                                                                 FILED
                                                            Aug 05 2016, 5:40 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Anthony S. Churchward                                     Gregory F. Zoeller
      Deputy Public Defender                                    Attorney General of Indiana
      Fort Wayne, Indiana
                                                                Paula J. Beller
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Cory L. Montgomery,                                       August 5, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                02A04-1511-CR-2013
              v.                                                Appeal from the Allen Superior
                                                                Court
      State of Indiana,                                         The Honorable Samuel R. Keirns,
      Appellee-Plaintiff.                                       Magistrate
                                                                Trial Court Cause No.
                                                                02D06-1203-FB-53



      Najam, Judge.


                                       Statement of the Case
[1]   Cory L. Montgomery appeals the trial court’s revocation of his probation.

      Montgomery raises a single issue for our review, namely, whether the trial

      court’s revocation of his probation, which followed the court’s revocation of his

      Court of Appeals of Indiana | Opinion 02A04-1511-CR-2013 | August 5, 2016               Page 1 of 6
      placement in a community transition program, violated the doctrine of res

      judicata. It did not. As such, we affirm.


                                 Facts and Procedural History
[2]   On July 16, 2012, Montgomery pleaded guilty to dealing in cocaine or a

      narcotic drug, as a Class B felony. The trial court sentenced Montgomery to

      thirteen years, with five years suspended. The court further ordered

      Montgomery to serve the final four years of his nonsuspended term on “active

      adult probation.” Appellant’s App. at 29.


[3]   On June 19, 2015, the trial court assigned Montgomery from the Indiana

      Department of Correction to the Allen County Community Transition

      Program, and the court ordered Montgomery to comply with certain conditions

      of reentry. In its order, the court informed Montgomery that, “[i]f probation

      was imposed in the original sentence, then the defendant shall report to the

      Probation Department as directed . . . .” Id. at 64.


[4]   On August 24, Montgomery appeared for a urine screen and attempted to use a

      urine sample that he had hidden in a condom behind his scrotum during that

      screen, but a drug screen technician prevented him from doing so. On August

      27, the State filed its petition to revoke Montgomery’s placement in the

      transition program. In particular, the State alleged that Montgomery:

              1.     Did not maintain good behavior. On or about August 24,
              2015[,] the defendant is alleged to have committed the offense of
              Interfering with a Drug or Alcohol Screening Test and
              Possession of a Devi[c]e or Substance Used to Interfere with a

      Court of Appeals of Indiana | Opinion 02A04-1511-CR-2013 | August 5, 2016   Page 2 of 6
              Drug or Alcohol Screening, a Class B misdemeanor as referenced
              in cause number 02D05-1508-CM-3278.


              2.     On or about August 20, 2015, defendant failed to report
              for urine drug screen as instructed.


              3.     On or about August 21, 2015, defendant failed to report
              for urine drug screen as instructed.


              4.    Defendant failed to complete any of his 24 hours of court
              ordered community service by August 13, 2015[,] as instructed.


      Id. at 65.


[5]   On August 31, the trial court revoked Montgomery’s placement in the

      transition program. The court further revoked sixty days of actual credit time

      from Montgomery’s sentence. The court then referred Montgomery to the

      Allen County Probation Department “for further action.” Id. at 77.


[6]   On September 2, the State filed its petition to revoke Montgomery’s probation.

      In particular, the State alleged that Montgomery:


              1.     Did not maintain good behavior. On August 31, 2015, the
              defendant was terminated from the Re-Entry Program while
              serving the executed portion of his sentence.


              2.     Did not maintain good behavior. On August 24, 2015, the
              defendant is alleged to have committed the offense of Interfering
              with a Drug or Alcohol Screening Test, a Class B Misdemeanor,
              as referenced in the affidavit of probable cause in cause number
              02D05-1508-CM-3278.


      Court of Appeals of Indiana | Opinion 02A04-1511-CR-2013 | August 5, 2016   Page 3 of 6
      Id. at 78. After a contested evidentiary hearing, the trial court revoked

      Montgomery’s probation and ordered him to serve five years in the Department

      of Correction. This appeal ensued.


                                     Discussion and Decision
[7]   Montgomery appeals the trial court’s revocation of his probation. As our

      supreme court has explained:


              Probation is a matter of grace left to trial court discretion, not a
              right to which a criminal defendant is entitled. The trial court
              determines the conditions of probation and may revoke
              probation if the conditions are violated. Once a trial court has
              exercised its grace by ordering probation rather than
              incarceration, the judge should have considerable leeway in
              deciding how to proceed. If this discretion were not afforded to
              trial courts and sentences were scrutinized too severely on
              appeal, trial judges might be less inclined to order probation to
              future defendants. Accordingly, a trial court’s sentencing
              decisions for probation violations are reviewable using the abuse
              of discretion standard. An abuse of discretion occurs where the
              decision is clearly against the logic and effect of the facts and
              circumstances.


      Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted).


[8]   Montgomery’s only argument on appeal is that the trial court’s revocation of

      both his placement in the transition program and his probation violated the

      doctrine of res judicata. According to our supreme court:

              Res judicata is a legal doctrine intended “to prevent repetitious
              litigation of disputes that are essentially the same, by holding a
              prior final judgment binding against both the original parties and
      Court of Appeals of Indiana | Opinion 02A04-1511-CR-2013 | August 5, 2016      Page 4 of 6
              their privies.” It applies “where there has been a final
              adjudication on the merits of the same issue between the same
              parties.” Stated in more detail:


                      1. the former judgment must have been rendered by a
                      court of competent jurisdiction;


                      2. the former judgment must have been rendered on the
                      merits;


                      3. the matter now in issue was or might have been determined in
                      the former suit; and


                      4. the controversy adjudicated in the former suit must have
                      been between the parties to the present action or their
                      privies.


              If any element is absent, res judicata does not apply.


      Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 993 (Ind. 2014) (emphasis

      added) (citations omitted).


[9]   We cannot agree that the trial court’s subsequent revocation of Montgomery’s

      probation was barred by its prior revocation of his placement in the transition

      program. In the language of res judicata, the matter in issue before the court

      during the probation revocation proceedings—Montgomery’s placement on

      probation—was simply not the same matter in issue before the court during the




      Court of Appeals of Indiana | Opinion 02A04-1511-CR-2013 | August 5, 2016         Page 5 of 6
       revocation proceedings on his placement in the transition program.1 And we

       are not persuaded by Montgomery’s suggestion that the court was obliged to

       consider and determine those two separate matters once and for all during the

       revocation proceedings for his placement in the transition program.


[10]   Placement on probation and placement in a community transition program are

       not one and the same, and the court’s consideration of those options is not

       mutually exclusive. Rather, those options are two of many tools in the trial

       court’s toolbox for the court’s use in the administration and supervision of a

       defendant’s sentence, over which the court has continuing jurisdiction. We

       conclude that the trial court’s revocation of Montgomery’s probation was not

       barred by res judicata and was not otherwise an abuse of the trial court’s

       discretion. Accordingly, we affirm the trial court’s judgment.


[11]   Affirmed.


       Vaidik, C.J., and Baker, J., concur.




       1
         The other elements of res judicata are not at issue here. There is no question that the sentencing court has
       continuing jurisdiction over a defendant such that it may modify or revoke his probation, I.C. §§ 35-38-2-1, -
       1.8, or placement in a community transition program, I.C. §§ 11-10-11.5-6, 35-38-1-25. The court’s
       revocation of either of those placements requires a judgment on the merits of the State’s request for such
       revocation. I.C. §§ 11-10-11.5-11.5(b), 35-38-2-1(a)(2). And the State does not suggest on appeal that it was
       not represented at both hearings before the trial court. E.g., Becker v. State, 992 N.E.2d 697, 701-02 (Ind.
       2013).

       Court of Appeals of Indiana | Opinion 02A04-1511-CR-2013 | August 5, 2016                           Page 6 of 6
