*1 Therefore, Navarro should be allowed to
proceed with his claim. HOPPER,
James A.
Defendant-Appellant, Indiana, Plaintiff-Appellee.
STATE of
No. 55A01-8907-CR-247. Indiana, Appeals
Court of
First District.
Nov.
Rehearing
11, 1989.
Denied Dec.
*2
1988,
11,
Hopper
McNutt,
July
was admitted
Pol, Jr.,
Hurt
On
Van Der
William
Madison
in-patient treatment at
Blue, Martinsville,
defendant-appel-
for
for
&
Hopper
hospital
Hospital.
violated
State
lant.
numerous occasions and was dis-
rules on
Gen.,
Pearson, Atty.
Preston
Linley E.
charged
he
the addiction
before
Gen.,
Black,
Deputy Atty.
Office
W.
program. Upon
order
the trial
unit
Gen.,
plaintiff-appel-
Atty.
Indianapolis, for
court, Hopper
subsequently admitted
lee.
Hospital
Septem-
to the Richmond State
on
by hospital person-
ber 3. He was advised
BAKER, Judge.
days in
stay
nel that he should
at least 28
program to have a
order for the treatment
OF THE CASE
STATEMENT
18, 1988,
positive
effect. On
Hopper
A.
Defendant-appellant, James
however, Hopper
program
left
before
appeals the trial court’s decision
(Hopper),
completed against staff ad-
treatment was
treatment
terminating
drug
his
and alcohol
departure, the
vice. Informed of his
trial
department of mental
program with the
Hopper’s
a warrant for
arrest
court issued
resuming jurisdiction to sen-
health and
custody shortly
and he was taken into
years imprisonment
him
on his
tence
to five
thereafter.
burglary,
felony.1
a Class C
conviction
subsequently
trial court
resumed
The
We affirm.
Hopper
jurisdiction to sentence
on his con
burglary.
sentencing
At the
viction for
THE
STATEMENT OF
FACTS
12, 1988,
hearing conducted on October
1, 1987, Hopper was
On December
hospital
he left the
before
Hopper admitted
charged by Information with two counts
program. He
completing the treatment
burglary
of theft. On Jan-
and two counts
claimed, however, that he was released
18, 1988,
petition re-
uary
Hopper filed a
facility upon
the consent of the
prosecution.
in lieu of
questing treatment
mental health and that he
department of
petition
The
was filed under IND.CODE
pri
signed several documents to this effect
permits
abuser
16-13-6.1-16 which
pos
departure. Hopper did not
or to his
charged
felony
with a
to re-
or alcoholic
copy
papers
he claimed to
sess a
quest
supervision
under the
treatment
hospital
signed
leaving the
have
before
department
of mental health instead
granted
request for a
trial court
his
prosecution under certain circumstances.
such. After an ex
continuance to locate
court,
depart-
Upon
order
continuance,
proceed
the trial court
tensive
mental health examined
to
ment of
hearing
sentencing
ed with a further
eligible for the
determine whether he was
Following
hearing, April
1989.
depart-
program. Upon advisement
treat
found that
left his
trial court
health that
was a
ment of mental
program against
the advice of his
likely
abuser
to be rehabilitated
substance
con
counselor. The trial court
addiction
accepted
through
the trial court
Hopper failed to demonstrate
cluded that
program and set
Hopper into the treatment
successfully completed treatment
plea hearing. Pursu-
guilty
the cause for a
plea
pursuant
sentenced him
to
plea agreement
filed on June
ant to
agreement. Hopper subsequently institut
guilty
burglary, a
Hopper pled
appeal.
ed
five-year
felony,
exchange
for a
Class C
re-
prison sentence and dismissal of the
ISSUES
statute,
maining
Pursuant
counts.
following issues for
Hopper raises the
however,
held
the trial court
our review:
placed
him
under the
abeyance and ordered
erred in con-
I. Whether the trial court
supervision
department
of mental
to suc-
cluding that
failed
health.
IND. CODE 35-43-2-1.
cessfully
pending
outcome of
complete the treatment
his treatment.
If a
period
prosecution
defendant’s
successful-
lieu of
under
ly completed,
statutory
scheme entitles
16-13-6.1-16.
IND.CODE
discharge
proceed-
him to
of the criminal
II.
per-
Whether the trial court erred in
16-13-6.1-17(a).
ings.
IND.CODE
*3
mitting
alleged
the
present
State to
interest,
by
an
created
had
the
hearsay testimony
at the
statute,
supervision
remaining
under
un-
hearing.
program
til his
was
treatment
proceedings
and the criminal
were dis-
AND DECISION
DISCUSSION
charged.
ISSUE I: Termination
Treatment Pro-
of
Additionally,
16-13-6.1-17(c)
IND.CODE
gram
provides
pertinent part:
the
court
contends
trial
errone-
If,
period
the supervisory
before
ex-
ously
terminated his treatment
pires,
department
the
determines that
under
16-13-6.1-16. He ar-
IND.CODE
further treatment of the individual is not
gues
is
procedural
entitled to
due
successful,
likely to
shall so
be
advise
process
may
before the trial court
termi-
thereupon
the court. The court shall
ter-
nate his treatment and resume criminal
supervision,
minate
pending
the
and the
proceedings. Hopper suggests
pro-
his due
proceeding may
criminal
be resumed.
rights
cess
were violated when the trial
right
Where a state statute
a
creates
and
court determined that he bore the burden
specifies
may
that right
that
be forfeited
proving
successfully completed
of
he
that
only upon
individual,
the misconduct
anof
program.
the treatment
liberty
that
has
individual
interest which
Whether
pro
an individual is entitled to
requires
procedural
process
that
due
be
process depends
cedural due
on whether he
accorded the individual in the determina-
liberty
is being deprived of a
or property
tion whether the
has
misconduct
occurred.
(1972),
interest.
v.
Regents
Board
Roth
of
(1973),
778,
Gagnon
Scarpelli
411
v.
U.S.
564,
2701,
548;
408
92
U.S.
S.Ct.
33 L.Ed.2d
656;
1756,
93 S.Ct.
36
Morrissey
L.Ed.2d
v.
City
Indianapolis
(1982),
v. Tabak
Ind.
(1972),
of
2593,
Brewer
408 U.S.
92 S.Ct.
Thus,
App.
IND.CODE 16-13-6.1-16 establish vidual it does re- es quire the method and department circumstances under a determination of may which a request defendant treatment mental that the health individual cannot be prosecution imprisonment. lieu of further Such treated. determination must Additionally, occurring IND.CODE 16-13-6.1-17 be events dis based on guidelines procedures cusses the to be course of and thus rests exclu- followed the trial sively depart- court when such a within discretion request however, is made and in Clearly, the event it is ment health. of mental granted. scheme, statutory may subject Under if a that to arbitrary discretion be defendant elects to submit or abuse. Because defendant exercise and the court may liberty by trial determines that such having is suffer the loss of his appropriate, will placed judgment being the defendant be entered and subse- supervision department under the quently sentenced termination of entry statutory scheme, mental health and have judg treatment under the ment placing of conviction him deferred of the absolute control of that de- pro- depart- parole probation revocation in the discretion termination ceedings. 35-38-2-3(d); See IND.CODE requires min- ment of mental health certain protection. imal hold process due we IND.CODE 11-13-3-10.2 placed that under treat- an individual It the record apparent protected liberty supervision has a safe procedural was accorded he or she ac- interest such that must be guards hearing set out A was above. held process procedural corded due before the department to determine may court the treatment and re- whether terminate Hop terminate proceedings. sume criminal mental health’s decision to fact, In per’s appropriate. treatment was Having determined that court postponed hearing the first prior process to due entitled *4 granted continu Hopper and an extensive program, termination of his treatment we ance in order documents which he to locate procedures must what next determine are to that signed claimed have to show the required provide process. agree due to We department’s inappropri determination was that Hopper’s suggestion with his status given hearing, Hopper ate. At each was to a under treatment is akin defendant’s opportunity present an and to to be heard probation parole. In situation on Mor evidence, disclosure of the evidence rissey, supra, Supreme the United States him, opportunity and the to confront and require prescribed Court the minimum Further, cross-examine adverse witnesses. parole pro met in ments to be revocation proving the State had met its burden of Specifically, Supreme the ceedings. Court Hopper successfully complete that did not the minimal stated that standards for due Ray O’Donnell, program. the treatment process require opportunity the for a hear counselor, Hopper’s testified that addiction ing trial court before the determines Hopper partic voluntarily terminated his the defendant has whether violated a condi ipation in the at Rich Additionally, parole. Supreme tion of the Hospital against mond State his advice. In defendant Court stated that a shall be af fact, admission, Hopper his left of claimed own the parole forded written notice vio evidence, enough lations, had had opportu program disclosure of the because he and heard, nity right to be the to confront and learned he could learn. had all that This witnesses, a cross-examine neutral and de a was sufficient from which rea evidence hearing body, and a tached written state person the inference sonable could draw describing the evidence relied successfully complete that to failed Likewise, action taken. the the Su program. the treatment preme procedural has held these Court safeguards apply probation to revocation II: Hearsay ISSUE proceedings Gagnon, supra. as well. The court im- alleges also purpose procedures of these is insure to permitted present to cer- properly the State that the department the determination testimony at the alleged hearsay sen- tain a mental health that defendant cannot chief, tencing During in hearing. its case arbitrary be not further treated is but rests attempted testimony to elicit the State upon some basis. reasonable See Mea regarding the events from O’Donnell that chum, Although supra. Supreme the on group occurred the session the government not declare that the Court did pro- morning Hopper left the treatment allegations, must prove its cannot be gram. Hopper objected on the basis that as the seriously disputed party that at hearsay testimony such constituted Hopper’s tempting to terminate Following a series of proof thereon. inadmissible. State bore burden basis, on the trial court ad- requirement explicitly recognized objections This is establishing following testimony: procedures our mitted the statutes similarly applicable proceedings require to 2. We note further that these terminate statutes allegations by prove preponder- State to its or alcohol treatment. proof ance of the evidence. This standard of Q: O’Donnell, ROBERTSON, J., happened during Mr. what concurs. you group
that session were that con- SULLIVAN, J., opinion. dissents with ducting morning SULLIVAN, Judge, dissenting. 18, 1989? apparent A: Several of the It is that other clients confront- the record court assessed the evidence un- ed Mr. as to reason i.e., standard, der an erroneous that present during was not the entire AA proving by defendant bore burden of I meeting evening. that also asked preponderance of the evidence that he had Mr. for that reason behav- successfully the substance abuse something ior. He stated about he had program. doWe not and cannot know and, seen some friends on the street might what decision the trial court have to talk them and needed applied standard, made had it the correct was the reason that he was not in as majority enunciated here.1 meeting. attendance for the view, In my we do preroga- not have the at Record tive to review evidence and determine Hearsay is defined written as evi that the State carried the burden estab- testimony dence *5 court of a statement lishing program pre- left the court, made being out of such statement maturely and without authorization from offered as an assertion to show the truth of hospital authority. therein, matter asserted and thus rest I would reverse and remand for reconsid- ing credibility for its value light eration of appli- the evidence out of court asserter. v. Wells State concerning cable standard the burden of (1970), 865; 254 Ind. 261 N.E.2d Plan proof. Tec, Wiggins (1983), Inc. Ind.App., v. 443 N.E.2d disagree' 1212. We that O’Don testimony
nell’s fell within this definition.
O’Donnell did not relate what other
patients Rather, in fact said. he merely
testified as confrontation that oc
curred meeting September
18th. there was no out-of-court statement admitted through into evidence KLENK, Petitioner-Appellant, James D. O’Donnell. To the extent testimony such v. hearsay, could be considered in actions Indiana, STATE of presumed tried to the judge court Respondent-Appellee. disregarded inadmissible evidence and No. 64A03-8906-PC-246. weighed only competent evidence in reach ing judgment. (1982), Pinkston v. State Indiana, Appeals Court of Ind., 306; 436 N.E.2d Ottman State Third District. (1979), 273; 272 Ind. 397 N.E.2d John Nov. (1978), Ind.App. 501, son v. State 177 380 Further, any N.E.2d 566. error admit
ting testimony is rendered harmless
given overwhelming amount of evi
dence Hopper, including his admis (1988), Ind.,
sion. Altmeyer v. State
N.E.2d 138.
Judgment affirmed. respect, hospital surrounding 1. In depar- I note that the stances unwilling unable or hospital. document circum- ture of from the