HARDY v. STATE (2025)

MEMORANDUM DECISION

[1] Jeremy M. Hardy appeals the denial of his Application for Release on Recognizance or Reduction of Bail. We affirm.

Facts and Procedural History

[2] On February 20, 2024, the State charged Hardy with: Count I, dealing in methamphetamine as a level 2 felony; Count II, possession of methamphetamine as a level 3 felony; Count III, operating a vehicle while intoxicated as a class C misdemeanor; Count IV, driving while suspended as a class A misdemeanor; and Count V, operating a vehicle while intoxicated as a level 6 felony. The State later filed a Notice of Intent to Seek Habitual Offender Status. The court issued an order stating that it had examined the probable pause affidavit and set bail “in the sum of $50,000 cash only.” Appellant's Appendix Volume II at 25.

[3] According to the probable cause affidavit, on February 18, 2024, Vincennes Police Officer Jacklyn Wood observed a vehicle driven by Hardy disregard a red traffic light at an intersection and then fail to make a complete stop at another intersection, and she initiated a traffic stop. Upon approaching the vehicle, it was immediately apparent to Officer Wood that Hardy was impaired. Officer Wood conducted “a BMV return on Jeremy Hardy” and found that his “driver's license was suspended with a prior conviction.” Id. at 21. Officer Wood conducted several field sobriety tests, each of which indicated Hardy was impaired, and Hardy agreed to submit to a blood draw. Officer Wood read Hardy his Miranda warnings and transported him to the hospital. At the hospital, Hardy told Officer Jacob Greentree that he had smoked methamphetamine that morning. A nurse advised Officer Greentree that, while taking Hardy's vitals, she saw him attempt to conceal a clear plastic bag in his pants, and Officer Greentree picked up the bag which he suspected contained methamphetamine. Hardy advised Officer Greentree “that the substance was methamphetamine” and that “he had been distributing the methamphetamine prior to being stopped.” Id. at 22. Hardy “was medically cleared for jail, transported by Officer Greentree to Knox County Jail and booked in on the charges listed.” Id. at 23. “Shortly afterwards,” the hospital contacted the police “and advised that while cleaning ․ the room that was assigned to [Hardy], they located more bags with a white, crystalline substance inside.” Id. Officer Wood collected the “medium sized bag” from the hospital. Id. The substance was submitted to a field test kit which indicated a “positive preliminary result of the presence of methamphetamine, with the observed weight to be a combined total of 125 grams” and “[t]his weight also included the weight of the small plastic bags.” Id.

[4] On February 26, 2025, Hardy filed an Application for Release on Recognizance or Reduction of Bail. On March 19, 2025, the court held a hearing. Hardy testified that he lived at a halfway house in 2020, that he “purchased a house that had been involved in a fire and was almost a total loss,” and “[h]e paid [$]5700 in 2021 for the house and in his off time remodeled the house, replaced water lines hisself [sic] as well as some of the electrical problems the inspector identified.” Transcript Volume II at 7. Hardy indicated that he “has a bed available at the House of Victory where they provide transportation and help residents obtain employment.” Id. He stated that his “plan is to return to Lewis Bakery where he worked for almost a year during the winter of 2021 when the construction slowed down.” Id. He further stated, “[i]n reference to [his] ability to get bail he has a home he owns at XXXX Broadway Street he is willing to put up to ․ assure his appearance at court for trial” and he “believes his brother ․ will borrow [$]5,000 out of his 401k or the bank to put up [his] bond if ten percent is allowed.” Id. at 7-8.

[5] Hardy indicated that his mother lived in Jackson County and in the same house for thirty years, that his brother owns a home in Dubois County, and that, “if [he] is allowed ten percent after today's hearing, ․ his brother has considered borrowing money so [Hardy] can pay it back.” Id. at 8. He stated that he “has done construction work his whole life” and “has had several different jobs in the winter months where he learned things in factories like forklift operator, shopping operator, shipping and receiving as well as quality control.” Id. He stated he “has improved the Vincennes community by donating and volunteering help at the church and the House of Victory with maintenance issues and remodeling” and “improving parts of the historical district in Vincennes as well as an abandoned house on Broadway Street he plans to complete and put the house on the market for sale.” Id. He further stated that, “[b]efore [his] relapse and current charges, he was a tithing member of Vincennes Community Church where he plans to regularly attend if the bond be allowed ten percent.” Id. at 9. He also stated “[h]e was recently released from DOC in February of this year where he was evaluated by the” Indiana Risk Assessment System (“IRAS”) “where he scored lots of zeros and has a low recidivism rate which is a low risk to reoffending due to being a homeowner verses [sic] homeless; things like that are in factors that determine recidivism likeliness.” Id. at 9. The State introduced and the court admitted into evidence a “Legal History.” State's Exhibit 1.

[6] Hardy's counsel argued that Hardy's criminal history was not the only factor for the court to consider. He argued Hardy's “family is from the area” and Hardy “is a long-time member of the community, has held several positions as far as construction companies and he is a homeowner.” Transcript Volume II at 12. He also argued that Hardy was willing to comply with any restrictions “as far as substance abuse treatment.” Id. He stated that Hardy's “request would be that the Court allow a ten percent bond be posted on that Level 2 felony with any additional restrictions the Court may see fit as far as electronic home monitoring and/or substance abuse treatment.” Id. at 13.

[7] The prosecutor argued, “[i]n looking at his history ․, Hardy's phrase, I think he said, low recidivism rate, does not match up with the facts” and “[t]his is his 35th ․ adult criminal case.” Id. at 13. He reviewed Hardy's criminal history and argued “the case that we're here on today, Level 2 dealing in methamphetamine, [has a] possible penalty [of] 10 to 30 years in DOC, 8 to 20 more in DOC on the habitual.” Id. at 15-16. He also argued, “[t]hese are not crimes in his ․ far distant past when he had a recent slip up” and “[t]hese cases are evenly spread across [his] adult and even juvenile life.” Id. at 16. The trial court stated, “Mr. Hardy, your record is terrible. It's terrible. There's no other way to describe it.” Id. at 17. The court denied Hardy's application.

Discussion

[8] Hardy asserts the trial court “abused its discretion in denying [his] motion to reduce bond when there was no evidence that he had a history of failing to appear and he had strong ties to the community.” Appellant's Brief at 7. He argues the court “did not utilize an evidence-based risk assessment in determining whether [he] was a risk of flight or danger to self or others.” Id. at 9. He argues that he “presented evidence of stability such that he is not a flight risk or risk to others,” that he was a homeowner since 2021, that he “expressed his intention to live in a rehabilitation center upon bonding out,” that his intent was to return to employment upon release, and that he has family residing in Vincennes. Id. at 11.

[9] “An abuse-of-discretion standard of review applies to a trial court's bail determination.” DeWees v. State, 180 N.E.3d 261, 264 (Ind. 2022). A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id.

[10] Ind. Code § 35-33-8-4(b) provides in part that “[b]ail may not be set higher than that amount reasonably required to assure the defendant's appearance in court or to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community.” The statute also provides that, in setting bail, “the judicial officer shall consider the bail guidelines described in section 3.8 of this chapter and take into account all facts relevant to the risk of nonappearance,” including:

(1) the length and character of the defendant's residence in the community;

(2) the defendant's employment status and history and the defendant's ability to give bail;

(3) the defendant's family ties and relationships;

(4) the defendant's character, reputation, habits, and mental condition;

(5) the defendant's criminal or juvenile record, insofar as it demonstrates instability and a disdain for the court's authority to bring the defendant to trial;

(6) the defendant's previous record in not responding to court appearances when required or with respect to flight to avoid criminal prosecution;

(7) the nature and gravity of the offense and the potential penalty faced, insofar as these factors are relevant to the risk of nonappearance;

(8) the source of funds or property to be used to post bail or to pay a premium, insofar as it affects the risk of nonappearance;

(9) that the defendant is a foreign national who is unlawfully present in the United States under federal immigration law; and

(10) any other factors, including any evidence of instability and a disdain for authority, which might indicate that the defendant might not recognize and adhere to the authority of the court to bring the defendant to trial.

Ind. Code § 35-33-8-4(b).

[11] Ind. Code § 35-33-8-5 governs the alteration of bail and provides:

(a) Upon a showing of good cause, the state or the defendant may be granted an alteration or revocation of bail by application to the court before which the proceeding is pending. In reviewing a motion for alteration or revocation of bail, credible hearsay evidence is admissible to establish good cause.

* * * * *

(c) When the defendant presents additional evidence of substantial mitigating factors, based on the factors set forth in section 4(b) of this chapter, which reasonably suggests that the defendant recognizes the court's authority to bring the defendant to trial, the court may reduce bail. However, the court may not reduce bail if the court finds by clear and convincing evidence that the factors described in IC 35-40-6-6(1)(A) and IC 35-40-6-6(1)(B)[1] exist or that the defendant otherwise poses a risk to the physical safety of another person or the community.

[12] Ind. Code § 35-33-8-3.8(a) provides that “[a] court shall consider the results of the Indiana pretrial risk assessment system (if available) before setting or modifying bail for an arrestee.” Ind. Code § 35-33-8-3.8(b) provides, “[i]f the court finds, based on the results of the Indiana pretrial risk assessment system (if available) and other relevant factors, that an arrestee does not present a substantial risk of flight or danger to the arrestee or others, the court shall consider releasing the arrestee without money bail or surety ․”²

[13] The Indiana Supreme Court has discussed the statutes governing bail, including Ind. Code §§ 35-33-8-4 and -5, and held that “this statutory scheme imparts considerable judicial flexibility in the execution of bail” and “these statutes clearly permit—indeed mandate—a trial court to consider all ‘relevant factors’ when setting or modifying bail.” DeWees, 180 N.E.3d at 268. “[T]o tailor that decision to the individual offender, the trial court should consider the widest range of relevant information in reaching an informed decision.” Id. (citation and internal quotation marks omitted). The Court further held:

The codification of Criminal Rule 26[3] and the adoption of evidence-based practices in the administration of bail results in no change to this judicial flexibility. While Indiana Code section 35-33-8-3.8 mandates a trial court to “consider the results” of an IRAS (if available), there's nothing in the statute that compels the defendant's release or that requires the court to rely on the results of the IRAS assessment when setting bail. See I.C. § 35-33-8-3.8(a) (emphasis added). What's more, the legislature qualified its mandate to include consideration of “other relevant factors.” I.C. § 35-33-8-3.8(b). See also Crim. R. 26(B) (encouraging a trial court to “utilize the results of an evidence-based risk assessment ․ and such other information as the court finds relevant”); JRAC Bail Report at 13 (“The use of validated, empirically-based pretrial risk assessment tools can enhance the pretrial decision-making process when utilized in conjunction with professional judgment.”). And because the IRAS-PAT[4] measures only the defendant's risk of failure to appear and risk of re-offending, Indiana's Pretrial Practice Manual “encourages trial courts to use risk assessment results and other relevant information about arrestees”—including the probable cause affidavit, victim statement(s), domestic violence screeners, substance abuse screeners, mental health screeners, and criminal history—to determine whether the defendant poses a “danger to self or others in the community.” Indiana EBDM Pretrial Work Group, Pretrial Practices Manual 62, 63 (2018).

Id.

[14] Here, the trial court set Hardy's bail consistent with the Joint Local Rules for the Knox County Courts. See Knox County LR42-CR-2.2 (“the amounts to which persons charged ․ with a crime shall be held to bail ․ as follows: ․ Level 2 Felony $50,000 ․ Persons charged with multiple crimes on the same indictment or information shall be held to bail only on the crime requiring the highest amount of bail.”); see also Ind. Code § 35-33-8-3.9(a) (“If the court determines that an arrestee is to be held subject to money bail, the court is authorized to determine the amount of bail and whether the bail may be satisfied by surety bond or cash deposit.”).

[15] With respect to the nature and gravity of the offenses and the potential penalty faced, the probable cause affidavit alleges that Hardy was operating a vehicle while his driver's license was suspended and while he was impaired, that he failed several field sobriety tests, and that he told an officer that he had smoked methamphetamine that day. It further alleges that, after a nurse saw Hardy attempt to conceal a clear plastic bag at the hospital, Hardy told an officer that the substance was methamphetamine and that, prior to the stop, he had been distributing the methamphetamine. The affidavit also alleged that the hospital found additional bags of a white, crystalline substance and that the substance was field-tested which indicated a “positive preliminary result of the presence of methamphetamine, with the observed weight to be a combined total of 125 grams” and “[t]his weight also included the weight of the small plastic bags.” Appellant's Appendix Volume II at 23.

[16] The State charged Hardy with a level 2 felony for dealing in methamphetamine as well as counts for possession of methamphetamine, operating a vehicle while intoxicated, and driving while suspended. The State also filed a Notice of Intent to Seek Habitual Offender Status. Ind. Code § 35-50-2-4.5 provides that a person who commits a level 2 felony shall be imprisoned for a fixed term of between ten and thirty years with the advisory sentence being seventeen and one-half years, and Ind. Code § 35-50-2-8 provides that the court shall sentence a person found to be an habitual offender to an additional fixed term that is between eight and twenty years for a person convicted of a level 2 felony. A potential lengthy sentence tends to increase the risk that a defendant will fail to appear for trial. See DeWees, 180 N.E.3d at 270 (observing the crime the defendant allegedly committed carried a maximum penalty of thirty years and observing that “[s]uch a potentially lengthy sentence ‘tends to increase the risk that [the defendant] will fail to appear for trial’ and this ‘cuts substantially against [the] argument that the trial court abused its discretion’ by denying a motion to reduce bail”) (quoting Sneed v. State, 946 N.E.2d 1255, 1258-1259 (Ind. Ct. App. 2011) (citing Ind. Code § 35-33-8-4(b)(7))). Further, Hardy's actions of operating a motor vehicle, although his driver's license was suspended, and doing so after smoking methamphetamine and while noticeably impaired, reflect on his character and lack of respect for authority and favor a finding that he poses a risk to the physical safety of others.

[17] With respect to Hardy's criminal record, the prosecutor stated “[t]his is his 35th ․ adult criminal case” and “[t]hese cases are evenly spread across [his] adult ․ life.” Transcript Volume II at 13, 16. The legal history admitted into evidence shows that Hardy's convictions include operating a vehicle while intoxicated in 2003; possession of cocaine as a class D felony in 2004; thefts as class D felonies in 2008 and 2012; possession of marijuana in 2008 for which a warrant was issued for failure to appear; possession of marijuana in 2009 and 2010; two counts of invasion of privacy in 2012; receiving stolen auto parts as a class D felony in 2013; criminal recklessness in 2014; attempted dealing in methamphetamine as a level 5 felony in 2015 for which he was sentenced to four years with 1,342 days suspended to probation which he later violated; driving while suspended, disorderly conduct, and domestic battery in 2019; operating a vehicle with a Schedule I or II controlled substance or its metabolite in the blood in 2020; possession of marijuana, possession of paraphernalia, invasion of privacy as a level 6 felony, operating a vehicle while intoxicated as a level 6 felony, and driving while suspended in 2021; domestic battery as a level 6 felony in 2022 for which he was sentenced to twenty-four months with 142 days executed and the remainder suspended to probation which he later violated; domestic battery as a level 6 felony in 2023; and invasion of privacy as a level 6 felony in 2023 for which he was sentenced to twenty-four months with 240 days executed and the remainder suspended to probation which he later violated. The legal history further indicates that Hardy was charged with two counts of possession of methamphetamine, one as a level 6 felony and the other as a level 5 felony, in 2019 and that those cases are pending. It also indicates that Hardy was charged with auto theft as a level 6 felony in 2021, a warrant was issued “for FTA for Initial Hearing,” and that the case is pending. State's Exhibit 1.

[18] Hardy testified regarding his purchase of a house in 2021, the proximity of his mother and brother's homes, and his ability to obtain funds to pay “a ten percent bond,” and the court heard the evidence and was able to consider those factors together with Hardy's criminal record and the nature and gravity of the charged offenses and the potential penalty he faced. Transcript Volume II at 13. Also, Hardy testified that he “was recently released from DOC in February of this year where he was evaluated by the IRAS and Indiana Risk Assessment System where he scored lots of zeros and has a low recidivism rate which is a low risk to reoffending.” Id. at 9. He did not introduce a written evidence-based risk assessment or pretrial risk assessment, argue that such an assessment was available, or request the court to order another assessment. As previously mentioned, while the court must “consider the results of the Indiana pretrial risk assessment system (if available),” Ind. Code § 35-33-8-3.8(a), the Indiana Supreme Court has noted there is nothing in the statute “that requires the court to rely on the results of the IRAS assessment when setting bail.” DeWees, 180 N.E.3d at 268. The Court held that, “while ‘highly useful and important for trial courts to consider as a broad statistical tool,’ an evidence-based assessment like IRAS is no substitute for a judicial determination of bail but is merely supplemental to all other evidence informing the trial court's decision’ ” and, “[i]n other words, evidence-based assessment tools ‘do not replace but may inform a trial court's sentencing determinations.’ ” Id. at 270 (quoting Malenchik v. State, 928 N.E.2d 564, 566, 572 (Ind. 2010)).

[19] In light of the gravity of the offenses and the risk to the physical safety of the community, we cannot conclude that the trial court abused its discretion in denying Hardy's Application for Release on Recognizance or Reduction of Bail. See generally id. at 271 (“To be sure, several factors—DeWees's strong family ties, her lack of criminal record, and no evidence of past bad character—certainly militate against denying DeWees's motion. But when, like here, the trial court followed the appropriate procedural safeguards and the evidence provides sufficient support for its ruling, we refrain from interfering with the trial court's discretion—even when, like here, we consider it a close call.”).

[20] For the foregoing reasons, we affirm the trial court.

[21] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-40-6-6(1)(A) and (B) provide:(A) that an act or threat of physical violence or intimidation has been made against the victim or the immediate family of the victim; and(B) that the act or threat described in clause (A) has been made by the defendant or at the direction of the defendant; ․

2.   Further, Ind. Criminal Rule 2.6(B) provides:In determining whether an arrestee presents a substantial risk of flight or danger to self or other persons or to the public, the court should utilize the results of an evidence-based risk assessment approved by the Office of Judicial Administration, and such other information as the court finds relevant. The court is not required to administer an assessment prior to releasing an arrestee if administering the assessment will delay the arrestee's release.Prior to January 1, 2024, the rule was found at Ind. Criminal Rule 26(B). See Order Amending the Rules of Criminal Procedure, No. 23S-MS-10 (Ind. June 23, 2023); Order Adopting Criminal Rule 26, No. 94S00-1602-MS-86 (Ind. Sept. 7, 2016). The Indiana Supreme Court stated that Criminal Rule 26 was “adopted ․ in 2016 and codified by the General Assembly the following year.” DeWees, 180 N.E.3d at 265. See Pub. Law No. 187-2017, § 7 (eff. July 1, 2017) (enacting Ind. Code § 35-33-8-3.8).

3.   Now found at Ind. Criminal Rule 2.6.

4.   This is a reference to IRAS's “Pretrial Assessment Tool.” DeWees, 180 N.E.3d at 263.

Brown, Judge.

Bailey, J., and Weissmann, J., concur.