                                                                              FILED
                                                                          Jul 08 2016, 8:24 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Leanna Weissmann                                           Gregory F. Zoeller
Lawrenceburg, Indiana                                      Attorney General of Indiana

                                                           Paula J. Beller
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brad L. Sullivan,                                          July 8, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           16A01-1512-CR-2175
        v.                                                 Appeal from the Decatur Superior
                                                           Court
State of Indiana,                                          The Honorable Matthew D.
Appellee-Plaintiff.                                        Bailey, Judge
                                                           Trial Court Cause No.
                                                           16D01-1408-F6-568




Brown, Judge.




Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016                           Page 1 of 12
[1]   Brad L. Sullivan appeals the revocation of his community corrections

      placement. Sullivan raises one issue which we revise and restate as whether the

      trial court abused its discretion in revoking his placement in community

      corrections. We reverse and remand.


                                         Facts and Procedural History

[2]   On September 14, 2015, Sullivan and the State executed a plea agreement

      which provided that Sullivan would plead guilty to intimidation as a level 6

      felony, criminal trespass as a class A misdemeanor, and battery as a class A

      misdemeanor in this cause, and battery as a class A misdemeanor in another

      cause. The plea agreement further provided that Sullivan would be sentenced

      in this cause to twenty-four months for intimidation, to one year each for

      criminal trespass and for battery, and that the sentences would run

      concurrently. It provided he would be sentenced for battery in the other cause

      to ninety-two days, and that credit time would be applied to this sentence

      resulting in it being served in full. The plea agreement further stated:


              18 months shall be served as an initial executed sentence on
              electronically monitored home detention, so long as the
              defendant establishes and maintains eligibility through
              Community Corrections, including abiding by all rules of home
              detention and remaining current on fees. . . . If the defendant
              fails to establish eligibility the sentence will be served in the
              Decatur County Jail.

                                                       *****

              The defendant has been advised that the Court has discretion to
              determine the sanction if the defendant has been found to have
      Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016     Page 2 of 12
              violated the rules and guidelines of Community Corrections.
              The defendant hereby waives this right and agrees that if found to
              have violated these rules or otherwise become ineligible (except
              for non-payment of fees due to a change in economic
              circumstances) then the remaining portion of the defendant’s
              executed sentence shall be served at the Decatur County Jail.

      Appellant’s Appendix at 46.


[3]   At a guilty plea hearing on September 14, 2015, Sullivan pled guilty pursuant to

      the plea agreement, and the court imposed an aggregate sentence of two years

      with eighteen months to be served on home detention and the balance to be

      served on supervised probation. In its judgment of conviction, the court stated:

      “If the defendant has not been approved for home detention by October 20,

      2015, then the defendant shall report to the Decatur County Jail on that date to

      serve the sentence as an executed sentence in the Indiana Department of

      Correction.” Id. at 43.


[4]   On October 23, 2015, Decatur County Community Corrections filed a petition

      to revoke community corrections placement alleging Sullivan violated the

      conditions of his placement by not reporting to start home detention as

      described in an attached affidavit and incident report.


[5]   On October 29, 2015, the court held an initial hearing on the petition at which

      Sullivan stated that he had paperwork that proves he was in the Columbus

      Regional Mental Health Unit and from there went to St. Vincent’s Stress Center

      and that he was institutionalized and could not report. Sullivan further stated

      that he “got a hold of [his counsel], and [his] social worker at Columbus

      Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016   Page 3 of 12
      Regional Mental Health Unit was supposed to contact [his counsel] and fax

      him the paperwork for that.” Transcript at 23. He stated that he “was told that

      [he] had [$270] up front to start [his] house arrest,” that he “had the house

      phone and the house check, everything approved,” that “[e]verything’s been

      done, but [he] had to have the two hundred and seventy (270) up front,” that he

      “was under the assumption that that was out of [his] bond money and stuff,”

      that “that’s the only reason [he] had kind of a nervous break about it,” that he

      had “proof that states that [he] was not able to contact him” and that he “was in

      a[n] institution.” Id. at 23-24. He also stated that “[i]t seems like every time I

      start to get on the right medications and on the right path, I’m throwed (sic)

      back in here, and then I’m taken off the medications and have to restart

      everything all over again, and given my conditions, it’s [] pretty serious.” Id. at

      24. The court informed Sullivan that, if he was found to be in violation, the

      court could continue his placement or could order all or a part of his previously

      suspended sentence to be served in the Indiana Department of Correction (the

      “DOC”). The court entered a denial of the allegations on behalf of Sullivan

      and scheduled a revocation hearing.


[6]   On November 12, 2015, the court held the revocation hearing, at which the

      State presented the testimony of the Director for Decatur County Community

      Corrections who stated that, “after Court, [Sullivan] did come in, and we gave

      him a Court date of October twentieth (20th) to start his[] home detention,”

      that there was no additional contact with Sullivan prior to October 20th, and

      that Sullivan did not begin home detention on or before October 20th. Id. at 30.


      Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016    Page 4 of 12
      On cross-examination, the Director indicated that Sullivan had already been

      approved for community corrections, that if Sullivan were to report he “would

      be able to be hooked up,” and that he would have no problem accepting

      Sullivan to the program if the court ordered. Id. at 31.


[7]   Sullivan testified and acknowledged his report date of October 20th and stated

      that he was in a mental health facility at the time for “post traumatic distress

      disorder and major depressive disorder.” Id. at 33. He indicated that he would

      report immediately if the court were to allow it and that he would have no

      problem financially because he still had bond to pay for that and he had a job

      waiting for him when he was released. On cross-examination, Sullivan

      indicated he went to Columbus Regional on the 15th and was released from

      there on the 17th, and from there he went directly to St. Vincent’s through

      Medicab. When asked if he was allowed to use a telephone at either of the

      facilities, Sullivan replied that “I was at Columbus through one of my

      counselors, and I contacted my legal representative, . . . , and I was under the

      impression that he was gonna contact the Court and Community Corrections,”

      and when asked if he contacted community corrections, he answered “I was

      unable to.” Id. at 34. He testified he was released from St. Vincent’s on

      October 21st and that he was under the impression that his counsel “had taken

      care of everything, then by the time I was able to contact him again, he had

      moved to South Carolina, I believe it was.” Id. at 35. When asked why he was

      unable to contact community corrections, Sullivan testified that he was under

      the impression it was taken care of by his counsel because his counsel “said he


      Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016   Page 5 of 12
      would fax the uh, Community Corrections and fax the Court.” Id. On redirect,

      Sullivan indicated that it was just a misunderstanding that he did not know his

      new report date. Sullivan’s counsel informed the court that he had contacted

      Sullivan’s previous legal counsel, who told him that “he thought he had faxed

      over medical documentation to the Prosecutor’s Office,” that “that’s where he

      told me to try to get the records he had um, and doesn’t appear that it came

      through,” and “that was my understanding as well, that that had been done, but

      I have not been able to obtain his medical records.” Id. at 36.


[8]   The court then addressed the deputy prosecutor and stated, “as I look through

      this plea agreement, this looks like one of those where, if they violate the plea

      agreement, specifies they do the whole thing,” and the deputy prosecutor said

      that the “State’s position is he violated, and he does the remainder of the

      sentence at the jail.” Id. at 37. The deputy prosecutor also stated “[z]ero

      tolerance probation is just quite common, and it’s always been upheld,” and the

      court replied: “Really? Hmm.” Id. The court found Sullivan in violation of the

      conditions of his community corrections placement on home detention by not

      beginning his placement as ordered, revoked his placement, and ordered that he

      serve his time at the Indiana Department of Correction. The court’s written

      order states: “As required by the terms of the Plea Agreement filed and

      accepted on September 14, 2015, the Court now orders that [Sullivan’s] entire

      18 month community corrections sentence be revoked, and [Sullivan] shall

      serve the 18 months as an executed sentence at the Indiana Department of

      Correction.” Appellant’s Appendix at 63.


      Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016   Page 6 of 12
                                                     Discussion

[9]    The issue is whether the trial court abused its discretion in revoking Sullivan’s

       placement in community corrections. Placement in community corrections is

       at the sole discretion of the trial court. Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct.

       App. 2014) (citation omitted), trans. denied. 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. Holmes v. State, 923 N.E.2d 479, 482 (Ind. Ct. App. 2010) (citation

       omitted). Probation revocation is a two-step process. Ripps v. State, 968 N.E.2d

       323, 326 (Ind. Ct. App. 2012). First, the trial court must make a factual

       determination that a violation of a condition of probation actually occurred. Id.

       Then, if a violation is proven, the trial court must determine if the violation

       warrants revocation of the probation. Id. (citing Woods v. State, 892 N.E.2d 637,

       640 (Ind. 2008)). “However, even a probationer who admits the allegations

       against him must still be given an opportunity to offer mitigating evidence

       suggesting that the violation does not warrant revocation.” Id. (citing Woods,

       892 N.E.2d at 640).


[10]   Sullivan asserts that the predetermined sanction in his plea agreement that he

       serve his entire sentence in jail for any rule violation was improper as a matter

       of law and deprived him of a number of his constitutional rights including his

       right to due process. He further argues that the court abused its discretion in

       enforcing the provision, that he did not purposefully violate community

       corrections’ rules, that circumstances beyond his control created the situation

       Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016     Page 7 of 12
       which led to the minor rule violation, and that the State presented no

       compelling facts to justify implementation of such a harsh sentence. He also

       argues that he had taken steps to be hooked up on home detention, that he was

       in a mental health hospital on the day he was to report, that he and his social

       worker contacted his trial attorney, that his trial attorney believed he had faxed

       commitment information to the prosecutor’s office, and that community

       corrections was still willing to accept Sullivan into the program.


[11]   The State responds that Sullivan did not substantiate his testimony with any

       medical records and failed to explain why he did not follow up with community

       corrections or his attorney for six days after he returned home. It further argues

       that, because Sullivan was approved for community corrections, he had the

       information necessary to contact community corrections himself, and that, in

       light of the facts he did not speak directly with his attorney while hospitalized,

       did not have confirmation that his attorney had taken care of everything, and

       did not contact community corrections during or after his hospitalization, it was

       not unreasonable for the court to determine that Sullivan had violated a

       condition of his community corrections placement. In his reply brief, Sullivan

       maintains that in essence the State’s argument is that, no matter what

       agreement he entered, the court must uphold it, and he contends that this case

       is a good example of the unfairness that can result in such a scenario, namely,

       that he must go to jail even though he had good reason for not surrendering

       himself to begin his home detention.




       Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016   Page 8 of 12
[12]   We note that Sullivan does not dispute that he did not report as required on

       October 20, 2015. Rather, he maintains the court abused its discretion in

       imposing such a harsh sentence under the circumstances including among other

       factors that he was in a mental health hospital on the day he was to report. In

       Woods, Woods was placed on probation that the parties referred to as “strict

       compliance,” which the deputy prosecutor explained as meaning “[a]ny other

       violation of any terms or conditions of his probation will result in full backup of

       15 years.” Woods, 892 N.E.2d at 639. The State alleged Woods failed to report

       for urinalysis drug testing, failed to report to the probation department, and

       failed to make a good-faith effort to pay fees, and the trial court revoked his

       probation. Id. The Indiana Supreme Court held:


               In one sense all probation requires “strict compliance.” That is
               to say probation is a matter of grace. And once the trial court
               extends this grace and sets its terms and conditions, the
               probationer is expected to comply with them strictly. If the
               probationer fails to do so, then a violation has occurred. But
               even in the face of a probation violation the trial court may
               nonetheless exercise its discretion in deciding whether to revoke
               probation.

               In any event the very notion that violation of a probationary term
               will result in revocation no matter the reason is constitutionally
               suspect. For example, failure to pay a probation user fee where
               the probationer has no ability to pay certainly cannot result in a
               probation revocation. And what of a probationer not reporting
               to his probation officer because he was in a coma in a hospital?
               Or consider a failed urinalysis test because of prescription
               medication a probationer is taking on orders from his treating
               physician. Although not a defense to revocation, lack of volition


       Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016     Page 9 of 12
               is often a factor pertinent to a disposition in a revocation
               proceeding.

               We acknowledge that telling a defendant that he is on “strict
               compliance” is a dramatic way of putting him on notice that he is
               on a short leash and has been given one final chance to “get his
               act together.” Nonetheless due process requires that a defendant
               be given the opportunity to explain why even this final chance is
               deserving of further consideration.

       Id. at 641 (citations omitted).


[13]   Sullivan testified as to the reasons he believed his violation did not warrant

       revocation of his placement. At the October 29, 2015 hearing, Sullivan stated

       that he was in the Columbus Regional Mental Health Unit, later went to St.

       Vincent’s Stress Center, and at the time could not report. He further stated that

       he “got a hold of” his counsel, and his social worker at Columbus Regional was

       supposed to contact his counsel and fax him paperwork, and that he had his

       house and house phone approved for home detention. Transcript at 23. At the

       November 12, 2015 hearing, Sullivan testified that he went to Columbus

       Regional on October 15, 2015, and directly to St. Vincent’s through Medicab

       on October 17, 2015, and that he was in a mental health facility on the date he

       was to report to community corrections. Sullivan again testified that he had

       contacted his legal representative and was under the impression that he would

       contact the court and community corrections, and he testified, when asked if he

       contacted community corrections, that he “was unable to.” Id. at 34.

       Additionally, Sullivan’s counsel informed the court that Sullivan’s previous



       Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016   Page 10 of 12
       legal counsel had informed him that “he thought he had faxed over medical

       documentation to the Prosecutor’s Office.” Id. at 36.


[14]   The provision of Sullivan’s plea agreement which essentially provided that any

       non-fee violation would automatically result in the revocation of his

       community corrections placement is constitutionally suspect. See Woods, 892

       N.E.2d at 641 (observing that “the very notion that violation of a probationary

       term will result in revocation no matter the reason is constitutionally suspect”).

       While Sullivan admitted to not reporting to community corrections on October

       20, 2015, he “must still be given an opportunity to offer mitigating evidence

       suggesting that the violation does not warrant revocation,” Ripps, 968 N.E.2d at

       326 (citing Woods, 892 N.E.2d at 640), and he offered evidence that his house

       and phone were approved for home detention, that he was hospitalized at the

       time he was to report, and that he was under the impression his counsel would

       contact the court and community corrections. The deputy prosecutor argued

       for “[z]ero tolerance probation” and the trial court’s written order reflects the

       court’s belief that it was required to revoke Sullivan’s placement by the terms of

       the plea agreement. Id. at 37.


[15]   Based on the totality of the circumstances, including the nature of the violation

       and sanction, we conclude the trial court abused its discretion in finding that

       Sullivan’s violation warranted revoking his community corrections placement

       and in ordering him to serve eighteen months in the DOC. See Ripps, 968

       N.E.2d at 325-326 (observing that Ripps violated a condition of his probation

       by failing to inform people living at his place of residence of his sex offender

       Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016   Page 11 of 12
       status, discussing Woods and the Court’s disapproval of “strict compliance”

       probation where any violation will automatically result in revocation, noting

       that Ripps suffered from health issues, was attempting to adhere to his

       probation conditions and taking steps to correct the violation, and was in

       violation by living about twenty feet too close to a public library and some

       ambiguity existed in how the distance was measured, and holding that given the

       circumstances it was unreasonable for the trial court to determine Ripps’s

       violation warranted revoking his probation).


                                                     Conclusion

[16]   For the foregoing reasons, we reverse the order of the trial court revoking

       Sullivan’s placement in community corrections and remand for placement in

       community corrections.


[17]   Reversed and remanded.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 16A01-1512-CR-2175 | July 8, 2016   Page 12 of 12
