Curtis L. BASS, Aрpellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 84A01-1110-CR-473
Court of Appeals of Indiana.
July 18, 2012.
Ordered Published Aug. 13, 2012.
We have no reason to assume the Board would have credited the additional evidence in the same way Tiller does. The undisputed evidence demonstrated that Tiller earned wages during his benefit and extended benefit periods and that his wife, acting on his behalf, knew of those wages but did not disclose them to IDWD. The undisputed evidence also showed that Tiller knew of his continuing obligation to report earnings to IDWD, regardless of any knowledge IDWD may have had of Tiller‘s employment at the outset of the process. And it would be futile to require such disclosures if claimants could circumvent them by stating they were computer illiterate while their agents werе ignorant of their actual income. The Board did not abuse its discretion when it did not consider Tiller‘s additional evidence.
Tiller also asserts that the forfeiture and penalty provisions of
Tiller‘s argument that he was denied due process before the assessment of his fines is without merit. “[T]he fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Perdue v. Gargano, 964 N.E.2d 825, 832 (Ind.2012). Here, Tiller received actual notice of the ALJ‘s initial hearing on IDWD‘s claims, he requested and received a continuance, and he received actual notice of the continued hearing. At that hearing, he presented evidence in his defense and had the opportunity to cross-examine witnesses. He further appealed the ALJ‘s decision to the Board and had the opportunity to request the Board to consider additional evidence. In short, he received all the process he was due. We affirm the Board‘s decision.
Affirmed.
RILEY, J., and DARDEN, J., concur.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
BAILEY, Judge.
Case Summary
Curtis L. Bass (“Bass“) challenges the ten-year sentence imposed upon his plea of guilty to two counts of Burglary, as Class B felonies, and also appeаls a subsequent order revoking his community corrections placement and committing him to the Indiana Department of Correction (“the DOC“) for six years. We affirm.
Issues
Bass presents three issues for review:
- Whether his advisory sentence is inappropriate;
- Whether the trial court admitted urinalysis reports in violation of Bass‘s due process rights as a probationer; and
- Whether the revocation is supported by sufficient evidence.
Facts and Procedural History
On August 3, 2011, Bass pled guilty to two counts of Burglary. On August 19, 2011, he was given concurrent sentences of ten years, with four years suspended to formal probation and six years to be served in direct placement to community corrections or in-home detention. Subsequently, Bass was appointed a public defender to perfect an appeal of his sentence.
Discussion and Decision
I. Sentence
A person who commits a Class B felony has a sentencing range of between six and twenty years, with the advisory sentence being ten years.
Under
The nature of Bass‘s offenses is that he burglarized two homes. From onе home, that of a deployed soldier, Bass stole at least forty guns and ammunition. The stolen guns had an estimated value of over $10,000. Some of the guns were then traded for drugs, thereby placing weapons in the hands of drug dealers. The second burglary involved the violation of the home of a family friend.
As for the charaсter of the offender, Bass pled guilty, which reflects favorably on his character. See Scheckel v. State, 655 N.E.2d 506, 511 (Ind.1995) (“[T]he fact that [the defendant] pled guilty demonstrates his acceptance of responsibility for the crime and at least partially confirms the mitigating evidence regarding his character“). However, he also received a benefit, in that two other charges were dismissed with prejudice. Prior to sentencing, Bass had sought substance abuse treatment and had cooperated with the Department of Child Services to regain custody of his children. He testified that he had, at the time of sentencing, been clean of drugs for eighteеn months.
Bass has a criminal history, commencing in 1991, which includes two prior felony convictions and three misdemeanor convictions. He was on probation for a domestic battery conviction when he committed the present offenses. He has a long history of substance abuse and committed the instant crimes to fund his illegal drug use.
In light of the nature of the offenses and the character of the offender, we do not find Bass‘s advisory sentences, with four years suspended, to be inappropriate.
II. Admission of Evidence — Probation Revocation
Bass contends that the trial court improperly admitted hearsay evidence in determining whether he had violated a term of his probation and placement. Over Bass‘s objection, a community correc-
A probation revocation hеaring is not equivalent to an adversarial criminal proceeding. Cox v. State, 706 N.E.2d 547, 550 (Ind.1999). However, the Due Process Clause applies to probation revocation proceedings, and the due process rights of a probationer include: “written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine witnesses, and a neutral and detached hearing body[.]” Id. at 549.
Because probation revocation procedures “are to be flexible, strict rules of evidence do not apply.” Id. The scope of the right to confrontation as defined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), does not apply in such proceedings. Reyes v. State, 868 N.E.2d 438, 440 n. 1 (Ind.2007). In Cox, the Court held thаt judges could consider hearsay “bearing some substantial indicia of reliability,” but declined to adopt a particular approach to determining that reliability. 706 N.E.2d at 551. Subsequently, in Reyes, the Indiana Supreme Court adopted a “substantial trustworthiness” test. 868 N.E.2d at 440.
In Reyes, the State had filed a notice of probation violation alleging that Reyes hаd violated his probation by testing positive for cocaine. Id. at 439. At a hearing, the State submitted the affidavit of the scientific director of the laboratory that conducted the urinalysis of Reyes‘s sample, together with related documents. Id. The director did not testify at the hearing, and Reyes objected to the affidavits as hearsay and claimed that the admission of the affidavit without live testimony would violate his right of confrontation. Id. The trial court admitted the affidavits and revoked Reyes‘s probation. Id. The probation revocation was affirmed by the Indiana Supreme Court. Id. at 443.
In reaching its decision, the Court observed that hearsay evidence may not be admitted “willy-nilly.” Id. at 440. However, although there may sometimes be no adequate alternative to live testimony, due process does not prohibit substitutes where appropriate, including affidavits, depositions, and documentary evidence. Id. (citing Gagnon v. Scarpelli, 411 U.S. 778, 782-83 n. 5, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Where the State has shown that the hearsay “beаrs substantial guarantees of trustworthiness,” the State need not additionally show good cause for not producing live testimony. Id. at 441. The trial court must evaluate the reliability of the hearsay evidence and, ideally, the trial court should explain on the record why the hearsay is reliable and why that reliability is substantial enough to supply good cause for not producing live witnesses. Id. at 442.
Here, community corrections case manager Cierra Fox (“Fox“) testified that drug screens were administered to Bass pursuant to the rules of the in-home detention program. Fox explained the procedure
According to Fox, similar tests were administered by her department and sent to Redwood Toxicology between twenty and sixty times per week. Reports were generated by Redwood Toxicology at the request of Vigo County Community Corrections; the reports were then maintained as community corrections records. Fox stated that, to the best of her knowledge, Redwood Toxicology was a certified lab; howevеr, she lacked personal knowledge of its certification.
The trial court concluded that a “regular urinalysis report prepared by a company whose professional business it is to conduct such tests” was sufficiently trustworthy. (App. 105.) Bass argues that the trial court‘s conclusion is erroneous, because thе hearsay evidence in his case falls short of the level of trustworthiness of that submitted in Reyes. Bass observes that the affidavit at issue in Reyes included the opinion of the director that “Reyes would have had to use cocaine some time in the 72 hours prior to collection.” Id. at 439.
According to Bass, his case is distinguishable from that of Reyes in that (1) “no affidavits from anyone at the laboratory were offered” and (2) “the test results do not state that Bass used methamphetamine and the only sworn testimony came from someone who knows nothing about the laboratory‘s procedures and reliability.” Appellant‘s Brief at 12. Thus, Bass implicitly argues that the “substantial trustworthiness” test of Reyes requires an affidavit and a scientific opinion validating drug screen results. We discern no such requirement in Reyes.
Moreover, a panel of this Court has recently concluded that the record of probation revocation proceedings supported a determination of substantial trustworthiness of “a routine report demonstrating that [appellant] had tested positive for marijuanа.” Williams v. State, 937 N.E.2d 930, 934 (Ind.Ct.App.2010). The urinalysis had been performed by the president of the company handling Williams‘s home detention, the report contained a signed chain of custody signed by Williams and the president, and an employee of the home detention company had testified and explained the report and the date and timе of sample collection. Id.; see also Holmes v. State, 923 N.E.2d 479, 484 (Ind.Ct.App.2010) (substantial trustworthiness existed for urinalysis report where the toxicologist affirmed under penalty of perjury that the sample was received under controlled conditions and processed in accordance with laboratory standard operating procedures and the scientist affirmed that the sample was handled in accordance with applicable requirements).
The absence of an affidavit from a toxicologist or laboratory employee does not render drug test results inadmissible in probation revocation proceedings where there is otherwise a substantial guarantee of trustworthiness. Here, the substantial guarantee of trustworthiness was provided by a case manager‘s testimony. She was familiar with and described the urinalysis collection and chain of custody procedures; she testified that the laboratory which had generated Bass‘s urinalysis report was the labоratory used to generate twenty to sixty reports per week for Vigo County Community Corrections. The reports identify the collecting and processing individuals, and contain detailed information about the testing time. Each report is accompanied by a document signed by Bass and by the collecting officer, аcknowledging that the sample was sealed and secured in Bass‘s
III. Sufficiency of the Evidence to Support Revocation
A reviewing court treats a petition to revoke a placement in a community corrections program the sаme as a petition to revoke probation. Cox v. State, 706 N.E.2d at 549. Community corrections is “a program consisting of residential and work release, electronic monitoring, day treatment, or day reporting[.]”
Probation may be revoked for violation of a probation condition. Runyon v. State, 939 N.E.2d 613, 616 (Ind.2010). The State must prove the violation by a preponderance of the evidence. Id. If a defendant violates the terms of his placement in community corrections, the court may, after a hearing:
- Change the terms of the placement.
- Continue the placement.
- Revoke the placement and commit the person to the department of correction for the remainder of the person‘s sentence.
The State presented evidence that Bass twice tested positive fоr methamphetamines. The State established that Bass violated a term of his probation and placement—he did not remain law-abiding and drug-free. Pursuant to
Conclusion
Bass has not persuaded us that his ten-year aggregate sentence, with four years suspended to probation, is inappropriate. Bass was not denied due process by the admission of hearsay evidence at the placement revocаtion hearing, and the decision to revoke Bass‘s probation and order a portion of his sentence executed is supported by sufficient evidence.
Affirmed.
ROBB, C.J., and MATHIAS, J., concur.