                                                                       FILED
                                                                  May 06 2020, 8:50 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone IV                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Myriam Serrano
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tiffany Holsapple,                                       May 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2069
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark Dudley,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause Nos.
                                                         48C06-1705-F6-1135
                                                         48C06-1706-F2-1530



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020                            Page 1 of 14
                                Case Summary and Issue
[1]   Tiffany Holsapple pleaded guilty in two cases and was sentenced to sixteen

      years in the Indiana Department of Correction (“DOC”). The sentence was

      stayed pending her participation in a problem solving court program. After she

      was terminated from the program for violating the terms and conditions of the

      participation agreement, the trial court lifted the stay and ordered Holsapple to

      serve the sixteen-year-sentence. Holsapple appeals, raising one issue for our

      review that we restate as whether the trial court was required by the plea

      agreement to lift the stay and impose her previously agreed sentence.

      Concluding the trial court had discretion to determine an appropriate sanction,

      we affirm in part, reverse in part, and remand.



                            Facts and Procedural History
[2]   Holsapple was charged with one count of failure to return to lawful detention, a

      Level 6 felony, and one month later was charged in a separate cause with

      dealing in methamphetamine, a Level 2 felony. Holsapple and the State

      entered into a plea agreement pursuant to which Holsapple pleaded guilty as

      charged in both cases and the State recommended a sentence of sixteen years to

      be executed at the DOC. The parties further agreed that the sentence would be

      stayed to give Holsapple an opportunity to participate in Drug Court.


              If [Holsapple] graduates from Drug Court, then her sentence
              shall be stayed permanently.



      Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020          Page 2 of 14
              If [Holsapple] is terminated from Drug Court, then the stay on
              her sentence shall be lifted, and her sentence, sixteen (16) years to
              be executed at Indiana Department of Correction, shall be
              imposed.


      Appendix of Appellant, Volume II at 80-81. The trial court accepted the plea

      agreement in October 2017 and sentenced Holsapple according to its terms,

      imposing a sentence of two years in the Madison County Jail for failure to

      return to lawful detention to be served concurrently with sixteen years in the

      DOC for dealing in methamphetamine. The trial court issued sentencing orders

      stating the sentences were stayed pending Holsapple’s participation in Drug

      Court. See id. at 47 (sentencing order for failure to return conviction); 70

      (sentencing order for dealing in methamphetamine conviction); see also id. at 48,

      71 (abstracts of judgment prepared on date of sentencing hearing showing

      sentences stayed). The trial court specifically advised Holsapple at the

      sentencing hearing that “[i]f you are unable to complete the Madison County

      Drug Court program and you [are] terminated, you come back here and the

      stay is lifted and you go to the Department of Corrections [sic]. Alright?”

      Transcript, Volume I at 7. Holsapple indicated her understanding by

      responding, “Yes, Your Honor.” Id.


[3]   In April 2018, Holsapple was transferred from Drug Court to Mental Health

      Court upon problem solving court staff recommending that she “appears to be a

      better fit for Mental Health Court instead of Drug Court” and the problem

      solving court judge signing off on the recommendation. App. of Appellant,

      Vol. II at 112. At the time of the transfer, Holsapple was meeting the Drug

      Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020            Page 3 of 14
      Court program requirements and was directed to report to Mental Health Court

      on May 1, 2018. See id. at 9, 21.


[4]   Until May of 2019, Holsapple “never missed a screen [and] never had a

      sanction” in either Drug Court or Mental Health Court. Tr., Vol. I at 22.

      However, in May of 2019, Holsapple failed to appear for Mental Health Court,

      failed to appear for a required drug test, and failed to appear for a Mental

      Health Court sanctions hearing. A warrant was issued for her arrest on May

      23, 2019. On June 26, 2019, Holsapple’s case manager filed a Notice of

      Termination Request with the trial court, alleging that Holsapple had failed to

      comply with the participation agreement by missing multiple treatment

      sessions, failing to appear for a required drug test, failing to appear for a

      sanctions hearing, absconding from the Mental Health Court, and owing

      outstanding fees of $80.00. The same day, the problem solving court found that

      Holsapple “has absconded from Mental Health Court for longer than 30 days

      and has, therefore, failed to satisfy [her] obligations to the [] Mental Health

      Court program. The Court finds that [Holsapple] has voluntarily withdrawn

      from participation in Mental Health Court and is, hereby, administratively

      terminated from [] Mental Health Court.” App. of Appellant, Vol. II at 12; see

      also id. at 24. The Mental Health Court referred Holsapple’s case back to the

      trial court for further proceedings.


[5]   Holsapple was arrested on the warrant in July 2019. At a hearing on the notice

      of termination, Holsapple denied she had missed any treatment sessions but

      admitted the remainder of the allegations. She said that she felt “overwhelmed

      Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020             Page 4 of 14
      and . . . discouraged” and had relapsed into drug use. Tr., Vol. I at 16. She

      told the court she had been diagnosed with bipolar disorder, manic depression,

      borderline personality disorder, and post-traumatic stress disorder for at least

      the past ten years. She admitted addiction would always be a problem for her.

      Id. at 33. And she asked that she be sent back to Drug Court, “anything but

      DOC.” Id. at 17.


[6]   The trial court found that Holsapple violated the conditions of Mental Health

      Court as admitted and was no longer eligible to participate in problem solving

      court.1 “[A]s a result of that termination, that triggers your plea agreement and

      the Court sentence that followed your plea agreement.” Id. at 34. Concluding

      it had “no discretion whatsoever[,]” id. at 30, the trial court imposed what was

      agreed in the plea agreement, lifting the stay in both causes and ordering

      Holsapple to serve her sixteen-year sentence at the DOC. The trial court also

      recommended placement in purposeful incarceration. Holsapple now appeals.



                                  Discussion and Decision
[7]   A problem solving court is “a court providing a process for immediate and

      highly structured judicial intervention for eligible individuals[.]” Ind. Code §



      1
        At the hearing, there was some discussion about the plea agreement specifically referencing termination
      from Drug Court when Holsapple was in fact terminated from Mental Health Court. The trial court concluded
      that it was clear from the plea agreement that purpose was to “get Ms. Holsapple some intensive treatment,”
      that considering the phrase “Drug Court” as the “linchpin” of the plea agreement would “undercut
      everyone’s understanding of what was going on” in trying to get her the best possible treatment, and that the
      fact she was terminated from Mental Health Court did not alter the constraints the plea agreement put on his
      sentencing discretion. Tr., Vol. I at 29-30. Holsapple does not raise this discrepancy as an issue on appeal.

      Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020                                  Page 5 of 14
33-23-16-8. Among other considerations, a person is eligible to participate in a

problem solving court program if:


        the individual is referred to the problem solving court as a result
        of at least one (1) of the following:


                 (A) A condition of a pretrial diversion program authorized
                 by statute or authorized by the judge of the problem
                 solving court and the prosecuting attorney.
                 (B) The procedure described in section 14 of this chapter.
                 ***
                 (D) A condition of probation.


Ind. Code § 33-23-16-13(3).2 A pretrial diversion program allows the

prosecuting attorney to withhold formal prosecution under certain

circumstances to afford the defendant an opportunity to successfully complete

an alternative course of action. See Ind. Code § 33-39-1-8; Schenke v. State, 136

N.E.3d 255, 258 (Ind. Ct. App. 2019). Section 14 describes a situation where

the State and the defendant reach a plea agreement, the defendant pleads guilty,

and the court, without entering a judgment of conviction, defers the criminal

proceedings while the defendant participates in a problem solving court

program. Ind. Code § 33-23-16-14(a). If the person successfully completes the

problem solving court program, the charges are dismissed, Ind. Code § 33-23-

16-14(c), but if the person’s participation in the program is terminated, a




2
 There are eleven other circumstances which would make a person eligible for participation in a problem
solving court. See Ind. Code § 33-23-16-13(3)(C), (E)-(N). None of those circumstances appear to be
applicable here.

Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020                                Page 6 of 14
judgment of conviction is entered, and the person is sentenced, Ind. Code § 33-

23-16-14(b). Neither of those situations describes how Holsapple came to

participate in Drug, and later, Mental Health Court. She was prosecuted, so

she was not participating as a result of a pretrial diversion program. And the

trial court entered a judgment of conviction on her plea of guilty and successful

completion of the problem solving court program meant only that her sentence

would be permanently stayed not that her charges would be dismissed, so she

was not participating as a result of a section 14 deferral. Therefore, although it

was never explicitly stated, she must have been referred to problem solving

court as a condition of probation.3 Essentially, Holsapple’s entire sentence was

suspended to probation and the condition of her probation was that she

successfully complete a problem solving court program. Then there was an




3
  The Agreement for Entry Into Madison County Drug Court which Holsapple signed at the time of her
sentencing includes the following provision, marked as the “means of Participant’s entry into the Drug Court
program”:

        For Participants entering via a stayed sentence upon a conviction[.] The Participant shall enter
        the Madison County Drug Court. (S)he will be given the opportunity to successfully
        complete and graduate from Drug Court. Should that occur, the underlying case shall be
        re-calendared in the referring court for modification of the sentence as agreed or as
        deemed appropriate by the referring court in the absence of an agreement. If the
        Participant is removed from Drug Court for any reason or fails to graduate, the matter
        shall return to the referring court where the stay shall be lifted and the sentence or
        sanction shall be immediately executed as originally imposed.


App. of Appellant, Vol. II at 108. The statutory authority for such means of entry into the problem solving
courts is unclear and given our resolution of the issue herein, is potentially problematic given that this
provision also appears to impose “strict liability” on participation.



Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020                                        Page 7 of 14
      additional set of conditions that controlled her participation in the problem

      solving court program.


[8]   When Holsapple was terminated from the problem solving court program, she

      violated the condition of her probation. The trial court determined she was no

      longer eligible to participate in a problem solving court, essentially determining

      her probation should be revoked, and lifted the stay of her sentence, ordering

      her to serve the entire term as a sanction. Thus, we review this action as any

      probation revocation. Probation revocation is a two-step process: first, the trial

      court determines whether a violation has occurred and second, the court

      determines whether the violation warrants revocation. Overstreet v. State, 136

      N.E.3d 260, 263 (Ind. Ct. App. 2019), trans. denied. Even when the defendant

      admits a violation, the defendant must be given an opportunity to offer

      mitigating evidence showing the violation does not warrant revocation. Ripps v.

      State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). Upon revoking probation, the

      trial court may impose one of several sanctions provided by statute. Ind. Code

      § 35-38-2-3(h). Generally, we will review a trial court’s revocation and sanction

      decisions for an abuse of discretion. Overstreet, 136 N.E.3d at 263. An abuse of

      discretion occurs when the decision is clearly against the logic and effect of the

      facts and circumstances before the court. Id.


[9]   Holsapple contends that, because sanction decisions are reviewed for an abuse

      of discretion, the trial court in this case erred in determining that it had no

      discretion to impose any sanction other than full revocation of her stayed

      sentence, citing Woods v. State, 892 N.E.2d 637 (Ind. 2008), Sullivan v. State, 56

      Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020            Page 8 of 14
N.E.3d 1157 (Ind. Ct. App. 2016), and Hampton v. State, 71 N.E.3d 1165 (Ind.

Ct. App. 2017), trans. denied. In Woods, our supreme court was confronted with

a situation similar to the one here, but in an ordinary probation context. The

defendant pleaded guilty to several charges and was sentenced to twenty years

in the DOC with fifteen years suspended. Upon his release from the DOC, he

was placed on probation for 730 days. Thereafter, the State filed a notice of

probation violation. The parties reached an agreement prior to the revocation

hearing pursuant to which, among other things, the defendant admitted to the

violations and his probation was extended for one year. He was also placed

“on what the parties referred to as ‘strict compliance,’ which the deputy

prosecutor explained as meaning ‘[any] other violation of any terms or

conditions of his probation will result in full backup of 15 years.’” 892 N.E.2d

at 639. When the State later filed a second notice of probation violation, the

deputy prosecutor reminded the court that if it found a probation violation, the

defendant faced the remainder of his term. The trial court entered an order

accordingly.4 On appeal, the issue was whether the trial court’s refusal to allow

the defendant an opportunity to explain why he violated the terms of his

probation denied him due process. But in addressing this issue, the court also

addressed the concept of “strict compliance” probation:


         In one sense all probation requires “strict compliance.” That is
         to say probation is a matter of grace. And once the trial court



4
  The State offered, the defendant accepted, and the trial court imposed a sentence of twelve years instead of
fifteen.

Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020                                    Page 9 of 14
                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. . . .


                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).5


[10]   This court in Sullivan relied on Woods in addressing whether a predetermined

       sanction in a plea agreement is improper as a matter of law. 56 N.E.3d at 1161.

       The defendant in Sullivan entered a plea agreement pursuant to which he

       pleaded guilty to certain offenses and was sentenced to two years. Eighteen

       months was to be served on home detention with the remainder served on

       supervised probation and the defendant agreed to waive the right to have the

       court determine the sanction if he violated community corrections’ rules: “if




       5
         The court held the trial court erred in denying the defendant the opportunity to explain but further held that
       the defendant was not entitled to relief because the defendant did not make an offer of proof. Id. at 641-42.

       Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020                                   Page 10 of 14
       found to have violated these rules or otherwise become ineligible . . . then the

       remaining portion of the defendant’s executed sentence shall be served at the

       Decatur County Jail.” Id. at 1158. The State filed a petition to revoke the

       defendant’s community corrections placement for failing to begin his placement

       as ordered, and the court found him in violation despite his explanation that he

       was hospitalized on the date he was due to report. The court’s written order

       stated, “As required by the terms of the Plea Agreement . . ., the Court now

       orders that [the defendant’s] entire 18 month community corrections sentence

       be revoked, and [he] shall serve the 18 months as an executed sentence at the

       Indiana Department of Correction.” Id. at 1160. Noting that the provision of

       the plea agreement that essentially provided any non-fee violation would

       automatically result in the revocation of the defendant’s community corrections

       placement was constitutionally suspect and that the trial court’s written order

       reflected the trial court’s belief that it was required to revoke the placement by

       the plea agreement’s terms, and considering the nature of the defendant’s

       violation and the seriousness of the sanction, we determined the trial court

       abused its discretion in finding that the violation warranted revocation and

       ordering the defendant to serve his executed term in the DOC. Id. at 1162.


[11]   Finally, in Hampton, following the direction of Woods and the application of its

       reasoning in Sullivan, this court held a trial court retained discretion to

       determine the appropriate sanction for a defendant’s probation violations even

       though an agreement reached during the revocation proceedings purported to

       be a strict liability agreement. 71 N.E.3d at 1171.


       Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020               Page 11 of 14
[12]   Relying on these three cases, Holsapple argues “[t]he language of the plea

       agreement should not be allowed to strip a court of the discretion as to how to

       respond to violations.” Brief of Appellant at 10. The State responds that

       because Holsapple entered the Madison County problem solving courts as a

       result of a plea agreement with specific terms, the trial court was required to

       enforce it according to those terms. It is true that plea agreements “are in the

       nature of contracts between the defendant and the State[,]” Berry v. State, 10

       N.E.3d 1243, 1246 (Ind. 2014) (citation omitted), and “[i]f the court accepts a

       plea agreement, it shall be bound by its terms[,]” Ind. Code § 35-35-3-3(e). This

       includes any sentencing provisions included in the plea agreement. See Jackson

       v. State, 968 N.E.2d 328, 332 (Ind. Ct. App. 2012) (“Once the trial court accepts

       the plea agreement, it ‘is strictly bound by its sentencing provision and is

       precluded from imposing any sentence other than required by the plea

       agreement.’”) (citation omitted). In Woods, however, the court rejected the

       analogy between a probation agreement that requires strict compliance and a

       plea agreement. 892 N.E.2d at 640 n.2 (“A defendant who enters a plea

       agreement knowingly, intelligently, and voluntarily is hardly similarly situated

       to a defendant who is advised in essence either agree to strict compliance or go

       to jail now for violating probation.”).


[13]   Although it appears Holsapple entered but a single agreement rather than a plea

       agreement followed by a separate agreement resolving probation revocation

       proceedings such that the Woods distinction would not apply to her, in essence,

       the agreement here is two agreements in one: a plea agreement providing for


       Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020          Page 12 of 14
       the disposition of the criminal charges through a sentence suspended to

       probation and a probation revocation agreement providing for strict liability if

       probation is violated. See Sullivan, 56 N.E.3d at 1158-59 (addressing a similar

       two-in-one agreement). And pursuant to the authority of Woods, Sullivan, and

       Hampton, an agreement cannot override the trial court’s discretion in that way

       in a probation revocation or similar proceeding.


[14]   Holsapple was convicted and sentenced pursuant to the terms of the plea

       agreement, but execution of her sentences was stayed while she participated in

       a problem solving court program. When she was alleged to have violated the

       terms of the program, the trial court held a hearing on the notice of termination

       request from the problem solving court, and Holsapple admitted to violating the

       terms of her participation agreement by failing to appear for Mental Health

       Court, failing to appear for a required drug test, and failing to appear for a

       Mental Health Court sanctions hearing. As for the sanction, she noted she had

       successfully participated in the problem solving courts without a single sanction

       for a year and a half but she began to feel overwhelmed and discouraged when

       her case manager was switched, and she asked to be returned to Drug Court.

       The trial court found that based on the admitted violations, Holsapple was no

       longer eligible to participate in problem solving court and Holsapple does not

       specifically argue that the trial court abused its discretion in that determination.

       Therefore, we affirm the trial court’s determination that Holsapple violated the

       terms of her placement. However, contrary to the trial court’s belief that it was

       required to impose the agreed-upon sanction of full execution of the stayed


       Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020           Page 13 of 14
       sentence, a plea agreement cannot bind the trial court’s hands as to an

       appropriate sanction. Rather, as in any probation revocation proceeding, the

       trial court may impose one or more sanctions, including ordering execution of

       all or part of the sentence that was suspended at the time of initial sentencing.

       See Ind. Code § 35-38-2-3(h). Accordingly, we reverse the trial court’s order

       that Holsapple serve the entire sixteen-year-sentence because it is based on the

       predetermined sanction and remand for the trial court to determine in its

       discretion the appropriate sanction for her violations.



                                               Conclusion
[15]   The trial court did not abuse its discretion in finding Holsapple had violated the

       terms of her problem solving court placement. However, the trial court was not

       obligated to impose the sanction stated in a strict liability agreement between

       the State and Holsapple upon finding a violation. Therefore, we affirm the trial

       court’s order in part, reverse in part, and remand for the trial court to determine

       the appropriate sanction, including but not necessarily limited to ordering full

       execution of her stayed sentence.


[16]   Affirmed in part, reversed in part, and remanded.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2069 | May 6, 2020           Page 14 of 14
