MEMORANDUM DECISION                                                                         FILED
                                                                                        Mar 17 2016, 8:37 am

Pursuant to Ind. Appellate Rule 65(D),                                                      CLERK
                                                                                        Indiana Supreme Court
this Memorandum Decision shall not be                                                      Court of Appeals
                                                                                             and Tax Court
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James A. Shoaf                                           Gregory F. Zoeller
Columbus, Indiana                                        Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Catina M. Caudill,                                       March 17, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         03A01-1508-CR-1228
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable Kathleen Tighe
Appellee-Respondent.                                     Coriden, Judge
                                                         Trial Court Cause No.
                                                         03D02-1410-CM-4831 & 03D02-
                                                         1412-F6-5719



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1508-CR-1228 | March 17, 2016           Page 1 of 9
                                   STATEMENT OF THE CASE

[1]   In this consolidated appeal, Appellant-Defendant, Catina M. Caudill (Caudill),

      challenges the trial court’s revocation of her probation under Cause Nos.

      03D02-1412-F6-5719 (F6-5719) and 03D02-1410-CM-4831 (CM-4831).


[2]   We affirm.


                                                    ISSUE

[3]   Caudill raises one issue on appeal, which we restate as follows: Whether the

      trial court abused its discretion in ordering Caudill to serve the balance of her

      two previously suspended sentences.


                           FACTS AND PROCEDURAL HISTORY

[4]   On March 17, 2015, Caudill pled guilty to possession of heroin, a Level 6

      felony, under Cause No. F6-5719, and conversion, a Class A misdemeanor,

      under Cause No. CM-4831. Under Cause No. F6-5719, the trial court

      sentenced Caudill to two years of imprisonment, all suspended to probation,

      with the first year executed at community corrections. Under Cause No. CM-

      4831, the trial court sentenced Caudill to one year of imprisonment suspended

      to probation. The trial court ordered the sentences to run consecutively.


[5]   A month later, on April 17, 2015, the State filed petitions to revoke Caudill’s

      probation in each case, alleging that Caudill had violated her probation by

      using methamphetamine. Caudill admitted to violating her probation at a

      hearing on June 1, 2015. The trial court ordered Caudill to complete the

      Court of Appeals of Indiana | Memorandum Decision 03A01-1508-CR-1228 | March 17, 2016   Page 2 of 9
      Women Recovering with a Purpose (WRAP) program1 and to remain in

      community corrections for the entire term of probation. However, while on

      probation and in the substance abuse program, Caudill provided Suboxone, a

      prescription medication, to two other participants in the program.


[6]   On June 8, 2015, the State filed a Second Verified Petition to Revoke Probation

      in both cases, alleging that Caudill violated her probation by being

      unsuccessfully discharged from the WRAP program. On July 20, 2015, the

      trial court held a fact-finding hearing. At the hearing, the director of

      Residential Services for Bartholomew County Court Services, Rob Gaskill

      (Director Gaskill), testified that two individuals informed him that they used

      Suboxone, which was provided to them by Caudill. Caudill objected to

      Director Gaskill’s testimony, arguing that it constituted hearsay, but the trial

      court overruled the objection. Caudill, in turn, claimed that she did not provide

      drugs to those individuals. At the conclusion of the hearing, the trial court

      found that Caudill had violated her probation, and ordered the remaining

      balance of her two previously suspended sentences to be executed, one-and-one-

      half years under Cause No. F6-5719 at the Department of Correction and one

      year under Cause No. CM-4831 at the Bartholomew County Jail, and to be

      served consecutively.




      1
       The WRAP program is a female substance abuse program administered by community corrections in
      Bartholomew County, Indiana.

      Court of Appeals of Indiana | Memorandum Decision 03A01-1508-CR-1228 | March 17, 2016     Page 3 of 9
[7]   Caudill now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

                                            I. Standard of Review

[8]   Probation is a favor granted by the State and is not a right to which a criminal

      defendant is entitled. Sparks v. State, 983 N.E.2d 221, 224 (Ind. Ct. App. 2013),

      aff’d on reh’g. The decision to revoke probation lies within the sound discretion

      of the trial court. Id. Thus, a trial court’s decision to revoke probation and its

      subsequent sentencing decision are reviewed for an abuse of discretion.

      Id. A probation revocation proceeding is in the nature of a civil proceeding,

      and, therefore, the alleged violation need be established only by a

      preponderance of the evidence. Jenkins v. State, 956 N.E.2d at 146, 148 (Ind.

      Ct. App. 2011), trans. denied. Violation of a single condition is sufficient to

      revoke probation. Id. As with other sufficiency issues, we do not reweigh the

      evidence or judge the credibility of witnesses. Id. We look only to the evidence

      which supports the judgment and any reasonable inferences flowing

      therefrom. Id. If there is substantial evidence of probative value to support the

      trial court’s decision that the probationer committed a violation, revocation

      of probation is appropriate. Id.


                                                  II. Analysis

[9]   Caudill argues that she was denied her right to due process when her

      participation in the WRAP program was terminated without a written notice of

      the claimed violation. We have previously held in Gosha v. State, 931 N.E.2d


      Court of Appeals of Indiana | Memorandum Decision 03A01-1508-CR-1228 | March 17, 2016   Page 4 of 9
       432, 435 (Ind. Ct. App. 2010), that a participant in a drug court program is

       entitled to due process, including an evidentiary hearing, with written notice of

       the claimed violations, disclosure of the evidence against her, an opportunity to

       be heard and to present evidence, and the right to confront and cross-examine

       witnesses.


[10]   However, it is well settled that a federal constitutional error is harmless if it is

       clear beyond a reasonable doubt that it did not affect the judgment. Pope v.

       State, 853 N.E.2d 970, 973 (Ind. Ct. App. 2006). In Pope, the defendant was

       placed in community corrections and agreed to, among other conditions, return

       to jail without going through the court if she violates any of the rules of

       community corrections. Id. at 971-72. The defendant later failed her urine

       analysis test, was arrested, and taken to jail. Id. at 972. When she appeared

       before the trial court, the defendant, who was in custody, indicated that she had

       not been informed why she had been arrested and was appearing in court. Id.

       She did not have an attorney representing her. Id. The trial court did not allow

       her to speak on her behalf, but told her that if she wanted to challenge the

       findings of community corrections, she would have to get an attorney and file a

       motion with the court. Id. The court issued an order committing her to jail. Id.

       On appeal, we held that the defendant was entitled to notice of an alleged

       violation and a hearing before her termination from a community corrections

       program. Id. at 973. We further held that the denial of those requirements

       of due process was not harmless error. Id. We observed that “Pope was




       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-CR-1228 | March 17, 2016   Page 5 of 9
       impeded in her defense” in that she “sought an independent drug test promptly

       after being informed of the allegations against her.” Id.


               [B]ecause she received no notice of these allegations and was
               summarily returned to jail, [the defendant] was unable to get an
               independent drug screen until several weeks later. Obviously, the
               delay reduced the probative value of the drug screen, since the
               fact finder could conclude that the drugs had passed from her
               system naturally by the time the independent drug screen was
               conducted. Under these circumstances, we cannot say that the
               error was harmless beyond a reasonable doubt.


       Id.

[11]   In contrast, here, Caudill received sufficient notice of the nature of the alleged

       violation. On June 1, 2015, Caudill admitted to the use of methamphetamine

       while on probation and was placed in the substance abuse program. Two days

       later, on June 3, 2015, Caudill was “pulled out and [was] told that two girls had

       said that [Caudill] gave them drugs.” (Transcript p. 6). She was then

       terminated from the program. On June 8, 2015, the State filed its Second

       Verified Petition to Revoke Probation stating that the reason for the request was

       her unsuccessful discharge from the substance abuse program. At this point,

       she had sufficient notice of the alleged violation and sufficient disclosure of the

       evidence against her. Further, at an initial hearing on June 9, 2015, Caudill

       indicated that she would hire counsel, and the trial court scheduled a fact-

       finding hearing for July 20, 2015. Therefore, unlike the defendant in Pope,

       Caudill was provided with a reasonable opportunity to investigate the



       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-CR-1228 | March 17, 2016   Page 6 of 9
       circumstances of her discharge from the WRAP program, consult with counsel,

       and develop her defense before the fact-finding hearing.


[12]   On July 20, 2015, at the fact-finding hearing, Caudill appeared in person and

       with counsel. Director Gaskill was called to the stand and testified that “two

       other participants verbally [informed him] directly that they used Suboxone that

       they received from [Caudill] when she came into the program that day.” (Tr. p.

       3). Caudill objected based on hearsay, but the trial court properly overruled her

       objection. See Ind. Evidence Rule 101(d)(2) (the Rules of Evidence do not

       apply to probation proceedings). Director Gaskill testified that “all three of

       them [were jailed]” and Caudill was not deemed “appropriate for further

       placement in [the] program.” (Tr. p. 3). Caudill’s counsel cross-examined

       Director Gaskill and inquired whether Caudill failed her drug screen test.

       Director Gaskill replied that Caudill did not fail it, but her “instant drug screen

       [did] not test for [Suboxone].” (Tr. p. 5). When Caudill took the stand, she

       denied the allegations. Caudill neither called other witnesses to the stand nor

       provided any other evidence. Unlike Pope, where the defendant was not

       provided with an opportunity to develop her case, here, Caudill had the

       opportunity, yet all her defense amounted to was a general denial. Following

       Caudill’s testimony, the trial court held that Caudill violated the terms of her

       probation.


[13]   Under these circumstances, we conclude that it is clear beyond a reasonable

       doubt that the alleged denial of written notice and other elements of due process

       did not affect the trial court’s determination that Caudill violated the terms of

       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-CR-1228 | March 17, 2016   Page 7 of 9
       her probation. Caudill violated her probation twice. The first time, she

       violated her probation when she used methamphetamine; and the second time,

       two days later, when she was discharged from the substance abuse program. In

       sum, because the outcome would not have been any different, the alleged error,

       if any, was harmless.


[14]   Finally, while we agree with Caudill that the trial court should have issued a

       written statement containing the evidence relied on and reasons for revoking

       her probation, we find the trial court’s failure to designate specific facts and the

       reasons for its decision to be harmless because the trial court’s order was

       sufficiently supported by the record. See, e.g., Hubbard v. State, 683 N.E.2d 618,

       622 (Ind. Ct. App. 1997) (the trial court’s order of probation revocation and the

       hearing transcript were adequate for appellate review and, when examined

       together, satisfied the writing requirement).


[15]   Accordingly, applying our standard of review, because probation is a matter of

       grace and because Caudill violated her probation twice, we hold that the trial

       court’s decision to revoke her previously suspended sentence in light of her

       behavior was well within the trial court’s sound discretion.


                                              CONCLUSION

[16]   Based on the foregoing, we conclude that the trial court properly revoked

       Caudill’s probation.


[17]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-CR-1228 | March 17, 2016   Page 8 of 9
[18]   Najam, J. and May, J. concur




       Court of Appeals of Indiana | Memorandum Decision 03A01-1508-CR-1228 | March 17, 2016   Page 9 of 9
