MEMORANDUM DECISION
                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                Mar 09 2017, 7:35 am

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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Logansport, Indiana                                      Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Justin Rhymer,                                           March 9, 2017

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         09A04-1607-CR-1708
        v.                                               Appeal from the Cass Circuit Court
                                                         The Honorable Leo T. Burns, Judge
State of Indiana,                                        Trial Court Cause No. 09C01-1007-
                                                         FB-3
Appellee-Plaintiff.




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion 09A04-1607-CR-1708 | March 9, 2017    Page 1 of 11
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Justin Rhymer (Rhymer), appeals the trial court’s denial

      of his motion for sentence modification.


[2]   We affirm.


                                                   ISSUE
[3]   Rhymer presents one issue on appeal, which we restate as follows: Whether the

      trial court abused its discretion in denying Rhymer’s motion for sentence

      modification.


                      FACTS AND PROCEDURAL HISTORY
[4]   On July 28, 2010, the State filed an Information, charging Rhymer with one

      Count of dealing in methamphetamine, a Class B felony. On January 9, 2014,

      Rhymer pleaded guilty to the dealing charge. Rhymer’s plea agreement

      provided that the trial court would sentence Rhymer to ten years; with six years

      executed in Cass County Community Corrections, and four years suspended to

      probation. On February 6, 2014, the trial court held a joint plea and sentencing

      hearing. The trial court accepted Rhymer’s guilty plea and subsequently

      sentenced Rhymer in accordance with the plea agreement. Shortly after

      Rhymer’s sentencing, Cass County Community Corrections referred Rhymer to

      serve his sentence in White County Community Corrections. On February 12,

      2014, White County Community Corrections accepted Rhymer into their

      program.


      Court of Appeals of Indiana | Memorandum Opinion 09A04-1607-CR-1708 | March 9, 2017   Page 2 of 11
[5]   On February 3, 2015, Cass County Community Corrections requested a status

      report on Rhymer. White County Community Corrections responded by

      stating that after reviewing their records, it showed that Rhymer had never

      made contact or reported to serve his sentence. A warrant was issued and

      Rhymer was arrested. On April 7, 2015, based on Rhymer’s failure to report to

      White County Community Corrections, the trial court issued a sentence

      modification order sentencing Rhymer to serve his ten-year sentence in the

      DOC, with four years suspended to probation. In the amended abstract of

      judgement for Rhymer’s sentence modification dated April 22, 2015, the trial

      court noted that Rhymer was eligible for Purposeful Incarceration. 1


[6]   On June 30, 2015, Rhymer wrote a letter to the trial court stating, in part,

                 Upon my arrival in the DOC, I was informed by my case worker that I
                 am in fact not considered Purposeful Incarcerated. My abstract of
                 judgment is correct but my sentencing order does not state the
                 information and wording that the DOC requires to consider an




      1
          According to the Indiana Department of Correction’s website:

                 In 2009 the Indiana Department of Correction (IDOC) began a cooperative project with Indiana
                 Court Systems called Purposeful Incarceration (P.I.). The Department works in collaboration with
                 Judges who can sentence chemically addicted offenders and document that they will “consider a
                 sentence modification” should the offender successfully complete an IDOC Therapeutic
                 community. This supports the Department [of] Correction and the Judiciary to get addicted
                 offenders the treatment that they need and work collaboratively to support their successful re-entry
                 into society.
      Purposeful Incarceration, http://www.in.gov/idoc/2798.htm (last visited Feb. 22, 2017).

      Court of Appeals of Indiana | Memorandum Opinion 09A04-1607-CR-1708 | March 9, 2017                 Page 3 of 11
        offender for Purposefully Incarcerated. Enclosed with this letter is a
        Verified Motion to Set an Order for Purposeful Incarceration.


(Appellant’s App. Vol. II, p. 133). On August 7, 2015, the trial court issued an

order stating, in part, that

        a. [Rhymer’s] executed term of six (6) years is to be served with the
        Indiana Department of Correction[] as Purposeful Incarceration.


        b. That as a term of Purposeful Incarceration the Indiana Department
        of Correction[] is to enroll [Rhymer] in appropriate Therapeutic
        Community Program. That [Rhymer] is to abide by the terms and
        conditions of his assigned program. That once successfully completed,
        the Court will modify [Rhymer’s] remaining executed term of sentence
        to the Community Transition Program and Community Corrections.
        If [Rhymer] fails to successfully complete his assigned program he will
        serve the entire executed term of sentence in the Indiana Department
        of Correction[].


        c. That upon completion of his assigned Therapeutic Community
        Program it is the responsibility of [Rhymer] and Council [sic] to notify
        the Court and schedule a hearing. At this point the Court will verify
        that [Rhymer] successfully completed the assigned program and
        generate an order modifying [Rhymer’s] remaining term of
        incarcerated sentence to the Community Transition Program and
        Community Corrections.


(Appellant’s App. Vol. II, pp. 134-35). On March 15, 2016, the DOC indicated

that Rhymer had completed therapy at the Westville Therapeutic Community.

Rhymer subsequently earned a time cut of 183 days. On March 24, 2016,

Rhymer informed the trial court of his accomplishment and he requested

modification of his sentence, i.e., that he be allowed to serve the remainder of

his sentence in community corrections.

Court of Appeals of Indiana | Memorandum Opinion 09A04-1607-CR-1708 | March 9, 2017   Page 4 of 11
[7]   Even though Rhymer had completed therapy, the DOC noted in its case notes

      that Rhymer had become uncooperative and was not adhering to the facility’s

      rules. On March 29, 2016, Bradley Stigler (Stigler), a caseworker with

      Westville Correctional Facility, wrote to the trial court stating that immediately

      after Rhymer completed his therapy, he become uncooperative and was

      removed from the Therapeutic Community Facility. On April 20, 2016,

      without a hearing, the trial court denied Rhymer’s request. On May 11, 2016,

      Rhymer filed a motion for a hearing. On July 14, 2016, the trial court held

      Rhymer’s sentencing modification hearing and denied Rhymer’s request based

      on the DOC’s case notes and Stigler’s letter dated March 29, 2016.

      Notwithstanding its denial of Rhymer’s petition for modification of sentence,

      because Rhymer appeared pro se, the trial court scheduled another hearing for

      July 21, 2016, in order to afford Rhymer another opportunity to present his case

      yet again with the help of an appointed counsel. On July 21, 2016, at the start

      of the hearing, the trial court stated

              We were on the record last week and the Court made a record with
              respect to [] Rhymer’s current situation. The Court made a reference
              to the plea agreement that was filed in this case and the fact that based
              on [] Rhymer’s pleadings made a determination that he was entitled to
              appear and make a case for a modification of his sentence . . .all
              indications to the Court were that [] Rhymer has documentation from
              the Department of Corrections [sic] that he did, in fact, complete the
              therapeutic component, the court read into the record the statement by
              one of the officers or one of the therapist at the Department of
              Correction, and told you, Mr. Rhymer that I had denied your motion
              for modification based on that. You refiled and the court came to the
              same conclusion last week, but [] in order to make sure due process
              applies because we do have a written plea agreement in this case, I
              appointed counsel for you so that you could come back today to see if
      Court of Appeals of Indiana | Memorandum Opinion 09A04-1607-CR-1708 | March 9, 2017   Page 5 of 11
              there was anything that needs to be presented that was overlooked last
              time.


      (Tr. pp. 26-27). At the hearing, Rhymer testified that

              I was in my room on the wing where [I] shouldn’t have been filling out
              a request form to get some hygiene products from the DOC because
              they had lost all my property when I [] went to court in White County
              for custody over my daughter. After that, I had already filed, or asked
              to be moved [by] [] department of labor, [] and I was just waiting to be
              moved and I, I was removed after that with [] no warning basically, I
              was just removed.


      (Tr. p. 29). The State’s argument was that even though Rhymer had completed

      the therapeutic program at Westville Correctional Facility, Rhymer had failed

      to abide by the facility’s rules. The State claimed that the trial court ultimately

      had the discretion to interpret the August 7th Order, i.e., whether Rhymer had

      successfully completed his assigned therapeutic program before generating an order

      modifying Rhymer’s sentence. At the close of the evidence, the trial court

      denied Rhymer’s sentence modification request, and continued his placement in

      the DOC.


[8]   Rhymer now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[9]   Rhymer argues that the trial court abused its discretion by denying his petition

      to change his placement from the DOC to community corrections. We review

      a trial court’s decision regarding modification of a sentence for an abuse of

      discretion. Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010). An abuse of

      Court of Appeals of Indiana | Memorandum Opinion 09A04-1607-CR-1708 | March 9, 2017   Page 6 of 11
       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before the court or when the court

       misinterprets the law. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).


[10]   As noted, in 2010, Rhymer committed the offense of dealing in

       methamphetamine, a Class B felony, and in February 2014, he pled guilty to

       the offense. Following his guilty plea, the trial court sentenced him to ten years

       in the DOC, with four years suspended to probation. Rhymer’s plea agreement

       stipulated that, if eligible, Rhymer could serve his executed six-year sentence in

       community corrections. On February 18, 2014, Cass County Community

       Corrections approved Rhymer for admittance into the White County

       Community Corrections. It is undisputed that Rhymer failed to report to White

       County Community Corrections to serve his sentence in 2014. On February

       13, 2015, the State informed the trial court of Rhymer’s sentence violation.

       Rhymer was arrested, and in April 2015, Rhymer’s sentence was modified.

       Specifically, instead of serving his six-year executed sentence in community

       corrections, the trial court ordered Rhymer to serve his sentence in the DOC.

       The record shows that when Rhymer reported to the DOC to serve his

       sentence, he was informed that he was eligible for Purposeful Incarceration;

       however, because his sentencing order had not indicated that he was eligible for

       Purposeful Incarceration, he filed a motion with the trial court to have an order

       issued. On August 7, 2015, the trial court issued an order clarifying that




       Court of Appeals of Indiana | Memorandum Opinion 09A04-1607-CR-1708 | March 9, 2017   Page 7 of 11
       Rhymer’s executed six-year sentence was to be served in the Purposeful

       Incarceration program. 2


[11]   Turning to Rhymer’s main argument—that the trial court abused its discretion

       in denying his request to serve the remainder of his sentence in community

       corrections—as noted, we review a trial court’s decision pertaining to

       sentencing modification for abuse of discretion, and an abuse of discretion

       occurs when the trial court’s decision is clearly against the logic and effect of

       the facts and circumstances before the court. See Heaton, 984 N.E.2d at 616.

       Rhymer’s core argument is placed on the fact that the August 7th Order

       specified that upon completion of the “Therapeutic Community Program,” the

       trial court would modify his sentence and direct that his remaining term of six-

       years be served in community corrections. (Appellant’s App. Vol. II, p. 134).


[12]   Its undisputed that Rhymer completed the therapeutic program in March 2016,

       and as obligated by the August 7th Order, he notified the trial court of his

       accomplishment. The State argues that even though Rhymer completed the




       2
         In his appellate brief, Rhymer states that “[f]ollowing [his] violation of Community Corrections in February
       2014, [him], [his] Attorney, the State of Indiana, and Cass [] Community Corrections reached an agreement
       on a modified sentence.” (Appellant’s Br. p. 11). Accordingly, Rhymer states that the August 7th Order “is
       essentially a written plea agreement.” (Appellant’s Br. p. 13). Rhymer’s argument that the August 7th Order
       is more or less a plea agreement, is inaccurate and unsound. The record shows that Rhymer desired an order
       from the trial court so as to enable the DOC to transfer him to the Purposeful Incarceration program, and the
       August 7th Order did exactly that.

       Court of Appeals of Indiana | Memorandum Opinion 09A04-1607-CR-1708 | March 9, 2017              Page 8 of 11
program, Rhymer was entitled to a sentence modification only after the trial

court had verified Rhymer’s completion of the program to the satisfaction of the

DOC. In support of its argument, the State directs us to paragraph (c) of the

August 7th Order, stating

        That upon completion of his assigned Therapeutic Community
        Program it is the responsibility of [Rhymer] and Council [sic] to notify
        the Court and schedule a hearing. At this point the Court will verify
        that [Rhymer] successfully completed his assigned program and generate an
        order modifying [Rhymer’s] remaining term of incarcerated sentence to
        the Community Transition Program and Community Corrections.


(Appellant’s App. Vol. II, 135). (emphasis added). The State claims “[b]y the

time the trial court could verify Rhymer’s completion of therapy, Rhymer had

breached the terms and conditions of his “assigned program” and had been

removed from the Westville Therapeutic Community. (State’s Br. p. 13). In

support of its claim, the State directs us to the DOC’s case notes dated March

23, 2016, stating that

        Rhymer is being discharged for non-compliance with the program
        expectations for participation and conduct after refusing to get out of
        bed and participate in programming. The misconduct was
        documented as follows;


        . . .Counselor did a walk through on the dorm to check for room
        compliance and to make sure the wing was clear as there was
        programming going on. . . . Rhymer was found to be in his room
        sitting on his bunk. Counselor asked [Rhymer] why he was back in his
        room and he said he was just relaxing. This isn’t the first time he has
        been found on the wing and he was asked if he wanted to continue to
        be in the program last week. [Rhymer] stated that he wanted to stay
        and that he agreed to the program.

Court of Appeals of Indiana | Memorandum Opinion 09A04-1607-CR-1708 | March 9, 2017   Page 9 of 11
               . . . [Rhymer] continues [] to be non-compliant and there have been
               several complaints from other peers on the dorm that he is not
               programming. [Rhymer] is a green dot and appears to have the
               attitude that he doesn’t have to do anything anymore (note: Green dot
               means he has completed all the program requirements to be eligible for
               the time cut.”


       (Appellant’s App. Vol. II, p. 141). Following Rhymer’s cited violations of the

       Westville Therapeutic Community rules, on March 29, 2016, Stigler, a

       caseworker with the facility, wrote to the trial court stating

               immediately upon application of his time cut. . . . Rhymer became
               uncooperative with the program and refused to participate in any
               further activities related to this program. He was removed from the
               program on 3/23/2016 due to his refusal to continue to follow
               Therapeutic Community rules. His refusal reveals a lack of
               application of Program lessons and related cognitive improvements
               that indicate he is merely time cut motivated.


       (Appellant’s App. Vol. II, p. 149). Rhymer argues that the alleged acts of

       misconduct transpired after he had completed his therapeutic program.

       Rhymer states in his appellate brief, the “State will argue that [he] refused to

       continue participating in further programing [sic] after filing his request for a

       transfer, but there was absolutely no requirement that” he had to “continue to

       participate in programming [sic] after successfully completing” the therapeutic

       program. (Appellant’s Br. p. 14). We disagree.


[13]   Turning to the record, we note that the August 7th Order, incorporated a

       requirement that Rhymer was to “abide by the terms and conditions of his

       assigned program.” (Appellant’s App. Vol. II, p. 135). Two days after Rhymer


       Court of Appeals of Indiana | Memorandum Opinion 09A04-1607-CR-1708 | March 9, 2017   Page 10 of 11
       completed the therapy program, Westville Therapeutic Community generated a

       report stating that Rhymer “continues to be assigned to this program as

       mentor.” (Appellant’s App. p. 146). Here, we find that even though Rhymer

       had made great strides in completing his therapy program, he “remained

       assigned” to the Westville Therapeutic Community and he had to abide by the

       rules. (Appellant’s App. Vol. II, p. 135). As evidenced by the August 7th Order,

       the trial court had the discretion to determine what would count as a successful

       completion. When the trial court had the chance to verify Rhymer’s

       completion of his assigned therapeutic program, it was faced with the

       dichotomy reports of Rhymer’s completed therapy and Rhymer’s negative

       behavior in the facility. Rhymer’s bad behavior was referenced in the DOC’s

       case notes and Stigler’s letter to the court. Based on the above, we find that the

       trial court’s decision to deny Rhymer’s placement from the DOC to community

       correction was within its discretion and does not contravene the logic and facts

       before the court. Accordingly, we find no abuse of discretion, and we refuse to

       disturb Rhymer’s current placement in the DOC.


                                            CONCLUSION
[14]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion in denying Rhymer’s motion for sentence modification.


[15]   Affirmed.


[16]   Crone, J. and Altice, J. concur



       Court of Appeals of Indiana | Memorandum Opinion 09A04-1607-CR-1708 | March 9, 2017   Page 11 of 11
