MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                      FILED
this Memorandum Decision shall not be                             Aug 24 2016, 8:13 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ian O’Keefe                                              Gregory F. Zoeller
Chicago, Illinois                                        Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew Keene Goodwin,                                   August 24, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         79A05-1510-CR-1790
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-1108-FA-19



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016    Page 1 of 12
[1]   Matthew Keene Goodwin appeals the revocation of his probation. He raises

      three issues, which we consolidate and restate as:

                 1. Whether the trial court abused its discretion when it found he
                    violated his probation; and


                 2. Whether the trial court abused its discretion by revoking part
                    of his suspended sentence in favor of Purposeful Incarceration
                    at the DOC. 1


      The State cross-appeals for clarification of the disposition. We affirm the

      revocation and remand for clarification of the dispositional order.



                                Facts and Procedural History
[2]   On April 2, 2012, Goodwin pled guilty to Class C felony possession of a

      narcotic drug 2 and Class D felony operating while intoxicated with a prior

      conviction. 3 He also admitted to a habitual substance abuse allegation. 4 On

      April 27, 2012, he was “sentenced to 11.5 years with 6.5 executed to include 3




      1
       The Indiana Department of Correction (IDOC) and the Indiana Court systems began a cooperative project
      called Purposeful Incarceration wherein the judge sentences “chemically addicted offenders” to the program
      at the IDOC and notes it will “consider a sentence modification” if the offender successfully completes it.
      Marley v. State, 17 N.E.3d 335, 338 (Ind. Ct. App. 2014) (quoting http://www.in.gov/idoc/2798.htm), trans.
      denied.
      2
          Ind. Code § 35-48-4-6(a) (2006).
      3
          Ind. Code § 9-30-5-3(a)(1) (2008).
      4
          Ind. Code § 35-50-2-10(b) (2006).



      Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016          Page 2 of 12
      years at TCCC [Tippecanoe County Community Corrections]. The Court

      suspend[ed] 5 years to probation.” (Appellee’s Supp. App. at 9.) 5


[3]   On March 12, 2015, the State filed a Petition to Revoke Probation. After a

      hearing, the court revoked 180 days of Goodwin’s suspended sentence as it

      found Goodwin had “violated the terms and conditions of probation by failing

      to follow Tippecanoe County Probation Department’s drug screening policy

      and by failing to maintain contact with the Tippecanoe County Probation

      Department.” (Appellant’s App. at 14.) After serving the 180 days, Goodwin

      was to return to probation. As a condition of probation, the trial court ordered

              the defendant shall provide a drug screen at the Tippecanoe
              County Probation Department on July 6, 2015. Further,
              defendant to provide proof of application to a substance abuse
              residential facility. If rejected from a residential facility the
              defendant shall file said rejection information with the Court.
              The defendant shall also file proof of the defendant having taken
              steps to attempt to re-enroll at Ivy Tech Community College.
              The defendant shall submit to a substance abuse evaluation and
              follow all recommends [sic] and attend no fewer than three (3)
              NA/AA meetings per week for the first six (6) months and
              provide proof of same.


      (Id. at 15.)




      5
        The sentencing order was not included in either party’s Appendix. We found the pronounced sentence in
      the CCS included in the State’s Supplemental Appendix.

      Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016       Page 3 of 12
[4]   On July 1, 2015, Goodwin was released from the DOC. He immediately

      reported to probation officer Charles Nielander at the Tippecanoe County

      Probation Department. Nielander reviewed the probation requirements with

      Goodwin and gave him until July 6, 2015, to “come up with the funds to pay

      for the drug screen.” (Tr. at 4.) Nielander also told Goodwin it was necessary

      for him to fill out a new application for Home With Hope, 6 even though he had

      an application with him, which he had completed in April, 2015.


[5]   When Goodwin reported on July 6, 2015, he did not provide proof of a drug

      screen or evidence he had reapplied to Home With Hope. Nielander spoke

      with Home With Hope’s director later that week and was told they were

      holding a bed for Goodwin but had been unable to reach Goodwin at the

      numbers they had for him. Nielander was to see Goodwin on July 13, 2015, for

      a probation appointment, so Nielander told the Home With Hope director he

      would send Goodwin to her after the appointment. Goodwin did not appear at

      his appointment with Nielander.


[6]   The State filed another petition to revoke probation on July 16, 2015, alleging

      Goodwin had failed to appear at the July 6, 2015, appointment and had

      absconded. It later corrected the petition to allege he had “reported but failed

      to provide proof of taking the drug screen as required,” “fail[ed] to provide




      6
       Home With Hope operates in the Lafayette area and “provides a continuum of care, often following
      primary treatment or detox for alcoholism and other drug addiction[.]” Home With Hope,
      http://www.homewithhope.org (last visited Aug. 12, 2016).

      Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016      Page 4 of 12
      proof that he remain[ed] in contact with the Home with Hope [sic] and

      followed through with the application process,” and “fail[ed] to report for his

      scheduled appointment on July 13, 2015[.]” (Appellant’s App. at 23.)


[7]   At his revocation hearing, Goodwin denied the violations. He claimed

      Nielander had told him a drug screen conducted through the Department of

      Child Services (DCS) would suffice. He claimed he had taken a copy of the

      application he had filled out in April, 2015, to Home With Hope and they had

      made a copy of it. He admitted he missed the probation appointment because

      “I was working on doing my three meetings a week, the Judge ordered me to

      do and I just, between looking for a job, and with meetings, I just lost track.”

      (Tr. at 13.) The trial court found Goodwin had

              violated the terms of his probation by failing to provide proof of
              taking the drug screen as required[,] . . . by failing to provide
              proof that he remained in contact with the Home With Hope and
              followed through with the application process[,] . . . [and] by
              failing to report for his scheduled appointment on July 13, 2015.


      (Appellant’s App. at 28.)


[8]   At the disposition hearing, on September 25, 2015, it became clear that due to

      his prior revocation of probation, and past fees resulting from same, Goodwin

      was not eligible to re-enter TCCC. The State had also informed the trial court

      that Goodwin had been arrested when officers were “dispatched [to] an

      intoxicated person who could barely stand up.” (Tr. at 19.) Even though

      Goodwin asked to be returned to probation, the trial court found a pattern of


      Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016   Page 5 of 12
       Goodwin’s inability to maintain contact with probation and follow the drug

       screen policies. After noting it believed Goodwin was “high when [he] was

       picked up in [this current revocation],” (id. at 32), the trial court thought “the

       only way of getting [Goodwin] through,” (id.) was to return him to the DOC to

       complete the Purposeful Incarceration program and to then serve “a year

       supervised, six months unsupervised” probation. (Id. at 35.)


[9]    When asked about his drug and alcohol meetings, Goodwin stated he had been

       going but that “I didn’t have no [sic] sign in sheets, I asked Mr. Nielander for a

       sign in sheet which he never gave me.” (Id. at 26.) He had not attempted to re-

       enroll at Ivy Tech. When asked with whom he lived, Goodwin said, “A

       friend.” (Id. at 27.) When asked the name of the friend, Goodwin said, “John

       Smith.” (Id.) These responses, along with the circumstances of Goodwin’s

       arrest, prompted the judge to comment,

               I don’t believe you. John Smith, really, really? Maybe it is a
               John Smith that resides at 12th and Greenbush, but you hadn’t
               been doing anything that you were required to do. . . . I think
               you need help . . .[.] I think purposeful incarceration [sic] may be
               the only way of getting you through the -- and it’s up to you. If
               you successfully complete the program then you’re out.


       (Id. at 30-32.)


[10]   The trial court noted Community Corrections would be ideal, but Goodwin

       was not eligible for it because he failed its drug screen and did not pay its fees.

       The trial court then sentenced Goodwin to three years in the DOC’s Purposeful

       Incarceration program, with one and one half years on probation.
       Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016   Page 6 of 12
                                  Discussion and Decision
[11]   When a trial court finds a person has violated a condition of probation, the trial

       court may continue the person on probation, extend the probationary period, or

       order execution of all or part of the sentence that was originally suspended.

       Ind. Code § 35-38-2-3(g). Probation revocation proceedings are civil in nature

       and, therefore, alleged violations need be proven by only a preponderance of

       the evidence. Ind. Code § 35-38-2-3(e). In evaluating the sufficiency of

       evidence to support probation violations, we will not reweigh evidence or

       determine witness credibility. King v. State, 642 N.E.2d 1389, 1393 (Ind. Ct.

       App. 1994). Rather, we look only to the evidence most favorable to the State.

       Id. The violation of a single condition of probation is sufficient to support

       revocation. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). We

       review the sanction imposed in a probation revocation proceeding for abuse of

       discretion. Podlusky v. State, 839 N.E.2d 198, 200 (Ind. Ct. App. 2005).


                                             Probation Violation

[12]   Goodwin asserts the trial court abused its discretion by finding he violated his

       probation because he did not provide proof of taking the drug screen; because

       he failed to provide proof he had remained in contact with Home With Hope

       and completed the application process; and because he failed to report to his

       appointment on July 13, 2015.


[13]   Goodwin went to his probation appointment on July 6, 2015, but Nielander

       testified he “never received any proof that [Goodwin] did a drug screen on July


       Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016   Page 7 of 12
       6th.” (Tr. at 4.) Goodwin asserts he was told he could provide evidence of a

       DCS drug screen. Nielander testified he did not tell Goodwin the probation

       department would accept a drug screen from DCS. Even if he did, Goodwin

       never provided such evidence.


[14]   Although Nielander told Goodwin to re-apply with Home With Hope, the

       probation department never received proof of an application or proof of

       maintenance of contact. The director from Home With Hope told Nielander

       that Goodwin did “fill out an application,” (id. at 5), but she had been unable to

       contact Goodwin using the contact numbers Goodwin had provided to inform

       him they were holding a bed. Goodwin contends he had gone to Home With

       Hope on July 1, 2015, but they accepted a copy of the original application filled

       out in April, 2015. However, because of the $300 entry fee associated with

       Home With Hope, he was unable to start its program immediately. Even if the

       application was started, Goodwin never provided proof of it to the probation

       department and did not maintain contact with Home With Hope.


[15]   When Goodwin missed his July 13, 2015 appointment, Nielander also

       attempted to contact him at the phone numbers provided but they “were not in

       service at that time.” (Id. at 6.) Goodwin admitted he missed the appointment

       on July 13, 2015.


[16]   The trial court did not abuse its discretion in finding by a preponderance of

       evidence Goodwin violated probation. See Gosha, 873 N.E.2d at 663 (a single

       violation is sufficient to support revocation). Goodwin’s arguments to the


       Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016   Page 8 of 12
       contrary are invitations to reweigh the evidence, which we cannot do. See, e.g.,

       Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005) (appellate court will

       not reweigh the evidence from a probation revocation hearing), trans. denied.


                                                     Sanction

[17]   Goodwin asserts missing his probation appointment was a minor violation, and

       the punishment for that violation should be revised. Even if it was “minor,” it

       was not the only violation. Goodwin’s probation was revoked because he did

       not provide proof of a drug screen, did not stay in contact with Home With

       Hope, did not provide proof of his application status with Home With Hope,

       and missed a probation appointment.


[18]   Goodwin contends “[t]he trial court abused its discretion by sentencing

       Goodwin to the DOC because Goodwin did not have the financial means to

       pay for [TCCC].” (Appellant’s Br. at 12) (capitalization removed). Goodwin

       cites Runyon v. State, 939 N.E.2d 613 (Ind. 2010), as the basis of his argument.

       However, Runyon applies only when a court revokes conditional release due

       merely to the offender’s inability to pay fines. See Ind. Code § 35-38-2-3(m)

       (“Failure to pay fines or costs (including fees) required as a condition of

       probation may not be the sole basis for commitment to the department of

       correction.”).


[19]   This is not why the trial court sent Goodwin to the DOC Purposeful

       Incarceration program. The trial court stated specifically, “I think purposeful

       incarceration [sic] may be the only way of getting you through the—and it’s up

       Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016   Page 9 of 12
       to you.” (Tr. at 32.) While the trial court considered TCCC, Goodwin told the

       court he owed TCCC money and he had “failed a drug screen.” (Id.) As such,

       TCCC was unwilling to accept him back into its program. While Goodwin

       argued for return to probation, the trial court dismissed that idea because of

       Goodwin’s pattern of behavior, which led it to believe he needed closer

       supervision. See Sanders, 825 N.E.2d at 957 (given “ample basis for its

       decision,” a trial court’s order to serve a suspended sentence is not an abuse of

       discretion). As such, we find no abuse of discretion in the trial court’s order for

       Goodwin to spend time in the DOC’s Purposeful Incarceration Program.


                                                  Cross-Appeal

[20]   The State argues the trial court’s disposition of this matter is unclear. Goodwin

       does not reply to this assertion. In such a case, we do not assume the burden of

       making the argument for him. Instead, we apply a less stringent standard of

       review. Pettiford v. State, 504 N.E.2d 324, 326 (Ind. Ct. App. 1987). To obtain

       remand, the State need only establish the trial court committed prima facie error.

       Id. In this context, prima facie means at first sight, on first appearance, or on the

       face of it. Id. However, we still review the evidence in the light most favorable

       to the judgment and will remand only if error is demonstrated in the record and

       by the State’s brief. Id.


[21]   At the hearing, the trial court recognized the “total time left was four and a half

       years.” (Tr. at 33.) It then sentenced Goodwin to “the three years.” (Id. at 34.)

       When the State requested clarification as to the remaining year and a half, the


       Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016   Page 10 of 12
       trial court stated “If there’s a modification we’ll deal with it at that time. I see,

       a year supervised, six months unsupervised.” (Id. at 35.)


[22]   On that same day, the trial court entered an order reflecting Goodwin is

       “sentenced to the Indiana Department of Correction for a period of three (3)

       years to be directly placed in Purposeful Incarceration.” (App. at 30.)

       Although the order notes the trial court will “consider modification of the

       sentence on successful completion of Purposeful Incarceration,” (id.), it does

       not reflect the trial court’s statement regarding one year of supervised probation

       and six months of unsupervised probation. This order also stated the April 27,

       2012, sentencing order would “remain in full force and effect,” (id. at 31), but

       that does not clarify how Goodwin should spend his remaining time on

       probation.


[23]   The trial court thereafter entered two abstracts of judgment but neither clarified

       the conflict between the oral and written sentences. 7 When there is conflict

       between the trial court’s statements, we may remand for clarification. Ramos v.

       State, 869 N.E.2d 1262, 1264 (Ind. Ct. App. 2007). Accordingly, we remand for

       the trial court to clarify the sanction imposed on Goodwin.



                                                  Conclusion



       7
        The State filed a Motion to Correct Error, but the case was removed from the trial court’s jurisdiction by the
       present appeal.

       Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016           Page 11 of 12
[24]   As the State proved Goodwin violated his probation and the trial court did not

       abuse its discretion in the sanction, we affirm. However, due to the ambiguity

       as to the punishment imposed, we remand for clarification.


[25]   Affirmed and remanded.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1510-CR-1790 | August 24, 2016   Page 12 of 12
