FILED
Nov 01 2017, 5:21 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
Henry A. Flores, Jr.
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Trevor L. Morgan, November 1, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1703-CR-587
v. Appeal from the Vigo County
Superior Court
State of Indiana, The Honorable David R. Bolk,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D03-0907-FA-2258
May, Judge.
[1] Trevor L. Morgan appeals the revocation of his direct placement in community
corrections. He alleges Indiana Code section 35-38-2.6-5 is unconstitutional
and he was denied due process. We affirm and remand.
Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017 Page 1 of 12
Facts and Procedural History
[2] In 2010, Morgan pled guilty to Class A felony dealing in methamphetamine 1
and Class C felony neglect of a dependent. 2 He was sentenced to an aggregate
term of twenty years, with ten years suspended to probation.
[3] In February 2013, Morgan requested and was granted placement in a
community transition program. However, he violated the terms and was
ordered to serve two years of the suspended portion of his sentence “on the
Work Release Program under supervision of Vigo County Community
Corrections.” (App. Vol. 2 at 188.)
[4] On January 4, 2017, the State filed a petition to revoke Morgan’s placement in
the work release program. The State alleged he had committed nine violations
of the program rules, including being in an unauthorized area, refusing an
order, working outside an approved area, and escaping the facility. The trial
court conducted a hearing on the allegations. At the hearing, Case Manager
Bradley Burton testified regarding the violations Morgan allegedly committed.
Morgan’s attorney cross-examined Burton. Morgan testified and admitted
some of the allegations and provided excuses for others. The trial court found
Morgan committed the violations and revoked his placement in the program.
1
Ind. Code § 35-48-4-1.1 (2006).
2
Ind. Code § 35-46-1-4 (2007).
Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017 Page 2 of 12
The trial court ordered Morgan to serve the remainder of his suspended
sentence in the Department of Correction (“DOC”).
Discussion and Decision
[5] Morgan asserts amended Indiana Code section 35-38-2.6-5 (2015), which
controls the community corrections program, is unconstitutional because it
impermissibly delegates judicial authority to a member of the executive branch,
i.e. the community corrections director, and because it permits revocation of
community corrections placements without an “evidentiary hearing before a
neutral and detached magistrate.” (Appellant’s Br. at 8.) Although Morgan did
not raise these concerns before the trial court, he asserts they amount to
fundamental error as “a blatant violation of due process.” (Id. at 9.) Morgan
asserts the statute is facially unconstitutional or, at the very least,
unconstitutional as applied to him because his hearing “fail[ed] to comport with
due process.” (Id.)
[6] The State asserts Morgan has waived these challenges and, even if he had not,
the statute is not unconstitutional. Failure to object at trial generally waives the
issue for appeal, except in cases of fundamental error. Knapp v. State, 9 N.E.3d
1274, 1281 (Ind. 2014), cert. denied. “Fundamental error is an error that makes
a fair trial impossible or constitutes clearly blatant violations of basic and
elementary principles of due process presenting an undeniable and substantial
potential for harm.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh’g
denied.
Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017 Page 3 of 12
Improper Delegation of Judicial Authority
[7] We review a constitutional challenge of a statute de novo. Morgan v. State, 22
N.E.3d 570, 573 (Ind. 2014). “A challenge to the validity of a statute must
overcome a presumption that the statute is constitutional.” Brown v. State, 868
N.E.2d 464, 467 (Ind. 2007). “The burden to rebut this presumption is upon
the challenger, and all reasonable doubts must be resolved in favor of the
statute’s constitutionality.” State v. Lombardo, 738 N.E.2d 653, 655 (Ind. 2000).
[8] 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 none of the branches
“shall exercise any of the functions of another, except as in this Constitution
expressly provided.” Id.
[9] Indiana Code section 35-38-2.6-5 (2015) states:
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 84A01-1703-CR-587 | November 1, 2017 Page 4 of 12
(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 persons 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.
[10] Morgan asserts that statute is facially unconstitutional as it “improperly
delegates the judicial branch’s duty to tailor appropriate sentences to the
executive branch.” (Appellant’s Br. at 13) (formatting revised). He claims the
amendment allows the community corrections director the sole ability to
engage in factfinding to determine whether a violation has
occurred and, if so, whether the terms of the placement should be
continued or changed, whether a defendant should be reassigned
to a different and likely more restrictive community corrections
program, or whether revocation should be recommended based
on a finding of violation[.]
(Id.) He is not wrong, but none of those allowances infringe on the powers of
the judiciary.
[11] To decide whether a governmental branch’s powers have been delegated
elsewhere, we first determine if the statute “has the effect of a coercive influence
on the perceived usurped branch of government.” A.B. v. State, 949 N.E.2d
1204, 1212 (Ind. 2011), reh’g denied. Such influence is prohibited by Article 3,
section 1 of the Indiana Constitution, id., which specifically prohibits one
governmental branch from exercising the powers of the others. Ind. Const. Art.
Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017 Page 5 of 12
3, sec. 1. “[T]he Judiciary possesses the authority to ‘fix the penalty of and
sentence a person convicted of an offense’ [and i]t is well-settled under the
doctrine of separation of powers that the Legislature cannot interfere with the
discharge of judicial duties[.]” Lemmon v. Harris, 949 N.E.2d 803, 814 (Ind.
2011) (citing Ind. Code § 35-50-1-1 (2008)).
[12] The statute in question here does not act as a coercive influence on the
judiciary’s ability to discharge its duties. The trial court sentenced Morgan to
twenty years with ten years suspended. The trial court allowed Morgan to be
placed on probation in 2013 but he violated the rules of that program. After
hearing evidence and finding Morgan committed those violations, the court
ordered Morgan to serve two years of his suspended sentence “on the Work
Release Program under supervision of Vigo County Community Corrections.”
(App. Vol. 2 at 188.)
[13] 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 finding nine violations
Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017 Page 6 of 12
over four months, the community corrections director, via the deputy
prosecutor, requested the trial court revoke Morgan’s placement in the
program. The trial court then held an evidentiary hearing. 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. 3
[14] Administrative measures were taken to determine whether Morgan had
violated the program’s rules. Multiple administrative hearings were held to
determine these violations. Morgan did not present objections to the outcome
of those hearings to the trial court. 4 At the revocation hearing, Morgan
admitted the violation regarding the day he did not report for work. (See Tr. at
18 (“I’ll take credit for that” when asked about the day he “never reported to
work”).) Morgan’s original sentence is still in place. The community
corrections director did nothing to infringe on the judiciary’s ability to craft an
appropriate sentence. See Madden, 25 N.E.3d at 795 (it is not improper
3
To the extent the community corrections director deprived Morgan of earned credit time, that is beyond his
authority. See Shepard v. State, 84S01-1704-CR-190, slip op. at 5 (Ind. Oct. 20, 2017) (“only the D.O.C. is
empowered to deprive an offender directly placed into a community corrections program of earned credit
time”). It is unclear from the record whether the trial court found the community corrections director’s
deprivation of earned credit time was valid; however, as the community corrections director exceeded his
authority, we remand for the trial court to reinstate any earned credit time the director of community
corrections may have removed from Morgan.
4
We find nothing in the record to indicate Morgan ever objected formally to the administrative measures.
Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017 Page 7 of 12
delegation of sentencing power to allow “Community Corrections programs to
supervise various aspects of probation”).
Due Process
[15] When reviewing a community corrections revocation, the standard of review is
the same as the standard of review for a hearing on a probation revocation. Cox
v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied. A probation revocation
proceeding is civil in nature and a probationer is not entitled to all of the rights
afforded to a criminal defendant. McCauley v. State, 22 N.E.3d 743, 748 (Ind.
Ct. App. 2014), reh’g denied, trans. denied. The due process requirements for
probation revocation hearings are more flexible than in a criminal prosecution.
Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007), reh’g denied. This flexibility
allows courts to enforce lawful orders, address an offender’s personal
circumstances, and protect public safety. Id. Therefore, we review such
revocation decisions under an abuse of discretion standard. Prewitt v. State, 878
N.E.2d at 184, 188 (Ind. 2007). A decision is an abuse of discretion when it “is
clearly against the logic and effect of the facts and circumstances.” Id.
Facial Unconstitutionality
[16] Morgan asserts the 2015 amendment of Indiana Code section 35-38-2.6-5
removed the requirement for a hearing before a community corrections
placement can be revoked, which violates the principles of due process and is
facially unconstitutional. Prior to the amendment, the statute read:
Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017 Page 8 of 12
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).
[17] Now it reads:
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.
(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 persons sentence.
Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017 Page 9 of 12
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.
Ind. Code § 35-38-2.6-5 (2015).
[18] To the extent Ind. Code section 35-38-2.6-5 was amended and the explicit
requirement for a hearing was not included in the amended statute, the
community corrections director is still required to request the court revoke the
placement. As community corrections revocations are analogous to probation
revocations, see Cox, 706 N.E.2d at 549, when a petition for revocation is filed,
“the court shall conduct a hearing concerning the alleged violation.” Ind. Code
§ 35-38-2-3(d) (2015). Such a hearing requires the evidence be presented in
open court where the person in the program is “entitled to confrontation, cross-
examination, and representation by counsel.” Ind. Code § 35-38-2-3(f) (2015);
see also Isaac v. State, 605 N.E.2d 144, 148 (Ind. 1992) (due process is satisfied if,
during a revocation hearing, the defendant is given “written notice of the
claimed violations, disclosure of the evidence against him, an opportunity to be
heard and present evidence, the right to confront and cross-examine adverse
witnesses, and a neutral and detached hearing body”), cert. denied. Thus,
pursuant to other statutes and caselaw, a hearing is still required even though
this particular statute does not contain that requirement.
As-Applied Unconstitutionality
[19] In the alternative, Morgan asserts the statute is unconstitutional as-applied to
him. He claims the hearing he was afforded did not comport to due process
Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017 Page 10 of 12
requirements because “the court deferred to an administrative decision that had
already been made by the community corrections program director.”
(Appellant’s Br. at 20.) Morgan analogizes his hearing to that in Million v. State,
646 N.E.2d 998 (Ind. Ct. App. 1995), but that case is distinguishable.
[20] In Million, the trial court “determined that Million was entitled to a hearing
under the statute but that an administrative hearing before community
corrections program personnel would be sufficient, subject to judicial review.”
646 N.E.2d at 1002. The trial court held a hearing but merely “accepted [the
community corrections director’s] recommendation that Million’s placement in
the community corrections program be revoked.” Id. at 999. Throughout that
hearing, the State and the trial judge “agreed[] that the purpose of the
proceeding was for the court to determine whether an administrative hearing
was properly conducted.” Id. at 1003. Additionally, Million was notified only
orally of his violations, rather than given written notice. Id. at 1003 n.2. We
held the hearing in Million amounted to nothing more than judicial review of
the administrative hearing and deprived Million of due process as “he did not
receive a neutral hearing before the trial court.” Id. at 1003.
[21] At Morgan’s hearing, the trial court gave Morgan written notice of his
violations, the State presented evidence against him, he cross-examined the
State’s witness, and he presented his own evidence before a neutral body.
Neither the State nor the trial court advanced the idea the hearing was merely a
judicial review of the administrative process. During his own testimony,
Morgan admitted to one of the violations and acknowledged he had pled guilty
Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017 Page 11 of 12
to others. Morgan was not denied due process. See Isaac, 605 N.E.2d at 148
(due process is satisfied if, during a revocation hearing, the defendant is given
“written notice of the claimed violations, disclosure of the evidence against
him, an opportunity to be heard and present evidence, the right to confront and
cross-examine adverse witnesses, and a neutral and detached hearing body”),
cert. denied; see also Madden, 25 N.E.3d at 797 (any argument regarding due
process denial based on alleged lack of hearing is negated by the fact a hearing
was in fact provided).
Conclusion
[22] Indiana Code section 35-38-2.6-5 does not impermissibly delegate judicial
power to the executive branch. To the extent that the amended code section
does not explicitly require a hearing, one is nevertheless required by other
statutes and caselaw. Morgan was given a hearing which comported with the
principles of due process. Therefore, we affirm and remand for determination
of any credit time due to Morgan.
[23] Affirmed and remanded.
Barnes, J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017 Page 12 of 12