                                                                              FILED
                                                                        Feb 19 2020, 9:16 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                                          J.T. Whitehead
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jacob M. Breda,                                            February 19, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-2023
              v.                                                 Appeal from the Vigo Superior
                                                                 Court
      State of Indiana,                                          The Honorable Sarah K. Mullican,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 84D03-1701-F2-192



      Mathias, Judge.


[1]   Jacob M. Breda (“Breda”) appeals the order of the Vigo Superior Court

      revoking his placement in a community corrections work release program and

      requiring him to serve the balance of his suspended sentence in the custody of

      the Department of Correction (“DOC”). Breda claims that Indiana Code

      section 35-38-2.6-5, which sets forth the options available when a defendant
      Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020                      Page 1 of 10
      violates the terms of a community corrections program, violates the

      constitutional doctrine of the separation of powers. We conclude that Breda has

      waived this argument by failing to present it to the trial court. Waiver

      notwithstanding, this court has already determined that section 35-38-2.6-5 does

      not violate the separation of powers. We therefore affirm.


                                  Facts and Procedural History
[2]   On January 19, 2017, the State charged Breda with Level 2 felony burglary,

      Level 5 felony battery by means of a deadly weapon, Level 5 felony

      intimidation, and Level 5 felony criminal recklessness. On October 23, 2017,

      Breda signed a plea agreement whereby he agreed to plead guilty to Level 2

      felony burglary, and the State agreed to dismiss the remaining charges and

      recommend an executed sentence of fifteen years. Breda also agreed to

      cooperate in the prosecution of his co-defendant. The plea agreement further

      provided that, if Breda successfully completed a purposeful incarceration

      program while in prison, he could petition the court to modify his sentence so

      that he could serve the balance of his executed sentence on work release or

      home detention through community corrections.


[3]   On December 4, 2018, Breda filed a motion to modify his sentence to

      placement in community corrections, stating that he had completed a program

      that was the equivalent of a purposeful incarceration program. On February 25,

      2019, the trial court, by agreement of the parties, modified Breda’s sentence so

      that he was “placed in the Work Release Program as a Direct Commitment for

      the balance of the executed portion of the sentence.” Appellant’s App. p. 107.
      Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020      Page 2 of 10
      On April 2, 2019, Breda was given a pass to look for employment, but he never

      returned to the work release facility as scheduled. He was also in arrears in the

      amount of $195 in work release fees. Accordingly, on April 5, 2019, the State

      filed a petition to revoke Breda’s direct placement in the work release program.

      The trial court issued a warrant for Breda’s arrest, and he was apprehended on

      April 11, 2019.


[4]   On June 27, 2019, Breda signed a “Notice of Direct Commitment Violation and

      Admission Offer and Acceptance,” in which he admitted that he had failed to

      return to the work release facility in violation of the rules. Id. at 121. Pursuant

      to this agreement, the parties agreed that Breda’s direct commitment would be

      revoked and that he would execute the balance of his sentence in the DOC. The

      agreement also provided that Breda could again seek modification of his

      sentence on or after January 1, 2023, if he completed stages one through five of

      the DOC’s “Recovery While Incarcerated” drug treatment program. Id.

      However, at a hearing held later that day, Breda admitted that he had signed

      this agreement but stated that he did not wish to admit to the violations. The

      trial court therefore set the revocation petition for an evidentiary hearing.


[5]   The trial court held an evidentiary hearing on the revocation petition on August

      1, 2019. At this hearing, the State presented evidence that Breda had left the

      work release facility on April 2, 2019, and never returned. Breda testified that

      he failed to return to the facility because he was using drugs. He also admitted

      that his failure to return and use of drugs were violations of the terms of his



      Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020      Page 3 of 10
      placement. At the conclusion of the hearing, the trial court stated from the

      bench:


              Well, in this case the Court accepted the Plea Agreement back in
              Two Thousand Seventeen (2017), which is fifteen (15) years
              executed and you were sent to the [DOC] and I, I know you
              cooperated, you testified twice. The Court had the benefit of
              being present for both trials and hearing all the facts, and this
              case was very serious. There were two (2) people who were shot
              um, and never recovered. Um, and then the State agreed to
              modify, which I didn’t quite understand and wasn’t particularly
              in favor of, but I deferred to them um, to give you time on work
              release and that clearly did not work out Mr. Breda. And I know
              from the trial that you suffered – you’re addicted, and that was
              quite clear from the testimony presented. So I don’t think the
              Court has any um, choice but to execute the fifteen (15) years,
              because that was the Plea Agreement I accepted um, and he’s
              violated that. So I’m gonna revoke the [placement].


      Tr. p 23. The trial court then entered an order requiring Breda to serve the

      balance of his sentence in the DOC, with credit for 1,538 days served. Breda

      now appeals.


                                                      I. Waiver

[6]   The State argues that Breda failed to preserve his claim regarding the

      constitutionality of the statute by not presenting this argument to the trial court.

      Generally, “failure to challenge the constitutionality of a statute at trial results

      in waiver of review on appeal.” Plank v. Cmty. Hosps. of Indiana, Inc., 981 N.E.2d

      49, 53 (Ind. 2013). Indeed, “[a]ppellate review presupposes that a litigant’s

      arguments have been raised and considered in the trial court.” Id. Here, Breda


      Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020       Page 4 of 10
      did not challenge the constitutionality of the statute before the trial court. His

      constitutional challenge is therefore waived. See id.


[7]   Nevertheless, Indiana appellate courts have long exercised the discretion to

      address the merits of a constitutional claim notwithstanding wavier. Id.

      “[A]ppellate courts are not prohibited from considering the constitutionality of

      a statute even though the issue otherwise has been waived. And indeed a

      reviewing court may exercise its discretion to review a constitutional claim on

      its own accord.” Id. at 53–54. We therefore opt to address Breda’s

      constitutional claim on its merits.


                                         II. Constitutional Challenge

[8]   Breda claims that Indiana Code section 35-38-2.6-5 violates the separation of

      powers provisions of the Indiana Constitution.


              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 [that] none of the branches “shall
              exercise any of the functions of another, except as in this
              Constitution expressly provided.”


      Morgan v. State, 87 N.E.3d 506, 509 (Ind. Ct. App. 2017), trans. denied.


[9]   Statutes are presumed to be constitutional, and the party challenging the

      constitutionality of a statute bears the burden of proving otherwise. Lock v. State,

      971 N.E.2d 71, 74 (Ind. 2012). All reasonable doubts and constructions as to

      the statute’s validity are resolved in favor of constitutionality. Id. Accordingly,

      Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020       Page 5 of 10
       “‘[i]f there are two reasonable interpretations of a statute, one of which is

       constitutional and the other not, we will choose that path which permits

       upholding the statute because we will not presume that the legislature violated

       the constitution unless such is required by the unambiguous language of the

       statute.’” Hazelwood v. State, 3 N.E.3d 39, 42 (Ind. Ct. App. 2014) (quoting

       Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996)).


[10]   A trial court may, at the time of sentencing, “suspend the sentence and order a

       person to be placed in a community corrections program as an alternative to

       commitment to the department of correction.” Ind. Code § 35-38-2.6-3(a). “The

       court may impose reasonable terms on the placement or require the director of

       the community corrections program to impose reasonable terms on the

       placement.” Id.


[11]   What happens when a defendant who is placed in a community corrections

       program violates the terms of this placement is controlled by Indiana Code

       section 35-38-2.6-5, which, as amended in 2015, provides:


               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 19A-CR-2023 | February 19, 2020        Page 6 of 10
                    (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 person’s 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.


       I.C. § 35-38-2.6-5 (2015) (emphases added).


[12]   Prior to the 2015 amendment of this statute, it provided:


               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) (emphasis added).


[13]   Thus, prior to the 2015 amendment, when a defendant violated the terms of his

       or her direct placement in a community corrections program, the trial court had

       authority to change the terms of the placement, continue the placement, or

       revoke the placement. However, under the current version of the statute, if a

       defendant violates the terms of his or her placement, the community corrections

       director has the authority to change the terms of the placement, continue the



       Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020        Page 7 of 10
       placement, reassign the defendant to a different community corrections

       program, or request that the trial court revoke the placement.


[14]   Breda claims that this change in the statute “interferes with the discharge of the

       [trial] court’s duties because it eliminates any discretion the court had in

       determining the appropriate sanction” and that the statute is therefore facially

       unconstitutional. Appellant’s Br. at 9. Breda also argues that, even if the statute

       is facially constitutional, it is unconstitutional as applied to him because the

       trial court here indicated that it had no choice but to revoke his placement and

       order him to serve the remainder of his sentence in the DOC. Tr. p. 23. He

       argues that, if the trial court had the discretion it had under the prior statute, it

       might have ordered him to serve only a portion of his remaining sentence in the

       DOC.


[15]   We addressed a similar argument in Morgan, supra. In that case, the defendant

       was eventually ordered to serve two years of his sentence on work release under

       the supervision of the county community corrections department. 87 N.E.3d at

       508. Morgan subsequently violated several of the terms of his placement in

       community corrections, including escaping the facility. Id. The State filed a

       petition to revoke Morgan’s placement, and at the revocation hearing, Morgan

       admitted to some of the allegations and provided excuses for the others. Id. The

       trial court revoked Morgan’s placement and ordered him to serve the balance of

       his sentence in the DOC. Id.




       Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020        Page 8 of 10
[16]   On appeal, Morgan claimed that Indiana Code section 35-38-2.6-5, as amended

       in 2015, was unconstitutional because it “impermissibly delegates judicial

       authority to a member of the executive branch, i.e., the community corrections

       director[.]”1 Id. The Morgan court rejected this argument, concluding:


               The statute in question here does not act as a coercive
               influence on the judiciary’s ability to discharge its duties. . . .
               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 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.


       Morgan, 87 N.E.3d at 509–10 (emphasis added) (footnote omitted).




       1
         Morgan also claimed that the statute was unconstitutional because it permitted revocation of placement in
       community corrections without an evidentiary hearing before a neutral magistrate. Id. Breda makes no
       similar argument.

       Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020                           Page 9 of 10
[17]   Breda fails to cite Morgan, much less attempt to distinguish Morgan from the

       present case.2 We therefore conclude, as we previously held in Morgan, that the

       current version of Indiana Code section 35-38-2.6-5 is not unconstitutional. The

       trial court still maintains the authority to sentence a defendant, including

       placement in a community corrections program. Once a defendant is in a

       community corrections program, the community corrections director can

       change the terms of the placement and reassign a defendant to a specific

       program, but only the trial court may, at the request of the director, revoke a

       defendant’s placement and order the defendant to execute the remaining

       portion of the defendant’s sentence. Thus, the statute does not constitute a

       violation of the separation of powers, either facially or as applied to Breda.


                                                      Conclusion
[18]   Because Indiana Code section 35-38-2.6-5 does not violate the constitutional

       separation of powers, we affirm the judgment of the trial court.


[19]   Affirmed.


       Kirsch, J., and Bailey, J., concur.




       2
           We note that Breda’s appellate counsel is the same as the appellant’s counsel in Morgan.


       Court of Appeals of Indiana | Opinion 19A-CR-2023 | February 19, 2020                          Page 10 of 10
