MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         Mar 02 2016, 5:56 am
this Memorandum Decision shall not be
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
Steven E. Ripstra                                        Gregory F. Zoeller
Ripstra Law Office                                       Attorney General of Indiana
Jasper, Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Maxine Lauren Kemper,                                    March 2, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1508-CR-1104
        v.                                               Appeal from the Vanderburgh
                                                         Superior Court
State of Indiana,                                        The Honorable Wayne S.
Appellee-Plaintiff.                                      Trockman, Judge
                                                         The Honorable Kristina Hamby
                                                         Weiberg, Pro Tem
                                                         Trial Court Cause No. 82D02-
                                                         1504-FD-1896 and 82D02-1504-
                                                         FA-1897



Altice, Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016            Page 1 of 6
[1]   Maxine Lauren Kemper pled guilty to various felony counts and, pursuant to

      the plea agreement, entered the Vanderburgh County Day Reporting Drug

      Court (Drug Court). She subsequently violated the terms of her Drug Court

      commitment on more than one occasion. As a result, the trial court entered

      various sanctions against Kemper. On appeal, she argues that the sanctions

      imposed were too severe and thus constitute an abuse of discretion.


                                       Facts & Procedural History


[2]   On December 5, 2013, the State charged Kemper with class D felony theft and

      class D felony assisting a criminal. Thereafter, on May 5, 2014, the State

      charged her under a separate cause number with class A felony dealing in

      methamphetamine, class C felony possession of methamphetamine, class D

      felony possession of methamphetamine, class D felony possession of

      paraphernalia, class D felony possession of a controlled substance, and class A

      misdemeanor possession of marijuana.


[3]   On April 2, 2015, Kemper pled guilty pursuant to a written plea agreement to

      theft, assisting a criminal, and possession of methamphetamine, all as class D

      felonies. The five remaining charges were dismissed. The agreement provided

      that the trial court would withhold judgment of conviction for eighteen months

      in order to provide Kemper the opportunity to complete Drug Court. If she

      successfully completed Drug Court, the three charges to which she pled guilty

      would be dismissed. On the other hand, if she failed Drug Court, the trial court

      would then enter judgment of conviction on the three D felony counts.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016   Page 2 of 6
[4]   Kemper tested positive for methamphetamine on May 11, 2015. A petition to

      revoke placement was taken under advisement but never filed because Kemper

      entered and successfully completed the detox and residential phase of Drug

      Court. She began the aftercare portion of the program on June 17, 2015.


[5]   On June 26, 2015, Deputy John Helfrich conducted a home visit at Kemper’s

      listed address. Two juvenile males – Kemper’s brothers – answered the door

      and informed the deputy that Kemper no longer lived at the residence. They

      indicated that she was staying with her boyfriend. Thereafter, Deputy Helfrich

      spoke with Kemper on the phone. Kemper initially indicated that she was

      living at the listed address but eventually admitted that she had been staying

      with a girlfriend. Upon further questioning, Kemper acknowledged that a male

      with a criminal drug history was also staying there. Kemper said she had an

      appointment with her case manager – Andrea Hillgoth – that afternoon, and

      Deputy Helfrich told her to keep that appointment. He then informed Hillgoth

      of the situation. When she met with Hillgoth later that day, Kemper admitted

      that she had not been staying at her listed address for the last five days.


[6]   Hillgoth filed a petition to revoke on June 30, 2015, as a result of Kemper’s

      violation of the rules of Drug Court. Specifically, Kemper had failed to notify

      Hillgoth within twenty-four hours of her change in address. Following an

      evidentiary hearing on July 7, 2015, the trial court found that Kemper had

      violated the rules of Drug Court. As a sanction, the court ordered her to spend

      a night in jail and write a paper explaining the importance of transparency in



      Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016   Page 3 of 6
      recovery. Kemper served her night in jail on July 10, 2015, and was released

      the following day.


[7]   Three days later, Kemper tested positive for alcohol and was immediately taken

      into custody until her revocation hearing on July 21, 2015. At the hearing,

      Kemper admitted the violation and asked that she be released from jail and

      returned to Counseling for Change. In addition to time served and a directive

      to follow the recommendations of her case manager, the trial court ordered

      Kemper to adhere to a curfew1 and report to Counseling for Change.


                                              Discussion & Decision


[8]   Kemper challenges the sanctions imposed by the trial court on July 7 and 21,

      2015. She asserts that the sanctions constitute an abuse of discretion because

      they were “too severe” in light of all the facts and circumstances. Appellant’s

      Brief at 6. In this regard, she describes her first violation as “definitional and

      technical in nature” and her second violation as “a minor relapse”. Id. at 6, 4.


[9]   Drug Court is a forensic diversion program akin to community corrections and

      probation. Withers v. State, 15 N.E.3d 660, 665 (Ind. Ct. App. 2014).

      Accordingly, we review a trial court’s sentencing decisions for Drug Court

      violations for an abuse of discretion. Id. We will find an abuse of discretion




      1
          Kemper was directed to be at her listed address between 9:00 p.m. and 6:00 a.m.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016   Page 4 of 6
       only where the decision is clearly against the logic and effect of the facts and

       circumstances. Id.


[10]   Upon finding that Kemper violated a condition of Drug Court, the trial court

       was permitted to:


               (1) continue the individual’s participation in [Drug Court] with
               or without modifying or expanding the individual’s conditions
               for participating in [Drug Court]; or


               (2) terminate the individual’s participation in [Drug Court].


       Ind. Code Ann. § 33-23-16-14.5(e). Despite repeated violations, the court

       decided to continue Kemper in Drug Court with certain modifications.


[11]   After the first finding of a violation, the court adopted the sanction suggested by

       the case manager and ordered Kemper to serve one night in jail and write a

       paper regarding the importance of transparency in recovery. Kemper

       challenges this sanction as too severe for a violation that is definitional and

       technical in nature. We are not persuaded that the trial court abused its

       discretion in this regard. The evidence establishes that within days of

       completing the residential portion of the program and entering aftercare,

       Kemper began staying somewhere other than her listed residence, along with a

       man with a criminal drug history. She stayed there for five days before Deputy

       Helfrich discovered her absence from her listed address and alerted her case

       manager. In light of this clear violation, the trial court could have imposed a

       much greater sanction than it did. Cf. Podlusky v. State, 839 N.E.2d 198, 203

       Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016   Page 5 of 6
       (Ind. Ct. App. 2005) (affirming the revocation of probation for defendant’s

       “seemingly minor violation of moving back to her former residence, knowing

       that the probation office had the address, and not immediately notifying her

       probation officer of this change”).


[12]   Kemper’s second violation came shortly on the heels of her first. Within three

       days after serving a night in jail for the first violation, she drank alcohol and

       failed a urinalysis. The rules of Drug Court expressly provide that there will be

       sanctions for positive urinalyses, including removal from the program. Rather

       than removing Kemper, the court ordered her to return to Counseling for

       Change – the sanction requested by Kemper – and imposed a curfew requiring

       her to be home every night from 9:00 p.m. to 6:00 a.m. Under the

       circumstances, this sanction was not an abuse of discretion. Cf. Crump v. State,

       740 N.E.2d 564, 573 (Ind. Ct. App. 2000) (upholding revocation of probation

       where defendant violated probation by consuming alcohol), trans. denied.


[13]   Judgment affirmed.


[14]   Robb, J. and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1508-CR-1104 | March 2, 2016   Page 6 of 6
