Opinion
24A-CR-392
07-05-2024
Kristina N. Smith, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Adam M. Larimer Deputy Public Defender Lawrence County Public Defender Agency Bedford, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Lawrence Superior Court The Honorable Robert R. Cline, Judge Trial Court Cause No. 47D02-2206-F5-717
ATTORNEY FOR APPELLANT Adam M. Larimer Deputy Public Defender Lawrence County Public Defender Agency Bedford, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana
Judges Vaidik and Foley concur.
MEMORANDUM DECISION
Weissmann, Judge.
[¶1] Kristina Smith was sentenced to probation for a drug offense. When she violated the terms of her probation by repeatedly testing positive for drugs, the trial court gave her a second chance. It continued her probation, rather than revoking it and sending her to prison. But Smith again tested positive for drugs and committed a new drug offense. This time the trial court revoked Smith's probation and ordered her to serve most of her original sentence in prison - a term of about 2 years. Smith contends the trial court should have sent her to inpatient treatment instead. Finding the trial court did not abuse its discretion, we affirm.
Facts
[¶2] In early June 2022, Smith was charged in Lawrence County with Level 5 felony possession of a narcotic drug, Level 6 felony unlawful possession of a syringe, and level 6 felony neglect of a dependent. The State and Smith entered into a plea agreement under which Smith pleaded guilty later that month to Level 6 felony possession of a narcotic drug. The trial court sentenced her to 910 days imprisonment, with 864 days suspended to probation, and dismissed the rest of the charges.
[¶3] The terms of Smith's probation included the following provision:
You shall not violate any law of the State of Indiana or any other jurisdiction during the term of your probation. Any violation shall be reported to your Probation Officer within twenty-four (24) hours.App. Vol. II, p. 20. She also was required as a condition of probation to refrain from drug and alcohol use, undergo drug testing, and participate in a substance abuse program called ADAPT. Id. at 13, 19.
[¶4] In February 2023, the State petitioned to revoke Smith's probation. The revocation petition alleged Smith had tested positive for "Delta-9-THC" and methamphetamine on December 20, 2022, as well as for "Delta-9-THC" and fentanyl on January 18, 2023. Before a third drug test on January 26, 2023, Smith admitted using "Delta-9-THC" and Lortab, which contains a narcotic drug. Id. at 22.
[¶5] Smith admitted violating the terms of her probation through her drug use. The trial court revoked six days of Smith's probation, re-suspended the remaining portion of her sentence, returned her to probation, and reaffirmed the original probation conditions. This left Smith with 858 days of her suspended sentence to serve on probation.
[¶6] Smith relapsed and tested positive for "Delta-9-THC," fentanyl, and methamphetamine in November 2023. The State again petitioned to revoke her probation. Less than two weeks later, she was arrested while parked at a Bloomington gas station known by police as a common site for drug dealing. When investigating Smith's expired license plate, the arresting officer learned Smith had an active warrant from Lawrence County. During her arrest, Smith appeared to be trying to hand to a man in her vehicle the bag or backpack that she was carrying. Smith ultimately dropped the bag on the ground. The officer searched the bag and discovered a woman's large billfold containing three folded pieces of paper or foil containing suspected drugs or drug residue.
[¶7] Smith told the officer that the substances probably were fentanyl but could be heroin. She said the bag belonged to her male companion. She complained to the officer that it was unfair that she was the only one in trouble for the drugs in the bag when her male companion had given the bag to her and she had tried to return it. Smith was charged in Monroe County with Level 6 possession of a narcotic.
[¶8] Back in Lawrence County, the State amended its revocation petition to include another probation violation: Smith's commission of the narcotic possession offense in Bloomington. Smith admitted the first allegation in the amended revocation petition-that she tested positive for "Delta-9-THC," fentanyl, and methamphetamine in early November 2023. She told the trial court that she had relapsed after suffering a miscarriage shortly before the November drug testing. The trial court found that Smith violated the terms of her probation through the positive drug test. But because Smith did not admit the allegations relating to her Bloomington arrest, the court set the matter for a contested hearing.
[¶9] At the hearing, the officer who arrested Smith in Bloomington testified about his encounter with Smith. The trial court found that the State, through such evidence, had proven by a preponderance of the evidence that Smith violated the terms of her probation by committing Level 6 felony possession of a narcotic.
[¶10] Smith requested the trial court delay imposing a sanction until she could complete inpatient treatment at a facility that had accepted her. Smith revealed that the facility would treat both her substance abuse issues and her unaddressed childhood trauma. Smith added that she has four children, she just learned she was pregnant again, and her pregnancy was high risk. The State concurred in Smith's request for inpatient treatment and continued probation.
[¶11] The trial court declined to delay its disposition. Instead, the court revoked Smith's probation and ordered her to serve 850 days of her original executed sentence in the Indiana Department of Correction, minus 102 days credit for time served, resulting in about 2 years of incarceration. Smith appeals this sanction.
Discussion and Decision
[¶12] Smith claims the trial court abused its discretion by revoking her probation rather than ordering her to complete inpatient treatment. "Probation is a matter of grace left to trial court discretion." Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). We will reverse the trial court's decision to revoke probation only for an abuse of that discretion. Id. "An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances." Id.
[¶13] Probation revocation is a two-step process. "First, the trial court must make a factual determination that a violation of a condition of probation actually occurred." Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). "If a violation is proven, then the trial court must determine if the violation warrants revocation of the probation." Id. The appropriateness of any sanction imposed by the trial court "depend[s] upon the severity of the defendant's probation violation." Heaton v. State, 984 N.E.2d 614, 618 (Ind. 2013).
[¶14] Smith does not challenge the trial court's determination that she violated the terms of her probation. Instead, she appeals only the court's sanction. Smith contends that various "mitigating" circumstances-her high-risk pregnancy, lack of prior inpatient treatment for substance abuse, lack of mental health treatment for childhood trauma, and the miscarriage-induced relapse-pointed exclusively to inpatient treatment, rather than probation revocation.
Smith also challenges the trial court's response to Smith's suggestion, while advocating for continued probation, that her children needed her. The court responded, "I would note in the underlying case that at least for years . . . there were children around the drugs [i]n that case." Tr. Vol. II, p. 41. Smith asserts this comment was improper because the neglect of a dependent count with which she initially was charged was dismissed under the plea agreement. Because Smith has not provided a transcript of the guilty plea or sentencing hearings relating to the original sentence imposed in this case, we have no ability to ascertain whether the trial court's statement was based on the evidence of the Level 6 felony possession of a narcotic drug to which she pleaded guilty or based on evidence relating solely to the dismissed neglect count. See Davis v. State, 935 N.E.2d 1215, 1217 (Ind.Ct.App. 2010) (noting that a defendant waives error by failing to provide an adequate record for review).
[¶15] The trial court acted well within its discretion in rejecting Smith's request for placement in inpatient treatment. Within months of being granted the privilege of probation, she repeatedly violated the terms of her probation by testing positive for drugs. When Smith was given a second chance at probation, she not only tested positive for drugs but soon afterward was arrested and charged with a new drug offense. Smith's violations and pattern of conduct show her unsuitable for probation. Thus, the existence of an alternative to revocation and incarceration here did not bar the trial court from properly ordering probation revocation and imposition of a near fully executed sentence. See Comer v. State, 936 N.E.2d 1266, 1269 (Ind.Ct.App. 2010) ("The consideration and imposition of any alternative to incarceration are matters of grace left to the discretion of the trial court.") (internal quotation marks omitted).
We also note that the trial court's sentencing order recommended Smith's placement in Recovery While Incarcerated, an addiction treatment program available within DOC.
[¶16] We affirm the trial court's judgment.
Vaidik, J., and Foley, J., concur.