Willie M. Taggett 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 Sep 05 2019, 9:02 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.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Patrick Magrath Curtis T. Hill, Jr. Matthew T. Bates Attorney General of Indiana Madison, Indiana Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Willie M. Taggett, September 5, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3048 v. Appeal from the Ripley Superior Court State of Indiana, The Honorable Jeffrey Sharp, Appellee-Plaintiff Judge Trial Court Cause No. 69D01-1805-F6-118

Altice, Judge.

Case Summary Court of Appeals of Indiana | Memorandum Decision 18A-CR-3048 | September 5, 2019 Page 1 of 6 [1] Willie Taggett argues that the trial court abused its discretion when it revoked

his home detention and ordered him to execute 400 days of his sentence at the

Department of Correction (DOC). [2] We affirm.

Facts & Procedural History [3] On May 30, 2018, Taggett pled guilty to Level 6 felony possession of

methamphetamine and Level 6 felony possession of a legend drug. 1 In

accordance with the terms of the plea agreement, the trial court sentenced

Taggett to consecutive terms of 730 days, all suspended to probation. On July

6, 2018, the State filed a petition for probation violation alleging that Taggett

twice tested positive for methamphetamine and failed to appear at a meeting

that was a required condition of his probation. At a July 12, 2018 hearing,

Taggett admitted to these violations, and the trial court revoked 730 days of his

probation and ordered him to serve 728 2 days on home detention. [4] On October 3, 2018, the State filed a petition for home detention violation. The

State filed an amended petition on October 16, 2018, in which it alleged that

Taggett violated the terms of home detention by testing positive for

methamphetamine three times over a five-day period and by failing to pay

1 In exchange for his guilty plea, the State agreed to dismiss three other drug-related offenses. 2 Taggett spent one day in jail after his arrest on the probation violation. The trial court therefore awarded him “[c]redit for one actual, two with good time.” Transcript at 20.

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required fees, accruing an arrearage of over $1000. At a hearing on October 17,

2018, Taggett admitted to these violations, and the trial court ordered him to

serve 400 days of his previously suspended sentence at the DOC. [5] Taggett filed a letter with the trial court on November 9, 2018, in which he

stated that the purpose of his letter was “to appeal the courts [sic] decision to

put [him] in jail for 6 months” and that he wanted the court “to reconsider” its

decision. Appellant’s Appendix Vol. 2 at 53, 54. The trial court scheduled a

hearing for November 21, 2018, to discuss the nature of Taggett’s letter. After

questioning Taggett, the trial court treated the letter as a motion for sentence

modification and denied Taggett’s request for relief. Taggett informed the court

that he wished to “appeal the sentence in this matter,” so the court appointed

counsel for purposes of perfecting an appeal. Transcript Vol. II at 51. [6] Taggett filed his notice of appeal with this court on December 19, 2018. The

State filed a motion to dismiss the appeal as untimely because it was not filed

within 30 days of the court’s October 17, 2018 order. In an order dated April

29, 2019, this court denied the State’s motion to dismiss, finding that because

Taggett asked the trial court to reconsider its October 17 ruling in his November

9 letter, such letter should be treated as a motion to correct error, which tolled

the time for filing a notice of appeal. As such, the motions panel concluded

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that Taggett’s notice of appeal was timely filed. 3 Additional facts will be

provided as necessary.

Discussion & Decision [7] Placement on probation or in a community corrections program is a matter of

grace and not a right. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999); Treece v.

State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014), trans. denied. If a defendant

violates the terms of his placement in community corrections, the court may, at

the request of the community corrections director, revoke the placement and

commit the person to the DOC for the remainder of the person’s sentence. Ind.

Code § 35-38-2.6-5; see also Toomey v. State, 887 N.E.2d 122, 124 (Ind. Ct. App.

2008). We review a trial court’s sentencing decision in a probation revocation

proceeding for an abuse of discretion. Sanders v. State, 825 N.E.2d 952, 957

(Ind. Ct. App. 2005), trans. denied. We consider only the evidence most

favorable to the judgment and do not reweigh the evidence or judge the

credibility of the witnesses. Id. at 954-55.

3 The State filed a cross-appeal arguing that Taggett’s appeal is untimely and therefore, not properly before us. It is true that a writing panel has “the inherent authority” to reconsider decisions of the motions panel while an appeal remains pending. Haggerty v. Anonymous Party 1, 998 N.E.2d 286, 293 (Ind. Ct. App. 2013). We, however, are reluctant to overrule a motions panel decision unless a more complete record “reveals clear authority establishing that our motions panel erred.” Id. Having reviewed the record herein, we find no reason to overrule the motion panel’s determination that Taggett’s letter to the court was to be treated as a motion to correct error that tolled the period in which Taggett had to file his notice of appeal. See Ind. Appellate Rule 9(A)(1) (stating that “if any party files a timely motion to correct error, a Notice of Appeal must be filed within thirty (30) days after the court’s ruling on such motion is noted in the Chronological Case Summary”). Taggett’s appeal is properly before us.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-3048 | September 5, 2019 Page 4 of 6 [8] Taggett admitted to violating the terms of his placement on home detention by

testing positive for methamphetamine three times over the course of five days.

He also admitted that he was in arrears on his payments for court-ordered fees

in an amount exceeding $1000. In arguing that the trial court abused its

discretion in revoking his placement on home detention and ordering that he

serve 400 days at the DOC, Taggett notes that he admitted to his violations. He

also claims that his violations were “substantially related to his mental health

issues and his difficult circumstances providing for his mother” and that he has

taken “affirmative steps to deal with his issues and turn his life around.”

Appellant’s Brief at 8. [9] Taggett is essentially requesting this court to reweigh the evidence, which we

will not do. See Sanders v. State, 825 N.E.2d at 954-55. In the five months since

the original sentence was imposed, this is the second time Taggett has been

brought before the court to answer for his violation of the terms of his

placement. The trial court placed Taggett on home detention after he admitted

to violating the terms of probation by using methamphetamine. Less than three

months later, Taggett violated the terms of home detention by again using

methamphetamine. Specifically, he tested positive for methamphetamine three

times during a five-day period from October 1, 2018 to October 5, 2018. Each

time he submitted a positive drug screen, Taggett denied his drug use. Taggett’s

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violations in this regard 4 are significant and evince a clear pattern of drug use

that Taggett has taken no meaningful steps to stop. The court afforded Taggett

leniency following his first violation and was not required to exercise further

leniency after Taggett violated the terms of his placement a second time. The

trial court did not abuse its discretion in revoking Taggett’s placement on home

detention and ordering Taggett to serve 400 days at the DOC. [10] Judgment affirmed.

Tavitas, J, concurs.

Brown, J., concurs in result without opinion.

4 In revoking Taggett’s community corrections placement, the trial court focused on Taggett’s positive drug screens and did not reference his arrearage for fees.

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