Gipson v. State

Decision Date15 February 2021
Docket NumberCourt of Appeals Case No. 20A-CR-1656
Citation167 N.E.3d 691 (Table)
Parties Brian Keith GIPSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Attorney for Appellant: Joseph P. Hunter, Quirk and Hunter, P.C., Muncie, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Jodi Kathryn Stein, Supervising Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Bradford, Chief Judge.

Case Summary

[1] As part of his guilty plea for Class C felony robbery, Brian Keith Gipson was sentenced to eight years of incarceration in the Department of Correction ("DOC"). Gipson's sentence was stayed, pending his successful completion of a drug-court program. Gipson, however, failed to successfully complete the drug-court program. Gipson appeals from the trial court's order revoking his placement in the drug-court program and ordering that he serve the remainder of his previously-stayed eight-year sentence in the DOC. We affirm.

Facts and Procedural History

[2] On January 18, 2013, Gipson was charged with Class C felony robbery after he took Fentanyl patches and Oxycodone from a CVS manager and pharmacist. Gipson subsequently pled guilty, agreeing to a plea agreement that called for a fixed eight-year executed sentence. Pursuant to the terms of Gipson's plea agreement, Gipson's sentence was stayed pending his successful completion of the Delaware County Forensic Diversion Drug Court Program ("the drug-court program").

[3] As part of his participation in the drug-court program, Gipson was advised that any major violation, including absconding from the program, committing new crimes, three or more positive drug screens, failure to report, or failure to participate in the substance-abuse treatment plan, could result in revocation of his drug-court placement and the execution of his full eight-year sentence in the DOC. Between 2014 and 2020, Defendant committed several violations, including multiple failures to report and several positive drug screens, and was sanctioned at various times with incarceration.

[4] On February 13, 2020, the State filed a petition in which it asked the trial court to revoke Gipson's placement in the drug-court program and to order him to serve the remainder of his previously-stayed eight-year sentence in the DOC. In its petition, the State alleged that Gipson had committed the following violations of the terms of his placement:

a) Admitting to use of MARIJUANA on May 22, 2017. Violation of Rule #39, Conditions of Forensic Diversion Drug Court.
b) Failing to report to Case Manager from July 7, 2017 through July 31, 2017. Violation of Rule #35, Conditions of Forensic Diversion Drug Court.
c) Testing positive on November 21, 2017 on a random urine drug screen for MARIJUANA. Violation of Rule #39, Conditions of Forensic Diversion Drug Court.
d) Testing positive on November 28, 2017 on a random urine drug screen for MARIJUANA (at a higher level). Violation of Rule #39, Conditions of Forensic Diversion Drug Court.
e) Testing positive on December 19, 2017 on a random urine drug screen for COCAINE and MARIJUANA. Violation of Rule #39, Conditions of Forensic Diversion Drug Court.
f) Testing positive on January 16, 2018 on a random urine drug screen for MARIJUANA. Violation of Rule #39, Conditions of Forensic Diversion Drug Court.
g) Testing positive on July 27, 2018 on a random urine drug screen for MARIJUANA. Violation of Rule #39, Conditions of Forensic Diversion Drug Court.
h) Testing positive on August 30, 2018 on a random urine drug screen for OPIATES and MARIJUANA. Violation of Rule #39, Conditions of Forensic Diversion Drug Court.
i) Testing positive on March 12, 2019 on a random urine drug screen for OPIATES and MARIJUANA. Violation of Rule #39, Conditions of Forensic Diversion Drug Court.
j) Failing to report to Case Manager from March 12, 2019 through April 22, 2019. This includes failing to show for his drug screens and review hearings. Violation of Rules #37, #36, and #35, Conditions of Forensic Diversion Drug Court.
k) Testing positive on May 29, 2019 on a random urine drug screen for OPIATES (admits to Fentanyl). Violation of Rule #39, Conditions of Forensic Diversion Drug Court. **Defendant was placed in jail and referred to House of Hope in Anderson, Indiana. He went to House of Hope on July 2, 2019.
l) Being unsuccessfully discharged from House of Hope on August 2, 2019. Discharge report indicates he was "obnoxious and aggressive" and "very argumentative with staff on several occasions." Violation of Rule #33, Conditions of Forensic Diversion Drug Court.
m) Failing to report from August 29, 2019 through September 5, 2019. Violation of Rule #35, Conditions of Forensic Diversion Drug Court. It was brought to staff's attention that defendant had overdosed on Heroin after leaving his reporting with Case Manager on August 29, 2019. He was picked up on a warrant that was issued on September 5, 2019. At that time, he was referred to Meridian Services Addiction and Recovery Center.
He went to ARC on October 17, 2019.
**During a Review Hearing on September 16, 2019, Judge orders defendant[’]s time on Drug Court be extended for six (6) months in order for him to complete ARC and have a supervision time after completion.
n) Failing to report to Case Manager from December 26, 2019 through February 3, 2020. Violation of Rule #35, Conditions of Forensic Diversion Drug Court.

Appellant's App. Vol. II pp. 88–89. Although the drug-court program was typically completed in three years, Gipson was enrolled in the program for six years before the State ultimately sought to have his participation unsuccessfully terminated and his placement in the program revoked.

[5] The trial court conducted a fact-finding hearing on the State's petition on June 8, 2020, at the conclusion of which the trial court found as follows:

I will make the finding that the defendant has violated the terms of his Forensic Diversion Drug Court agreement and the rules, specifically that upon the release from the Addiction Recovery Center in Richmond, Indiana, he did not return to the program. He failed to appear, and the program DCCC did file the petition at that point, alleging failure to report from December 26, 2019, through February 3, 2020. Did then file the petition, requested a warrant, and he was picked up on the warrant, so I do find as to allegation N that defendant did commit that Violation, that he has not previously been sanctioned for that violation, so that does form the basis for the revocation from Drug Court and also for further proceedings.

Tr. Vol. II p. 17.

[6] At a dispositional hearing on July 28, 2020, Gipson requested that the trial court impose an alternate sentence, i.e. , order him to participate in a faith-based program with a recovery home located in Connersville. For its part, the State requested that the trial court order Gipson to serve the remainder of his previously-stayed eight-year sentence in the DOC. In finding that the alternative sentence requested by Gipson would be inappropriate and ordering Gipson to serve the remainder of his previously-stayed eight-year sentence in the DOC, the trial court stated as follows:

I do find that the underlying offense was a serious matter. It was a CVS Pharmacy robbery, which does involve danger to the pharmacy employees and the public at large. You did receive a great benefit from the Forensic Diversion Drug Court Program.... You have been given over six years to participate in a drug court program to seek rehabilitation and did not take advantage. I mean, I understand your position is that you need rehabilitation. You need treatment, that prison won't do you any good. I mean, at this point, I think the Court system has done everything we can to give you the supervision, the opportunities to have substance abuse treatment, and I just don't see that it -- at this time that there are any other alternatives for us.... So as to Count I, robbery, Class C felony, defendant is committed to the custody of the Department of Corrections for a period of eight years. That is executed. I will give you the 705 actual days served in the Delaware County Jail[.]

Tr. Vol. II p. 30.

Discussion and Decision

[7] Gipson appeals the revocation of his placement in the drug-court program and the order that he serve the remainder of his previously-stayed eight-year sentence in the DOC. "The Drug Court program is a forensic diversion program akin to community corrections, and we will review the termination of placement in a Drug Court program as we do a revocation of placement in community corrections." Withers v. State , 15 N.E.3d 660, 663 (Ind. Ct. App. 2014).

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). The similarities between the two dictate this approach. Id. Both probation and community corrections programs serve as alternatives to commitment to the DOC and both are made at the sole discretion of the trial court. Id. A defendant is not entitled to serve a sentence in either probation or a community corrections program. Id. Rather, placement in either is a "matter of grace" and a "conditional liberty that is a favor, not a right." Id. (quoting Million v. State , 646 N.E.2d 998, 1002 (Ind. Ct. App. 1995) (internal quotation omitted)).
While a community corrections placement revocation hearing has certain due process requirements, it is not to be equated with an adversarial criminal proceeding. Id. at 549–50. Rather, it is a narrow inquiry, and its procedures are to be more flexible. Id. This is necessary to permit the court to exercise its inherent power to enforce obedience to its lawful orders. Id. Accordingly, the Indiana Rules of Evidence in general and the rules against hearsay in particular do not apply in community corrections placement
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