FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

DOUGLAS R. LONG                              GREGORY F. ZOELLER
Anderson, Indiana                            Attorney General of Indiana

                                             CHANDRA K. HEIN
                                             Deputy Attorney General
                                             Indianapolis, Indiana

                                                                    Aug 26 2014, 9:45 am

                            IN THE
                  COURT OF APPEALS OF INDIANA

ANN WITHERS,                                 )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )      No. 48A02-1403-CR-130
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE MADISON CIRCUIT COURT
                         The Honorable David A. Happe, Judge
               Cause Nos. 48C04-1207-FB-1287 and 48C04-1208-FD-1440



                                  August 26, 2014


                            OPINION - FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Ann Withers appeals the termination of her placement in the Madison County Drug

Court program and reinstatement of her sentences in causes 48C04-1207-FB-1287 (“Cause

1287”) and 48C04-1208-FD-1440 (“Cause 1440”). She argues that the trial court committed

fundamental error in taking judicial notice of attendance reports in her Drug Court file and

abused its discretion in terminating her placement and reinstating her sentences. We

conclude that the trial court was authorized to take judicial notice of the attendance reports

pursuant to Indiana Evidence Rule 201(b)(5) and did not abuse its discretion in terminating

her placement and reinstating her sentences. Therefore, we affirm.

                              Facts and Procedural History

       In Cause 1287, the State charged Withers with Count I, class B felony dealing in

methamphetamines; Count II, class D felony possession of methamphetamine: Count III,

class D felony possession of two or more chemical reagents/precursors with intent to

manufacture controlled substance; and Count IV, class D felony maintaining a common

nuisance. In Cause 1440, the State charged Withers with Count I, class D felony neglect of a

dependent; Count II, class A misdemeanor battery; and Count III, class B misdemeanor false

informing. Withers and the State entered a plea agreement in which Withers pled guilty in

Cause 1287 to Counts I and III and in Cause 1440 to Count I. The State dismissed the

remaining counts. The trial court sentenced Withers to an aggregate term of eight years in

Cause 1287, with four years executed and four suspended, and to eighteen months executed

in Cause 1440 to be served consecutive to the sentence in Cause 1287.


                                              2
        Pursuant to the plea agreement, the trial court stayed execution of Withers’s sentences

on the condition that she participate in and successfully complete the Madison County

Problem Solving Courts program.1 The sentencing order further provided that upon

Withers’s completion of the program, her judgment would be vacated and the causes

dismissed and that her failure to complete the program would result in the stay being lifted

and the sentences executed.

        In April 2013, Withers entered the Drug Court program,2 one of Madison County’s

Problem Solving Courts. Melissa Reyes served as Withers’s case manager. Among other

things, Withers was required to attend drug counseling and mental health therapy and

undergo regular drug screens. In February 2014, Reyes filed a notice requesting Withers’s

termination from the Drug Court program, to which she attached several reports. One was a

“Problem Solving Courts Violation/Infraction Sheet” for Withers, indicating that she failed to

attend mental health therapy on December 10, 2013, December 12, 2013, and January 9,

2014. Appellant’s App. at 149. Reyes also attached individual reports (“the Attendance

Reports”) from three different licensed clinical social workers reporting Withers’s absence

from mental health therapy on the aforementioned dates. Id. at 150, 151, 154. Below the




        1
           “‘[P]roblem solving court’ means a court providing a process for immediate and highly structured
judicial intervention for eligible individuals.” Ind. Code § 33-23-16-8.

        2
         “‘[D]rug court’ means a problem solving court focused on addressing the substance abuse issues of
defendants or juveniles in the criminal justice system.” Ind. Code § 33-23-16-5.


                                                    3
signature line on each report was a typed statement that the report was electronically signed

by the social worker issuing the report.3

        The trial court held a hearing on the termination request. The trial court took judicial

notice of its file, including the notice of termination request and the attachments thereto. Tr.

at 12. Reyes testified that Withers “had several missed treatments, no calls/no shows.” Id. at

6, 9. Reyes also testified that she had attached all the documents in her file for Withers that

she had received from the health care organization providing Withers’s counseling and

treatment. Id. at 7. Reyes testified that sometimes she would permit Withers to miss

treatment for work, but at some point she told Withers that she could not miss any more

therapy sessions for work. Id. at 12-13. Reyes further testified that Withers had not failed

any drug screens but that Withers’s problem with her Drug Court program had more to do

with her attitude. Withers admitted in her testimony that she had “attendance issues” with

her therapy. Id. at 24.

        The trial court found that Withers had committed four violations of her treatment plan:

she failed to attend therapy on December 10, 2013, December 12, 2013, December 13, 2013,




        3
           The State asserts that the Attendance Records were electronically signed. Withers contends that
there is nothing resembling a signature on the documents to authenticate them. We observe that “electronic
signature” is defined numerous times in the Indiana Code depending upon the context in which the electronic
signature is to be used. See Ind. Code §§ 5-24-2-2 (State and Local Administration), 16-18-2-106.3 (Health),
25-26-13-2 (Professions and Occupations), 26-2-8-102(10) (Commercial Law); 35-33-5-8 (Criminal Law and
Procedure). Thus, there is not a single definition, and it is unclear which definition, if any, would be
applicable to the social workers providing care to Withers as part of the Drug Court program. Here, the record
is silent as to the methodology or process used by the social workers to implement the use of electronic
signatures. Given the growth of Problem Solving Courts in the State, this is a topic that is ripe for the
legislature’s consideration.

                                                      4
and January 9, 2014.4 The trial court opined that Withers did not seem to have the insight to

understand what she had done wrong, and therefore it did not believe that she would be

successful in the Drug Court program. The trial court terminated Withers from the Drug

Court program, lifted the stay, and reinstated her sentences.

                                       Discussion and Decision

                                      Section 1. Judicial Notice

        Withers appeals the termination of her placement in the Drug Court program. The

Drug Court program is a forensic diversion program akin to community corrections, and we

will review the termination of placement in a Drug Court program as we do a revocation of

placement in community corrections.

                For purposes of appellate review, we treat a hearing on a petition to
        revoke a placement in a community corrections program the same as we do a
        hearing on a petition to revoke probation. The similarities between the two
        dictate this approach. Both probation and community corrections programs
        serve as alternatives to commitment to the [Department of Correction] and
        both are made at the sole discretion of the trial court. A defendant is not
        entitled to serve a sentence in either probation or a community corrections
        program. Rather, placement in either is a matter of grace and a conditional
        liberty that is a favor, not a right.

               While a community corrections placement revocation hearing has
        certain due process requirements, it is not to be equated with an adversarial
        criminal proceeding. Rather, it is a narrow inquiry, and its procedures are to
        be more flexible. This is necessary to permit the court to exercise its inherent

        4
             The trial court appears to have relied on the Madison County Problem Solving Courts
Violation/Infraction Sheet. The violation/infraction sheet references missed treatments for “Dec13,” which the
trial court may have misread as December 13, 2013. Appellant’s App. at 149. The other missed dates are set
forth as “10Dec13,” “12Dec13,” and “9Jan14.” Id. In addition, the document to which the violation/infraction
sheet refers to for the “Dec13” entry is a monthly report for December 2013, and it does not show a failure to
appear for December 13, 2013, but rather contains a comment section stating generally that Withers has
attendance problems. Id. at 152. Therefore, it appears that “Dec13” refers to attendance issues during
December 2013.

                                                      5
       power to enforce obedience to its lawful orders. Accordingly, the 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. This assessment, then, carries
       with it a special level of judicial responsibility and is subject to appellate
       review. Nevertheless, it is not subject to the Rules of Evidence nor to the
       common law rules of evidence in effect prior to the Rules of Evidence.

Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009) (citations and quotation marks

omitted).

       Withers argues that the trial court erred in taking judicial notice of the Attendance

Reports that indicated that she did not attend mental health therapy on December 10, 2013,

December 12, 2013, and January 9, 2014, and were purportedly electronically signed by the

social workers. Withers acknowledges that she did not object at the hearing and contends

that the error is fundamental. See Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App. 2007)

(“[F]ailure to object at trial constitutes waiver of review unless an error is so fundamental

that it denied the accused a fair trial.”). We conclude that no error occurred in taking judicial

notice of the Attendance Reports, let alone fundamental error.

       Withers’s argument that judicial notice of the Attendance Reports was improper

ignores Indiana Evidence Rule 201(b)(5), which provides in relevant part that a court may

judicially notice a law, including “records of a court of this state.” The Attendance Records

were records of the Drug Court, prepared under its supervision and as part of its treatment


                                               6
program for Withers. Thus, the trial court was authorized to take judicial notice of them

pursuant to Evidence Rule 201(b)(5). See In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App.

2012) (in parental rights termination proceeding, trial court did not err in taking judicial

notice of court records in CHINS proceeding); In re Paternity of P.R., 940 N.E.2d 346, 350

(Ind. Ct. App. 2010) (in modification of custody proceeding, trial court did not err in taking

judicial notice of court records in protective order proceeding filed by mother against former

boyfriend). We observe that the judicial notice of the Attendance Records does not mean

that the facts within them were conclusive; the parties were free to contest the facts. See

Twin Lakes Reg’l Sewer Dist. v. Teumer, 992 N.E.2d 744, 748 (Ind. Ct. App. 2013) (“[W]hile

a party’s pleading may be judicially noticed, the facts in those pleadings are not necessarily

subject to judicial notice.”). Judicial notice of facts is governed by Evidence Rule 201(a).

       Although Withers ignored Evidence Rule 201(b)(5), we briefly address her argument

that judicial notice of the Attendance Records was improper because it violated her due

process rights. We note that “the due process right applicable in probation revocation

hearings allows for procedures that are more flexible than in a criminal prosecution.” Reyes

v. State, 868 N.E.2d 438, 440 (Ind. 2007). As in probation and community corrections

revocation proceedings, in a termination of participation in Drug Court proceeding, the rules

against hearsay do not apply, and the trial court may consider hearsay evidence bearing some

substantial indicia of reliability. See Monroe, 899 N.E.2d at 691. Although the parties

dispute whether the Attendance Records were actually electronically signed by the social

workers, we observe that these records were submitted to Withers’s case manager in the Drug


                                              7
Court program as part of the regularly conducted activity of the program. See Tr. at 7 (Reyes

testimony that she attached all the documents in her file for Withers that she received from

the health care organization providing Withers’s counseling and treatment). Thus, the

Attendance Records constitute reliable hearsay evidence for purposes of a hearing on the

termination of participation in a Drug Court program. See Williams v. State, 937 N.E.2d 930,

934-35 (Ind. Ct. App. 2010) (concluding that report documenting defendant’s compliance

with electronic monitoring was substantially trustworthy); Ind. Evidence Rule 803(6)

(providing that records of a regularly conducted activity are not excluded by the rule against

hearsay). Further, although “the trial court did not make an explicit determination of

substantial trustworthiness on the record, we observe that the failure to do so is not fatal

where the record supports such a determination.” Id. at 935.

       Finally, even if the trial court had erred in judicially noticing the Attendance Reports,

any error was harmless. Reyes testified that Withers missed several therapy sessions, and

Withers testified that she had attendance issues. Thus, there was independent evidence of

Withers’s violations of the Drug Court program.

       Given our conclusion that the trial court did not err in taking judicial notice of the

Attendance Records, we need not address Withers’s assertion that her counsel provided

ineffective assistance in failing to object thereto. See Overstreet v. State, 877 N.E.2d 144,

155 (Ind. 2007) (“[T]o prevail on a claim of ineffective assistance due to the failure to object,

the defendant must show an objection would have been sustained if made.”). In addition, we




                                               8
need not address her argument that without the Attendance Records the evidence was

insufficient to support her violations.

                                   Section 2. Sentencing

       Withers also challenges the trial court’s decision to terminate her participation in the

Drug Court program and reinstate her sentences. As we have noted, Drug Court is a forensic

diversion program akin to community corrections and probation. We will review a trial

court’s sentencing decisions for Drug Court violations for an abuse of discretion. See Prewitt

v. State, 878 N.E.2d 184, 188 (Ind. 2007) (probation case). “An abuse of discretion occurs

where the decision is clearly against the logic and effect of the facts and circumstances.” Id.

       Indiana Code Section 33-23-16-14.5(e) provides,

              [I]f the problem solving court judge or hearing officer finds that an
       individual participating in a problem solving court program has violated a
       condition of the program, the problem solving court judge or hearing officer
       may:

              (1) continue the individual’s participation in the problem solving court
              program with or without modifying or expanding the individual’s
              conditions for participating in the problem solving court program; or

              (2) terminate the individual’s participation in the problem solving court
              program.

       Indiana Code Section 33-23-16-14(b) provides,

              When an individual’s participation in a problem solving court program
       under this section has been terminated as provided under section 14.5 of this
       chapter, the problem solving court shall:

              (1) enter a judgment of conviction against the individual;




                                              9
              (2) refer the individual’s case back to the court that referred the case to
              the problem solving court to allow the referring court to enter a
              judgment of conviction against the individual; or

              (3) otherwise dispose of the case.

       Here, the sentencing order provided that Withers’s failure to complete the Problem

Solving Court program would result in the stay being lifted and the sentence executed. The

evidence showed that Withers missed therapy sessions that the Drug Court had determined

were necessary for her mental health and long-term abstinence from drug use. The trial court

listened to Withers’s testimony and concluded that her attitude would prevent her from

complying with the program that the Drug Court had designed for her. We are unpersuaded

that the trial court abused its discretion in terminating Withers’s participation in the Drug

Court program. Pursuant to the plea agreement, upon termination of her participation, the

trial court was required to lift the stay and reinstate her sentences. Therefore, we affirm.

       Affirmed.

RILEY, J., and MATHIAS, J., concur.




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