Christopher McGregor 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 Feb 26 2018, 6:07 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William Byer, Jr. Curtis T. Hill, Jr. Byer & Byer Attorney General of Indiana Anderson, Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher McGregor, February 26, 2018 Appellant-Defendant, Court of Appeals Case No. 48A02-1708-CR-1998 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff. Judge Trial Court Cause No. 48C04-1407-FA-1189

Barnes, Judge. Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018 Page 1 of 6

Case Summary [1] Christopher McGregor appeals the trial court’s revocation of his placement in

work release. We affirm.

Issue [2] McGregor raises one issue, which we restate as whether the evidence was

sufficient to demonstrate that he violated a term of his work release.

Facts [3] In July 2014, McGregor was charged with Class A felony attempted murder,

Class B felony aggravated battery, and Class D felony criminal recklessness. In

April 2015, McGregor pled guilty to Class B felony aggravated battery, and the

trial court sentenced him to nine years in the Department of Correction with

three years suspended. The trial court ordered one year of the executed

sentence to be served in a work release program. [4] McGregor began his work release placement on April 5, 2017. In May 2017, a

petition to terminate his placement in work release was filed because he was

intoxicated at the work release center. The trial court found that he had

violated the terms of his placement, returned him to work release, revoked one

year of his suspended sentence, and ordered him to serve that additional year in

the Continuum of Sanction Program. [5] On June 26, 2017, McGregor was found with a green, leafy substance hidden in

his sock. On June 28, 2017, McGregor was found with a green, leafy substance

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hidden in the crotch of his underwear. When asked what the substance was,

McGregor replied that it was “K2 Spice” that was left over after a previous

arrest. Ex. at 9. Additionally, McGregor was alleged to have been in arrears

for his work release fees. Another petition to terminate McGregor’s work

release was filed. [6] At a hearing in July 2017, McGregor admitted that he was in arrears in the

amount of $321.66. Regarding the possession of spice, the State called Steven

Perry, case manager at the work release center, to testify. The State moved to

admit Exhibits 1 and 2, which were probable cause affidavits regarding the

spice incidents, and McGregor did not object to their admission. The probable

cause affidavits were prepared by two different officers. Perry testified that he

saw the substance officers found in McGregor’s sock and that he believed it to

be spice. McGregor testified that the substance found on June 26, 2017, was

located in a common area, not his sock, and that the substance found on June

28, 2017, did not belong to him. The trial court found that McGregor violated

the terms of his work release, revoked his suspended sentence, and ordered that

his executed sentence be served in the DOC. McGregor now appeals.

Analysis [7] McGregor argues that the trial court erred by finding that he violated the terms

of his work release. 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. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). “A defendant

is not entitled to serve a sentence in either probation or a community Court of Appeals of Indiana | Memorandum Decision 48A02-1708-CR-1998| February 26, 2018 Page 3 of 6

corrections program.” Id. “Rather, placement in either is a ‘matter of grace’ and a ‘conditional liberty that is a favor, not a right.’” Id. (quoting Million v. State, 646 N.E.2d 998, 1002 (Ind. Ct. App. 1995)).

While a community corrections placement revocation hearing has certain due process requirements, it is not to be equated with an adversarial criminal proceeding. Id. at 549-50. Rather, it is a narrow inquiry, and its procedures are to be more flexible. Id. This is necessary to permit the court to exercise its inherent power to enforce obedience to its lawful orders. Id. Accordingly, the Indiana Rules of Evidence in general and the rules against hearsay in particular do not apply in community corrections placement revocation hearings. See id. at 550-51; see also Ind. Evidence Rule 101(c) (providing that the rules do not apply in proceedings relating to sentencing, probation, or parole). In probation and community corrections placement revocation hearings, therefore, judges may consider any relevant evidence bearing some substantial indicia of reliability. Cox, 706 N.E.2d at 551. This includes reliable hearsay. Id. The absence of strict evidentiary rules places particular importance on the fact-finding role of judges in assessing the weight, sufficiency and reliability of proffered evidence. Id. This assessment, then, carries with it a special level of judicial responsibility and is subject to appellate review. Id. Nevertheless, it is not subject to the Rules of Evidence nor to the common law rules of evidence in effect prior to the Rules of Evidence. Id.

Our standard of review of an appeal from the revocation of a community corrections placement mirrors that for revocation of probation. Id. A probation hearing is civil in nature and the State need only prove the alleged violations by a preponderance of the evidence. Id. We will consider all the evidence most favorable to supporting the judgment of the trial court without reweighing that evidence or judging the credibility of the witnesses. Id. If there is substantial evidence of probative value

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to support the trial court’s conclusion that a defendant has violated any terms of probation, we will affirm its decision to revoke probation. Id.

Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009). [8] McGregor argues that Perry did not observe the substances on McGregor and

that the officers responsible for making the probable cause affidavits did not

testify. McGregor relies on his own testimony that the substance in the first

incident was found in a common area and that he does not know anything

about the second substance. In his reply brief, he argues that the probable cause

affidavits “do not comprise reliable hearsay and do not possess the requisite

guarantee of reliability.” Appellant’s Reply Br. p. 4. [9] McGregor did not object to the admission of the probable cause affidavits, and

we held in Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006), that a

probable cause affidavit bore “substantial indicia of reliability such that the trial

court did not err in taking judicial notice of it.” In support of his argument that

the probable cause affidavits were not reliable, McGregor relies on Baxter v.

State, 774 N.E.2d 1037 (Ind. Ct. App. 2002), trans. denied. However, Baxter

addressed an uncertified, unverified law enforcement incident report, not a

probable cause affidavit. Baxter is not applicable here. The probable cause

affidavits admitted here were substantially reliable. [10] The probable cause affidavits were evidence that the spice was found in

McGregor’s sock and underwear and that McGregor stated the spice found in

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his underwear was left over from a prior arrest. McGregor’s arguments to the

contrary are merely requests that we reweigh the evidence, which we cannot

do. There is sufficient evidence to support a reasonable inference that

McGregor actually possessed spice on two occasions. McGregor also admitted

that he failed to pay his required fees. The trial court did not err by finding that

McGregor violated the terms of his placement in work release.

Conclusion [11] The trial court did not err by revoking McGregor’s placement in work release.

We affirm. [12] Affirmed.

Najam, J., and Mathias, J., concur.

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