Glenn v. State, 2--474A102

• Decision Date: 30 January 1975
• Docket Number: No. 2--474A102,2--474A102
• Citation: 322 N.E.2d 106,163 Ind.App. 119
• Parties: James GLENN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 106

322 N.E.2d 106

163 Ind.App. 119

James GLENN, Appellant, v. STATE of Indiana, Appellee.

No. 2--474A102.

Appeals Court of Indiana, Second District.

Jan. 30, 1975.

Rehearing Denied March 4, 1975.

Harriette Bailey Conn, Public Defender of Ind., Eugene C. Hollander, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., of Ind., Robert F. Colker, Asst. Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

James Glenn had been convicted of violating the 1935 Narcotics Act--possession of heroin. He was sentenced to not less than five (5) nor more than twenty (20) years on January 28, 1972. Later, September 28, 1973, he filed his petition for post-conviction relief so that he could elect to receive treatment as a drug abuser under the Indiana Drug Act, I.C.1971, 16--13--7.5--16 and 16--13--7.5--18 (Burns Code Ed.). ¹

The trial court denied Glenn's petition and his appeal raises these issues for our review:

Issue One: Did the trial court have reason to believe that Glenn was a 'drug abuser' before he was sentenced?

Issue Two: Did you trial court abuse its discretion when it failed to inquire into Glenn's eligibility and status as a 'drug abuser' under the Indiana Drug Act?

Issue Three: Did the trial court commit reversible error when it denied Glenn's petition for post-conviction relief?

We conclude that there was sufficient evidence to create a reasonable belief before sentencing that Glenn was eligible and a 'drug abuser.' The trial court's failure to make inquiries into Glenn's eligibility and status as a 'drug abuser' was an abuse of discretion. We reverse.

I. A Reason to Believe

'If a court has reason to believe that an individual convicted of a crime is a drug abuser, . . . the court may advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the department. . . .' I.C.1971, 16--13--7.5--18 (Burns Code Ed.).

Before Glenn was sentenced, his pre-sentence investigation report clearly indicated that he was eligible to elect treatment. ² The report further revealed that Glenn had a long history of drug abuse. It revealed a previous conviction for violation of the 1935 Narcotics Act. Glenn was being sentenced for being in possession of heroin. These facts, which were before the court at the time of sentencing, strongly suggest that Glenn might be a drug abuser. Further inquiry should have been made by the trial court to establish Glenn's eligibility and his status as a drug abuser. ³ Whenever a reason to believe exists, the trial court has a duty to make further inquiry in an attempt to establish with certainty whether a convicted defendant is eligible and a drug abuser. If the court can establish with a reasonable degree of certainty that the convicted defendant is an eligible drug abuser, it must explain the election and offer it to the defendant. The purpose of the Indiana Drug Act mandates this procedure. ⁴

When a 'reason to believe' cannot be reduced to a reasonable certainty by further inquiries, 'the court may advise' the individual convicted of a crime '. . . that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the department. . . .' I.C.1971, 16--13--7.5--18, supra. Any other statutory construction is at war with the express purpose of the Act. People v. Robinson (1973), 12 IllApp.3d 291, 297 N.E.2d 621. Any other interpretation would be a semantic absurdity. It would permit the trial court to frustrate the express purpose of the Indiana legislature.

Once the election is made by the convicted defendant, the trial court shall order his examination by the department. McNary v. State (1973), Ind.App., 297 N.E.2d 853. The trial court exercises its dispositional discretion after it receives the department's report. The statute, I.C.1971, 16--13--7.5--18, supra, provides:

'. . . If the court, acting on the report and other information coming to its attention, determines that the individual is not a drug abuser, or is a drug abuser not likely to be rehabilitated through treatment, the court shall proceed to pronounce sentence as in other cases. If the court determines that the individual is a drug abuser and is likely to be rehabilitated through treatment, the court may place him on probation and under the supervision of the department for treatment and of the proper probation authorities for probation supervision and may require such progress reports on the individual from the probation officer and the department as the court finds necessary. No individual may be placed under supervision unless the department accepts him for treatment.'

We conclude that an inquiry by the trial court into the convicted defendant's eligibility and status as a drug abuser is mandatory when the trial court has reason to believe that an election could be offered. The evidence strongly suggests here that the trial court should have entertained a reason to believe that Glenn was both eligible and a drug abuser. The presentence investigation report indicated one previous drug related offense and a twelve (12) year history of drug abuse. Glenn stood convicted of violating the 1935 Narcotics Act--possession of heroin.

The Indiana Drug Act, when applicable, is an extension of the scope of pre-sentencing procedures which already provide for inquiry into matters relevant to the question of sentence and for a physical and mental examination. I.C.1971, 35--4.1--4--10; Ind.Ann.Stat. § 9--2252 (Burns 1974 Supp.); I.C.1971, 35--4.1--4--11; Ind.Ann.Stat. § 9--2252a (Burns 1974 Supp.). Such pre-sentencing inquiries or reports are mandatory under Indiana law and cannot be ignored by the trial court. I.C.1971, 35--4.1--4--9; Ind.Ann.Stat. § 9--2251 (Burns 1974 Supp.).

When information comes to the trial court's attention before sentencing which clearly indicatres that other reasonable inquiry should be made in order to comply with the intent and purpose of the pre-sentencing statutes, any failure to make further reasonable inquiry is an abuse of discretion. A sentence which is rendered without following the statutory pre-sentencing procedures and their obvious purposes is an erroneous sentence subject to correction on proper petition.

This opinion is limited in its application to those factual instances when the information before the trial court at the time of sentencing clearly gives rise to a reason to believe that the convicted defendant is an eligible drug abuser, and no reasonable inquiry is made by the trial court to reduce the 'reason to believe' to reasonable certainty. When a 'reason to believe' remains after reasonable inquiry, any advisement of or offer to the convicted defendant is discretionary with the trial court.

II. Post-Conviction Relief

Glenn was not advised that he was eligible for treatment as a drug abuser under the Indiana Drug Act. His trial defense attorney testified that he thought Glenn had previously been convicted of selling a narcotic drug. ⁵. Glenn had never, in fact, been convicted of selling narcotics. An inquiry into his pre-sentencing investigation report would have established Glenn's eligibility. Glenn's trial defense attorney further testified that the presentencing investigation report did reflect Glenn's long history of drug abuse.

Glenn denied that he had ever told his defense attorney that he had been convicted of selling narcotics. He further testified that he told his attorney that he had a drug problem and needed help.

Howard T. Tyler, Glenn's parole officer while he had been serving a sentence on his first conviction for violating the 1935 Narcotics Act, testified that:

'In my opinion, Mr. Glenn's problems with the law have been directly related to drugs.' ⁶

The above evidence reflects a reason to believe that Glenn was an eligible drug abuser.

III. Two Thresholds

Two thresholds of discretion are presented by the statute I.C.1971, 16--13--7.5--18, supra. The first threshold of discretion emanates from the pre-sentencing information available to the trial court. If this pre-sentencing information gives rise to a reasonable belief that the convicted defendant is an eligible drug abuser, the trial court must make reasonable inquiries in an attempt to establish with reasonable certainty whether the alternative treatment sentence can be offered to the convicted defendant. If the trial court's inquiries can not reduce its reasonable belief to a reasonable certainty that the convicted defendant is an eligible drug abuser, it may in its discretion, offer the treatment sentence to the convicted defendant or sentence him as in other cases. On the other hand, if the trial court's inquiries have reduced to a reasonable certainty that the convicted defendant is an eligible drug abuser under the Indiana Drug Act, it must withhold any further discretionary action until it is fully informed medically as to whether the convicted defendant is actually a drug abuser under the Act and can be treated and accepted for treatment.

The second threshold of discretion is reached by the trial court's offer of treatment to the convicted defendant. The offer is based upon the pre-sentencing information and the trial court's inquiries which have reduced to reasonable certainty that the convicted defendant is an eligible drug abuser. Acceptance of the offer by the convicted defendant requires that he be examined and that a medical report be made to the trial court. Based upon the medical report and the acceptance of the convicted defendant for treatment by the Indiana Department of Mental Health, the trial court must conclude as a matter of law whether the convicted defendant is a drug abuser as defined under the Indiana Drug Act. ⁷ If the trial court concludes that he is a drug abuser, it must exercise its discretion and further determine whether the convicted defendant can be rehabilitated through treatment and sentenced as provided by statute. If...