MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Sep 07 2018, 10:05 am

regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tanner Cripe,                                            September 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-452
        v.                                               Appeal from the Noble Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael J. Kramer,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         57C01-1612-F5-85



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018                  Page 1 of 15
[1]   Tanner Cripe appeals his termination from the Noble County Drug Court

      Program and his sentence for Level 5 Felony Burglary1 and Level 6 Felony

      Theft.2 He argues that the drug court erred by denying him due process during

      his termination hearing and by not considering certain mitigating factors during

      sentencing, and that his sentence is inappropriate in light of the nature of the

      offenses and his character. Finding no error, and that his sentence is not

      inappropriate, we affirm.


                                                     Facts
[2]   On July 16, 2016, a private home security camera recorded Cripe walking from

      his garage to a neighboring structure in Kendallville owned by Thomas Taner.

      Cripe entered the structure through an unlocked door and took several items,

      including a drill, drill bits, flashlight, GPS unit, gloves, and a ratchet set. He

      then returned to his own garage. The same camera later recorded him leaving

      his home for work.


[3]   Later that day, Kendallville police officers stopped Cripe. They searched his

      home, finding several items taken from Taner’s property. The police also found

      items that belonged to other people that had been reported stolen in earlier theft

      cases, including a purse that contained a paycheck payable to Cayla Blackshire

      and Blackshire’s driver’s license, and a wallet that contained a driver’s license




      1
          Ind. Code § 35-43-2-1.
      2
          I.C. § 35-43-4-2(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 2 of 15
      belonging to Brent Wagner. Both Blackshire and Wagner had reported these

      items stolen from their vehicles earlier in the day.


[4]   On July 18, 2016, the State charged Cripe with Level 6 felony theft for stealing

      Blackshire’s and Wagner’s property. On July 21, 2016, the State charged Cripe

      under a separate cause number with Level 5 felony burglary for entering

      Taner’s property and stealing tools. The causes were consolidated on

      September 22, 2016.


[5]   On November 2, 2016, Cripe was referred to the Noble County problem solving

      court, and on November 30, 2016, he was accepted into the program. On

      December 7, 2016, Cripe entered into a Problem Solving Court Participation

      Agreement with the State. In this agreement, Cripe agreed to participate in the

      drug court’s programs, and in exchange for his successful completion of the

      programs, the State would dismiss all charges. The agreement required Cripe to

      attend and successfully complete all assigned education, treatment,

      intervention, and service programs; to truthfully answer all reasonable questions

      asked by the problem solving court team members; to not consume any alcohol;

      and to not be arrested, charged, cited, or convicted of any violation of the law.

      The agreement’s special conditions also required Cripe to complete an intensive

      outpatient program as directed by the court; to attend four support group

      meetings per week in the first phase of the program and as directed by the court

      thereafter; and to reside at a halfway facility until further order of the court.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 3 of 15
[6]   Also on December 7, 2016, Cripe pleaded guilty to the charges and entered the

      problem solving drug court program. Cripe then violated the terms of his

      participation agreement five times:


            • On February 1, 2017, the drug court found that Cripe violated a no
              contact order. The drug court advised Cripe that violating a no contact
              order could be a criminal offense that could end his participation in drug
              court and lead to jail. The trial court ordered Cripe to attend “Courage
              to Change” classes through probation.
            • On March 22, 2017, the drug court found that Cripe again contacted the
              individual he was not allowed to contact and sentenced him to eight days
              in jail.
            • On May 10, 2017, the drug court found that Cripe tested positive for
              alcohol. The drug court increased the frequency of Cripe’s drug and
              alcohol screens and ordered him to attend a meeting3 every day for the
              next ninety days.
            • On June 7, 2017, the drug court found that Cripe missed a meeting.
              Cripe stated that he missed it because he did not write it down in his
              book. The drug court increased Cripe’s meeting requirement to a
              meeting every day for 100 days and ordered him to reside at Pilot House,
              a men’s shelter. On June 28, 2017, the drug court learned that Cripe had
              been dishonest about why he had missed the meeting and sentenced him
              to fourteen days in jail.
            • On September 20, 2017, the drug court found that Cripe again violated
              his agreement4 and sentenced him to forty days in jail, followed by six
              months of home detention.




      3
          The record does not specify what kind of meeting Cripe was required to attend.
      4
        The record does not reveal exactly how Cripe violated his participation agreement. The trial court stated
      that “you’ve been sanctioned multiple times for this same thing and you just keep going back to it.” Tr. Vol.
      II p. 152.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018                 Page 4 of 15
[7]   On November 21, 2017, the probation department filed a drug court violation

      report stating that Cripe was going to be evicted from Pilot House that day;5 the

      report recommended a hearing to determine whether Cripe had violated the

      terms of his participation agreement and whether it should be modified or

      revoked. A hearing took place on November 22, 2017, during which the drug

      court told Cripe that the drug court team would be meeting to discuss whether

      he should be terminated from the program. The drug court also told Cripe that

      someone involved with the program would talk with him about the process.

      The drug court asked Cripe whether he had any questions, to which Cripe

      replied, “No sir, thank you.” Tr. Vol. II p. 174.


[8]   The termination hearing took place on November 29, 2017, during which the

      following exchange occurred:


                 Court: The Drug Court team has decided that you be terminated
                 from Drug Court. Do you want an attorney to represent you?


                 Cripe: Um, at this point let’s just move forward to sentencing it
                 would be wasting the Court’s time to ask for an attorney I’ve
                 already pled guilty in this case.


                 Court: You just want to represent yourself and admit that you
                 violated.




      5
          The record does not reveal the reason for Cripe’s eviction.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 5 of 15
               Cripe: Yeah.


       Id. at 177. The drug court terminated Cripe’s participation with the drug court

       program, ordered a pre-sentence investigation report, scheduled a sentencing

       hearing, and told Cripe that a probation officer would talk with him about the

       pre-sentence investigation report. The drug court then asked Cripe whether he

       had any questions, and Cripe responded, “not at this time.” Id. at 178.


[9]    On December 7, 2017, Cripe requested an attorney, and one was appointed for

       him. On January 24, 2018, the sentencing hearing took place. During the

       hearing, the trial court found Cripe’s involvement with the drug court program

       to be a mitigating factor; in its sentencing order, it found potential hardship

       suffered by Cripe and/or Cripe’s dependents by his imprisonment to be another

       mitigating factor. The trial court found that Cripe’s lengthy criminal history,

       which includes previous convictions for burglary and theft, to be an aggravating

       factor. The trial court then sentenced Cripe to concurrent terms of six years for

       burglary and two and one-half years for theft, with two years executed, three

       years in community corrections, and one year on probation. Cripe now

       appeals.


                                    Discussion and Decision
                                             I. Due Process
[10]   Cripe argues that he did not receive minimum due process during the hearing

       that resulted in the termination of his participation in the drug court program.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 6 of 15
       Specifically, he claims that he received inadequate notice of the alleged program

       violation for which he was terminated and was deprived of his right to counsel.


[11]   The drug court program is a forensic diversion program akin to community

       corrections, and we will review the termination of placement in a drug court

       program as we do a revocation of placement in community corrections. Withers

       v. State, 15 N.E.3d 660, 663 (Ind. Ct. App. 2014). Our Court has stated that:


               For purposes of appellate review, we treat a hearing on a petition
               to revoke a placement in a community corrections program the
               same as we do a hearing on a petition to revoke probation. The
               similarities between the two dictate this approach. Both
               probation and community corrections programs serve as
               alternatives to commitment to the [Department of Correction]
               and both are made at the sole discretion of the trial court. A
               defendant is not entitled to serve a sentence in either probation or
               a community corrections program. Rather, placement in either is
               a matter of grace and a conditional liberty that is a favor, not a
               right.


               While a community corrections placement revocation hearing
               has certain due process requirements, it is not to be equated with
               an adversarial criminal proceeding. Rather, it is a narrow
               inquiry, and its procedures are to be more flexible. This is
               necessary to permit the court to exercise its inherent power to
               enforce obedience to its lawful orders. . . .


       Id. at 663-64.


[12]   Indiana Code section 33-23-16-14.5 governs the termination of an individual’s

       participation in a problem solving court program. The statute provides:



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 7 of 15
               (c) The problem solving court judge or other hearing officer shall
               conduct a hearing concerning an alleged violation of a condition
               of a problem solving court program as follows:


                                                            ***


                        (3) The individual who is alleged to have committed the
                        violation is entitled to:


                                (A) receive written notice of the alleged violation;


                                (B) obtain the disclosure of evidence against the
                                individual;


                                (C) confront and cross-examine witnesses; and


                                (D) be represented by counsel.


       I.C. § 33-23-16-14.5.


[13]   Cripe first contends that he did not receive adequate written notice of the

       alleged violation that led to the termination of his participation in drug court.

       The drug court violation report filed by a probation officer stated that:


               On November 20, 2017, this Officer was advised that Mr. Cripe
               is going to be evicted from the Pilot House program on
               November 21, 2017.


       Appellant’s App. Vol. II p. 53.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 8 of 15
[14]   This notice was sufficient to apprise Cripe of the alleged violation—that he was

       going to be evicted from the Pilot House. Although Cripe contends that the

       report does not specify how an eviction could violate the terms of his

       participation agreement, one of the special conditions of his participation

       agreement was that he had to reside at a halfway facility until further order of

       the court; Cripe’s pending eviction was in violation of this condition. Cripe

       does not dispute that he was evicted, nor does he contend that he was evicted

       for a reason that should not have resulted in the drug court finding a violation

       of his participation agreement. Rather, he simply speculates that he could have

       been evicted for a reason that would not have resulted in a violation.


[15]   Moreover, at both the November 22 and 29 hearings, Cripe was given

       opportunities to ask questions; he did not ask any at either hearing. Cripe had

       appeared before the drug court multiple times during his time with the program

       and had asked questions during at least one previous hearing. Then, at the

       November 29 hearing, Cripe admitted to the violation. It is reasonable to infer

       that because Cripe asked no questions and admitted to the violation that he

       knew and understood his violation. We find, therefore, that Cripe did not

       receive inadequate notice of his alleged violation.


[16]   Cripe also contends that he was deprived of his right to counsel. At the

       November 22, 2017, hearing, the following exchange took place:


               Court: The Drug Court team has decided that you be terminated
               from Drug Court. Do you want an attorney to represent you?



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 9 of 15
               Cripe: Um, at this point let’s just move forward to sentencing it
               would be wasting the Court’s time to ask for an attorney I’ve
               already pled guilty in this case.


               Court: You just want to represent yourself and admit that you
               violated.


               Cripe: Yeah.


       Tr. Vol. II p. 177.


[17]   Cripe argues that this exchange does not show that his waiver of his right to

       counsel was knowing, voluntary, and intelligent. To support his assertion, he

       analyzes the Poynter factors that this Court considers when determining whether

       a waiver of counsel is knowing, voluntary, and intelligent. See Poynter v. State,

       749 N.E.2d 1122 (Ind. 2001). But the Poynter factors apply to waiver of counsel

       for a criminal defendant entitled to the Sixth Amendment right to counsel at

       trial. See Poynter, 749 N.E.2d at 1125-28. An individual participating in a

       problem solving drug court is not entitled to the full array of constitutional

       rights afforded to defendants at trial, including the Sixth Amendment right to

       counsel. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999) (discussing due process

       rights for a hearing on a petition to revoke placement in community

       corrections). Consequently, Cripe’s right to counsel is bestowed by statute

       rather than by constitution. A waiver of a statutory right requires less inquiry

       than a waiver of a constitutional right. This is because, for sentencing

       alternatives such as problem solving drug courts “to be viable options for

       Indiana judges, judges must have the ability to move with alacrity to protect

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 10 of 15
       public safety when adjudicated offenders violate the conditions of their

       sentences.” Id. at 550. In other words, “obstacles to revoking an alternative

       sentence may diminish the likelihood of [the alternative sentence] being made

       in the first place.” Id.


[18]   The drug court asked Cripe whether he wanted an attorney; when Cripe

       declined, the drug court confirmed that Cripe wanted to represent himself.

       While Cripe takes issue with the court’s semantics, the record shows that Cripe

       invited the court to move forward with his case. Further, Cripe has significant

       experience with the criminal justice system, including previous participation

       with another problem solving drug court program from which he was also

       terminated. In other words, Cripe knew he could have obtained an attorney,

       and he intentionally decided to forego having one on November 22. That Cripe

       later wrote to the court to ask for an attorney further shows that Cripe knew

       that he had a right to an attorney. We find no error with Cripe’s waiver of his

       right to counsel at this hearing.6




       6
         Cripe also contends that his admission to the violation is invalid because he was deprived of his right to
       counsel. Because we find no error with his waiver of right to counsel, we do not find that his admission was
       invalid. Cripe then contends that the cumulative effect of the lack of notice and counsel resulted in his being
       deprived of his required hearing. Based on our conclusions, we find this argument unavailing.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018                  Page 11 of 15
                                       II. Mitigating Factors
[19]   Cripe also argues that the trial court erred by not considering two mitigating

       factors: Cripe’s guilty plea and the undue hardship Cripe’s dependents would

       suffer upon his imprisonment.


[20]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g on other

       grounds at 875 N.E.2d 218. A trial court may err in its decision if it is clearly

       against the logic and effect of the facts and circumstances before the court. Id.

       A trial court may err by finding aggravating or mitigating factors that are not

       supported by the record, by omitting factors that are clearly supported by the

       record and advanced for consideration, or by finding factors that are improper

       as a matter of law. Id. at 490-91. “An allegation that the trial court failed to

       identify or find a mitigating factor requires the defendant to establish that the

       mitigating evidence is both significant and clearly supported by the record.” Id.

       at 493.


[21]   Our Supreme Court has held “that a defendant who pleads guilty deserves

       ‘some’ mitigating weight be given to the plea in return.” Anglemyer v. State, 875

       N.E.2d 218, 220 (Ind. 2007) (quoting McElroy v. State, 865 N.E.2d 584, 591

       (Ind. 2007)). A trial court may attribute little weight to a guilty plea when the

       plea “does not demonstrate the defendant’s acceptance of responsibility or

       when the defendant receives a substantial benefit in return for the plea.” Id. at

       221. A defendant’s decision to plead guilty may be merely pragmatic when the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 12 of 15
       evidence is strong against him and thus, his guilty plea is not a mitigating

       factor. Wells v. State, 836 N.E.2d 475, 479 (Ind. Ct. App. 2005).


[22]   Here, Cripe received a substantial benefit in return for his plea because he was

       able to enroll in the drug court program and receive help and treatment for his

       problems. Further, Cripe’s guilty plea appears to be merely pragmatic because

       there was already strong evidence against him. A camera recorded Cripe

       entering and taking several items from his neighbor’s property. A search of

       Cripe’s garage revealed the items he took from that property and other items

       that had been reported stolen in separate theft cases. The trial court did not err

       by declining to find Cripe’s guilty plea to be a mitigating factor.


[23]   As for the undue hardship Cripe’s dependents may suffer by his imprisonment,

       the trial court did find that factor to be mitigating. Although the trial court did

       not mention it during the sentencing hearing, the court included it as a

       mitigating factor in its written sentencing order. And while the trial court found

       Cripe’s participation in the drug court program to be a mitigating factor during

       the sentencing hearing, it did not include that in its sentencing order.


[24]   This Court is not confined to either the oral sentencing statement or the written

       sentencing order to determine what the trial court found as mitigating and

       aggravating factors; instead, we examine both to determine the trial court’s

       conclusions. McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). Here, because

       the trial court found one mitigating factor during sentencing that was not

       included in its sentencing order, and one mitigating factor in its sentencing


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 13 of 15
       order that was not mentioned during the hearing, it is reasonable to conclude

       that the trial court found both factors to be mitigating. Therefore, the trial court

       did not err by not finding any undue hardship on Cripe’s dependents to be a

       mitigating factor, because the trial court did, in fact, find it to be a mitigating

       factor.


                                              III. Sentence
[25]   Cripe next argues that the sentence is inappropriate in light of the nature of the

       offenses and his character pursuant to Indiana Appellate Rule 7(B). In

       considering an argument under Rule 7(B), we must “conduct [this] review with

       substantial deference and give ‘due consideration’ to the trial court's decision—

       since the ‘principal role of [our] review is to attempt to leaven the outliers,’ and

       not to achieve a perceived ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d

       1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind.

       2013)) (internal citations omitted).


[26]   Cripe was convicted of Level 5 felony burglary, for which he faced a term of

       one to six years imprisonment, with an advisory term of three years. Ind. Code

       § 35-50-2-6(b). The trial court imposed a six-year term. Cripe was also

       convicted of Level 6 felony theft, for which he faced a term of six months and

       two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-

       7(b). The trial court imposed a sentence of two and one-half years. The trial

       court ordered the sentences to run concurrently with two years executed, three

       years on community corrections, and one year on probation. Had the trial


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 14 of 15
       court ordered consecutive terms, Cripe would have received a sentence of eight

       and one-half years.


[27]   With respect to the nature of the offenses, Cripe burglarized a neighbor’s

       property and stole several valuable items from that neighbor. Cripe also broke

       into two vehicles, stealing the wallets of each vehicle’s owner.


[28]   With respect to Cripe’s character, Cripe now has four felony convictions for

       burglary and four felony convictions for theft. He also has a felony conviction

       for possession of a controlled substance and misdemeanor convictions for

       possession of an alcoholic beverage, driving while suspended, and false

       informing. Cripe has repeatedly failed to take advantage of the leniency in

       sentencing and the opportunities for rehabilitation that he has received. Most

       notably, during his previous participation in a drug court program, he violated

       the terms of his placement at least four times, resulting in him serving two years

       in the Department of Correction. His violations in the instant case show that

       he failed to learn from either of his experiences with a drug court program and

       is unable or unwilling to reform his behavior.


[29]   Under these circumstances, we find that the sentence imposed by the trial court

       is not inappropriate in light of the nature of the offenses and Cripe’s character.


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


       May, J., and Robb, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-452 | September 7, 2018   Page 15 of 15
