Trevor L. Morgan, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
from the Vigo County Superior Court The Honorable David R.
Bolk, Judge Trial Court Cause No. 84D03-0907-FA-2258
Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana
Attorney for Appellant
T. Hill, Jr. Attorney General of Indiana Henry A. Flores, Jr.
Deputy Attorney General Indianapolis, Indiana Attorneys for
Trevor L. Morgan appeals the revocation of his direct
placement in community corrections. He alleges Indiana Code
section 35-38-2.6-5 is unconstitutional and he was denied due
process. We affirm and remand.
and Procedural History
In 2010, Morgan pled guilty to Class A felony dealing in
methamphetamineand Class C felony neglect of a
dependent. He was sentenced to an aggregate term of
twenty years, with ten years suspended to probation.
In February 2013, Morgan requested and was granted placement
in a community transition program. However, he violated the
terms and was ordered to serve two years of the suspended
portion of his sentence "on the Work Release Program
under supervision of Vigo County Community Corrections."
(App. Vol. 2 at 188.)
On January 4, 2017, the State filed a petition to revoke
Morgan's placement in the work release program. The State
alleged he had committed nine violations of the program
rules, including being in an unauthorized area, refusing an
order, working outside an approved area, and escaping the
facility. The trial court conducted a hearing on the
allegations. At the hearing, Case Manager Bradley Burton
testified regarding the violations Morgan allegedly
committed. Morgan's attorney cross-examined Burton.
Morgan testified and admitted some of the allegations and
provided excuses for others. The trial court found Morgan
committed the violations and revoked his placement in the
trial court ordered Morgan to serve the remainder of his
suspended sentence in the Department of Correction
Morgan asserts amended Indiana Code section 35-38-2.6-5
(2015), which controls the community corrections program, is
unconstitutional because it impermissibly delegates judicial
authority to a member of the executive branch, i.e.
the community corrections director, and because it permits
revocation of community corrections placements without an
"evidentiary hearing before a neutral and detached
magistrate." (Appellant's Br. at 8.) Although Morgan
did not raise these concerns before the trial court, he
asserts they amount to fundamental error as "a blatant
violation of due process." (Id. at 9.) Morgan
asserts the statute is facially unconstitutional or, at the
very least, unconstitutional as applied to him because his
hearing "fail[ed] to comport with due process."
The State asserts Morgan has waived these challenges and,
even if he had not, the statute is not unconstitutional.
Failure to object at trial generally waives the issue for
appeal, except in cases of fundamental error. Knapp v.
State, 9 N.E.3d 1274, 1281 (Ind. 2014), cert.
denied. "Fundamental error is an error that makes a
fair trial impossible or constitutes clearly blatant
violations of basic and elementary principles of due process
presenting an undeniable and substantial potential for
harm." Clark v. State, 915 N.E.2d 126, 131
(Ind. 2009), reh'g denied.
Delegation of Judicial Authority
We review a constitutional challenge of a statute de
novo. Morgan v. State, 22
N.E.3d 570, 573 (Ind. 2014). "A challenge to the
validity of a statute must overcome a presumption that the
statute is constitutional." Brown v. State, 868
N.E.2d 464, 467 (Ind. 2007). "The burden to rebut this
presumption is upon the challenger, and all reasonable doubts
must be resolved in favor of the statute's
constitutionality." State v. Lombardo, 738
N.E.2d 653, 655 (Ind. 2000).
Article 3, section 1 of the Indiana Constitution divides the
powers of the government into three departments: "the
Legislative, the Executive including the Administrative, and
the Judicial." It further provides none of the branches
"shall exercise any of the functions of another, except
as in this Constitution expressly provided."
Indiana Code section 35-38-2.6-5 (2015) states:
If a person who is placed under this chapter violates the
terms of the placement, the community corrections director