Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,                 Jan 30 2014, 7:03 am
collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

ANDREW R. WILKINSON                             GREGORY F. ZOELLER
Gibson Law Office                               Attorney General of Indiana
Lafayette, Indiana
                                                KARL M. SCHARNBERG
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

EDWARD LEE MATTHYS,                             )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 79A02-1303-CR-217
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                           The Honorable Randy Williams, Judge
                               Cause No. 79D01-0403-FA-8


                                     January 30, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Edward Lee Matthys (Matthys), appeals his termination

from the Tippecanoe County Re-Entry Court Program (Re-Entry Program) and

subsequent placement in the Indiana Department of Correction (DOC).

      We affirm.

                                        ISSUES

      Matthys raises two issues on appeal, which we restate as:

      (1) Whether the hearing conducted by the trial court on June 27, 2012, satisfied the

          requirements of due process under Indiana Code section 33-23-16-14.5; and

      (2) Whether the sentence handed down by the trial court was inappropriate in light

          of Indiana Appellate Rule 7(B).

                       FACTS AND PROCEDURAL HISTORY

      On the morning of February 26, 2004, Matthys was arrested in Tippecanoe

County, Indiana.     He was subsequently charged with one Count of dealing

methamphetamine, a Class B felony, Ind. Code § 35-48-4-1(a); one Count of dealing

methamphetamine, a Class A felony, I.C. § 35-48-4-1(b); two Counts of dealing in a

schedule II controlled substance, a Class B felony, I.C. § 35-48-4-2(a); two Counts of

possessing methamphetamine, a Class C felony, I.C. § 35-48-4-6(b)(1)(A); four Counts

of operating an illegal drug lab, a Class D felony, I.C. § 35-48-4-14.5(c)(d); two Counts

of possessing marijuana, a Class A misdemeanor, I.C. § 35-48-4-11; and resisting law

enforcement, a Class A misdemeanor, I.C. § 35-44-3-3(a). On November 19, 2004,
                                            2
Matthys pled guilty to dealing methamphetamine as a Class B felony, possessing

methamphetamine as a Class C felony, dealing methamphetamine as a Class A felony,

operating an illegal drug lab as a Class D felony, and possessing marijuana as a Class A

misdemeanor.

       On February 10, 2005, Matthys received an aggregate sentence of forty years

imprisonment, with twenty-six years executed at the DOC, five years suspended to

supervised probation, and nine years suspended to unsupervised probation. On August

24, 2011, Matthys was admitted to the Re-Entry Program, and the remainder of his

executed sentence was stayed upon his successful completion of the program.          On

February 24, 2012, Matthys was eighteen minutes late for a mandatory appointment at

Riggs Medical Clinic, where the policy states that tardiness of fifteen minutes or more

counts as a missed appointment. On March 4, 2012, Matthys failed to appear for a

required check-in at Community Corrections. On March 5, 2012, the Re-Entry court

advised Matthys that he was being placed in jail for a “time out,” and a hearing would

follow to determine his status in the Re-Entry Program. (Appellant’s App. p. 41).

       On May 3, 2012, the State filed a Notice of Termination from Re-Entry Program

and Motion for Sentencing. On June 27, 2012, the trial court conducted a hearing on the

State’s motion. Following this hearing, the trial court ordered each party to submit

proposed findings of fact and conclusions of law. The State complied with this order on

July 6, 2012. On July 9, 2012, Matthys presented his proposed findings of fact and

conclusions of law to the trial court.

                                            3
      On August 30, 2012, the trial court issued an order adopting almost all of Matthys’

proposals and conclusions, including his proposed termination from the Re-Entry

Program. The trial court’s order included the following:

      8. The [c]ourt concludes that termination is not an appropriate sanction for
          the two rule violations that have been shown.
      9. The [c]ourt further concludes that although no hearing was conducted
          by the presiding authority over the Re-Entry . . . Program as provided
          in Paragraph 3(g) of the Request for Agreed Modification of Sentence
          and Re-Entry Court Acceptance, the evidence indicates that [Matthys]
          was terminated from the Re-Entry Program sometime between April 2,
          2012 and April 16, 2012. The [c]ourt further concludes that sending
          [Matthys] back to the Re-Entry . . . Program which has already rejected
          him is not a feasible option.
      10. Accordingly, the [c]ourt does now ORDER [Matthys] remanded to the
          [DOC] pursuant to his Sentencing Order of February 10, 2005.
      11. Pursuant to Indiana Code [section] 35-38-1-17(b), the [c]ourt may
          modify [Matthys’] sentence to place [Matthys] into Community
          Corrections at a level to be determined by them for the remaining
          balance of his executed sentence, and the [c]ourt finds [Matthys] may
          file a Motion for Modification of Placement for its consideration.

(Appellant’s App. p. 43).      On September 5, 2012, Matthys filed a Motion for

Modification of Placement. On October 9, 2012, the trial court granted Matthys’ motion,

ordering that the remainder of his sentence be executed in Tippecanoe County

Community Corrections.

      Matthys now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

      For purposes of appellate review, Indiana treats a hearing on a petition to revoke a

placement in a community corrections program the same as it does a hearing on a petition

to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999) (footnote omitted)

                                            4
(citing Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998), trans. denied). Indiana

Code section 35-38-2.6-2 defines a “community corrections” program as “a program

consisting of residential and work release, electronic monitoring, day treatment, or day

reporting[.]”     “Community corrections programs” therefore include the Re-Entry

Program in which Matthys was enrolled. See I.C. § 33-23-16-8 (defining “problem

solving court”); I.C. § 33-23-16-9 (defining “reentry court” as a specific type of problem

solving court).     The State’s burden of proof in probation revocation and similar

proceedings is to prove the alleged violations by a preponderance of the evidence.

Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995). We do not reweigh the evidence, but

consider all the evidence most favorable to supporting the judgment of the trial court. Id.

                                       I. Due Process

       Matthys contends that he was denied due process because the trial court’s hearing

on June 27, 2012 was not held until after he had already been effectively terminated from

the Re-Entry Program. “A defendant at a probation revocation hearing is not endowed

with all the same rights he possessed prior to his conviction.” Isaac v. State, 605 N.E.2d

144, 148 (Ind. 1992). Similarly, a defendant facing termination from a problem solving

court program is not guaranteed the same due process of law as a defendant facing a

revocation of probation. Compare I.C. § 33-23-16-14.5 (describing the due process

requirements for termination of participation in a problem solving court program), with

I.C. § 35-38-2-3 (describing the due process requirements for probation revocation).



                                             5
While the two processes are comparable enough to share a standard of review, they are

not identical.

       Moreover, at no time did the State’s action violate the statutory requirements for

Matthys’ termination from the Re-Entry Program. On March 5, 2012, Matthys was

remanded into custody following his alleged violations of Re-Entry Program rules, and

pursuant to Indiana Code section 33-23-16-14.5(b)(1).        On May 3, 2012, Matthys

received written notice of his alleged violations, pursuant to Indiana Code section 33-23-

16-14.5(c)(3)(A). On June 27, 2012, the trial court conducted a hearing, pursuant to

Indiana Code section 33-23-16-14.5(c), that included Matthys’ representation by counsel,

the presentation of the evidence against him, and the opportunity to confront and cross-

examine witnesses. The trial court subsequently found that Matthys had committed two

technical violations of Re-Entry Program rules. Matthys then proposed that regardless of

the inappropriateness of his termination, he should not be returned to the Re-Entry

Program, and the trial court agreed.

       This court has acknowledged that “[o]rdinarily, due process ‘requires some kind of

hearing before the State deprives a person of liberty or property.’” Myers v. Coats, 966

N.E.2d 652, 658 (2012) (quoting Zinermon v. Burch, 494 U.S. 113, 127 (1976))

(emphasis added).        However, section 33-23-16-14.5(c) imposes no temporal

requirements, providing only that the “problem solving court judge or other hearing

officer shall conduct a hearing concerning an alleged violation.” While the timing of

operations and ultimate hearing in Matthys’ case may have been unorthodox, they were

                                            6
not statutorily prohibited. Furthermore, on June 27, 2012, during the hearing before the

trial court, Matthys did not claim he had been denied due process up to that point.

Rather, he informed the trial court that it would be hearing the issue of his termination

from the Re-Entry Program in addition to the issue of his sentencing. No one questioned

the propriety of this course of action, and the trial court recapitulated its agenda before

proceeding: “[W]hat we’re doing is allowing [the court] to make the decision as to

whether or not [Matthys] should be terminated from re-entry and then if so . . . . what we

do, does that sound right?” (Transcript pp. 1-2). The record indicates no disagreement

on this point. Based on the evidence before us, we cannot conclude that Matthys was

denied due process.

                                        II. Sentencing

       Next, Matthys contends that the trial court’s sentence was inappropriate. He

invokes Appellate Rule 7(B), which states:        “The [appellate] [c]ourt may revise a

sentence authorized by statute if, after due consideration of the trial court’s decision, the

[appellate] [c]ourt finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” We have further clarified that “[b]efore we

may revise a sentence, the defendant must ‘demonstrate that his sentence is inappropriate

in light of both the nature of his offenses and his character.’” Gil v. State, 988 N.E.2d

1231, 1237 (Ind. Ct. App. 2013) (quoting Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct.

App. 2008) (emphasis in original).



                                             7
        While Matthys notes the “technical” nature of his offenses, he offers nothing

regarding his character. Instead, he relies solely on the trial court’s conclusion that

“termination is not an appropriate sanction for the two rule violations that have been

shown.” (Appellant’s App. p. 43). Matthys submitted the following sentencing proposal

for the trial court’s consideration: “[T]he fairest solution would be to modify [Matthys’]

sentence to Community Corrections at a level to be determined by them for a time period

that would finish up at about the same time [Matthys] would have graduated from the Re-

Entry Program had he not been prematurely rejected.” (Appellee’s App. p. 10). The trial

court, however, rejected this proposal and instead sentenced him to the DOC for the

remainder of his sentence.           Matthys now attempts to characterize this rejection as

inappropriate, claiming that the trial court improperly sentenced him to the DOC “instead

of placing Matthys back into the Re-Entry Program.” (Appellant’s Br. p. 6).

        Far from being inappropriate, the trial court’s decision to remand Matthys to the

DOC was the only legitimate option available. Matthys had signed an agreement prior to

his placement in the Re-Entry Program. Section 3(j) of that agreement reads, in relevant

part: “[I]n the event of the defendant’s rejection from the . . . Re-Entry Program, the

defendant’s stayed sentence . . . shall be ordered served in the [DOC], without any

modification, appeal or post-conviction petition.” (Appellant’s App. p. 35).1


1
  In its Brief, the State appears to challenge the subsequent Order for Modification of Placement issued by
the trial court on October 9, 2012. However, this issue is not properly before us. Matthys’ Notice of
Appeal only appeals the “Order Entered on August 30, 2012.” (Appellant’s App. p. 47). The State did
not pursue its own appeal of the Order for Modification of Placement.

                                                     8
       Therefore, we conclude that the sentence was not inappropriate, as it was

compelled by the agreement that Matthys had signed on August 24, 2011, prior to his

admission to the Re-Entry Program.

                                      CONCLUSION

       Based on the foregoing, we conclude that Matthys was not deprived of due

process, nor did the trial court sentence him inappropriately.

       Affirmed.

MAY, J. concurs

VAIDIK, C.J. concurs in result




                                             9
