Jeffrey Hickman v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 29 2017, 8:24 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeffery Hickman, June 29, 2017 Appellant-Defendant, Court of Appeals Case No. 84A01-1603-CR-551 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael Rader, Appellee-Plaintiff. Judge Trial Court Cause Nos. 84D05-1211-FD-3627 84D05-1210-FD-3404

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017 Page 1 of 14 [1] Jeffery Hickman appeals the trial court’s order finding that he violated the terms

of drug court, entering judgments of conviction, and sentencing him. Hickman

raises one issue which we revise and restate as whether the court erred or

abused its discretion in entering judgments of conviction and sentencing him.

We affirm.

Facts and Procedural History [2] On October 25, 2012, the State charged Hickman under cause number 84D05-

1210-FD-3404 (“Cause No. 3404”) with: Count I, operating a vehicle while

intoxicated endangering a person as a class A misdemeanor; and Count II,

operating a vehicle while intoxicated endangering a person as a class D felony.

On November 19, 2012, the State charged Hickman under cause number

84D05-1211-FD-3627 (“Cause No. 3627”) with: Count I, operating a vehicle

while intoxicated endangering a person as a class A misdemeanor; Count II,

resisting law enforcement as a class D felony; Count III, resisting law

enforcement as a class A misdemeanor; and Count IV, operating a vehicle

while intoxicated endangering a person as a class D felony. [3] On April 10, 2013, Hickman entered into an “OVWI DRUG COURT

AGREEMENT” addressing both Cause No. 3404 and Cause No. 3627.

Appellant’s Appendix Volume 2 at 35. The agreement provided that Hickman

would enter a plea of guilty under Cause No. 3404 to Count II, operating a

vehicle while intoxicated endangering a person as a class D felony, and under

Cause No. 3627 to Count IV, operating a vehicle while intoxicated endangering

a person as a class D felony. The agreement provided that all other counts Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017 Page 2 of 14

would be dismissed and that entry of judgments of conviction and imposition of sentence were postponed for a period of thirty-six months from the date of the guilty plea. It also provided that Hickman acknowledged that compliance with the Drug Court Program required abstinence from alcohol and all controlled substances listed in Schedules I, II, III, IV, and V of the Indiana Code and that he participate fully in a program of substance abuse treatment and counseling. The agreement stated that if Hickman satisfactorily complied with the conditions, then upon the expiration of thirty-six months from the entry of the guilty plea, the prosecutor would consent to the court entering an order allowing Hickman to withdraw his guilty plea, and if the court allowed the withdrawal, the prosecutor would then move for dismissal. The agreement further provided:

5. The Defendant understands that by entering this agreement he . . . consents to the jurisdiction of the Court over his . . . person for the period of 36 months from the entry of a guilty plea.

6. In the event the Prosecutor has probable cause to believe that there has been a violation of any of the conditions upon which the entry of a judgment of conviction and the imposition of sentence have been deferred, the Prosecutor may file a written motion with the Court requesting the entry of a judgment of conviction on the Defendant’s plea of guilty and sentencing. The Prosecutor’s motion shall set forth the date, the place, and the nature of the alleged violation of any condition upon which the entry of judgment and the imposition of sentence were postponed. The Court may issue either a summons to appear or a warrant for the Defendant’s arrest and shall conduct an evidentiary hearing to decide whether a condition has been violated by the Defendant as alleged in the motion. The

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Defendant shall be entitled to be represented by an attorney at the hearing. If the Court finds that a violation has occurred then the Court may immediately enter a judgment of conviction on the Defendant’s plea of guilty, and the Court may immediately impose a sentence according to the statutory guidelines.

*****

9. The Defendant understands and agrees that failure to appear for court dates, treatment appointments, or urinalysis testing, and positive urinalysis test results constitute violations of the conditions of the Agreement and will result in imposition of sanctions, a warrant being issued for his or her arrest, and may result in termination from the program.

Id. at 37-38. [4] On December 16, 2015, the court held a hearing at which Hickman and his

lawyer were present. The court stated: “Okay, now you were to screen at Club

Soda on December 8th and it says here, screened a day late with a positive for

opiates that were confirmed.” Transcript at 72. After some discussion, the

court stated: “We got a confirmed screen here, so I am going to assess twenty-

four hours of community service and I want some of that done by January 6th,

but not necessarily all of it.” Id. at 73-74. [5] On December 21, 2015, the State filed a petition to enter judgment of

conviction. The petition alleged that Hickman violated the terms of the

agreement by failing drug testing on December 9, 2015, by testing positive for

opiates.

Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017 Page 4 of 14 [6] On December 30, 2015, Hickman filed a motion to dismiss the State’s petition

and argued that any additional sanctions or punishment beyond the twenty-four

hours of community service ordered at the December 16, 2015 hearing would a

violate res judicata and double jeopardy principles. [7] On January 11, 2016, the court held a hearing and addressed Hickman’s

motion to dismiss. The court stated in part: “It hasn’t been litigated. I haven’t

heard anything.” January 11, 2016 Transcript at 2. The court also referred to

the December 16, 2015 hearing as a status hearing and stated: “I can’t just ex

parte, State not here, do something and then say oh by the way, sorry, your

petition is void, it’s dismissed. I can’t do that.” Id. at 4. The court stated that it

“issued a sanction and a punishment after having heard evidence from not the

deputy prosecutor, but from an agent of the state, that there was an allegation of

a positive test.” Id. at 6. The prosecutor stated: “No, no, that’s not an agent of

the state, that is an arm of the court. That is not an agent of the state.” Id. The

court stated: “I think it’s the court talking to itself, I tend to agree with that.”

Id. The court scheduled an evidentiary hearing for February 8, 2016. After a

continuance, the court held an evidentiary hearing on February 22, 2016. [8] On February 25, 2016, the court entered an order finding that Hickman violated

the terms of the Drug Court as follows:

[Hickman] tested positive on a drug screen on December 9, 2015. The Court finds [Hickman] has a history of deception. [Hickman] advised he volunteered to enroll in the Community Christian Counseling Program and maintain compliance with that program while in the Drug Court Program. The Court is

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advised [Hickman] failed to appear on three (3) separate appointments made by that program and has not followed up with any further appointments or counseling. Further, [Hickman] did not keep an appointment with Choices Consulting on January 11, 2016.

Appellant’s Appendix Volume 2 at 71. The court entered judgments of

conviction under Cause Nos. 3404 and 3627 and sentenced Hickman to three

years under Cause No. 3404 and a consecutive sentence of three years under

Cause No. 3627.

Discussion [9] The issue is whether the trial court erred or abused its discretion in entering

judgments of conviction and sentencing Hickman. Hickman argues that the

imposition of twenty-four hours of community service and his sentence

constitute a violation of the prohibition against double jeopardy. He

alternatively argues that the doctrine of res judicata bars relitigation. [10] The State contends that the principles of double jeopardy are inapplicable to

drug court revocation proceedings and that, even if a double jeopardy analysis

was applicable, the record shows that Hickman was revoked from drug court

for more than one positive drug screen. The State also argues that its

revocation petition and subsequent proceeding were not barred by res judicata

because the issues in the two sanction proceedings were entirely different and

the State did not seek or secure the community service sanction imposed by the

trial court.

Court of Appeals of Indiana | Memorandum Decision 84A01-1603-CR-551 | June 29, 2017 Page 6 of 14 [11] Ind. Code § 33-23-16-5 defines a “drug court” as “a problem solving court

focused on addressing the substance abuse issues of defendants or juveniles in

the criminal justice system . . . .” Ind. Code § 33-23-16-8 defines a “problem

solving court” as “a court providing a process for immediate and highly

structured judicial intervention for eligible individuals . . . .” “A problem

solving court and [its] accompanying services . . . are available only to

individuals over whom the court that established the problem solving court has

jurisdiction.” Ind. Code § 33-23-16-12(a). The Drug Court program is a

forensic diversion program akin to community corrections, and we will review

the termination of placement in a Drug Court program as we do a revocation of

placement in community corrections.” Withers v. State, 15 N.E.3d 660, 663

(Ind. Ct. App. 2014).

For purposes of appellate review, we treat a hearing on a petition to revoke a placement in a community corrections program the same as we do a hearing on a petition to revoke probation. The similarities between the two dictate this approach. Both probation and community corrections programs serve as alternatives to commitment to the [Department of Correction] and both are made at the sole discretion of the trial court. A defendant is not entitled to serve a sentence in either probation or a community corrections program. Rather, placement in either is a matter of grace and a conditional liberty that is a favor, not a right.

Id. at 663-664 (quoting Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App.

2009)). Generally, we will review a trial court’s sentencing decisions for drug

court violations for an abuse of discretion. Id. at 665. An abuse of discretion

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occurs where the decision is clearly against the logic and effect of the facts and

circumstances. Id. We review a trial court’s legal conclusions regarding double

jeopardy de novo. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011). [12] Generally, defendants “who plead guilty to achieve favorable outcomes give up

a plethora of substantive claims and procedural rights, such as challenges to

convictions that would otherwise constitute double jeopardy.” Debro v. State,

821 N.E.2d 367, 372 (Ind. 2005) (quoting Lee v. State, 816 N.E.2d 35, 40 (Ind.

2004) (quotation omitted)). See id. (observing that the agreement the defendant

reached with the State provided him with the significant benefit of the

possibility of no criminal conviction for his admitted criminal conduct and

holding that the defendant could not be heard to complain following his failure

to fulfill his part of the agreement). [13] The OVWI Drug Court Agreement provided that Hickman understood and

agreed that a positive urinalysis test result constitutes a violation of the

conditions of the agreement and “will result in imposition of sanctions, a

warrant being issued for his or her arrest, and may result in termination from

the program.” Appellant’s Appendix Volume 2 at 38. The agreement also

provided that the prosecutor may file a written motion requesting entry of

judgment of conviction and that, if the court finds that a violation occurred, it

may immediately enter a judgment of conviction on Hickman’s plea of guilty.

The agreement Hickman reached with the State provided him with a significant

benefit, the possibility of no criminal conviction for his admitted criminal

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conduct. Even assuming that Hickman did not waive his argument, we cannot

say that reversal is warranted. [14] The Fifth Amendment to the United States Constitution provides that no

person shall “be subject for the same offense to be twice put in jeopardy of life

or limb.” Article 1, Section 14 of the Indiana Constitution provides that “[n]o

person shall be put in jeopardy twice for the same offense.” [15] As we have noted, “Drug Court is a forensic diversion program akin to

community corrections and probation.” Withers, 15 N.E.3d at 665. In Childers

v. State, 656 N.E.2d 514, 517 (Ind. Ct. App. 1995), trans. denied, we held that a

violation of a condition of probation does not constitute an offense within the

purview of double jeopardy analysis and that the double jeopardy clause was

not implicated by a second probation revocation hearing. In McQueen v. State,

862 N.E.2d 1237, 1243 (Ind. Ct. App. 2007), we stated that “[r]evocation

proceedings are based upon violations of probation conditions rather than upon

the commission of a crime, and the finding of whether a defendant has

complied with these conditions is a question of fact and not an adjudication of

guilt.” We also held in McQueen that a violation of a condition of community

corrections does not constitute an offense within the purview of double

jeopardy analysis. 862 N.E.2d at 1244. Based upon our decisions in Childers

and McQueen, we find unpersuasive Hickman’s argument that the trial court

violated double jeopardy. See also Johnson v. State, 512 N.E.2d 1090, 1092 (Ind.

1987) (rejecting the appellant’s claim that the trial court erred in placing him in

double jeopardy because of the State’s moving forward in a probation

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revocation proceeding on the same charges in the criminal case); Kincaid v.

State, 736 N.E.2d 1257, 1259 (Ind. Ct. App. 2000) (holding that a violation of a

condition of probation does not constitute an offense within the purview of

double jeopardy analysis), reh’g denied; Shumate v. State, 718 N.E.2d 1133, 1135

(Ind. Ct. App. 1999) (holding that the Double Jeopardy Clause does not apply

to probation revocation proceedings and that the trial court did not violate the

Double Jeopardy Clause by subjecting the defendant to a second probation

revocation hearing); Ashba v. State, 570 N.E.2d 937, 940 (Ind. Ct. App. 1991)

(observing that the law in this jurisdiction is well settled that a violation of a

condition of probation does not constitute an offense for purposes of double

jeopardy), aff’d by 580 N.E.2d 244 (Ind. 1991), cert. denied, 503 U.S. 1007, 112 S.

Ct. 1767 (1992). [16] With respect to Hickman’s argument regarding res judicata, the Indiana

Supreme Court has held that “[r]es judicata is a legal doctrine intended ‘to

prevent repetitious litigation of disputes that are essentially the same, by

holding a prior final judgment binding against both the original parties and their

privies.’” Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 993 (Ind. 2014)

(quoting Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013)). “It applies ‘where

there has been a final adjudication on the merits of the same issue between the

same parties.’” Id. (quoting Gayheart v. Newnam Foundry Co., Inc., 271 Ind. 422,

426, 393 N.E.2d 163, 167 (1979)). The Indiana Supreme Court has said:

Stated in more detail:

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1. the former judgment must have been rendered by a court of competent jurisdiction;

2. the former judgment must have been rendered on the merits;

3. the matter now in issue was or might have been determined in the former suit; and

4. the controversy adjudicated in the former suit must have been between the parties to the present action or their privies.

Id. (citing Chemco Transp., Inc. v. Conn, 527 N.E.2d 179, 181 (Ind. 1988)). If any

element is absent, res judicata does not apply. Id. [17] We addressed a similar issue in Montgomery v. State, 58 N.E.3d 279 (Ind. Ct.

App. 2016). In that case, the trial court sentenced Montgomery to thirteen

years with five years suspended and ordered that he serve the final four years of

his nonsuspended term on “active adult probation.” 58 N.E.3d at 280. On

June 19, 2015, the trial court assigned Montgomery from the Indiana

Department of Correction to the Allen County Community Transition Program

and ordered him to comply with certain conditions of reentry. Id. In its order,

the court informed Montgomery that, “[i]f probation was imposed in the

original sentence, then the defendant shall report to the Probation Department

as directed . . . .” Id. On August 27, the State filed a petition to revoke

Montgomery’s placement in the transition program and alleged in part that he:

Did not maintain good behavior. On or about August 24, 2015[,] the defendant is alleged to have committed the offense of

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Interfering with a Drug or Alcohol Screening Test and Possession of a Devi[c]e or Substance Used to Interfere with a Drug or Alcohol Screening, a Class B misdemeanor as referenced in cause number 02D05-1508-CM-3278.

Id. On August 31, the trial court revoked Montgomery’s placement in the

transition program, further revoked sixty days of actual credit time from

Montgomery’s sentence, and then referred him to the Allen County Probation

Department “for further action.” Id. On September 2, the State filed its

petition to revoke Montgomery’s probation. Id. In particular the State alleged

that Montgomery:

1. Did not maintain good behavior. On August 31, 2015, the defendant was terminated from the Re–Entry Program while serving the executed portion of his sentence.

2. Did not maintain good behavior. On August 24, 2015, the defendant is alleged to have committed the offense of Interfering with a Drug or Alcohol Screening Test, a Class B Misdemeanor, as referenced in the affidavit of probable cause in cause number 02D05-1508-CM-3278.

Id. The trial court revoked Montgomery’s probation and ordered him to serve

five years in the Department of Correction. Id. [18] On appeal, Montgomery argued that the court’s revocation of both his

placement in the transition program and his probation violated the doctrine of

res judicata. Id. at 281. We noted that probation was a matter of grace left to

trial court discretion. Id. We held:

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We cannot agree that the trial court’s subsequent revocation of Montgomery’s probation was barred by its prior revocation of his placement in the transition program. In the language of res judicata, the matter in issue before the court during the probation revocation proceedings—Montgomery’s placement on probation—was simply not the same matter in issue before the court during the revocation proceedings on his placement in the transition program. And we are not persuaded by Montgomery’s suggestion that the court was obliged to consider and determine those two separate matters once and for all during the revocation proceedings for his placement in the transition program.

Placement on probation and placement in a community transition program are not one and the same, and the court’s consideration of those options is not mutually exclusive. Rather, those options are two of many tools in the trial court’s toolbox for the court’s use in the administration and supervision of a defendant’s sentence, over which the court has continuing jurisdiction. We conclude that the trial court’s revocation of Montgomery’s probation was not barred by res judicata and was not otherwise an abuse of the trial court’s discretion. Accordingly, we affirm the trial court’s judgment.

Id. at 281-282. [19] Here, at the December 16, 2015 status hearing, the court discussed Hickman’s

positive screen for opiates and ordered that he complete twenty-four hours of

community service. We cannot say that the matter of a sanction under the

Drug Court program at the December 16, 2015 hearing was the same matter at

issue following the State’s petition to enter judgment of conviction where the

court considered other Drug Court violations as well in terminating Hickman

from the program and entering judgments of conviction. See Montgomery, 58

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N.E.3d at 281-282. We also observe that the prosecutor was not present at the

December 16, 2015 status hearing. We cannot say that the controversy

previously adjudicated was between the parties to the present action.

Accordingly, we cannot say that res judicata barred the entry of judgments of

conviction.

Conclusion [20] For the foregoing reasons, we affirm the trial court’s entry of judgments of

conviction in Cause No. 3404 and Cause No. 3627. [21] Affirmed.

Vaidik, C.J., and Bradford, J., concur.

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