MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Jun 17 2016, 10:29 am
regarded as precedent or cited before any
court except for the purpose of establishing                         CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel K. Whitehead                                      Gregory F. Zoeller
Yorktown, Indiana                                        Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jayme Michelle Dollens,                                  June 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A04-1510-CR-1707
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark K. Dudley,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         48C06-1408-FB-1432



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016     Page 1 of 6
[1]   Jayme Dollens appeals the trial court’s order imposing her previously-stayed

      sentence after she was terminated from the Madison County Drug Court

      Program (Drug Court). Dollens argues that she was denied the right to select

      her attorney of choice and that her guilty plea was involuntary. Finding no

      error, we affirm.


                                                     Facts
[2]   On October 7, 2014, Dollens pleaded guilty to three counts of class B felony

      dealing in a narcotic and one count of Level 5 felony dealing in a narcotic. She

      also admitted to being an habitual offender. Dollens agreed that she would be

      sentenced to an aggregate term of twenty years imprisonment but that the

      sentence would be stayed to allow her to participate in Drug Court. If Dollens

      successfully completed Drug Court, her sentence would have been stayed

      permanently. Among the Drug Court conditions is the following:


              the State specifically reserves the right to unilaterally rescind,
              revoke and withdraw from this agreement in the event the
              Participant commits, or is charged with, another criminal
              offense, or in the event the Drug Court Judge determines that the
              Participant has committed a violation of a term or condition of
              bond while Participant is a drug court participant.


      Appellant’s App. p. 75


[3]   The trial court entered the sentencing order on November 10, 2014. Two days

      later, Hamilton County filed a new criminal case. Dollens began participating

      in Drug Court on November 18, 2014. On February 5, 2015, Hamilton County


      Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016   Page 2 of 6
      filed a second criminal case against Dollens. Drug Court stayed its supervision

      of Dollens on March 5, 2015, so that she could deal with the new criminal

      charges. Hamilton County placed Dollens on probation in one of the cases on

      April 6, 2015. At that time, Drug Court stayed Dollens’s active participation in

      its program and transferred supervision of Dollens to the Hamilton County

      Probation Department.1 On May 18 and June 16, 2015, Dollens provided urine

      screens that were positive for benzodiazepines and suboxone.2


[4]   On August 25, 2015, a Drug Court case manager filed a notice of termination

      request, alleging that Dollens had violated the terms of Drug Court by engaging

      in criminal behavior, violating her probation in one of the Hamilton County

      cases, and producing the two positive urine screens. The trial court continued

      the appointment of the public defender who had represented Dollens during her

      trial. Counsel appeared with Dollens at the September 1, 2015, hearing, at

      which time the trial court scheduled an evidentiary hearing for September 22,

      2015.


[5]   At the hearing on September 22, 2015, Dollens informed the court that she

      wished to hire a private attorney and requested a continuance of “[m]aybe a

      couple weeks, a month or something” to retain counsel. Tr. 23-24. This was



      1
       At the hearing, a Drug Court employee explained that this occurred because they did not want Dollens to
      have to be supervised simultaneously by two different counties. The requirements of Hamilton County
      would be substantially similar to the requirements of Drug Court, including regular urine screens and
      substance abuse treatment. As a result, Drug Court determined that the best course would be for Dollens to
      be supervised by Hamilton County while she was on probation. Tr. p. 43-45.
      2
          She later admitted that she did not have prescriptions for these substances.


      Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016            Page 3 of 6
      the first time Dollens had indicated (to either the trial court or her public

      defender) that she wished to hire private counsel. The trial court denied the

      motion for a continuance, noting that Dollens had been given ample

      opportunity in the preceding weeks to hire counsel. At the hearing, Dollens

      admitted that she had used illicit drugs and provided two positive drug screens

      during her probation in Hamilton County. The trial court found that Dollens

      had violated the conditions of Drug Court and imposed the balance of the

      previously-stayed twenty-year sentence. Dollens now appeals.


                                   Discussion and Decision
                                  I. Denial of Continuance
[6]   First, Dollens argues that the trial court’s denial of her request for a continuance

      constituted a denial of the right to counsel of her choice guaranteed by the Sixth

      Amendment to the United States Constitution. The determination of whether

      to grant a defendant’s request for a continuance for the purpose of hiring

      counsel immediately before trial is a matter within the sound discretion of the

      trial court. Gilliam v. State, 650 N.E.2d 45, 50 (Ind. Ct. App. 1995). We note

      that Dollens did not raise a constitutional argument to the trial court and has,

      therefore, waived the argument on appeal.


[7]   Waiver notwithstanding, we note that in this case, Dollens knew at the time of

      the September 1, 2015, initial hearing that she would be represented by the

      same public defender who had represented her during trial. She also knew that

      there was an evidentiary hearing scheduled for September 22. But at no point

      Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016   Page 4 of 6
      during the intervening three weeks did she mention to the public defender or the

      trial court that she wished to retain private counsel, nor did she make any actual

      attempts to reach out to and retain an attorney. Instead, the morning of the

      hearing, she made the request for the first time. Under these circumstances, we

      cannot say that the trial court erred—or violated her constitutional rights—by

      denying her request for a continuance.3 See Lewis v. State, 730 N.E.2d 686, 689

      (Ind. 2000) (holding that the right to counsel of choice must be exercised at “the

      appropriate stage of the proceedings” and emphasizing that “it is within a trial

      court’s discretion to deny a last-minute continuance to hire new counsel”).


                                             II. Guilty Plea
[8]   Dollens also contends that the State breached the plea agreement, resulting in

      an involuntary plea. Essentially, she argues that because the Drug Court stayed

      its supervision of her while she was under the supervision of Hamilton County

      probation, she did not have the opportunity to participate in Drug Court

      afforded to her by the plea agreement. Initially, we note that a criminal

      defendant may not challenge the validity of a guilty plea on direct appeal;

      instead, she must file a petition for post-conviction relief to address the issue.

      M.Y. v. State, 681 N.E.2d 1178, 1179 (Ind. Ct. App. 1997). Moreover, Dollens

      made absolutely no argument to the trial court regarding her guilty plea—she did




      3
       As an aside, we note that Dollens was represented vigorously and ably by the public defender, who made
      an admirably compelling argument in a case in which the primary evidence was his client’s own admissions
      of illicit drug use. In no way can she complain about the representation she received at this hearing.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016           Page 5 of 6
       not move to withdraw the plea or raise any argument during or after the

       termination hearing regarding her guilty plea. We find, therefore, that even if

       she were entitled to raise this argument in this proceeding, she has waived it.


[9]    Waiver notwithstanding, we note that a Drug Court employee testified at the

       hearing that the reason it stayed its direct supervision of Dollens was so that she

       would not have to face double monitoring by two counties simultaneously. Tr.

       p. 43-45. If anything, this simplification of obligations and requirements to

       fulfill was designed to help Dollens succeed. And we note that it was Dollens’s

       own actions—of continued criminal behavior—that led to this consequence.

       Under these circumstances, we find no error with respect to Dollens’s guilty

       plea.


[10]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1510-CR-1707 | June 17, 2016   Page 6 of 6
