                                                                               FILED
                                                                          Nov 01 2017, 5:21 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                   Attorney General of Indiana
      Brooklyn, Indiana
                                                                Henry A. Flores, Jr.
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Trevor L. Morgan,                                         November 1, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                84A01-1703-CR-587
              v.                                                Appeal from the Vigo County
                                                                Superior Court
      State of Indiana,                                         The Honorable David R. Bolk,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                84D03-0907-FA-2258



      May, Judge.


[1]   Trevor L. Morgan appeals the revocation of his direct placement in community

      corrections. He alleges Indiana Code section 35-38-2.6-5 is unconstitutional

      and he was denied due process. We affirm and remand.




      Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017                   Page 1 of 12
                                Facts and Procedural History
[2]   In 2010, Morgan pled guilty to Class A felony dealing in methamphetamine 1

      and Class C felony neglect of a dependent. 2 He was sentenced to an aggregate

      term of twenty years, with ten years suspended to probation.


[3]   In February 2013, Morgan requested and was granted placement in a

      community transition program. However, he violated the terms and was

      ordered to serve two years of the suspended portion of his sentence “on the

      Work Release Program under supervision of Vigo County Community

      Corrections.” (App. Vol. 2 at 188.)


[4]   On January 4, 2017, the State filed a petition to revoke Morgan’s placement in

      the work release program. The State alleged he had committed nine violations

      of the program rules, including being in an unauthorized area, refusing an

      order, working outside an approved area, and escaping the facility. The trial

      court conducted a hearing on the allegations. At the hearing, Case Manager

      Bradley Burton testified regarding the violations Morgan allegedly committed.

      Morgan’s attorney cross-examined Burton. Morgan testified and admitted

      some of the allegations and provided excuses for others. The trial court found

      Morgan committed the violations and revoked his placement in the program.




      1
          Ind. Code § 35-48-4-1.1 (2006).
      2
          Ind. Code § 35-46-1-4 (2007).


      Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017   Page 2 of 12
      The trial court ordered Morgan to serve the remainder of his suspended

      sentence in the Department of Correction (“DOC”).



                                 Discussion and Decision
[5]   Morgan asserts amended Indiana Code section 35-38-2.6-5 (2015), which

      controls the community corrections program, is unconstitutional because it

      impermissibly delegates judicial authority to a member of the executive branch,

      i.e. the community corrections director, and because it permits revocation of

      community corrections placements without an “evidentiary hearing before a

      neutral and detached magistrate.” (Appellant’s Br. at 8.) Although Morgan did

      not raise these concerns before the trial court, he asserts they amount to

      fundamental error as “a blatant violation of due process.” (Id. at 9.) Morgan

      asserts the statute is facially unconstitutional or, at the very least,

      unconstitutional as applied to him because his hearing “fail[ed] to comport with

      due process.” (Id.)


[6]   The State asserts Morgan has waived these challenges and, even if he had not,

      the statute is not unconstitutional. Failure to object at trial generally waives the

      issue for appeal, except in cases of fundamental error. Knapp v. State, 9 N.E.3d

      1274, 1281 (Ind. 2014), cert. denied. “Fundamental error is an error that makes

      a fair trial impossible or constitutes clearly blatant violations of basic and

      elementary principles of due process presenting an undeniable and substantial

      potential for harm.” Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh’g

      denied.

      Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017   Page 3 of 12
                      Improper Delegation of Judicial Authority
[7]   We review a constitutional challenge of a statute de novo. Morgan v. State, 22

      N.E.3d 570, 573 (Ind. 2014). “A challenge to the validity of a statute must

      overcome a presumption that the statute is constitutional.” Brown v. State, 868

      N.E.2d 464, 467 (Ind. 2007). “The burden to rebut this presumption is upon

      the challenger, and all reasonable doubts must be resolved in favor of the

      statute’s constitutionality.” State v. Lombardo, 738 N.E.2d 653, 655 (Ind. 2000).


[8]   Article 3, section 1 of the Indiana Constitution divides the powers of the

      government into three departments: “the Legislative, the Executive including

      the Administrative, and the Judicial.” It further provides none of the branches

      “shall exercise any of the functions of another, except as in this Constitution

      expressly provided.” Id.


[9]   Indiana Code section 35-38-2.6-5 (2015) states:


              If a person who is placed under this chapter violates the terms of
              the placement, the community corrections director may do any
              of the following:


                       (1) Change the terms of the placement.


                       (2) Continue the placement.


                       (3) Reassign a person assigned to a specific community
                       corrections program to a different community corrections
                       program.



      Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017   Page 4 of 12
                        (4) Request that the court revoke the placement and
                        commit the person to the county jail or department of
                        correction for the remainder of the persons sentence.


               The community corrections director shall notify the court if the
               director changes the terms of the placement, continues the
               placement, or reassigns the person to a different program.


[10]   Morgan asserts that statute is facially unconstitutional as it “improperly

       delegates the judicial branch’s duty to tailor appropriate sentences to the

       executive branch.” (Appellant’s Br. at 13) (formatting revised). He claims the

       amendment allows the community corrections director the sole ability to


               engage in factfinding to determine whether a violation has
               occurred and, if so, whether the terms of the placement should be
               continued or changed, whether a defendant should be reassigned
               to a different and likely more restrictive community corrections
               program, or whether revocation should be recommended based
               on a finding of violation[.]


       (Id.) He is not wrong, but none of those allowances infringe on the powers of

       the judiciary.


[11]   To decide whether a governmental branch’s powers have been delegated

       elsewhere, we first determine if the statute “has the effect of a coercive influence

       on the perceived usurped branch of government.” A.B. v. State, 949 N.E.2d

       1204, 1212 (Ind. 2011), reh’g denied. Such influence is prohibited by Article 3,

       section 1 of the Indiana Constitution, id., which specifically prohibits one

       governmental branch from exercising the powers of the others. Ind. Const. Art.


       Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017   Page 5 of 12
       3, sec. 1. “[T]he Judiciary possesses the authority to ‘fix the penalty of and

       sentence a person convicted of an offense’ [and i]t is well-settled under the

       doctrine of separation of powers that the Legislature cannot interfere with the

       discharge of judicial duties[.]” Lemmon v. Harris, 949 N.E.2d 803, 814 (Ind.

       2011) (citing Ind. Code § 35-50-1-1 (2008)).


[12]   The statute in question here does not act as a coercive influence on the

       judiciary’s ability to discharge its duties. The trial court sentenced Morgan to

       twenty years with ten years suspended. The trial court allowed Morgan to be

       placed on probation in 2013 but he violated the rules of that program. After

       hearing evidence and finding Morgan committed those violations, the court

       ordered Morgan to serve two years of his suspended sentence “on the Work

       Release Program under supervision of Vigo County Community Corrections.”

       (App. Vol. 2 at 188.)


[13]   With the statute at issue, the community corrections director is given the ability

       to manage the community corrections program but not to revoke placement or

       resentence participants. Although the community corrections director can

       recommend revocation of placement, it remains the trial court’s duty to

       determine whether revocation will be ordered. See Madden v. State, 25 N.E.3d

       791, 795 (Ind. Ct. App. 2015) (trial courts set the terms of community

       corrections but the program has authority to supervise those terms), trans.

       denied. The community corrections director did not increase the trial court’s

       overall sentence of twenty years, nor did the director alter the two years

       Morgan was sentenced to serve on work release. After finding nine violations

       Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017   Page 6 of 12
       over four months, the community corrections director, via the deputy

       prosecutor, requested the trial court revoke Morgan’s placement in the

       program. The trial court then held an evidentiary hearing. After hearing

       evidence, the trial court determined revocation was proper and ordered Morgan

       to serve the remaining portion of his suspended sentence in the DOC. Morgan

       has not demonstrated an improper delegation of the judiciary’s duty to sentence

       convicted persons. 3


[14]   Administrative measures were taken to determine whether Morgan had

       violated the program’s rules. Multiple administrative hearings were held to

       determine these violations. Morgan did not present objections to the outcome

       of those hearings to the trial court. 4 At the revocation hearing, Morgan

       admitted the violation regarding the day he did not report for work. (See Tr. at

       18 (“I’ll take credit for that” when asked about the day he “never reported to

       work”).) Morgan’s original sentence is still in place. The community

       corrections director did nothing to infringe on the judiciary’s ability to craft an

       appropriate sentence. See Madden, 25 N.E.3d at 795 (it is not improper




       3
         To the extent the community corrections director deprived Morgan of earned credit time, that is beyond his
       authority. See Shepard v. State, 84S01-1704-CR-190, slip op. at 5 (Ind. Oct. 20, 2017) (“only the D.O.C. is
       empowered to deprive an offender directly placed into a community corrections program of earned credit
       time”). It is unclear from the record whether the trial court found the community corrections director’s
       deprivation of earned credit time was valid; however, as the community corrections director exceeded his
       authority, we remand for the trial court to reinstate any earned credit time the director of community
       corrections may have removed from Morgan.
       4
           We find nothing in the record to indicate Morgan ever objected formally to the administrative measures.


       Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017                        Page 7 of 12
       delegation of sentencing power to allow “Community Corrections programs to

       supervise various aspects of probation”).


                                                 Due Process
[15]   When reviewing a community corrections revocation, the standard of review is

       the same as the standard of review for a hearing on a probation revocation. Cox

       v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied. A probation revocation

       proceeding is civil in nature and a probationer is not entitled to all of the rights

       afforded to a criminal defendant. McCauley v. State, 22 N.E.3d 743, 748 (Ind.

       Ct. App. 2014), reh’g denied, trans. denied. The due process requirements for

       probation revocation hearings are more flexible than in a criminal prosecution.

       Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007), reh’g denied. This flexibility

       allows courts to enforce lawful orders, address an offender’s personal

       circumstances, and protect public safety. Id. Therefore, we review such

       revocation decisions under an abuse of discretion standard. Prewitt v. State, 878

       N.E.2d at 184, 188 (Ind. 2007). A decision is an abuse of discretion when it “is

       clearly against the logic and effect of the facts and circumstances.” Id.


                                          Facial Unconstitutionality

[16]   Morgan asserts the 2015 amendment of Indiana Code section 35-38-2.6-5

       removed the requirement for a hearing before a community corrections

       placement can be revoked, which violates the principles of due process and is

       facially unconstitutional. Prior to the amendment, the statute read:




       Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017   Page 8 of 12
               If a person who is placed under this chapter violates the terms of
               the placement, the court may, after a hearing, do any of the
               following:


                        (1) Change the terms of the placement.


                        (2) Continue the placement.


                        (3) Revoke the placement and commit the person to the
                        department of correction for the remainder of the person’s
                        sentence.


       Ind. Code § 35-38-2.6-5 (1991).


[17]   Now it reads:


               If a person who is placed under this chapter violates the terms of
               the placement, the community corrections director may do any
               of the following:


                        (1) Change the terms of the placement.


                        (2) Continue the placement.


                        (3) Reassign a person assigned to a specific community
                        corrections program to a different community corrections
                        program.


                        (4) Request that the court revoke the placement and
                        commit the person to the county jail or department of
                        correction for the remainder of the persons sentence.




       Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017   Page 9 of 12
               The community corrections director shall notify the court if the
               director changes the terms of the placement, continues the
               placement, or reassigns the person to a different program.


       Ind. Code § 35-38-2.6-5 (2015).


[18]   To the extent Ind. Code section 35-38-2.6-5 was amended and the explicit

       requirement for a hearing was not included in the amended statute, the

       community corrections director is still required to request the court revoke the

       placement. As community corrections revocations are analogous to probation

       revocations, see Cox, 706 N.E.2d at 549, when a petition for revocation is filed,

       “the court shall conduct a hearing concerning the alleged violation.” Ind. Code

       § 35-38-2-3(d) (2015). Such a hearing requires the evidence be presented in

       open court where the person in the program is “entitled to confrontation, cross-

       examination, and representation by counsel.” Ind. Code § 35-38-2-3(f) (2015);

       see also Isaac v. State, 605 N.E.2d 144, 148 (Ind. 1992) (due process is satisfied if,

       during a revocation hearing, the defendant is given “written notice of the

       claimed violations, disclosure of the evidence against him, an opportunity to be

       heard and present evidence, the right to confront and cross-examine adverse

       witnesses, and a neutral and detached hearing body”), cert. denied. Thus,

       pursuant to other statutes and caselaw, a hearing is still required even though

       this particular statute does not contain that requirement.


                                      As-Applied Unconstitutionality

[19]   In the alternative, Morgan asserts the statute is unconstitutional as-applied to

       him. He claims the hearing he was afforded did not comport to due process

       Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017   Page 10 of 12
       requirements because “the court deferred to an administrative decision that had

       already been made by the community corrections program director.”

       (Appellant’s Br. at 20.) Morgan analogizes his hearing to that in Million v. State,

       646 N.E.2d 998 (Ind. Ct. App. 1995), but that case is distinguishable.


[20]   In Million, the trial court “determined that Million was entitled to a hearing

       under the statute but that an administrative hearing before community

       corrections program personnel would be sufficient, subject to judicial review.”

       646 N.E.2d at 1002. The trial court held a hearing but merely “accepted [the

       community corrections director’s] recommendation that Million’s placement in

       the community corrections program be revoked.” Id. at 999. Throughout that

       hearing, the State and the trial judge “agreed[] that the purpose of the

       proceeding was for the court to determine whether an administrative hearing

       was properly conducted.” Id. at 1003. Additionally, Million was notified only

       orally of his violations, rather than given written notice. Id. at 1003 n.2. We

       held the hearing in Million amounted to nothing more than judicial review of

       the administrative hearing and deprived Million of due process as “he did not

       receive a neutral hearing before the trial court.” Id. at 1003.


[21]   At Morgan’s hearing, the trial court gave Morgan written notice of his

       violations, the State presented evidence against him, he cross-examined the

       State’s witness, and he presented his own evidence before a neutral body.

       Neither the State nor the trial court advanced the idea the hearing was merely a

       judicial review of the administrative process. During his own testimony,

       Morgan admitted to one of the violations and acknowledged he had pled guilty

       Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017   Page 11 of 12
       to others. Morgan was not denied due process. See Isaac, 605 N.E.2d at 148

       (due process is satisfied if, during a revocation hearing, the defendant is given

       “written notice of the claimed violations, disclosure of the evidence against

       him, an opportunity to be heard and present evidence, the right to confront and

       cross-examine adverse witnesses, and a neutral and detached hearing body”),

       cert. denied; see also Madden, 25 N.E.3d at 797 (any argument regarding due

       process denial based on alleged lack of hearing is negated by the fact a hearing

       was in fact provided).



                                                Conclusion
[22]   Indiana Code section 35-38-2.6-5 does not impermissibly delegate judicial

       power to the executive branch. To the extent that the amended code section

       does not explicitly require a hearing, one is nevertheless required by other

       statutes and caselaw. Morgan was given a hearing which comported with the

       principles of due process. Therefore, we affirm and remand for determination

       of any credit time due to Morgan.


[23]   Affirmed and remanded.


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




       Court of Appeals of Indiana | Opinion 84A01-1703-CR-587 | November 1, 2017   Page 12 of 12
