CHURCH v. STATE (2021)

MEMORANDUM DECISION

STATEMENT OF THE CASE

[1] Appellant-Defendant, Tammie M. Church (Church), appeals the trial court's revocation of her sentence and imposition of her previously-suspended sentence.

[2] We affirm and remand with instructions.

ISSUES

[3] Church presents two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion by imposing part of Church's previously-suspended sentence; and

(2) Whether the abstract of judgment incorrectly lists a sentence for Church's battery conviction.

FACTS AND PROCEDURAL HISTORY

[4] On April 14, 2014, Church pled guilty to Class C felony robbery and Class A misdemeanor battery committed against a 91-year-old man. The trial court imposed an aggregate sentence of eight years, with four years suspended to probation. During the executed portion of her sentence, Church participated in several educational programs, multiple treatment programs for substance abuse, and graduated from the PLUS program. She was released to probation on February 6, 2019, under the regular conditions of probation, which included that she was prohibited from ingesting illegal substances and was required to report to her probation officer.

[5] On July 31, 2019, Church tested positive for cocaine. A month later, on August 28, 2019, she tested positive for cocaine again. On December 4, 2019, she tested positive for methamphetamine, cocaine, and marijuana. On January 7 and 21, 2020, she tested positive for cocaine. Then, on February 10, 2020, Church tested positive for methamphetamine and cocaine. “At some point” during this string of positive results, Church's probation officer recommended that she complete additional substance abuse treatment. (Transcript p. 10). Church informed her probation officer that she could not attend substance abuse treatment because of a “medical condition” for which Church failed to provide supporting documentation. (Tr. p. 11). Church stopped reporting to probation after her positive drug screen on February 10, 2020.

[6] On April 6, 2020, the State filed a petition to revoke Church's probation alleging that she had multiple positive drug screens and missed appointments with her probation officer. On July 27, 2020, the trial court conducted a hearing on the State's petition. During the hearing, Church claimed that she was using illegal drugs because of “parasites that which was [sic] in [her] head” in March or April of 2020. (Tr. p. 13). She stated that she started using again because of an incident at her brother's house where he “tried to rape” her. (Tr. p. 13). She explained that after the incident she left a copy of her medical record in her brother's house and that the house then burnt down. After Church's testimony, the trial court succinctly noted that Church's first positive test occurred in July 2019, while the parasites issue did not start until March or April of 2020. At the conclusion of the hearing, the trial court found that Church had violated the terms of her probation and ordered a mental health evaluation, as well as an evaluation from community corrections. On August 31, 2020, the trial court conducted a sentencing hearing. After reviewing Church's record, the trial court acknowledged that Church had received multiple treatment opportunities and concluded, “We don't have anything left locally to do for you. We've tried it all.” (Tr. p. 24). The trial court revoked Church's probation and ordered that she serve three years of the previously-suspended four year sentence in the Department of Correction (DOC).

[7] Church now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Probation Violation

[8] “Probation is a matter of grace left to the trial court discretion, not a right to which a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Pursuant to Indiana Code section 35-38-2-3, the trial court determines the conditions of probation and if the conditions are violated, the trial court may revoke probation. Id. Once a trial court has exercised its grace by ordering probation rather than incarceration, the trial court should have considerable leeway in deciding how to proceed. Id. Without this discretion, trial courts would be less inclined to award probation to future defendants. Id. Therefore, a trial court's sentencing decision for probation violations are reviewed for an abuse of discretion. Id. “An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.” Id.

[9] Church argues that the trial court abused its discretion in its choice of sanction because she had not wasted the drug treatment opportunities while in the DOC but rather had completed several programs and furthered her education. As such, she maintains that she would respond well to home detention or work release. While she admitted to having relapsed after being released from prison, Church blames this on her mental health issues and the “stress she experienced from the daily struggles of life.” (Appellant's Br. p. 8).

[10] The record reflects that Church repeatedly ingested multiple illegal substances over a six-month span, refused an opportunity for further drug treatment, and ultimately skipped all her appointments with her probation officer. Furthermore, all of Church's self-serving statements describing stressors occurred after she tested positive on her final drug test of February 10, 2020, and after she stopped attending her required meetings. Church testified that her parasites issue commenced at the earliest in March of 2020. Having considered other options in community corrections, the trial court determined that Church had exhausted all local programs and decided to place her in the DOC. This decision was within the ambit of the trial court's discretion due to Church's extensive drug use and mental health issues. Accordingly, we cannot conclude that the trial court abused its discretion.

II. Abstract of Judgment

[11] Both parties agree that Church's abstract of judgment incorrectly lists a sentence for Church's battery conviction. At Church's sentencing on April 14, 2014, the trial court imposed an executed one-year term for the Class A misdemeanor battery conviction, to be served concurrent with Church's four-year executed term for the robbery conviction. Church's robbery conviction also included a four-year suspended sentence for a total sentence of eight years. However, the abstract of judgment issued after the revocation of Church's probation lists a new three-year term for Church's misdemeanor battery conviction. As Church already served her concurrent one-year sentence for the battery conviction, remand is appropriate to correct the scrivener's error with respect to the misdemeanor conviction.

CONCLUSION

[12] Based on the foregoing, we hold that the trial court properly imposed part of Church's previously-suspended sentence and we remand to the trial court for correction of the abstract of judgment with respect to the scrivener's error related to the misdemeanor conviction.

[13] Affirmed and remanded for correction of scrivener's error.

Riley, Judge.

[14] Najam, J. and Crone, J. concur