                                                                          Nov 05 2013, 5:49 am
FOR PUBLICATION



ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

CHRISTINA M. TRENT                                   GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     IAN MCLEAN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana




                           IN THE
                 COURT OF APPEALS OF INDIANA

ANDREW WANN,                                 )
                                             )
     Appellant-Defendant,                    )
                                             )
        vs.                                  )       No. 32A01-1303-CR-123
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff,                     )


                APPEAL FROM THE HENDRICKS SUPERIOR COURT
                        The Honorable Mark A. Smith, Judge
                          Cause No. 32D04-0905-CM-228


                                  November 5, 2013

                            OPINION – FOR PUBLICATION

BAILEY, Judge
                                     Case Summary

      Andrew Wann (“Wann”) appeals an order revoking his probation and ordering

that he serve 90 days of a 365-day suspended sentence. We affirm.

                                          Issues

      Wann presents two issues for review:

      I.       Whether the trial court admitted a urinalysis report in violation of
               Wann’s due process rights as a probationer; and


      II.      Whether the order that he serve 90 days of his suspended sentence
               contravenes statutory authority.


                              Facts and Procedural History

      On November 10, 2009, Wann pled guilty to Possession of Marijuana, as a Class

A misdemeanor. He was sentenced to 365 days of imprisonment, all suspended to

probation. As conditions of his probation, Wann agreed to drug testing and also that

toxicology results obtained by a probation officer would be admissible in revocation

proceedings.

      After testing positive for marijuana use, Wann was arrested. He was released on

bond the following day, admitted to a probation violation, and was ordered to serve 30

days of his suspended sentence (with credit for one day actually served and one day of

good time credit). He was released and returned to probation.

      The State filed a second Notice of Probation Violation, alleging that Wann had

tested positive for marijuana use on September 16, 2010. Nearly two years later, on July



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13, 2012, Wann was arrested. He was released from jail on August 7, 2012 to await a

hearing.1

        At the evidentiary hearing conducted on March 12, 2013, Wann argued that he had

effectively served 308 days of his suspended sentence by serving 308 days of probation

and, when aggregated with his 82 days of imprisonment, his misdemeanor sentence had

been fully served. The trial court found that Wann was still on probation when he

violated a term of his probation by using marijuana. Wann’s probation was revoked and

he was ordered to serve 90 days of his previously-suspended sentence in the Hendricks

County Jail.

                                      Discussion and Decision

                                         I. Toxicology Report

        Wann contends that the trial court improperly admitted hearsay evidence in

determining whether he had violated a term of his probation. Over Wann’s hearsay

objection, a probation officer was permitted to testify that Wann had “tested positive” for

marijuana.      (Tr. 3.)    Contemporaneously, the trial court admitted as an exhibit a

toxicology report from Redwood Toxicology Laboratory indicating that Wann’s screen of

September 16, 2010 had shown “positive” results for marijuana. (St. Ex. 2.) Wann now

asserts that the documentary evidence was not substantially trustworthy so as to satisfy




1
 This resulted in credit for 26 days of actual incarceration and 26 days good time credit, for an aggregate
of 52 days. Combined with the prior 30 days, Wann’s total period of incarceration was 82 days.

                                                    3
his due process rights as a probationer. In particular, he suggests that an affidavit from

the testing toxicologist was required.2

       A probation revocation hearing is not equivalent to an adversarial criminal

proceeding. Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999). However, the Due Process

Clause applies to probation revocation proceedings, and the due process rights of a

probationer include: “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 witnesses, and a neutral and detached hearing body[.]” Id. at 549.

       Because probation revocation procedures “are to be flexible, strict rules of

evidence do not apply.” Id. The scope of the right to confrontation as defined in

Crawford v. Washington, 541 U.S. 36 (2004), does not apply in such proceedings. Reyes

v. State, 868 N.E.2d 438, 440 n.1 (Ind. 2007). In Cox, the Court held that judges could

consider hearsay “bearing some substantial indicia of reliability,” but declined to adopt a

particular approach to determining that reliability. 706 N.E.2d at 551. Subsequently, in

Reyes, the Indiana Supreme Court adopted a “substantial trustworthiness” test. 868

N.E.2d at 440.

       In Reyes, the State had filed a notice of probation violation alleging that Reyes

had violated his probation by testing positive for cocaine. Id. at 439. At a hearing, the

State submitted the affidavit of the scientific director of the laboratory that conducted the

urinalysis of Reyes’s sample, together with related documents. Id. The director did not

testify at the hearing, and Reyes objected to the affidavits as hearsay and claimed that the
2
  He does not develop a separate argument with respect to the admissibility of the probation officer’s
testimony.
                                                  4
admission of the affidavit without live testimony would violate his right of confrontation.

Id. The trial court admitted the affidavits and revoked Reyes’s probation. Id. The

probation revocation was affirmed by the Indiana Supreme Court. Id. at 443.

           In reaching its decision, the Court observed that hearsay evidence may not be

admitted “willy-nilly.” Id. at 440. However, although there may sometimes be no

adequate alternative to live testimony, due process does not prohibit substitutes where

appropriate, including affidavits, depositions, and documentary evidence.                    Id. (citing

Gagnon v. Scarpelli, 411 U.S. 778, 782-83 n.5 (1973)). Where the State has shown that

the hearsay “bears substantial guarantees of trustworthiness,” the State need not

additionally show good cause for not producing live testimony. Id. at 441. The trial

court must evaluate the reliability of the hearsay evidence and, ideally, the trial court

should explain on the record why the hearsay is reliable and why that reliability is

substantial enough to supply good cause for not producing live witnesses. Id. at 442.

           Here, probation officer McCleese3 testified that he had observed the administration

of the drug screen to Wann and that the sample was then sealed, labeled, and sent to

Redwood Toxicology Laboratory for testing. According to McCleese, similar tests were

administered by his department and sent to Redwood Toxicology on a routine basis. The

trial court concluded that the report was admissible. Wann now contends that the trial

court’s conclusion is erroneous, because the hearsay evidence in his case falls short of the

level of trustworthiness of that submitted in Reyes.                      He implicitly argues that the



3
    In the record, the probation officer is identified only by his surname.

                                                        5
“substantial trustworthiness” test of Reyes requires an affidavit and a scientific opinion

validating drug screen results. We discern no such requirement in Reyes.4

        Moreover, Wann ignores a crucial distinction between his circumstances and those

present in Reyes. Wann had signed an agreement containing the provision: “You shall

submit to alcohol and drug tests when requested by the Probation Department or any Law

Enforcement Officer. You shall waive any objection to the admissibility of the results of

the test as they are received by the Court into evidence at any Revocation Hearing.”

(State’s Ex. 1.) That is, Wann agreed in advance to the admissibility of the test results

and made no claim in probation revocation proceedings that the admissibility agreement

is unenforceable. Wann has thus not demonstrated that the trial court admitted the

toxicology report in contravention of his due process rights.

                              II. Order to Serve 90 Days of Sentence

        Probation may be revoked for a violation of a probation condition. Runyon v.

State, 939 N.E.2d 613, 616 (Ind. 2010).           Indiana Code Section 35-38-2-3(h) provides as

follows:

        If the court finds that the person has violated a condition at any time before
        termination of the period, and the petition to revoke is filed within the


4
  A panel of this Court has recently concluded that the record of probation revocation proceedings
supported a determination of substantial trustworthiness of “a routine report demonstrating that
[appellant] had tested positive for marijuana.” Williams v. State, 937 N.E.2d 930, 934 (Ind. Ct. App.
2010). The urinalysis had been performed by the president of the company handling Williams’s home
detention, the report contained a signed chain of custody signed by Williams and the president, and an
employee of the home detention company had testified and explained the report and the date and time of
sample collection. Id.; see also Holmes v. State, 923 N.E.2d 479, 484 (Ind. Ct. App. 2010) (substantial
trustworthiness existed for urinalysis report where the toxicologist affirmed under penalty of perjury that
the sample was received under controlled conditions and processed in accordance with laboratory
standard operating procedures and the scientist affirmed that the sample was handled in accordance with
applicable requirements).
                                                    6
        probationary period, the court may impose one (1) or more of the following
        sanctions:

               (1) Continue the person on probation, with or without modifying or
        enlarging the conditions.

               (2) Extend the person’s probationary period for not more than one
        (1) year beyond the original probationary period.

                (3) Order execution of all or part of the sentence that was suspended
        at the time of initial sentencing.


Generally speaking, as long as the trial court follows the procedures outlined in Indiana

Code Section 35-38-2-3, the trial court may properly order execution of a suspended

sentence. Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006).

        Here, however, Wann argues that the order that he serve of a portion of his

previously-suspended sentence contravenes other statutory authority. Wann had served

308 days on probation prior to his violation. By the time of the revocation hearing, he

had been incarcerated for a total of 82 days (inclusive of good time credit). He claims

that his sentence has been fully served and the order for 90 days imprisonment violates

the statutory maximum of Indiana Code section 35-50-3-1, which provides in relevant

part:

        The court may suspend any part of a sentence for a misdemeanor. . . .

        However, the combined term of imprisonment and probation for a
        misdemeanor may not exceed one (1) year.

He directs our attention to Jennings v. State, 982 N.E.2d 1003 (Ind. 2013). Appellant

Jennings, convicted of a Class B misdemeanor, had been sentenced to 30 days executed

time, 150 days suspended, and 360 days of probation; on appeal he challenged the

                                             7
sentence as in excess of the statutory maximum of section 35-50-3-1 and thus illegal. Id.

at 1004. The Court was asked to decide whether a suspended sentence was part of the

term of imprisonment. See id.

      Wann asserts that our Supreme Court determined in Jennings that the trial court

may not order an executed sentence and term of probation that aggregate to more than

one year but “to the best of Wann’s knowledge, there is no case law discussing how this

provision should be interpreted as applied to revocations of probation, after a term of

probation has already been served.” Appellant’s Brief at 7. He urges a construction such

that a suspended sentence is “run concurrently with probation on a misdemeanor

conviction.” Appellant’s Brief at 8.

      Wann is correct insofar as he observes that Jennings clarified: “a combined term

of probation and imprisonment may not exceed one year, notwithstanding the maximum

term of imprisonment for the misdemeanor.” 982 N.E.2d at 1005. Additionally, our

Supreme Court specifically held that the phrase “term of imprisonment” embodied in

Indiana Code Section 35-50-3-1, for purposes of misdemeanor sentencing, does not

include suspended time. Id. at 1005-06. “For the purpose of Indiana Code § 35-50-3-1,

‘term of imprisonment’ means the total amount of time a misdemeanant is incarcerated.”

Id. at 1009.   Ultimately, the Court remanded Jennings’ case “for imposition of a

probationary period consistent with this opinion, not to exceed 335 days – the difference

between one year (365 days) and the 30 days Jennings was ordered to serve in prison.”

Id.



                                           8
       The State does not dispute that Wann was on probation for 308 days or imprisoned

for 82 days. Rather, the State argues that Wann’s “days of probation” are not included in

the “term of imprisonment” limited by Indiana Code § 35-50-1-3 and that Wann has not

“served his sentence” by having been on probation. State’s Brief at 11.

       As a threshold matter, we observe that the statute construed in Jennings deals with

the trial court’s imposition of a misdemeanor sentence. Wann is not directly appealing

his 365-day sentence as exceeding the misdemeanor statutory maximum. Instead, he

seeks to extrapolate language from Jennings to calculate his time served in a manner that

would lead to the conclusion that he was no longer subject to any period of incarceration

by the time of his probation revocation hearing. Wann requests that we determine that

for each day he served on probation he also served one day of his suspended sentence. In

other words, he would be credited with having been on probation 308 days and having

served 308 days of his suspended sentence (in addition to serving 82 days of his

suspended sentence while in actual confinement). Thus, in his view, no day of his

suspended sentence remained.

       At first blush, there appears to be language in Jennings supportive of Wann’s

position: “[p]robation and suspended sentences are widely imposed concurrently in order

to ensure the probationer’s good behavior. The two work in concert. … A suspended

sentence, in effect, is a form of probation.” Jennings, 982 N.E.2d at 1008.5 Importantly,




5
  The Court also observed that, in prior case-law, “probation and suspended sentence were considered
together as two parts of the same whole.” Jennings, 982 N.E.2d at 1006 (citing Smith v. State, 621
N.E.2d 325 (Ind. 1993).
                                                 9
however, Jennings involved an allegation that the sentence imposed exceeded statutory

authority and did not overrule any probation revocation statute.

       Consistent with the reasoning of Jennings, Wann as a misdemeanant was subject

at his sentencing hearing to a maximum term of 365 days, all executed, all on probation,

or divisible between probation and imprisonment. He received a sentence within that

statutory range. See I.C. § 35-50-3-1. Subsequently, the issues before the trial court

considering the probation revocation petition were whether the petition to revoke was

timely filed, whether Wann was on probation on September 16, 2010 – the date of the

drug screen – and whether he violated a term of his probation.

       From the date of Wann’s November 10, 2009 sentence to his September 16, 2010

violation, 308 days had elapsed. The State alleged the violation within the probationary

period, and subsequently proved the violation. Accordingly, the options of Indiana Code

section 35-38-2-3(h) were available to the trial court, including an order for “execution of

all or part of the sentence that was suspended at the time of initial sentencing.” The trial

court acted within its statutory discretion to order that Wann serve 90 days in jail.

                                        Conclusion

       Wann has not shown that he was denied due process by the admission of hearsay

evidence at the probation revocation hearing. Additionally, the order that he serve 90

days of his previously-suspended sentence does not contravene statutory authority.

       Affirmed.

MAY, J., and BRADFORD, J., concur.



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