Rhonda J. Mattingly v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 16 2016, 9:03 am 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 Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Rhonda J. Mattingly, February 16, 2016 Appellant-Defendant, Court of Appeals Case No. 63A05-1509-CR-1310 v. Appeal from the Pike Circuit Court The Honorable Jeffrey L. State of Indiana, Biesterveld, Judge Appellee-Plaintiff. Trial Court Cause No. 63C01-1409-F5-425

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 63A05-1509-CR-1310 | February 16, 2016 Page 1 of 7  Statement of the Case ^[1] Rhonda J. Mattingly appeals the trial court’s revocation of her probation and

Community Corrections placement, following a dispositional hearing. She

raises one issue, namely, whether the trial court abused its discretion in

ordering her to serve the balance of her previously suspended sentence.

^[2] We affirm.

Facts and Procedural History ^[3] On September 16, 2014, the State charged Mattingly with three criminal

offenses relating to controlled substances. Pursuant to a negotiated plea

agreement, she pleaded guilty to corrupt business influence, as a Level 5 felony,

and she was sentenced to six years with five years suspended to probation. The

single executed year was to be served in Community Corrections in a work-

release program.

^[4] Approximately two-and-one-half months later, Community Corrections filed a

notice of Community Corrections violation alleging that Mattingly had tested

positive for Alpha-Pyrrolidinopentiophenone (“Alpha-PVP”), an illegal

controlled substance known colloquially as “bath salts.” Appellant’s App. at

46; Tr. at 12, 20. The State subsequently filed a motion to revoke Mattingly’s

probation based on her possession of, and positive test for the use of, Alpha-

PVP.

Court of Appeals of Indiana | Memorandum Decision 63A05-1509-CR-1310 | February 16, 2016 Page 2 of 7 ^[5] At a revocation hearing on June 8, Mattingly admitted to the alleged violations,

and the trial court accepted her admission. At the subsequent hearing,1 defense

counsel argued for leniency given that Mattingly’s criminal history involved

only non-violent crimes related to drugs and alcohol and that Mattingly suffered

from chronic anxiety disorder, depression, and possible bipolar disorder.

Mattingly testified that she used the Alpha-PVP on only one occasion when she

was on work release because she was depressed and grieving the death of her

best friend. She testified that, because she could not afford to buy her

prescribed medications for her mental health problems, she self-medicated with

the Alpha-PVP on that one occasion. Mattingly apologized and asked that the

court impose a sentence other than prison.

^[6] The trial court noted that it considered the Indiana Risk Assessment System

(IRAS) section of Mattingly’s Presentence Investigation Report, which showed

that Mattingly was in the high risk category to reoffend. The court also noted

that Mattingly had “a history of criminal delinquent behavior in that she’s

recently violated . . . probation in this matter.” Tr. at 24. The trial court also

considered the fact that Mattingly admitted to the probation violation, thus

saving the court time and resources. However, the trial court revoked

Mattingly’s Community Corrections placement and her probation, and it

ordered that she serve the balance of her sentence in the Indiana Department of

1 The trial court styled the dispositional hearing as a “Re-Sentencing Hearing.” Tr. at 15.

Court of Appeals of Indiana | Memorandum Decision 63A05-1509-CR-1310 | February 16, 2016 Page 3 of 7  Correction, with a recommendation that she be placed in the Purposeful

Incarceration Program. This appeal ensued.

Discussion and Decision ^[7] Mattingly argues that the trial court abused its discretion in revoking her

Community Corrections placement and her probation. “Probation [and

Community Corrections placement are] a matter of grace left to trial court

discretion, not a right to which a criminal defendant is entitled.” Prewitt v. State,

878 N.E.2d 184, 188 (Ind. 2007); see also Treece v. State, 10 N.E.3d 52, 56 (Ind.

Ct. App. 2014), trans. denied. We review probation violation determinations

and sanctions for an abuse of discretion.2 Heaton v. State, 984 N.E.2d 614, 616

(Ind. 2013). “An abuse of discretion occurs where the decision is clearly

against the logic and effect of the facts and circumstances, or when the trial

court misinterprets the law.” Id. (citations omitted).

^[8] A probation revocation proceeding is a two-step process. Id. First, the trial

court must determine whether the preponderance of the evidence showed that a

probation violation occurred. Id.; see also Ind. Code § 35-38-2-3 (requiring that

an evidentiary hearing be held on revocation of probation and providing for

confrontation and cross-examination of witnesses by the probationer).

2 “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.” Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999).

Court of Appeals of Indiana | Memorandum Decision 63A05-1509-CR-1310 | February 16, 2016 Page 4 of 7  When a probationer admits to violations of the terms of his probation, the procedural safeguards of [I.C. § 35-38-2-3] are unnecessary. Instead, the court can proceed to the second step of the inquiry and determine whether the violation warrants revocation. 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.

Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008) (citations omitted).

^[9] In the second step of the process, the trial court must determine whether the

probation violation warrants revocation of probation or some lesser sanction.

Heaton, 984 N.E.2d at 616 (“[I]f a violation is found, then the trial court must

determine the appropriate sanctions for the violation.”); Patterson v. State, 659

N.E.2d 220, 222-23 (Ind. Ct. App. 1995) (“A court has several dispositional

options in a revocation proceeding.”). Indiana Code Section 35-38-2-3(h)

provides:

If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) or more of the following sanctions:

(1) Continue the person on probation, with or without modifying or enlarging the conditions.

(2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period.

Court of Appeals of Indiana | Memorandum Decision 63A05-1509-CR-1310 | February 16, 2016 Page 5 of 7  (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.

Our supreme court has held that this statute “permits judges to sentence

offenders using any one of or any combination of the enumerated powers.”

Prewitt v. State, 878 N.E.2d at 187.

^[10] A single violation of a condition of probation is sufficient to permit the trial

court to revoke probation. Pierce v. State, No. 28A05-1502-CR-57, 2015 WL

5589753, at (Ind. Ct. App. Sept. 23, 2015). Although the trial court is not

required to consider aggravating and mitigating factors when deciding whether

to revoke probation, Treece, 10 N.E.3d at 59-60, “at a minimum, a probationer’s

mental state must be considered in the dispositional determination of a

probation revocation proceeding,” Patterson v. State, 659 N.E.2d at 222-23.

However, evidence of “a mental disease or defect is not dispositive of [the]

case.” Patterson, 659 N.E.2d at 223. Rather, the trial court is obligated only to

consider the information as a factor in making its dispositional determination,

and it retains full discretion to find that the evidence of a mental health

condition does not excuse or mitigate the probation violation. Id.

^[11] Here, Mattingly admitted to the violation of probation; therefore, no

evidentiary hearing was held on that issue, and the matter was scheduled for a

dispositional hearing. At that hearing Mattingly testified that, at the time she

had possessed and used the Alpha-PVP, she was very depressed and was

mourning her best friend’s death. She also testified as to other potentially

Court of Appeals of Indiana | Memorandum Decision 63A05-1509-CR-1310 | February 16, 2016 Page 6 of 7  mitigating factors, such as a non-violent criminal history and her admission to

violating probation, which saved the court time and resources.

^[12] In revoking Mattingly’s probation and Community Corrections placement, the

trial court heard Mattingly’s testimony and took into consideration her criminal

history, likelihood of recidivism, and admission to the violation, which saved

the court time and resources. It was within the trial court’s discretion to give

little weight to the potentially mitigating factors Mattingly raised. See, e.g.,

Wann v. State, 997 N.E.2d 1103, 1106 (Ind. Ct. App. 2013) (“Generally

speaking, as long as the trial court follows the procedures [for revoking

probation], the trial court may properly order execution of a suspended

sentence.”). The trial court was also within its discretion to give little or no

weight to Mattingly’s testimony about her mental health. Patterson, 659 N.E.2d

at 223. This is especially so since she did not claim that her mental health made

her incapable of forming the requisite intent to commit the crime that was the

basis of her violation of probation. Id. Moreover, Mattingly’s testimony “was

not so convincing or conclusive as to compel the court to find that the probation

violation was excused or mitigated by the alleged mental condition.” Id. The

trial court did not abuse its discretion in ordering Mattingly to serve the balance

of her previously suspended sentence.

^[13] Affirmed.

Riley, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 63A05-1509-CR-1310 | February 16, 2016 Page 7 of 7