FOR PUBLICATION
                                                            FILED
                                                        Jul 18 2012, 8:21 am


                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

WILLIAM S. FRANKEL, IV                               GREGORY F. ZOELLER
Wilkinson, Goeller, Modesitt,                        Attorney General of Indiana
 Wilkinson & Drummy, LLP
Terre Haute, Indiana                                 MICHAEL GENE WORDEN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

CURTIS L. BASS,                              )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )      No. 84A01-1110-CR-473
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                     APPEAL FROM THE VIGO SUPERIOR COURT
                         The Honorable John T. Roach, Judge
                           Cause Nos. 84D01-1001-FB-291
                                      84D01-0912-FB-3885


                                    July 18, 2012

                             OPINION - FOR PUBLICATION

BAILEY, Judge
                                      Case Summary

       Curtis L. Bass (“Bass”) challenges the ten-year sentence imposed upon his plea of

guilty to two counts of Burglary, as Class B felonies, and also appeals a subsequent order

revoking his community corrections placement and committing him to the Indiana

Department of Correction (“the DOC”) for six years. We affirm.

                                           Issues

       Bass presents three issues for review:

       I.     Whether his advisory sentence is inappropriate;
       II.    Whether the trial court admitted urinalysis reports in violation of Bass’s
              due process rights as a probationer; and
       III.   Whether the revocation is supported by sufficient evidence.

                              Facts and Procedural History

       On August 3, 2011, Bass pled guilty to two counts of Burglary. On August 19, 2011,

he was given concurrent sentences of ten years, with four years suspended to formal

probation and six years to be served in direct placement to community corrections or in-home

detention. Subsequently, Bass was appointed a public defender to perfect an appeal of his

sentence.

       On September 22, 2011, the State filed a Petition to Revoke Direct Placement,

alleging that Bass had, on September 8, 2011, tested positive for methamphetamine. On

October 12, 2011, Bass was granted permission to file a belated notice of appeal addressing

the propriety of his sentence. On October 18, 2011, the trial court conducted a hearing on the

placement revocation petition. Following the hearing, Bass’s probation and placement were

revoked and he was ordered to serve six years of his sentence in the DOC. On October 31,

                                                2
2011, Bass filed an Amended Notice of Appeal to include a challenge to the revocation.

                                 Discussion and Decision

                                        I. Sentence

       A person who commits a Class B felony has a sentencing range of between six and

twenty years, with the advisory sentence being ten years. Ind. Code § 35-50-2-5. Bass

received two advisory sentences, to be served concurrently. Four years were suspended to

probation.

       Under Indiana Appellate Rule 7(B), this “Court may revise a sentence authorized by

statute if, after due consideration of the trial court’s decision, the Court finds that the

sentence is inappropriate in light of the nature of the offense and the character of the

offender.” In performing our review, we assess “the culpability of the defendant, the severity

of the crime, the damage done to others, and myriad other factors that come to light in a

given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). A defendant ‘“must

persuade the appellate court that his or her sentence has met th[e] inappropriateness standard

of review.”’ Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007) (quoting Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006)).

       The nature of Bass’s offenses is that he burglarized two homes. From one home, that

of a deployed soldier, Bass stole at least forty guns and ammunition. The stolen guns had an

estimated value of over $10,000. Some of the guns were then traded for drugs, thereby

placing weapons in the hands of drug dealers. The second burglary involved the violation of

the home of a family friend.


                                              3
       As for the character of the offender, Bass pled guilty, which reflects favorably on his

character. See Scheckel v. State, 655 N.E.2d 506, 511 (Ind. 1995) (“[T]he fact that [the

defendant] pled guilty demonstrates his acceptance of responsibility for the crime and at least

partially confirms the mitigating evidence regarding his character”). However, he also

received a benefit, in that two other charges were dismissed with prejudice. Prior to

sentencing, Bass had sought substance abuse treatment and had cooperated with the

Department of Child Services to regain custody of his children. He testified that he had, at

the time of sentencing, been clean of drugs for eighteen months.

       Bass has a criminal history, commencing in 1991, which includes two prior felony

convictions and three misdemeanor convictions. He was on probation for a domestic battery

conviction when he committed the present offenses. He has a long history of substance

abuse and committed the instant crimes to fund his illegal drug use.

       In light of the nature of the offenses and the character of the offender, we do not find

Bass’s advisory sentences, with four years suspended, to be inappropriate.

                     II. Admission of Evidence-Probation Revocation

       Bass contends that the trial court improperly admitted hearsay evidence in determining

whether he had violated a term of his probation and placement. Over Bass’s objection, a

community corrections case manager was permitted to testify that Bass had “tested positive”

for methamphetamine. (Tr. 5.) Contemporaneously, the trial court admitted as exhibits two

toxicology reports from Redwood Toxicology Laboratory indicating that Bass’s screens of

September 8 and 20, 2011 had each shown “positive” results for amphetamines, specifically


                                              4
methamphetamines. (St. Ex. 2-3.) Bass asserts that the documentary evidence was not

substantially trustworthy so as to satisfy his due process rights as a probationer.1

        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 admission of the

1
 Bass had not, as a condition of his in-home placement, agreed that toxicology results obtained by a probation
officer would be admissible in revocation proceedings.

                                                      5
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, community corrections case manager Cierra Fox (“Fox”) testified that drug

screens were administered to Bass pursuant to the rules of the in-home detention program.

Fox explained the procedure implemented: Bass had urinated in a container in the presence

of a correctional officer, the cup was security sealed and labeled, and it was then placed in a

bag to be sent to Redwood Toxicology for testing.

       According to Fox, similar tests were administered by her department and sent to

Redwood Toxicology between twenty and sixty times per week. Reports were generated by

Redwood Toxicology at the request of Vigo County Community Corrections; the reports


                                              6
were then maintained as community corrections records. Fox stated that, to the best of her

knowledge, Redwood Toxicology was a certified lab; however, she lacked personal

knowledge of its certification.

       The trial court concluded that a “regular urinalysis report prepared by a company

whose professional business it is to conduct such tests” was sufficiently trustworthy. (App.

105.) Bass argues 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. Bass

observes that the affidavit at issue in Reyes included the opinion of the director that “Reyes

would have had to use cocaine some time in the 72 hours prior to collection.” Id. at 439.

       According to Bass, his case is distinguishable from that of Reyes in that (1) “no

affidavits from anyone at the laboratory were offered” and (2) “the test results do not state

that Bass used methamphetamine and the only sworn testimony came from someone who

knows nothing about the laboratory’s procedures and reliability.” Appellant’s Brief at 12.

Thus, Bass implicitly argues that the “substantial trustworthiness” test of Reyes requires an

affidavit and a scientific opinion validating drug screen results. We discern no such

requirement in Reyes.

       Moreover, 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


                                              7
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).

       The absence of an affidavit from a toxicologist or laboratory employee does not render

drug test results inadmissible in probation revocation proceedings where there is otherwise a

substantial guarantee of trustworthiness. Here, the substantial guarantee of trustworthiness

was provided by a case manager’s testimony. She was familiar with and described the

urinalysis collection and chain of custody procedures; she testified that the laboratory which

had generated Bass’s urinalysis report was the laboratory used to generate twenty to sixty

reports per week for Vigo County Community Corrections. The reports identify the

collecting and processing individuals, and contain detailed information about the testing time.

Each report is accompanied by a document signed by Bass and by the collecting officer,

acknowledging that the sample was sealed and secured in Bass’s presence. We conclude that

the trial court did not contravene Bass’s due process rights when it admitted the State’s

exhibits.

                   II.Sufficiency of the Evidence to Support Revocation

       A reviewing court treats a petition to revoke a placement in a community corrections


                                              8
program the same as a petition to revoke probation. Cox v. State, 706 N.E.2d at 549.

Community corrections is “a program consisting of residential and work release, electronic

monitoring, day treatment, or day reporting[.]” Ind. Code § 35-38-2.6-2. A defendant is not

entitled to serve a sentence in either probation or a community corrections program. Monroe

v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009). Rather, such placement is a “matter of

grace” and a “conditional liberty that is a favor, not a right.” Million v. State, 646 N.E.2d

998, 1002 (Ind. Ct. App. 1995).

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

939 N.E.2d 613, 616 (Ind. 2010). The State must prove the violation by a preponderance of

the evidence. Id. If a defendant violates the terms of his placement in community

corrections, the court may, after a hearing:

       (1)      Change the terms of the placement.
       (2)      Continue the placement.
       (3)      Revoke the placement and commit the person to the department of
             correction for the remainder of the person’s sentence.

Ind. Code § 35-38-2.6-5.

       The State presented evidence that Bass twice tested positive for methamphetamines.

The State established that Bass violated a term of his probation and placement – he did not

remain law-abiding and drug-free. Pursuant to Indiana Code Section 35-38-2.6-5(3), the trial

court had the option of revoking Bass’s placement and committing him to the DOC to serve a

portion of his sentence. The probation revocation decision is supported by sufficient

evidence.

                                        Conclusion

                                               9
       Bass has not persuaded us that his ten-year aggregate sentence, with four years

suspended to probation, is inappropriate. Bass was not denied due process by the admission

of hearsay evidence at the placement revocation hearing, and the decision to revoke Bass’s

probation and order a portion of his sentence executed is supported by sufficient evidence.

       Affirmed.

ROBB, C.J., and MATHIAS, J., concur.




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