                                                                                    FILED
                                                                                Mar 05 2018, 9:48 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
      Hakeen Hogan                                              Curtis T. Hill, Jr.
      Bunker Hill, Indiana                                      Attorney General of Indiana

                                                                George P. Sherman
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Hakeen Hogan,                                             March 5, 2018
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                71A05-1702-CR-278
              v.                                                Appeal from the St. Joseph
                                                                Superior Court
      State of Indiana,                                         The Honorable John M.
      Appellee-Respondent                                       Marnocha, Judge
                                                                Trial Court Cause No.
                                                                71D02-1205-FB-71



      May, Judge.


[1]   Hakeen Hogan filed a motion asking the trial court “to amend [his] Abstract of

      Judgment,” (App. Vol. 2 at 3 (capitalization removed)), to indicate the court

      would consider a motion for modification of sentence if Hogan completed a




      Court of Appeals of Indiana | Opinion 71A05-1702-CR-278 | March 5, 2018                           Page 1 of 9
      therapeutic community. The trial court interpreted Hogan’s motion as a

      “Motion for Modification of Sentence” and summarily denied it. (Id. at 5.)


[2]   On appeal, Hogan argues the trial court erred by considering his motion to be

      one requesting modification of his sentence because “[a]ll Hogan was

      requesting in his motion was for the trial court to amend his abstract of

      judgment to more accurately reflect [the sentencing judge’s original]

      intentions.” (Appellant’s Br. at 8-9.) After considering the Department of

      Correction’s rules regarding Purposeful Incarceration and the sentencing court’s

      statements during the sentencing hearing, we agree Hogan’s motion should

      have been granted, and we reverse and remand for entry of a modified Abstract

      of Judgment.



                                Facts and Procedural History
[3]   In 2012, Hogan pled guilty as charged to two counts of Class B felony robbery, 1

      two counts of Class B felony criminal confinement, 2 and one count of Class B

      felony carjacking. 3 The plea agreement gave the trial court sentencing

      discretion, but it capped Hogan’s executed sentence at thirty years. The trial




      1
          Ind. Code § 35-42-5-1 (1984).
      2
          Ind. Code § 35-42-3-3 (2006).
      3
          Ind. Code § 35-42-5-2 (1993).


      Court of Appeals of Indiana | Opinion 71A05-1702-CR-278 | March 5, 2018     Page 2 of 9
      court did not enter judgment on the carjacking count due to double jeopardy

      concerns.


[4]   At his sentencing hearing on December 5, 2012, the trial court sentenced

      Hogan to forty-six years, with sixteen of those years suspended to probation.

      At the end of that sentencing hearing, the trial court raised the prospect of

      placing Hogan in a Department of Correction program for persons involved

      with drugs:


              THE COURT:          . . . Did we have some drug problem here a
              little bit? Marijuana or something?


              [Defense Counsel]: Conviction for marijuana, your Honor.


              THE COURT:            I would be happy – because I think there’s a
              basis for it in your case. I would be happy to put on the abstract
              of judgment that I think you are an appropriate candidate for
              whatever they call that term in the DOC, meaningful something
              or other that would put him into -- when they found he was
              appropriate for it with respect to the sentence that he’s in -- will
              be in in this case, he would be an appropriate candidate for
              Therapeutic Community for example.


              [Defense Counsel]: I think that would be an excellent idea, your
              Honor.


              THE COURT:          And it gets you all kind of credit cuts of time.
              And if a judge identifies somebody as being an appropriate
              candidate for meaningful -- I think it’s called meaningful
              incarceration or something like that. It’s some kind of term that I
              think would be appropriate to do.


      Court of Appeals of Indiana | Opinion 71A05-1702-CR-278 | March 5, 2018        Page 3 of 9
              [Defense Counsel]: I would agree, your Honor.


              THE COURT:          It can’t hurt you, and it can get you moved
              up for consideration for programs, and it would get you time
              cuts. The question really is[:] are you really serious about turning
              your life around?


              MR. HOGAN:                Yes.


              THE COURT:         Well, then I’m going to do what I can to get
              you into some meaningful programs or make you at least eligible
              for them. And that will be on the abstract of judgment.


      (Tr. at 93-4.) The trial court entered an Abstract of Judgment that provided:


              Court recommends the Defendant be evaluated for and
              considered for Therapeutic Community. Defendant has a history
              of substance abuse and chemical addiction and dependence, and
              appears to be an appropriate candidate for the DOC’s Purposeful
              Incarceration program.


      (App. Vol 2 at 6.)


[5]   On November 30, 2016, Hogan filed an “AMENDED MOTION FOR

      PURPOSEFUL INCARCERATION AND TO AMEND ABSTRACT OF

      JUDGMENT.” (Id. at 3.) Hogan asked the court “to direct the clerk to

      produce a new Abstract of Judgment, reflecting” Hogan should be placed in the

      Purposeful Incarceration program. (Id.) In support thereof, Hogan noted the

      sentences entered by the trial court and then explained:




      Court of Appeals of Indiana | Opinion 71A05-1702-CR-278 | March 5, 2018    Page 4 of 9
              2. That upon anouncing [sic] sentencing the Court recommended
              that Petitioner be evaluated for Therapeutic Community. And
              [sic] acknowledged that Petitioner appeared to be an appropriate
              candidate for the DOC’s Purposeful Incarceration program.


              3. That in order for the Indiana Department of Correction to
              acknowledge the Court’s order for Purposeful Incarceration, the
              Abstract of Judgment must reflect that the Petitioner is allowed
              to be placed in Purposeful Incarceration, and that the Court will
              consider a sentence modification upon the completion of a
              Therapeutic Community.


      (Id. at 3-4.)


[6]   On January 9, 2017, without receiving any additional argument or evidence,

      the trial court entered the following order denying Hogan’s motion:


              The defendant, pro se, having filed a [sic] Amended Motion for
              Purposefful [sic] Incarceration and to Amend Abstract of
              Judgment, which Motion is in the following words and figures,
              to-wit: (H.I.); and the court, having regarded the same as a
              Motion for Modification of Sentence, now denies the defendant’s
              Motion.


      (Id. at 5.)



                                 Discussion and Decision
[7]   At issue in Hogan’s motion is his ability to participate in a Department of

      Correction program called Purposeful Incarceration.




      Court of Appeals of Indiana | Opinion 71A05-1702-CR-278 | March 5, 2018     Page 5 of 9
              In 2009 the Indiana Department of Correction (IDOC) began a
              cooperative project with Indiana Court Systems called
              Purposeful Incarceration (P.I.). The Department works in
              collaboration with Judges who can sentence chemically addicted
              offenders and document that they will “consider a sentence
              modification” should the offender successfully complete an
              IDOC Therapeutic community. This supports the Department
              [of] Correction and the Judiciary to get addicted offenders the
              treatment that they need and work collaboratively to support
              their successful re-entry into society.


      Purposeful Incarceration Overview, www.in.gov/idoc/2798.htm (last visited

      February 15, 2018).


[8]   To so sentence a defendant, the sentencing court must “communicate with the

      IDOC that this offender is a PI offender.” Purposeful Incarceration Details,

      www.in.gov/idoc/2798.htm (last visited February 15, 2018). In addition, the

      court


              MUST INCLUDE the following language in the sentencing
              order or abstract of judgment in order for the offender to be
              identified as a Purposeful Incarceration candidate:


              “Upon successful completion of the clinically appropriate
              substance abuse treatment program as determined by IDOC, the
              court will consider a modification to this sentence.”


      Purposeful Incarceration FAQ,

      https://secure.in.gov/idoc/files/PI%20FAQ%20Updated%2012.15.pdf (last

      visited Feb. 15, 2018) (emphases in original). Thus, as Hogan indicated in his

      motion:

      Court of Appeals of Indiana | Opinion 71A05-1702-CR-278 | March 5, 2018    Page 6 of 9
               [I]n order for the Indiana Department of Correction to
               acknowledge the Court’s order for Purposeful Incarceration, the
               Abstract of Judgment must reflect that the Petitioner is allowed
               to be placed in Purposeful Incarceration, and that the Court will
               consider a sentence modification upon the completion of a
               Therapeutic Community.


       (App. Vol. 2 at 4.)


[9]    On Hogan’s Abstract of Judgment, Judge Frese recommended Hogan be

       considered for a Therapeutic Community because he is “an appropriate

       candidate for the DOC’s Purposeful Incarceration program.” (Id. at 6.) Judge

       Frese did not, however, indicate on that Abstract of Judgment that the court

       would consider a sentence modification if Hogan successfully completed a

       therapeutic community. (See id.)


[10]   The State asserts, based on Judge Frese’s failure at sentencing to use the term

       “Purposeful Incarceration” or the phrase “consider a sentence modification,”

       that Judge Frese did not intend to place Hogan in Purposeful Incarceration.

       (Br. of Appellee at 8.) However, Judge Frese indicated: Hogan was “an

       appropriate candidate for” the DOC’s program for people with drug problems,

       (Tr. at 94); the program would get Hogan “all kind of credit cuts of time,” (id.);

       the judge making him a candidate would “get [him] moved up for consideration

       for programs, and it would get [him] time cuts,” (id.); and Judge Frese would

       “do what I can to get [Hogan] into some meaningful programs or make

       [Hogan] at least eligible for them. And that will be on the abstract of



       Court of Appeals of Indiana | Opinion 71A05-1702-CR-278 | March 5, 2018     Page 7 of 9
       judgment.” (Id.) Based on that language, we reject the State’s assertion that

       Judge Frese did not intend to place Hogan in Purposeful Incarceration. 4


[11]   Because Judge Frese’s intent was to make Hogan eligible to participate in

       Purposeful Incarceration, Judge Frese needed to include language on the

       Abstract of Judgment indicating the court would consider a sentence

       modification if Hogan successfully completed a Therapeutic Program. See supra

       Purposeful Incarceration FAQ. The absence of such language rendered Hogan’s

       Abstract of Judgment erroneous. We therefore hold the trial court erred when

       it did not grant Hogan’s motion for the court to enter a new Abstract of

       Judgment that would allow Hogan to participate in Purposeful Incarceration.

       We reverse the trial court’s denial of Hogan’s motion and remand for the trial

       court to enter an Abstract of Judgment that recommends Hogan be placed in

       Purposeful Incarceration and states that, after Hogan successfully completes an

       appropriate therapeutic program, the court will consider a petition to modify

       Hogan’s sentence. 5



                                                   Conclusion


       4
         Having rejected the State’s assertion about Judge Frese’s intent, we also reject the State’s argument based
       thereon that Hogan’s motion was a request to modify his sentence. Hogan’s request was for a corrected
       Abstract of Judgment.
       5
         We reiterate for emphasis that the trial court will be required only to consider a petition to modify Hogan’s
       sentence after he completes a therapeutic community. The possibility of modification is all that is promised
       by the Purposeful Incarceration literature, and it is all we are expecting the trial court to provide. Whether
       such petition should be granted is left to the discretion of the trial court who hears the motion when it is filed,
       based on the facts and circumstances presented by Hogan at that time.

       Court of Appeals of Indiana | Opinion 71A05-1702-CR-278 | March 5, 2018                                Page 8 of 9
[12]   The court’s statements at sentencing clearly indicate it intended Hogan to be

       eligible for the Purposeful Incarceration program. Because the original Abstract

       of Judgment was incapable of effectuating that intent, the trial court erred when

       it denied Hogan’s motion requesting a corrected Abstract of Judgment. We

       accordingly reverse and remand for entry of a new Abstract of Judgment in

       accordance with this opinion.


[13]   Reversed and remanded with instructions.


       Barnes, J., and Bradford, J., concur.




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