ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stan G. Wyrick Steve Carter
Muncie, Indiana Attorney General of Indiana
Michael G. Worden
Deputy Attorney General
Indianapolis, Indiana
In the
Indiana Supreme Court
_________________________________
No. 18S04-0608-CR-304
JAMES F. RUBLE,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Delaware Circuit Court, No. 18C03-0407-FC-25
The Honorable Robert L. Barnet, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 18A04-0507-CR-391
_________________________________
January 3, 2007
Shepard, Chief Justice.
Appellant James F. Ruble pled guilty to operating a vehicle after his driving privileges
had been suspended for life, a class C felony. On appeal, he has contended that the trial court
should have assigned him to serve his sentence through forensic diversion. The Court of
Appeals held that the Indiana Code mandates he be assigned to diversion, and reversed. We
conclude otherwise and affirm the trial court.
The underlying facts reveal that on June 25, 2004, an officer of the Muncie Police
Department ordered Ruble to halt his vehicle in the course of a traffic stop. Instead, Ruble drove
away, eventually wrecked the vehicle, and fled on foot.
The State charged Ruble in multiple counts for this event. The parties subsequently
tendered a plea agreement that provided for dismissal of all but the present class C felony. The
agreement left sentencing to the discretion of the trial court, with a cap of two years executed
time.
The trial court ordered preparation of a pre-sentence report and agreed to Ruble’s request
that he be evaluated for possible referral to the local Forensic Diversion Program, created under
authority of Ind. Code Ann. ch. 11-12-3.7 (West 2006). Forensic Diversion adds to the range of
misdemeanor and felony dispositions by authorizing suspended sentences conditioned on
treatment for mental illness or addictive disorders.
The court conducted a sentencing hearing. The director of the county’s Community
Corrections program reported that Ruble “definitely has a substance abuse problem” and that the
Forensic Diversion Program “would have no problem” with his participation. (Tr. at 64-65.)
Ruble asked the court to place him in Forensic Diversion. The State said it had no objection to
Forensic Diversion, but it requested that Ruble be ordered to serve some executed time.
Explaining its sentence, the trial court found a number of mitigating and aggravating
circumstances. As mitigators, it noted Ruble’s decision to plead guilty, the fact that he
maintained gainful employment and attempted to meet his family responsibilities, that long-term
incarceration would be harmful to his children, and that Ruble retained some support among
family and friends. As aggravators, the court noted a history of contact with the criminal justice
system going back to 1988, a record of fifteen misdemeanor convictions and one felony
conviction, and three prior placements on probation. It concluded that earlier attempts at
probation and correctional treatment had not been successful. It sentenced Ruble to five years,
suspending three.
2
The Court of Appeals reversed. It held that the Indiana Code requires a trial court to
place on Forensic Diversion any person who meets the statutory eligibility criteria. Ruble v.
State, 849 N.E.2d 165, 169-70 (Ind. Ct. App. 2006), vacated. To be “eligible,” an offender must
have an addictive disorder or a mental illness meeting diagnostic criteria in the latest edition of
the Diagnostic and Statistical Manual of Mental Disorders; offenders being sentenced for violent
crimes or drug dealing offenses, and those convicted for a violent offense in the previous ten
years are not eligible. Ind. Code Ann. § 11-12-3.7-12(a) (West 2006). The Court of Appeals
directed the trial court to place Ruble on Forensic Diversion for at least part of his sentence. We
granted transfer.
The conclusion that Forensic Diversion is mandatory rested on part of section 12 of the
Forensic Diversion statute that says: “If the person has been convicted of an offense that may be
suspended, the court shall suspend all or a portion of the person’s sentence” and make successful
completion of Forensic Diversion a condition of probation. Ind. Code Ann. § 11-12-3.7-12(b)
(West 2006) (emphasis added). Similarly, it provides that when the person has been “convicted
of an offense that is nonsuspendible, the court shall order the execution of the nonsuspendible
sentence and stay execution of all or part.” Ind. Code Ann. § 11-12-3.7-12(c) (West 2006).
We conclude that the General Assembly did not intend mandatory suspension and referral
of all persons meeting the minimum criteria in section 12 for two reasons, one based in statutory
language and the other based on probable intent.
First, because the idea of Forensic Diversion is to create additional treatment-based
alternatives to incarceration, the legislature understandably elected to exempt sentences ordering
such diversion from the provisions in Title 35 that mandate nonsuspendible sentences for certain
crimes. Those exemptions, also a part of the legislation creating Forensic Diversion, provide:
“With respect to the following crimes listed in this subsection, the court may suspend only that
part of the sentence that is in excess of the minimum sentence, unless the court has approved
placement of the offender in a forensic diversion program under IC 11-12-3.7.” Ind. Code Ann.
§ 35-50-2-2(b) (West 2006).
3
The Forensic Diversion provisions in Title 11 and Title 35 complement each other only if
they are understood as meaning that when a trial court approves placement of an offender on
Forensic Diversion, it shall suspend at least a part of the sentence to probation and make
successful completion of Forensic Diversion a condition of probation.
Second, reading these two sections in Titles 11 and 35 without any reference to each
other, and holding that the General Assembly made suspension and participation mandatory for
all persons meeting the minimum Forensic Diversion criteria would create other anomalies the
legislature is unlikely to have intended. To take one example, it would mean that the legislature
commanded nonsuspendible sentences for offenders who resist law enforcement by using deadly
weapons (in section 35-50-2-2(b)(4)(L)), but permitted part or all of the sentence for such
offenders to be suspended or waived (in section 11-12-3.7-12). It seems apparent that the
General Assembly has been more purposeful than that.
We thus conclude that the trial court had the authority to determine, based on an
evaluation of Ruble’s suitability for diversion, as well as the nature of the offense and the nature
of the offender, whether to order Ruble placed on Forensic Diversion. The record before the trial
court reflected three convictions for driving while intoxicated, multiple convictions for motor
vehicle violations leading to a lifetime suspension, and the failure of past grants of probation. It
was within the court’s range of responsible discretion to determine that Ruble was not a suitable
candidate.
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
4