FILED
Feb 19 2020, 9:16 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jacob M. Breda, February 19, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2023
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Sarah K. Mullican,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D03-1701-F2-192
Mathias, Judge.
[1] Jacob M. Breda (“Breda”) appeals the order of the Vigo Superior Court
revoking his placement in a community corrections work release program and
requiring him to serve the balance of his suspended sentence in the custody of
the Department of Correction (“DOC”). Breda claims that Indiana Code
section 35-38-2.6-5, which sets forth the options available when a defendant
Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020 Page 1 of 10
violates the terms of a community corrections program, violates the
constitutional doctrine of the separation of powers. We conclude that Breda has
waived this argument by failing to present it to the trial court. Waiver
notwithstanding, this court has already determined that section 35-38-2.6-5 does
not violate the separation of powers. We therefore affirm.
Facts and Procedural History
[2] On January 19, 2017, the State charged Breda with Level 2 felony burglary,
Level 5 felony battery by means of a deadly weapon, Level 5 felony
intimidation, and Level 5 felony criminal recklessness. On October 23, 2017,
Breda signed a plea agreement whereby he agreed to plead guilty to Level 2
felony burglary, and the State agreed to dismiss the remaining charges and
recommend an executed sentence of fifteen years. Breda also agreed to
cooperate in the prosecution of his co-defendant. The plea agreement further
provided that, if Breda successfully completed a purposeful incarceration
program while in prison, he could petition the court to modify his sentence so
that he could serve the balance of his executed sentence on work release or
home detention through community corrections.
[3] On December 4, 2018, Breda filed a motion to modify his sentence to
placement in community corrections, stating that he had completed a program
that was the equivalent of a purposeful incarceration program. On February 25,
2019, the trial court, by agreement of the parties, modified Breda’s sentence so
that he was “placed in the Work Release Program as a Direct Commitment for
the balance of the executed portion of the sentence.” Appellant’s App. p. 107.
Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020 Page 2 of 10
On April 2, 2019, Breda was given a pass to look for employment, but he never
returned to the work release facility as scheduled. He was also in arrears in the
amount of $195 in work release fees. Accordingly, on April 5, 2019, the State
filed a petition to revoke Breda’s direct placement in the work release program.
The trial court issued a warrant for Breda’s arrest, and he was apprehended on
April 11, 2019.
[4] On June 27, 2019, Breda signed a “Notice of Direct Commitment Violation and
Admission Offer and Acceptance,” in which he admitted that he had failed to
return to the work release facility in violation of the rules. Id. at 121. Pursuant
to this agreement, the parties agreed that Breda’s direct commitment would be
revoked and that he would execute the balance of his sentence in the DOC. The
agreement also provided that Breda could again seek modification of his
sentence on or after January 1, 2023, if he completed stages one through five of
the DOC’s “Recovery While Incarcerated” drug treatment program. Id.
However, at a hearing held later that day, Breda admitted that he had signed
this agreement but stated that he did not wish to admit to the violations. The
trial court therefore set the revocation petition for an evidentiary hearing.
[5] The trial court held an evidentiary hearing on the revocation petition on August
1, 2019. At this hearing, the State presented evidence that Breda had left the
work release facility on April 2, 2019, and never returned. Breda testified that
he failed to return to the facility because he was using drugs. He also admitted
that his failure to return and use of drugs were violations of the terms of his
Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020 Page 3 of 10
placement. At the conclusion of the hearing, the trial court stated from the
bench:
Well, in this case the Court accepted the Plea Agreement back in
Two Thousand Seventeen (2017), which is fifteen (15) years
executed and you were sent to the [DOC] and I, I know you
cooperated, you testified twice. The Court had the benefit of
being present for both trials and hearing all the facts, and this
case was very serious. There were two (2) people who were shot
um, and never recovered. Um, and then the State agreed to
modify, which I didn’t quite understand and wasn’t particularly
in favor of, but I deferred to them um, to give you time on work
release and that clearly did not work out Mr. Breda. And I know
from the trial that you suffered – you’re addicted, and that was
quite clear from the testimony presented. So I don’t think the
Court has any um, choice but to execute the fifteen (15) years,
because that was the Plea Agreement I accepted um, and he’s
violated that. So I’m gonna revoke the [placement].
Tr. p 23. The trial court then entered an order requiring Breda to serve the
balance of his sentence in the DOC, with credit for 1,538 days served. Breda
now appeals.
I. Waiver
[6] The State argues that Breda failed to preserve his claim regarding the
constitutionality of the statute by not presenting this argument to the trial court.
Generally, “failure to challenge the constitutionality of a statute at trial results
in waiver of review on appeal.” Plank v. Cmty. Hosps. of Indiana, Inc., 981 N.E.2d
49, 53 (Ind. 2013). Indeed, “[a]ppellate review presupposes that a litigant’s
arguments have been raised and considered in the trial court.” Id. Here, Breda
Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020 Page 4 of 10
did not challenge the constitutionality of the statute before the trial court. His
constitutional challenge is therefore waived. See id.
[7] Nevertheless, Indiana appellate courts have long exercised the discretion to
address the merits of a constitutional claim notwithstanding wavier. Id.
“[A]ppellate courts are not prohibited from considering the constitutionality of
a statute even though the issue otherwise has been waived. And indeed a
reviewing court may exercise its discretion to review a constitutional claim on
its own accord.” Id. at 53–54. We therefore opt to address Breda’s
constitutional claim on its merits.
II. Constitutional Challenge
[8] Breda claims that Indiana Code section 35-38-2.6-5 violates the separation of
powers provisions of the Indiana Constitution.
Article 3, section 1 of the Indiana Constitution divides the
powers of the government into three departments: “the
Legislative, the Executive including the Administrative, and the
Judicial.” It further provides [that] none of the branches “shall
exercise any of the functions of another, except as in this
Constitution expressly provided.”
Morgan v. State, 87 N.E.3d 506, 509 (Ind. Ct. App. 2017), trans. denied.
[9] Statutes are presumed to be constitutional, and the party challenging the
constitutionality of a statute bears the burden of proving otherwise. Lock v. State,
971 N.E.2d 71, 74 (Ind. 2012). All reasonable doubts and constructions as to
the statute’s validity are resolved in favor of constitutionality. Id. Accordingly,
Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020 Page 5 of 10
“‘[i]f there are two reasonable interpretations of a statute, one of which is
constitutional and the other not, we will choose that path which permits
upholding the statute because we will not presume that the legislature violated
the constitution unless such is required by the unambiguous language of the
statute.’” Hazelwood v. State, 3 N.E.3d 39, 42 (Ind. Ct. App. 2014) (quoting
Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996)).
[10] A trial court may, at the time of sentencing, “suspend the sentence and order a
person to be placed in a community corrections program as an alternative to
commitment to the department of correction.” Ind. Code § 35-38-2.6-3(a). “The
court may impose reasonable terms on the placement or require the director of
the community corrections program to impose reasonable terms on the
placement.” Id.
[11] What happens when a defendant who is placed in a community corrections
program violates the terms of this placement is controlled by Indiana Code
section 35-38-2.6-5, which, as amended in 2015, provides:
If a person who is placed under this chapter violates the terms of
the placement, the community corrections director may do any
of the following:
(1) Change the terms of the placement.
(2) Continue the placement.
(3) Reassign a person assigned to a specific community
corrections program to a different community corrections
program.
Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020 Page 6 of 10
(4) Request that the court revoke the placement and
commit the person to the county jail or department of
correction for the remainder of the person’s sentence.
The community corrections director shall notify the court if the
director changes the terms of the placement, continues the
placement, or reassigns the person to a different program.
I.C. § 35-38-2.6-5 (2015) (emphases added).
[12] Prior to the 2015 amendment of this statute, it provided:
If a person who is placed under this chapter violates the terms of
the placement, the court may, after a hearing, do any of the
following:
(1) Change the terms of the placement.
(2) Continue the placement.
(3) Revoke the placement and commit the person to the
department of correction for the remainder of the person’s
sentence.
Ind. Code § 35-38-2.6-5 (1991) (emphasis added).
[13] Thus, prior to the 2015 amendment, when a defendant violated the terms of his
or her direct placement in a community corrections program, the trial court had
authority to change the terms of the placement, continue the placement, or
revoke the placement. However, under the current version of the statute, if a
defendant violates the terms of his or her placement, the community corrections
director has the authority to change the terms of the placement, continue the
Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020 Page 7 of 10
placement, reassign the defendant to a different community corrections
program, or request that the trial court revoke the placement.
[14] Breda claims that this change in the statute “interferes with the discharge of the
[trial] court’s duties because it eliminates any discretion the court had in
determining the appropriate sanction” and that the statute is therefore facially
unconstitutional. Appellant’s Br. at 9. Breda also argues that, even if the statute
is facially constitutional, it is unconstitutional as applied to him because the
trial court here indicated that it had no choice but to revoke his placement and
order him to serve the remainder of his sentence in the DOC. Tr. p. 23. He
argues that, if the trial court had the discretion it had under the prior statute, it
might have ordered him to serve only a portion of his remaining sentence in the
DOC.
[15] We addressed a similar argument in Morgan, supra. In that case, the defendant
was eventually ordered to serve two years of his sentence on work release under
the supervision of the county community corrections department. 87 N.E.3d at
508. Morgan subsequently violated several of the terms of his placement in
community corrections, including escaping the facility. Id. The State filed a
petition to revoke Morgan’s placement, and at the revocation hearing, Morgan
admitted to some of the allegations and provided excuses for the others. Id. The
trial court revoked Morgan’s placement and ordered him to serve the balance of
his sentence in the DOC. Id.
Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020 Page 8 of 10
[16] On appeal, Morgan claimed that Indiana Code section 35-38-2.6-5, as amended
in 2015, was unconstitutional because it “impermissibly delegates judicial
authority to a member of the executive branch, i.e., the community corrections
director[.]”1 Id. The Morgan court rejected this argument, concluding:
The statute in question here does not act as a coercive
influence on the judiciary’s ability to discharge its duties. . . .
With the statute at issue, the community corrections director is
given the ability to manage the community corrections program
but not to revoke placement or resentence participants. Although
the community corrections director can recommend revocation
of placement, it remains the trial court’s duty to determine
whether revocation will be ordered. See Madden v. State, 25
N.E.3d 791, 795 (Ind. Ct. App. 2015) (trial courts set the terms of
community corrections but the program has authority to
supervise those terms), trans. denied. The community corrections
director did not increase the trial court’s overall sentence of
twenty years, nor did the director alter the two years Morgan was
sentenced to serve on work release. . . . After hearing evidence,
the trial court determined revocation was proper and ordered
Morgan to serve the remaining portion of his suspended sentence
in the DOC. Morgan has not demonstrated an improper
delegation of the judiciary’s duty to sentence convicted persons.
Morgan, 87 N.E.3d at 509–10 (emphasis added) (footnote omitted).
1
Morgan also claimed that the statute was unconstitutional because it permitted revocation of placement in
community corrections without an evidentiary hearing before a neutral magistrate. Id. Breda makes no
similar argument.
Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020 Page 9 of 10
[17] Breda fails to cite Morgan, much less attempt to distinguish Morgan from the
present case.2 We therefore conclude, as we previously held in Morgan, that the
current version of Indiana Code section 35-38-2.6-5 is not unconstitutional. The
trial court still maintains the authority to sentence a defendant, including
placement in a community corrections program. Once a defendant is in a
community corrections program, the community corrections director can
change the terms of the placement and reassign a defendant to a specific
program, but only the trial court may, at the request of the director, revoke a
defendant’s placement and order the defendant to execute the remaining
portion of the defendant’s sentence. Thus, the statute does not constitute a
violation of the separation of powers, either facially or as applied to Breda.
Conclusion
[18] Because Indiana Code section 35-38-2.6-5 does not violate the constitutional
separation of powers, we affirm the judgment of the trial court.
[19] Affirmed.
Kirsch, J., and Bailey, J., concur.
2
We note that Breda’s appellate counsel is the same as the appellant’s counsel in Morgan.
Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020 Page 10 of 10