Jennifer Gibson Pearson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 29 2015, 9:03 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald E.C. Leicht Gregory F. Zoeller Kokomo, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jennifer Gibson Pearson, October 29, 2015 Appellant-Defendant, Court of Appeals Case No. 34A05-1505-CR-267 v. Appeal from the Howard Circuit Court State of Indiana, The Honorable Lynn Murray, Appellee-Plaintiff. Judge Trial Court Cause No. 34C01-1008-FD-177

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015 Page 1 of 9

Statement of the Case [1] Appellant/Defendant, Jennifer Gibson Pearson (“Pearson”), appeals the trial

court’s revocation of her probation and order that she serve part of her

previously suspended sentence for Class D felony theft. At her probation

revocation hearing, Pearson admitted to violating the conditions of her

probation by using controlled substances and failing to appear for drug screens,

but she requested that the trial court allow her to seek treatment for her drug

addictions rather than serve her previously suspended sentence. At the

conclusion of the hearing, the trial court chose to revoked her probation and

ordered her to serve part of her sentence. [2] On appeal, Pearson argues that the trial court abused its discretion in ordering

her to serve her sentence because it should have, instead, fashioned a sanction

that was based on her individual needs and allowed her to seek drug treatment.

Because there was evidence that probation was not effective for Pearson, we

conclude that the trial court did not abuse its discretion in ordering her to serve

her previously suspended sentence rather than seek drug treatment. [3] We affirm.

Issue Whether the trial court abused its discretion in revoking Pearson’s probation and ordering her to serve part of her previously suspended sentence.

Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015 Page 2 of 9

Facts [4] Pearson pled guilty to Class D felony theft on July 13, 2011. The trial court

accepted the plea and, in accordance with the terms of her plea agreement,

sentenced her to three (3) years with an executed sentence of six (6) months to

be served on in home detention and the rest of the sentence to be suspended to

supervised probation. The terms of Pearson’s probation included that she could

not violate any city, state, or federal law and that she could not consume or

possess any controlled substances, including marijuana, except as prescribed by

a physician. She was required to submit to alcohol and drug testing as ordered

by the Probation Department and was informed that a refusal to submit to a

urine screen would be considered the same as a positive drug screen. Pearson

signed an acknowledgement affirming that she knew and understood the terms

of her probation. [5] On August 28, 2012, the Probation Department filed a petition to revoke

Pearson’s probation (“first petition”), alleging that Pearson had tested positive

for amphetamine and methamphetamine on a drug screen conducted on July

25, 2012. On November 14, 2012, Pearson admitted to the allegation in the

petition, and the trial court revoked her probation and ordered her to serve

eighty-eight (88) days of her previously suspended sentence in the Howard

County Criminal Justice Center. The trial court also ordered that her probation

be extended by nine (9) months and that it be tolled during her incarceration. [6] Almost two years later, on October 7, 2014, Pearson again tested positive for

controlled substances—morphine, a heroin metabolite, and codeine. She also Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015 Page 3 of 9

tested positive for opiates on November 13, 2014, and failed to report to the lab

for drug screens on November 6, 2014, and November 19, 2014. On December

4, 2014, the Probation Department filed a second petition to revoke Pearson’s

probation (“second petition”) based on these alleged violations. [7] On the same day that the Probation Department filed its second petition,

Pearson again failed to report to the lab for a drug screen, and she also failed to

report for a drug screen on December 30, 2014. On January 26, 2015, the

Probation Department filed a third petition to revoke her probation (“third

petition”) based on these violations. The third petition also alleged that

Pearson had violated the terms of her probation by committing new offenses in

Blackford County, including Level 5 felony dealing in methamphetamine;

Level 6 felony possession of marijuana; Level 6 felony possession of chemical

reagents/precursors with intent to manufacture; Level 6 felony maintaining a

common nuisance; and Class A misdemeanor possession of paraphernalia. [8] On April 15, 2015, the trial court held an evidentiary hearing on the second and

third petitions. At the hearing, Pearson admitted that on more than one

occasion she had tested positive for unprescribed controlled substances and had

failed to appear for drug screens. She testified that she had been attempting to

enter a drug treatment program. However, she admitted that one treatment

center had offered her a spot in its program but that she had not accepted

because she had not “[felt] that their program [was] going to work for [her].”

(Tr. 31). At the time of the hearing, she was not enrolled in any drug treatment

programs. She had been attending a methadone clinic for less than a week, but

Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015 Page 4 of 9

she also admitted that she had taken heroin in the days before the hearing and

would likely still test positive on a drug screen. [9] In closing argument, Pearson’s attorney argued that:

She needs treatment[.] [S]he doesn’t need prison. I suppose the whole greyhound therapy approach would be frowned upon by most[,] but she’s pending in Blackford County and let’s move on, trying to work with some folks that maybe we can help. We don’t appear to have been able to help Mrs. Pearson. She can’t help herself and although I asked [Pearson’s probation officer] the questions about what he’s done, it’s not his job to brush her teeth, plain and simply. It’s not his job to run around to treatment centers and try to find something that will fit her or that will help her and I don’t mean to suggest that[.] She needs help, [and] we’re not going to give it to her by putting her in prison for a suspended portion of her sentence.

[10] (Tr. 28). In response, the State argued: “then why do we have this petition to

revoke system? What’s the point if there’s going to be no consequences for

failure to comply[?] . . . She’s not in jail, she hasn’t done any time in jail on

these, or very little, on these [revocation petitions]. There should be some

consequences for these actions.” (Tr. 38-39). [11] The trial court found that there was no evidence concerning whether Pearson

had broken any laws in Blackford County, as alleged in petition three.

However, the trial court concluded that there was sufficient evidence that she

had tested positive for use of controlled substances and that she had failed to

appear for drug screens as alleged in both petitions. The trial court revoked

Pearson’s probation and ordered her to serve twelve (12) months of her

Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015 Page 5 of 9

previously suspended sentence, with her probation to then be terminated as

unsuccessful. [12] In its oral probation revocation order, the trial court gave the following

justification for its decision:

Your addiction [is] so strong that you are using heroin up until the last, just a couple of days ago. It is true that you’ve had, since 2012 when you at least knew because of the tests that you pled true to the Petition to Revoke for testing positive for illegal substances then, that you had a serious problem[.] [A]nd yet despite either the assistance of our probation department direction or on your own, it seems you’ve not really been very serious or sincere about trying to find a solution or a treatment to this issue. Or only because we’re here, it seems like you’re scrambling now, saying this is what I need to do and now I know what I need to do. There needs to be a consequence for violating probation. I don’t disagree with the idea that you need to do some treatment but I think that you need to also, your probation in this case I think just needs to be revoked. There’s no, absolutely no point in you continuing with probation in this case.

(Tr. 40-41). Pearson now appeals.

Decision [13] On appeal, Pearson argues that the trial court abused its discretion in revoking

her probation and ordering her to serve twelve (12) months in the Department

of Correction. She asserts that the trial court should have let her seek treatment

for her drug addiction. In support of this argument, she contends that our

supreme court held in Prewitt v. State, 878 N.E.2d 184, 187 (Ind. 2007), that a

trial court should choose the “most effective and appropriate” sanction for an Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015 Page 6 of 9

individual who has violated his or her probation. Here, the State argued that

there would not be any point to the probation revocation system if there were

no consequences for violating probation, and the trial court concluded that

there needed to be a consequence for Pearson’s probation violation.

Accordingly, Pearson asserts that the trial court focused on “upholding the

sanctity of the law” rather than fashioning an appropriate individualized

sanction for her. (Pearson’s Br. 5). [14] First, we note that “‘[p]robation is a matter of grace and a conditional liberty

[that] is a favor, not a right.’” Lampley v. State, 31 N.E.3d 1034, 1037 (quoting

Ripps v. State, 968 N.E.2d 323 (Ind. Ct. App. 2012)). INDIANA CODE § 35-38-2-

3(h) sets forth a trial court’s sentencing options once the trial court has found a

probation violation. It provides:

If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) or more of the following sanctions:

(1) Continue the person on probation, with or without modifying or enlarging the conditions.

(2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period.

(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.

Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015 Page 7 of 9

I.C. § 35-38-2-3(h). Our supreme court has held that a trial court’s sentencing

decisions for probation violations are reviewable using the abuse of discretion

standard. Prewitt, 878 N.E.2d at 188. An abuse of discretion occurs where the

decision is clearly against the logic and effect of the facts and circumstances. Id. [15] We disagree with Pearson’s contention that the trial court was “upholding the

sanctity of the law” rather than fashioning an appropriate sanction for her.

(Pearson’s Br. 5). Within the context of the rest of the trial court’s oral

probation revocation order, it is clear that the trial court meant that there

needed to be a consequence for Pearson’s probation violation because allowing

her to merely continue on probation while seeking treatment had not worked.

Specifically, the trial court noted that Pearson had known she had a drug

addiction since 2012 and had not been “very serious or sincere about trying to

find a solution or a treatment to this issue.” (Tr. 40-41). [16] Further, it was within the trial court’s discretion to revoke Pearson’s probation

and order her to serve part of her previously suspended sentence. See I.C. § 35-

38-2-3(h). As the trial court noted, it is clear that probation was not an effective

solution for Pearson. The trial court had already revoked her probation once in

2012, and the court had been lenient when it had ordered her to serve only

eighty-eight (88) days of her previously suspended sentence. In addition,

Pearson violated the conditions of her probation multiple times. She also

admitted that she had declined to enter a drug treatment program and that she

had used heroin in the days prior to her probation revocation hearing. In light

of these factors, we conclude that the trial court did not abuse its discretion in

Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015 Page 8 of 9

revoking Pearson’s probation and ordering her to serve twelve (12) months of

her previously suspended sentence. [17] Affirmed.

Vaidik, C.J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 34A05-1505-CR-267 | October 29, 2015 Page 9 of 9