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Hampton v. State

Court of Appeals of Indiana

March 13, 2017

Derrian Hampton, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Washington Superior Court Trial Court Cause No. 88D01-1310-FB-700 The Honorable Frank Newkirk, Jr., Judge

          Attorney for Appellant Ethan G. Bartanen Salem, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

          KIRSCH, JUDGE.

         [¶1] After the State filed a petition for revocation of Derrian Hampton's ("Hampton") suspended sentence, alleging probation violations, Hampton and the State entered into an Agreement on Petition to Revoke Suspended Sentence ("the Agreement"). In the agreement, Hampton admitted to a probation violation and was ordered to serve the balance of a previously-suspended sentence, and the State agreed to stay execution of the sentence for approximately six months. At the end of such time a review hearing would be held and, if Hampton had completed all terms and conditions of probation, the petition for revocation of suspended sentence would be dismissed. The trial court accepted the Agreement and entered an order. Following the review hearing, the trial court issued an Order on Violation of Probation, ordering Hampton to serve the previously-suspended sentence. The trial court denied Hampton's Motion to Correct Error Alternatively Motion to Reconsider ("Motion to Reconsider"), and Hampton now appeals, raising three issues that we consolidate and restate as: Whether the trial court abused its discretion when it denied Hampton's Motion to Reconsider.

         [¶2] We affirm in part, reverse in part, and remand.

         Facts and Procedural History

         [¶3] In November 2013, Hampton pleaded guilty to Class C felony aiding burglary. Appellant's App. Vol. IV at 12. In June 2014, the trial court sentenced her to three years in the Indiana Department of Correction ("DOC"), with one year and 185 days suspended to probation. Hampton's terms of probation required her to, among other things: obtain prior consent from the Washington County probation department before moving from her present address; notify the Washington County probation department of any change in address within twenty-four hours of such change; report in person to the Washington County probation department no less than once per month; not violate laws of the State of Indiana; pay $2, 476 in restitution and $192 each month toward fines, fees, and costs; submit to drug/alcohol screens upon demand; and not consume alcohol or any drug which has not been prescribed by a physician. Appellant's App. Vol. VI at 24-25. Hampton's term of probation began on December 15, 2014.

         [¶4] On August 6, 2015, the State filed a Petition for Revocation of Suspended Sentence ("Petition for Revocation"), alleging that Hampton had violated the terms of her probation as follows: (1) she moved her residence from that last reported to the probation department, and her current residence was "unknown"; (2) she made no payments toward fees, costs, or restitution; (3) as of August 4, 2015, she failed to call the drug screen line 59 times "to see if she was to report to the Probation Department for a drug screen"; and (4) she appeared at the probation department on July 22, 2015, for a scheduled drug screen and failed a urine screen, which tested positive for Spice.[1] Id. at 32-33. The State asked the trial court to enter an order revoking Hampton's suspended sentence.

         [¶5] On November 23, 2015, the parties appeared for a hearing on the State's Petition for Revocation and tendered the Agreement to the trial court. In that Agreement, Hampton stipulated that she had violated the conditions of her probation by failing to call the drug screen line and that the sanction for this violation was for her to serve the previously-suspended 550 days in the DOC, less credit days. The commitment was stayed until a June 13, 2016 review hearing ("Review Hearing"). Appellant's App. Vol. VII at 8. The Agreement stated that, if at the time of the Review Hearing, Hampton had completed all terms and had paid all monetary obligations, the sentence would be withdrawn and, if the probation term had not elapsed, Hampton would remain on probation, subject to all original terms. If, on the other hand, Hampton had not completed all terms and obligations by the time of the Review Hearing, the sentence "shall be executed immediately . . . [and] Probation will be closed as unsuccessful." Id. It was Hampton's burden at that Review Hearing to show that all terms and conditions of probation had been met. Id. In the Agreement, the State also agreed to reduce Hampton's monthly payment toward restitution and fees to "at least $100/month[, ]" and the State agreed to an extension of those payments "until paid in full." Id. The parties further agreed that "The Court has no authority to alter this [A]greement without the consent of the State and defendant." Id.

         [¶6] At the hearing, the trial court asked Hampton a series of questions inquiring about whether she knew and understood the terms of the Agreement. She testified that she had not called the drug screen line as required and acknowledged that, pursuant to the terms of the Agreement, if she failed to complete terms and conditions of probation, her probation and suspended sentence would be revoked and "I go straight, a year and a half in prison." Tr. at 2. The trial court asked Hampton whether she understood that if she decided to sign the Agreement, she would not have a hearing or testimony or evidence concerning her violation of probation. She responded that she understood that consequence. Id. at 4. The trial court advised Hampton that the trial court would not have the authority to later change or alter the terms of the Agreement, such that she could not later assert "I shouldn't have said that. I don't want to do that now, I want to change it." Id. The court asked Hampton if she understood, to which she replied, "Yes sir." Id. The trial court reaffirmed that if it accepted the Agreement, there would be no formal hearing, no evidence, and no witnesses to hear or cross-examine; Hampton testified to her understanding that, by signing the Agreement, she was giving up such rights. Hampton testified that she was entering into the Agreement freely and voluntarily and that she was satisfied with her lawyer's representation. The trial court asked Hampton whether it was true that, as stated in the Agreement, she failed to call the drug screen line, and she responded, "Yes." Id. at 5. The trial court asked Hampton whether she had the ability to call the drug screen line, and she replied, "Yes." Id. The trial court approved the Agreement and entered an order thereon. Appellant's App. Vol. II at 9 (CCS entry reflecting entry of order in Record of Judgments and Orders).

         [¶7] On June 13, 2016, the parties appeared for the Review Hearing. At the hearing, the State stipulated that the parties had agreed, on February 11, 2016, to lower the monthly payment arrangement from $100 per month to $50 per month. Hampton's testimony at the Review Hearing included that she had called the drug screen line, most, but not all, days. She testified that she knew where to call and knew that she was required to call by 3:00 p.m., but on some occasions did not call by 3:00 p.m. because she "sometimes forgot." Tr. at 16. With regard to her required payments toward costs, fees, and restitution, the evidence was that she owed $100 per month for December 2015 and January 2016, and she owed $50 per month for February through May. The evidence presented was that Hampton made no payment in December 2015, paid $40 in January 2016, $140 in February 2016, nothing in March and April, and $25 in May, such that she had paid $205 of the required $400 that was owed for the months of December 2015 through May 2016. [2] Hampton agreed with the payment history. Id. at 24. That same day, the trial court issued an Order on Violation of Probation, determining that the evidence was that Hampton did not comply with the Agreement, as she did not call in by 3:00 p.m. on all dates, and she failed to make the payments that were required under her probation conditions. Noting that it lacked the authority to change the Agreement, the trial court ordered Hampton to serve 550 days in the DOC, less credit time.

         [¶8] The next day, Hampton filed her Motion to Reconsider. The trial court held a hearing on Hampton's motion, at which counsel appeared and presented argument. Hampton's counsel argued that: (1) Hampton had substantially complied with the Agreement, as she called the drug screen line on most days, and on the days that she missed the 3:00 p.m. deadline, she called the front desk of the probation department; (2) Hampton did not receive notice that she was not in compliance with her calls to the drug screen line; and (3) notice would have allowed counsel to obtain Hampton's phone records and records from the probation department, before the Review Hearing. Counsel also argued that Hampton was denied due process because the Agreement took away the trial court's discretion as to what sentence to impose for the violation, and it improperly shifted the burden to her. The State argued in response that: (1) the Agreement - in which Hampton admitted to violating her probation and was ordered to serve a 550-day previously-suspended sentence, which the State agreed to stay if she complied with probation - was validly reached and executed; (2) Hampton and her counsel knew that if Hampton did not comply with all conditions of probation by the June 2016 Review Hearing that she would be ordered to serve the 550-day sentence; and (3) Hampton and her counsel could have contacted probation or the prosecutor's office prior to the Review Hearing to ascertain Hampton's compliance. The State also argued that Hampton received all required due process. After taking the matter under advisement, the trial court issued an Order Concerning Defendant's Motion to Correct Error Alternatively Motion to Reconsider, denying Hampton's motion.[3] Hampton now appeals.

         Discussion and Decision

         [¶9] On appeal, Hampton argues that the trial court abused its discretion when it approved the Agreement because it improperly shifted the burden to her to show future compliance with her probationary terms and conditions, and it improperly removed judicial discretion from the trial court with regard to what sentence to impose for a violation of probation. The State argues, and we agree, that a direct challenge to the trial court's approval of the Agreement, which occurred in November 2015, is untimely. See Appellee's Br. at 11 (citing State v. Hunter, 904 N.E.2d 371, 373 (Ind.Ct.App. 2009)).

         [¶10] As stated, the parties presented the Agreement to the trial court on November 23, 2015. That same day, the trial court, in its discretion, approved and accepted the Agreement and entered an order thereon. Appellant's App. Vol. II at 9 (CCS entry reflecting entry of order in Record of Judgments and Orders). Thus, at that time, the Agreement became an order of the court, which imposed a sanction (550 days of incarceration unless Hampton showed in six months that she complied with all terms and conditions of probation) for Hampton's admission that she violated probation. As Hampton concedes, "The Agreement [] is a final order as it determined that [Hampton] had violated the terms of her probation and set a sentence." Appellant's Br. at 8; see also Ind. Code § 35-38-2-3(1) (judgment revoking probation is final appealable order). Hampton, however, did not file a notice of appeal or a motion to correct error within thirty days. See Ind. Appellate Rule 9(A)(1). The failure to timely file a notice of appeal forfeits the right ...


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