied), trans. denied. To rise to the level of fundamental
error, an error “must constitute a blatant violation of basic principles, the harm or
potential for harm must be substantial, and the resulting error must deny the
defendant fundamental due process.” Id. (citing Maul v. State, 731 N.E.2d 438,
440 (Ind. 2000) (citations omitted)).
[8] Shelton contends that the hearsay statements of Dr. Sharma were the centerpiece
of the State’s arguments “that [he] failed to take the pain medications so he could
be evaluated and that he could work any job,” which he asserts serve as the
primary bases upon which the court found that he had violated MCCC rules.
Appellant’s Brief at 9. He argues he was denied due process as he was unable to
cross-examine Dr. Sharma, contends that the admission of the testimony was
not harmless under a federal harmless error analysis, and asserts that a failure to
object at the hearing constitutes fundamental error. The State argues that no
error occurred as the court did not rely on Dr. Sharma’s second statement.
[9] For purposes of appellate review, we treat a hearing on a petition to revoke
placement in a community corrections program the same as we do a hearing on
a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999),
reh’g denied. Our standard of review of an appeal from the revocation of a
community corrections placement mirrors that for revocation of probation. Id.
at 551. The Due Process Clause applies to probation revocation hearings.
Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007) (citing Gagnon v. Scarpelli, 411
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U.S. 778, 782, 93 S. Ct. 1756 (1973)), reh’g denied. “But there is no right to
probation: the trial court has discretion whether to grant it, under what
conditions, and whether to revoke it if conditions are violated.” Id. “It should
not surprise, then, that probationers do not receive the same constitutional
rights that defendants receive at trial.” Id. The due process right applicable in
probation revocation hearings allows for procedures that are more flexible than
in a criminal prosecution. Id. Such flexibility allows courts to enforce lawful
orders, address an offender’s personal circumstances, and protect public safety,
sometimes within limited time periods. Id. Within this framework, and to
promote the aforementioned goals of a probation revocation hearing, courts
may admit evidence during probation revocation hearings that would not be
permitted in a full-blown criminal trial. Id. “This does not mean that hearsay
evidence may be admitted willy-nilly in a probation revocation hearing.” Id.
[10] In Reyes, the Indiana Supreme Court adopted the substantial trustworthiness
test for determining the hearsay evidence that should be admitted at a probation
revocation hearing. Id. at 441. This test requires that the trial court evaluate
the reliability of the hearsay evidence. Id. at 442. In adopting it, the Court
noted the “need for flexibility combined with the potentially onerous
consequences of mandating a balancing inquiry for every piece of hearsay
evidence in every probation revocation hearing” and stated that there was “no
reason to require that the State expend its resources to demonstrate that its
interest in not producing the declarant outweighs the probationer’s interest in
confronting the same . . . [or] to produce a witness . . . to give routine testimony
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. . . when a reliable piece of hearsay evidence is available as a substitute.” Id. at
441-442.
[11] We note that Shelton failed to object to the admission of Bowling’s testimony
when she first mentioned Dr. Sharma and described a conversation with him.
To the extent that Shelton has not waived the issue, we also note that, while the
preference is for the trial court to make a determination of substantial
trustworthiness on the record, the failure to do so is not fatal where the record
supports such a determination. See id. at 442 (affirming trial court’s admission
of affidavits in probation revocation despite the court’s failure to provide
detailed explanation on record, because evidence supported substantial
trustworthiness of affidavits). Our review of the record reveals that
Montgomery testified that employment was required for DRC residents and
that no reason beyond medical issues would remove the requirement. Nurse
Cornett indicated that Shelton could not provide anything which states he could
not work. She additionally testified that she and Bowling were present with Dr.
Sharma and that he had made a statement about what Bowling had said or
reiterated. Bowling testified that she participated in a call with Dr. Sharma in
which he stated that there was no medical reason Shelton could not work. She
further indicated that the doctor did not have any work restrictions for Shelton
and had cleared him to do any and all work, and she testified that she had
conversations with Shelton and explained that he would need to go to work
unless there was documentation that he could not. Based upon the record, and
in light of the fact that both Bowling and Nurse Cornett testified at the
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placement revocation hearing, we conclude that sufficient information was
presented to deem the alleged hearsay statements substantially trustworthy.
[12] Further, when the court found that the State had met its burden of proving a
violation, it noted that work release was not a good fit “[p]rimarily because of
his attitude,” which it found had “made it impossible to continue” at DRC.
Transcript Volume II at 60. The hearsay statements of Dr. Sharma concerned a
medical exception to the work requirement and not Shelton’s attitude while at
DRC. We cannot say the court abused its discretion or committed fundamental
error in admitting the challenged testimony.
[13] Shelton next argues that the evidence is insufficient to revoke his placement in
community corrections. He contends that the State’s evidence centered on the
alleged hearsay statements that he could not be evaluated because he was
willfully not taking two medications, that the State’s records indicated that one
pain medication was prescribed to be taken only as needed and another was not
prescribed until after the alleged conversation with Dr. Sharma, and that the
evidence was insufficient to show that he willfully failed to take medication so
as to prevent his functionality from being evaluated. The State argues that the
court relied on sufficient evidence of Shelton’s combative attitude and
unwillingness to comply with the DRC residential and employment rules, and
maintains that he had already violated probation once and had been placed on
strict compliance.
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[14] Placement in community corrections is at the sole discretion of the trial court.
Toomey v. State, 887 N.E.2d 122, 124 (Ind. Ct. App. 2008) (citing Ind. Code §
35-38-2.6-3(a) (a court “may . . . order a person to be placed in a community
corrections program as an alternative to commitment to the department of
correction”)). Like a probation hearing, a hearing on a petition to revoke
placement is civil in nature and the State need prove the alleged violations by
only a preponderance of the evidence. See id. at 551. We consider all the
evidence most favorable to supporting the judgment of the trial court without
reweighing that evidence or judging the credibility of witnesses. Id. If there is
substantial evidence of probative value to support the trial court’s conclusion,
we will affirm its decision. Id. The evidence supports the court’s findings that
Shelton was uncooperative with DRC in providing requested documentation;
that he was uncooperative after having previously refused to sign medical
documentation and after the court’s order which added the condition of strict
compliance; and that he did not comply with the court’s order without pressure
from DRC management. Based upon the facts most favorable to the trial
court’s decision, we conclude the State proved the alleged violations by a
preponderance of the evidence.
[15] For the foregoing reasons, we affirm the trial court’s order revoking Shelton’s
community corrections placement.
[16] Affirmed.
May, J., and Mathias, J., concur.
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