MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), 09/06/2017, 11:16 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone, IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Bryant McDonald, September 6, 2017
Appellant-Defendant, Court of Appeals Case No.
48A02-1703-CR-662
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C06-1210-FC-1936
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Michael McDonald (McDonald), appeals the trial court’s
revocation of his work release placement and the imposition of his previously
suspended sentence following the violation of his probation.
[2] We affirm.
ISSUE
[3] McDonald raises one issue on appeal, which we restate as: Whether the trial
court abused its discretion by admitting certain evidence at McDonald’s
revocation hearing.
FACTS AND PROCEDURAL HISTORY
[4] On October 17, 2012, under Cause Number 48C06-1210-F6-001936 (F6-1936),
the State charged McDonald with burglary, a Class C felony; theft, a Class D
felony; and unlawful possession or use of a legend drug, a Class D felony. The
State also charged McDonald as a habitual offender. On November 26, 2012,
pursuant to a plea agreement, McDonald agreed to plead guilty as charged.
With regard to sentencing, the plea agreement provided for a sentencing cap of
two years on the executed portion of McDonald’s sentence. On December 31,
2012, the trial court conducted a sentencing hearing. The trial court
subsequently sentenced McDonald to concurrent terms of seven years for the
burglary offense, and three years each for the theft and unlawful possession or
use of a legend drug convictions. Based on McDonald’s plea agreement, the
trial court ordered McDonald to serve two years of his executed sentence in the
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Department of Correction (DOC), and it suspended the remaining five years to
probation.
[5] On April 10, 2016, under Cause Number 48C06-1604-F6-000756 (F6-756), the
State charged McDonald with residential entry, a Level 6 felony; interference
with reporting a crime, a Class A misdemeanor; and invasion of privacy, a
Class A misdemeanor. The victim of McDonald’s invasion of privacy offense
was McDonald’s ex-girlfriend, Jaime Shaw (Shaw). As a condition of his
release from custody pending his trial, the trial court issued a no-contact order
against McDonald. On April 13, 2016, the State filed a petition to revoke
McDonald’s probation based on the charges under Cause Number F6-756. On
July 11, 2016, McDonald admitted to the probation violation.
[6] On June 19, 2016, under Cause Number 48C06-1607-F6-001347 (F6-1347), the
State charged McDonald with two Counts of invasion of privacy, a Class A
misdemeanor and a Level 6 felony. McDonald’s alleged crimes were related to
Shaw. Again, the trial court issued a no-contact order against McDonald. On
July 25, 2016, the State filed an amended notice of probation violation alleging
that McDonald had been charged with two Counts of invasion of privacy,
under Cause Number F6-1347. On August 8, 2016, McDonald admitted to the
probation violation. Accordingly, the trial court revoked three years of
McDonald’s previously-suspended sentence under Cause Number F6-1936, and
ordered it to be executed at the Madison County Work Release Center.
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[7] On September 12, 2016, the State filed a petition to terminate McDonald’s
work release. Specifically, the State alleged that McDonald had violated the
terms of his work release by failing two drugs screens, and for admittedly using
methamphetamine. On September 26, 2016, the State filed a notice of violation
of suspended/executed sentence making similar allegations. On September 27,
2016, the trial court conducted an evidentiary hearing on the State’s petition to
terminate McDonald’s work release and notice of violation of
suspended/executed sentence. On October 11, 2016, the trial court issued an
order finding that McDonald had violated the condition of his suspended
sentence and conditions of his work release. Nevertheless, the trial court
ordered McDonald’s return to work release, along with a substance abuse
evaluation.
[8] On November 16, 2016, the State filed another petition to terminate
McDonald’s work release alleging, in part, that McDonald had absconded from
the work release facility for a period of over sixteen hours, failed to obtain a
substance abuse evaluation, and violated a no-contact order against Shaw.
Subsequently, on November 22, 2016, the State filed a notice of violation of
suspended/executed sentence making the same allegations. On January 23,
2017, McDonald admitted the allegations in the State’s notice of violation of
suspended/executed sentence and petition to terminate work release.
Notwithstanding the violations, the trial court returned McDonald to work
release.
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[9] On February 13, 2017, the State filed yet another petition to terminate work
release alleging, in part, that McDonald violated the terms of his work release
by being in possession of “non-tobacco related contraband.” (Appellant’s App.
Vol. II, p. 144). In addition, the State alleged that “On 02/12/2017, Mr.
McDonald was arrested for new criminal offenses of [s]talking and two
[C]ounts of [i]nvasion of privacy.” 1 (Appellant’s App. Vol. II, p. 144). Based
on McDonald’s violations, on February 22, 2017, the State filed a notice of
violation of suspended/executed sentence.
[10] On March 7, 2017, the trial court conducted an evidentiary hearing on the
State’s petition to terminate work release and notice of violation of
suspended/executed sentence. At the revocation hearing, the State sought to
introduce evidence that McDonald violated at least one of the no-contact orders
in place for Shaw under Cause Numbers F6-1347 and F6-756, between
February 11-12, 2017. Madison County Deputy Sherriff Derek Saylor (Deputy
Saylor) testified for the State that on February 11, 2017, he was dispatched to
investigate suspicious activity outside Shaw’s residence on 588 West County
Road 700 North, in Madison County, Indiana. Deputy Saylor indicated that
the dispatch information stated that there was no-contact order against
McDonald for the benefit of Shaw. Deputy Saylor testified that when he
questioned McDonald why he was in the area, and McDonald stated that he
was visiting a friend who lived nearby, but he was on his way home. Deputy
1
The charging information for these crimes was not included in the Appellant’s Appendix.
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Saylor testified that he thereafter went to Shaw’s residence and made contact
with Shaw, and Shaw’s ex-husband who was also present. Before Deputy
Saylor could testify to Shaw’s ex-husband’s statements, McDonald objected to
Deputy Saylor’s testimony as hearsay. The trial court overruled the objection
and stated, “It’s all very clear this fits well within the reliable hearsay rule that
I’m allowed to take reliable hearsay at a probation revocation hearing.” (Tr. p.
9). Deputy Saylor then went on to state that Shaw’s ex-husband reported to
him that Shaw was the one who alerted him about McDonald’s driving by her
house. At that point, McDonald objected on double hearsay grounds. The
State then rephrased its question and asked Deputy Saylor if he had spoken
with Shaw in the course of his investigation. Without further objection from
McDonald, Deputy Saylor stated that Shaw informed him that on February 11,
2017, at around 5:00 p.m., McDonald knocked on her back door, but Shaw
“was scared to answer her door.” (Tr. p. 10). Deputy Saylor went on to state
that Shaw informed him that she had seen McDonald’s truck parked to the west
of her residence with its lights off, and “every once in a while” McDonald
drove by her “residence very slowly with the lights off . . . and then park[ed] to
the east.” (Tr. p. 10). Deputy Saylor stated that he encountered McDonald, “a
quarter mile to half a mile to the east of” Shaw’s residence. (Tr. p. 11). Deputy
Saylor stated that Shaw informed him that McDonald drove by her house for a
few hours during the evening on February 11 until the early morning on
February 12, 2017. At the close of the hearing, the trial court found that
McDonald had violated the condition of his suspended/executed sentence and
work release. Consequently, the trial court revoked McDonald’s work release
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placement and ordered him to serve the remainder of his previously-suspended
sentence under Cause Number F6-1936 in the DOC.
[11] McDonald now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[12] McDonald contends the trial court erred in considering hearsay evidence in
revoking his placement in work release. Specifically, McDonald now asserts
that the trial court erred in admitting Deputy Saylor’s testimony which
contained hearsay statements of his ex-girlfriend, Shaw. 2
[13] We begin with the premise that there is no right to probation, and a trial court
has “discretion whether to grant it, under what conditions, and whether to
revoke it if conditions are violated.” Reyes v. State, 868 N.E.2d 438, 440 (Ind.
2007), reh’g denied. “The due process right applicable in probation revocation
hearings allows for procedures that are more flexible than in a criminal
prosecution.” Id. Accordingly, “courts may admit evidence during probation
revocation hearings that would not be permitted in a full-blown criminal trial.”
Id.; see also Ind. Evidence Rule 101(c)(2) (explaining that the Indiana Rules of
Evidence are not applicable in probation proceedings). Nevertheless, “[t]his
does not mean that hearsay evidence may be admitted willy-nilly in a probation
2
McDonald’s entire argument on appeal is that the trial court erred in admitting Shaw’s hearsay statements
to Deputy Saylor because the statements are unreliable solely based on the fact that Shaw is an ex-girlfriend.
In his appellate brief, McDonald cites to United States v. Lloyd, 566 F.3d 341, 344 (3d Cir. 2009), and United
States v. Comito, 177 F.3d 1166, 1167 (9th Cir. 1999). These authorities are not binding on our court and do
not support his argument.
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revocation hearing.” Reyes, 868 N.E.2d at 440. In Cox v. State, 706 N.E.2d 547,
551 (Ind. 1999), reh’g denied, the Indiana Supreme Court held that “judges may
consider any relevant evidence bearing some substantial indicia of reliability[,]”
including reliable hearsay. More recently, in Reyes, our Supreme Court adopted
the substantial trustworthiness test as the approach to be used to determine the
reliability of hearsay evidence in probation revocation proceedings. Reyes, 868
N.E.2d at 441. In the substantial trustworthiness test, “the trial court
determines whether the evidence reaches a certain level of reliability, or if it has
a substantial guarantee of trustworthiness.” Id. “[T]he substantial
trustworthiness test implicitly incorporates good cause into its calculus.” Id.
When a trial court applies this substantial trustworthiness test, “ideally [the trial
court should explain] on the record why the hearsay [is] reliable and why that
reliability [is] substantial enough to supply good cause for not producing . . .
live witnesses.” Id. at 442 (quoting United States v. Kelley, 446 F.3d 688, 693 (7th
Cir. 2006)).
[14] Consistent with the foregoing principles, our task here is not to consider the
hearsay statement pursuant to traditional rules of evidence, but instead to
determine whether it was reliable enough to have been admitted. Cox, 706
N.E.2d at 551. The record in this case indicates that Shaw’s statements to
Deputy Saylor had substantial indicia of trustworthiness. The record shows
that Deputy Saylor was dispatched to Shaw’s residence to investigate suspicious
activity. The dispatch information indicated that there was a no-contact order
against McDonald for the benefit of Shaw. Deputy Saylor testified that he
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spoke with Shaw who informed him that McDonald drove by her “residence
very slowly with the lights off . . . and then park[ed] to the east.” (Tr. p. 10).
Deputy Saylor testified that he encountered McDonald, “a quarter mile to half
a mile to the east of” Shaw’s residence. (Tr. p. 11). Deputy Saylor also stated
that Shaw’s ex-husband corroborated Shaw’s narration of events by indicating
that he saw McDonald’s vehicle drive back and forth in font of Shaw’s
residence. Based on the foregoing, the trial court did not abuse its discretion by
admitting Shaw’s statements to Deputy Saylor.
CONCLUSION
[15] In light of the above, the trial court did not abuse its discretion by admitting
Shaw’s statements to Deputy Saylor.
[16] Affirmed.
[17] Robb, J. and Pyle, J. concur
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Michael Bryant McDonald v. State of Indiana (mem. dec.)
Combined Opinion