Opinion
24A-CR-339
07-31-2024
Breanna Desirea McGinnis, Appellant/Cross-Appellee/Defendant v. State of Indiana, Appellee/Cross-Appellant/Plaintiff
ATTORNEY FOR APPELLANT Brandon M. Townsend. ATTORNEYS FOR APPELLEE Theodore E. Rokita, Michelle Hawk Kazmierczak.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Scott A. Norrick Trial Court Cause Nos. 48C05-1806-F6-1678, 48C05-1902-F6-505, 48C05-2202-F6-346
ATTORNEY FOR APPELLANT Brandon M. Townsend.
ATTORNEYS FOR APPELLEE Theodore E. Rokita, Michelle Hawk Kazmierczak.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] After Breanna McGinnis pled guilty in Cause Number 48C05-2202-F6-346 ("Cause No. F6-346") and admitted to violating the terms of her probation in Cause Numbers 48C05-1902-F6-505 ("Cause No. F6-505") and 48C05-1806-F6-1678 ("Cause No. F6-1678"), the trial court accepted McGinnis's guilty plea and admissions but stayed sentencing to allow her the opportunity to participate in the Madison County Drug Court (the "drug-court program"). McGinnis subsequently admitted to having committed thirteen violations of the conditions for her participation in the drug-court program. Upon terminating McGinnis's participation in the drug-court program, the trial court sentenced McGinnis, pursuant to the terms of her guilty plea, to a thirty-month executed sentence in Cause No. F6-346. The trial court further revoked one year of McGinnis's previously-suspended sentences in Cause Nos. F6-505 and F6-1678 and ordered that each would run consecutively to her sentence in Cause No. F6-346. McGinnis contends that the trial court abused its discretion in sentencing her and in ordering her to serve a portion of her previously-suspended sentences. On cross-appeal, the State contends that McGinnis's notice of appeal was not timely filed as it relates to Cause Nos. F6-346 and F6-1678 and that McGinnis has waived her right to appeal her sentence in Cause No. F6-346. Concluding that McGinnis's notice of appeal was not timely filed as it relates to Cause Nos. F6-346 and F6-1678 and that the trial court did not abuse its discretion in ordering McGinnis to serve one year of her previously-suspended sentence in Cause No. F6-505, we affirm.
Facts and Procedural History
[¶2] On June 28, 2018, the State charged McGinnis with Level 6 felony unlawful possession of a syringe under Cause No. F6-1678. McGinnis pled guilty and, on October 8, 2018, the trial court sentenced her to two-and-one-half years of incarceration, all suspended to probation. The State subsequently filed four notices of probation violation.
[¶3] On February 22, 2019, the State charged McGinnis with Level 6 felony possession of methamphetamine, Level 6 felony possession of a syringe, and Level 6 felony possession of a narcotic drug (heroin) under Cause No. F6-505. McGinnis pled guilty to all three charges, and the trial court sentenced her to two-and-one-half years, with ten months executed in the Department of Correction ("DOC") and the remaining twenty months suspended to probation. The State filed two notices of probation violation.
[¶4] On February 1, 2022, McGinnis was charged with Level 6 felony failure to return to lawful detention under Cause No. F6-346 after she had left the workrelease facility to which she had been assigned and had not returned. On September 19, 2022, McGinnis entered into a plea agreement, by the terms of which she admitted guilt in Cause No. F6-346 and to having violated the terms of her probation in Cause Nos. F6-505 and F6-1678. The parties agreed to stay sentencing and the execution of McGinnis's sentence to allow her the opportunity to participate in the drug-court program. The trial court accepted the plea agreement and stayed the judgment of conviction and sentence on the failure to return to lawful detention charge on the condition that McGinnis participate in, and successfully complete, the drug-court program.
[¶5] On October 24, 2023, the State filed a notice of termination request in all three matters, alleging thirteen separate violations of the drug-court program's rules between January and October of 2023. Specifically, the notice alleged that McGinnis had (1) failed to attend treatment appointment; (2) lied to program officials about getting unapproved rides to/from work; (3) consumed an energy drink without approval; (4) absconded from the program, i.e., had not returned to structured housing; (5) tested positive for methamphetamine; (6) had unaccountable time during which she had lied about her whereabouts on a residential log; (7) associated with a felon; (8) lied to her case manager regarding her whereabouts and felon associations; (9) failed to appear at scheduled drug-court session; (10) absconded from the drug-court program; (11) failed to provide sample for drug testing; (12) admitted to relapsing while absent from drug court; and (13) failed to pay chemical-test fees.
[¶6] On December 21, 2023, McGinnis admitted to having violated the terms of the drug-court program. The trial court sentenced McGinnis pursuant to the terms of her plea agreement to a thirty-month executed sentence in Cause No. F6-346. The trial court noted that 422 and 608 days remained in McGinnis's suspended sentences for Cause Nos. F6-1678 and F6-505, respectively. In each of these cases, the trial court ordered McGinnis to serve one year executed in the DOC, to be served consecutively pursuant to the terms of McGinnis's plea agreement. The trial court also recommended that McGinnis participate in the purposeful-incarceration program.
Discussion and Decision I. Cross-Appeal Issue
[¶7] The State argues on cross-appeal that McGinnis's challenges to Cause Nos. F6-346 and F6-1678 should be dismissed as untimely. "A party initiates an appeal by filing a Notice of Appeal with the Clerk . . . within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case Summary [("CCS")]." Ind. Appellate Rule 9(A)(1). "Unless the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as provided by [PostConviction Rule] 2." App. R. 9(A)(5). Post-Conviction Rule 2 provides the following regarding belated notices of appeal:
The State concedes that the notice of appeal was timely filed with respect to Cause No. F6-505 because, while the order revoking one-year of McGinnis's previously suspended sentence was signed on December 21, 2023, it was not noted on the CCS for Cause No. F6-505 until January 8, 2024.
An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if;
(1) the defendant failed to file a timely notice of appeal;
(2) the failure to file a timely notice of appeal was not
due to the fault of the defendant; and
(3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule.Ind. Post-Conviction Rule 2(1)(a).
[¶8] In Cause No. F6-346, the CCS reflects that judgment was entered and McGinnis was sentenced on December 21, 2023. Likewise, in Cause No. F6-1678, the CCS reflects that McGinnis was sanctioned for her probation violation on December 21, 2023. McGinnis's notice of appeal was not filed until February 7, 2024, which is more than thirty days after judgment had been entered onto the CCS for both Cause Nos. F6-346 and F6-1678. As such, McGinnis's notice of appeal was untimely with respect to both of these cause numbers.
[¶9] We have previously concluded that "[a] criminal defendant's untimely notice of appeal typically results in the forfeiture of the right to appeal unless the defendant complies with Post-Conviction Rule 2." Pryor v. State, 189 N.E.3d 167, 168 (Ind.Ct.App. 2022). McGinnis does not address the requirements of Post-Conviction Rule 2, and she has not requested the trial court's permission to file a belated notice of appeal under its provisions. McGinnis's appeals in Cause Nos. F6-346 and F6-1678 are dismissed as untimely. Id. at 169.
We additionally observe that McGinnis has waived her right to appeal her sentence in Cause No. F6-346 as her plea agreement indicated that she "shall be sentenced to 30 months" and "hereby waives the right to appeal any conviction, any pre-trial rulings by the Court and any sentence ... so long as the Court sentences [her] within the terms of this plea agreement." Appellant's App. Vol. IV pp. 37, 38 (bold omitted, emphases added). It is undisputed that the trial court sentenced McGinnis within the terms of her plea agreement, as McGinnis argues only that the trial court failed to consider certain proffered mitigating factors at sentencing. As such, even if her notice of appeal had been timely filed, McGinnis has waived the right to appeal her sentence in Cause No. F6-346. See Davis v. State, 217 N.E.3d 1229, 1232 (Ind. 2023) (providing that a defendant may waive their right to appeal their sentence when pleading guilty).
II. Remaining Direct Appeal Issue
[¶10] McGinnis contends that the trial court abused its discretion in ordering her to serve one year of her previously-suspended sentence in Cause No. F6-505.
Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. The trial court determines the conditions of probation and may revoke probation if the conditions are violated. Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed... Accordingly, a trial court's sentencing decisions for probation violations are reviewable using the abuse of discretion standard. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted).
[¶11] "Probation revocation is a two-step process." Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). "First, the court must make a factual determination that a violation of a condition of probation actually occurred." Id. "If a violation is proven, then the trial court must determine if the violation warrants revocation of the probation." Id. A trial court may impose one 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.
(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.Ind. Code § 35-38-2-3(h). Furthermore, while a probationer who admits to the allegations against her must still be given an opportunity to offer mitigating evidence suggesting that the violation does not warrant revocation, see Woods, 892 N.E.2d at 640, "in determining the appropriate sentence upon finding a probation violation, trial courts are not required to balance aggravating and mitigating circumstances." Killebrew v. State, 165 N.E.3d 578, 582 (Ind.Ct.App. 2021), trans. denied. "Proof of a single violation is sufficient to permit a trial court to revoke probation." Id.
[¶12] McGinnis admitted to having violated the terms of her probation in Cause No. F6-505. She also agreed that the trial court would determine the sanction for her violation if she failed to successfully complete the drug-court program. McGinnis's participation in the drug-court program had been unsuccessfully terminated after she admitted to having committed thirteen separate violations of the program's rules.
[¶13] McGinnis acknowledges that the trial court ordered her to serve less than the full amount of her previously-suspended sentence but seemingly argues that the trial court should have imposed less time because she had participated in the drug-court program for thirteen months, had previously completed in-patient treatment, and had a seven-year-old biological son with whom she still had contact despite the fact that he had been adopted by others. McGinnis also noted that the trial court stated that she was "on the path; you've made some bumps." Tr. Vol. II p. 20. McGinnis was given the opportunity to present what she had claimed to be mitigating factors during the sanctions hearing. Again, the trial court was "not required to balance aggravating and mitigating circumstances" before sanctioning McGinnis. See Killebrew, 165 N.E.3d at 582. Given McGinnis's admission to having violated both the terms of her probation in Cause No. F6-505 and the terms of her placement in the drug-court program, we cannot say that the trial court abused its discretion in ordering her to serve one year of her previously-suspended sentence in the DOC.
[¶14] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.