MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Mar 30 2020, 11:24 am
court except for the purpose of establishing                             CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone IV                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Justin S. Counceller,                                    March 30, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2150
        v.                                               Appeal from the
                                                         Madison Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Angela G. Warner Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-1604-F6-783



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020               Page 1 of 10
                                             Case Summary
[1]   After pleading guilty to Level 6 felony fraud, Justin Counceller began serving

      his sentence in the county’s community corrections Continuum of Sanctions

      Program (the Program). Counceller was alleged to have violated the rules of

      the Program on a number of occasions. Following a hearing, the trial court

      found that Counceller violated the rules of his placement and ordered that he

      serve the remainder of his sentence in the Indiana Department of Correction

      (DOC). Counceller argues that (1) the trial court abused its discretion when it

      admitted the testimony of a case manager with the Program, and (2) the trial

      court’s finding of a violation was not supported by the evidence.


[2]   We affirm.


                                   Facts & Procedural History
[3]   In January 2016, Counceller made purchases with a credit card belonging to a

      deceased man, whom Counceller had known. At some point, Counceller was

      identified and arrested, and on April 15, 2016, the State charged him with Level

      6 felony fraud. On January 10, 2017, Counceller entered into a plea agreement

      which left open the total length of the sentence but capped the executed portion

      at eighteen months. On March 27, 2017, the trial court sentenced Counceller to

      910 days, 545 executed and 365 days suspended to probation, with Counceller

      serving the executed portion of his sentence in the Program. On March 28,

      Counceller reported to the Madison County Community Justice Center (CJC)

      for intake into the Program’s adult day reporting program. That date,


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020   Page 2 of 10
      Counceller submitted to a urine screen and tested positive for

      methamphetamine, THC, and Suboxone. The Program’s Board voted to place

      Counceller into the home detention program and gave him thirty days to

      complete the home detention intake requirements, and directed that, until then,

      he continue to report to adult day reporting.


[4]   A month later, on April 28, an adult day reporting case manager for the

      Program filed a petition to terminate Counceller’s participation in the Program

      for five alleged violations, including Counceller’s admitted use of marijuana,

      suboxone, and methamphetamine. The Program also alleged that Counceller

      resisted correctional officers, failed to obtain employment and substance abuse

      evaluations, and failed to meet financial obligations of the Program. On May

      22, following a hearing, the trial court issued a sanctions order, finding that

      Counceller violated the terms of his placement in the Program. The trial court

      revoked Counceller’s placement and suspended sentence and ordered him to

      serve his sentence in the DOC. However, the court suspended those sanctions

      pending successful completion of Drug Court, for which Counceller was later

      found to be ineligible. On July 31, pursuant to the agreement of the parties, the

      trial court ordered Counceller to serve his remaining sentence on work release

      through the Program.


[5]   On October 4, 2017, a case manager with the Program filed a petition to

      terminate Counceller’s participation in the Program for his failure to schedule

      his work release intake, failure to report, and committing a new criminal

      offense of misdemeanor resisting law enforcement. The trial court issued a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020   Page 3 of 10
      warrant for Counceller’s arrest, and after an October 30 hearing, the trial court

      issued a sanctions order, determining that Counceller had violated conditions of

      the Program. Pursuant to an agreement of the parties, the trial court imposed

      62 days in the Madison County Detention Center, less accrued days and earned

      credit time, “resulting in time served.” Appellant’s Appendix Vol. II at 105. The

      trial court ordered Counceller to return to the Program.


[6]   On June 27, 2019, Counceller was placed in the work release facility as part of

      his community corrections sentence. 1 On July 2, 2019, the Program

      Coordinator filed a Notice of COS Termination with the court, asking that

      Counceller’s placement in the Program be terminated because (1) on June 27 at

      11:45 a.m. Counceller was released from the Program facility for medical care

      but failed to return, and (2) he committed a new offense, namely Level 6 felony

      failure to return (later filed as Cause F6-1708).


[7]   The trial court issued a warrant for Counceller’s arrest, which was served on

      July 28, 2019. Counceller appeared for an initial hearing on the notice of

      termination, and the court set an evidentiary hearing for Aug 19. In addition,

      the trial court issued “its standard order of discovery,” which required the State

      to file with the court “any . . . documents . . . [that] the prosecuting attorney




      1
        The record does not explain the lapse in time from late 2017 to Counceller’s placement at the work release
      facility in June 2019.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020                   Page 4 of 10
      intends to use in the hearing[.]” Id. at 15, 75. The Program, through the CJC,

      timely filed discovery with the court on August 12.


[8]   On August 19, 2019, the trial court jointly held an evidentiary hearing on the

      alleged violation and a status conference in Cause F6-1708. As evidence of

      Counceller’s alleged violation, the State presented testimony from Brandy

      Poffenbarger, a case manager with the Program. Poffenbarger testified that she

      had not met Counceller and was representing another case manager at the

      hearing. When Counceller objected based on Poffenbarger’s lack of personal

      knowledge, she testified that the Program keeps a file on every person in the

      Program and her knowledge was based on the contents of Counceller’s file.

      Counceller objected, arguing, “They haven’t really established . . . that these

      record [sic] are kept in the normal course of business, only that they are records

      that this lady, who has never met my client, says . . .they keep on each client . .

      . [s]o I think there’s a foundational problem.” Transcript at 13-14. The trial

      court overruled the objection, and Poffenbarger testified that Counceller was

      placed in the work release facility on June 27 and that he “absconded” on the

      same day when he left with permission for medical treatment and “never

      returned.” Id. at 14. Following cross-examination, the State asked the trial

      court to take judicial notice of the Program’s filing of discovery on August 12.

      The court granted the request without objection from Counceller.


[9]   On August 19, 2019, the trial court issued a sanctions order, determining that

      Counceller had violated the terms of the Program as follows:



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020   Page 5 of 10
               1. On 6/27/19, Defendant was released for medical care and
               failed to return to work release [];


               2. Defendant failed to behave well in society, to wit: on 6/28/19,
               Defendant committed a new criminal offense under [F6-1708] [].


       Appellant’s Appendix Vol. II at 17. The court ordered Counceller to serve the

       remainder of his sentence in the DOC. He now appeals.


                                       Discussion & Decision

                                     I. Admission of Evidence
[10]   Counceller argues that the trial court abused its discretion when it allowed

       Poffenbarger to testify even though she had no personal knowledge of

       Counceller or his participation in the Program. Generally, the admission of

       evidence is within the trial court’s discretion, and its decisions are only

       reviewed for an abuse of that discretion. Holmes v. State, 923 N.E.2d 479, 483

       (Ind. Ct. App. 2010). An abuse of discretion occurs if a decision is clearly

       against the logic and effects of the facts and circumstances before the court or if

       the court has misinterpreted the law. Id.


[11]   It is well established that, while a community corrections placement revocation

       hearing has certain due process requirements, it is not to be equated with an

       adversarial criminal proceeding. Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct.

       App. 2009). Rather, its procedures are to be more flexible. Id. We have

       explained:



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020   Page 6 of 10
               [T]he Indiana Rules of Evidence in general and the rules against
               hearsay in particular do not apply in community corrections
               placement revocation hearings. See Ind. Evidence Rule 101(c)
               (providing that the rules do not apply in proceedings relating to
               sentencing, probation, or parole). In probation and community
               corrections placement revocation hearings, therefore, judges may consider
               any relevant evidence bearing some substantial indicia of reliability. This
               includes reliable hearsay. The absence of strict evidentiary rules
               places particular importance on the fact-finding role of judges in
               assessing the weight, sufficiency and reliability of proffered
               evidence.


       Id. (some internal citations omitted) (emphasis added). Courts may admit

       evidence during the hearing that would not be permitted in a full-blown

       criminal trial. Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007). This includes

       “letters, affidavits, and other material” that would generally not be admissible.

       Id.


[12]   As our Supreme Court recognized, there are sound policy justifications for such

       flexibility. Smith v. State, 971 N.E.2d 86, 91 (Ind. 2012). Alternative sentencing

       such as community corrections serves the humane purposes of avoiding

       incarceration and permitting the offender to meet the offender’s financial

       obligations, “‘but for sentencing alternatives to be viable options for Indiana

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

       safety when adjudicated offenders violate the conditions of their sentences.’”

       Id. (quoting Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999)). Stated differently,

       “‘obstacles to revoking an alternative sentence may diminish the likelihood of

       community corrections placements being made in the first place.’” Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020   Page 7 of 10
[13]   Here, Counceller acknowledges that the Ind. Rules of Evidence do not apply in

       community corrections revocation proceedings but asserts that “the hearsay

       evidence . . . did not have substantial guarantee of trustworthiness” and should

       not have been admitted. Appellant’s Brief at 8. We disagree.


[14]   Here, to establish that Counceller violated the terms of his placement, the State

       called Poffenbarger, a representative of the Program, to testify. Poffenbarger

       testified that she was a case worker with the Program, had worked at the

       Madison County CJC in the Program for five years, and was testifying on

       behalf of another case worker. Counceller objected to Poffenbarger’s lack of

       personal knowledge and to the fact that she was testifying from documents.

       The trial court asked for “a foundation” and Poffenbarger testified, “we keep a

       file on” each person in the Program and that it was from those records that she

       was testifying. Transcript at 13. The trial court overruled Counceller’s objection

       and permitted Poffenbarger to testify to the facts recorded in Counceller’s file

       surrounding his alleged violation of leaving the Program for medical treatment

       and not returning on June 27. Based on the record before us, and given the

       flexibility expressly granted to trial courts when determining admissibility of

       hearsay in community corrections revocation proceedings, we find that the trial

       court did not abuse its discretion when it found that Poffenbarger’s testimony

       possessed the necessary indicia of reliability to be admissible. 2 Accordingly,




       2
         We note that, during the hearing, the trial court took judicial notice of “the discovery and its attachment”
       that the Program had filed prior to the hearing pursuant to the court’s discovery order. Transcript at 17. The
       State suggests that Poffenbarger was testifying from the same documents that the Program had filed with the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020                    Page 8 of 10
       Counceller has failed to show that the trial court abused its discretion when it

       permitted Poffenbarger to testify about the events that occurred on June 27.


                                    II. Sufficiency of the Evidence
[15]   Our standard of review of an appeal from the revocation of a community

       corrections placement mirrors that for revocation of probation. Holmes, 923

       N.E.2d at 483 (quoting Monroe, 899 N.E.2d at 691). A probation hearing is

       civil in nature and the State need only prove the alleged violations by a

       preponderance of the evidence. Id. We will consider all the evidence most

       favorable to supporting the judgment of the trial court without reweighing that

       evidence or judging the credibility of the witnesses. Id. If there is substantial

       evidence of probative value to support the trial court’s conclusion that a

       defendant has violated any terms of community corrections, we will affirm its

       decision to revoke placement. McQueen v. State, 862 N.E.2d 1237, 1242 (Ind.

       Ct. App. 2007).


[16]   Counceller argues that the trial court abused its discretion in allowing

       Poffenbarger to testify from documents of Counceller’s file and because “there

       was no other evidence to support the alleged violation[,]” the evidence was




       trial court prior to the hearing and of which the trial court took judicial notice, and, therefore, any error in the
       admission of Poffenbarger’s testimony was harmless. In furtherance of that position, the State filed an
       Appellee’s Appendix containing, among other things: (1) the Program’s June 27, 2019 conduct report; (2) a
       work release failure to return checklist; and (3) the probable cause affidavit for Cause F6-1708. However, we
       do not know with certainty what documents the Program filed pursuant to the court’s discovery order, nor do
       we know if the documents in Appellee’s Appendix were the same documents from which Poffenbarger was
       testifying. Because we find Poffenbarger’s testimony was properly admitted, we do not reach the State’s
       harmless error argument.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020                         Page 9 of 10
       insufficient. Appellant’s Brief at 10. Having already found that the trial court did

       not abuse its discretion in admitting Poffenbarger’s testimony, we now turn to

       whether that evidence was sufficient to establish a violation. We find that it

       was.


[17]   Poffenbarger testified that Counceller was assigned to and placed in the work

       release facility on June 27 pursuant to his conviction for fraud. She stated that

       Counceller left, that same day, with permission to go to St. Vincent Hospital in

       Anderson for medical treatment, but he did not return. When asked on cross-

       examination whether anyone from the Program ever spoke to Counceller to

       determine whether he might have had a good reason for not returning,

       Poffenbarger replied, “He didn’t return to our facility, so we couldn’t have.”

       Transcript at 16.


[18]   The State presented sufficient evidence for the trial court to find that Counceller

       violated the terms of the Program.


[19]   Judgment affirmed.


       Bradford, C.J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2150 | March 30, 2020   Page 10 of 10
