Swallow v. State

167 N.E.3d 702 (Table)

Carl Z. SWALLOW, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 20A-CR-1825

Court of Appeals of Indiana.

FILED February 25, 2021

Attorney for Appellant: Ronald K. Smith, Muncie, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Samuel J. Dayton, Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Kirsch, Judge.

[1] Carl Z. Swallow ("Swallow") appeals the trial court's order revoking his probation and ordering him to serve the entirety of his suspended sentence in the Indiana Department of Correction ("DOC"). He raises one issue, which we restate as whether the trial court abused its discretion when it revoked his probation and imposed his suspended sentence.

[2] We affirm.

Facts and Procedural History

[3] On October 17, 2017, the State charged Swallow with Count I, domestic battery as a Class A misdemeanor, and Count II, arson as a Level 5 felony. Appellant's App. Vol. 2 at 4-7. On that same day, the State amended Count I, domestic battery, to elevate the charge from a Class A misdemeanor to a Level 5 felony on the basis of a prior domestic battery conviction. Id. at 12. On January 4, 2018, Swallow posted bail and was placed on a pretrial home detention program administered through Delaware County Community Corrections ("DCCC"). Id. at 23, 33, 64. On July 26, 2018, the trial court issued a warrant for Swallow's arrest due to violations of the conditions of his pretrial home detention, which included testing positive for drugs and alcohol in five separate screens and failure to properly charge his GPS tracking device, and Swallow was arrested on August 1, 2018. Id. at 64-65, 71-75; Appellant's App. Vol. 3 at 25. On August 7, 2018, the trial court revoked Swallow's pretrial home detention and ordered that he remain incarcerated. Appellant's App. Vol. 3 at 26.

[4] On October 8, 2018, Swallow executed a plea agreement in which he agreed to plead guilty as charged to both counts. Appellant's App. Vol. 2 at 105-08. On that same day, Swallow was released on pretrial supervision pending placement on electronic home detention while he awaited sentencing on the plea agreement. Appellant's App. Vol. 3 at 29. On November 8, 2018, the trial court issued a warrant for Swallow's arrest due to Swallow's failure to abide by the terms of his pretrial supervision, including that he failed to complete the intake process with his pretrial probation officer and that he failed to be "hooked up" on electronic home detention, and the trial court ordered that he remain incarcerated until sentencing. Appellant's App. Vol. 2 at 110-11, 113-16; Appellant's App. Vol. 3 at 30.

[5] On January 2, 2019, the trial court accepted Swallow's guilty plea, and, pursuant to the plea agreement, sentenced him to an aggregate sentence of four years with two of those years executed as a direct placement on home detention through DCCC and two years suspended to supervised probation. Appellant's App. Vol. 2 at 152-54. He was also ordered to submit to an alcohol and substance abuse evaluation and comply with any treatment recommendations, enroll in and complete within one year the Central Integrity Program, which was a battery intervention program, and if he did not complete the program within that time frame he was required to re-enroll and complete the program and perform forty hours of community service. Id. at 153-54.

[6] On January 25, 2019, Swallow's probation officer and home detention case manager filed a "PETITION FOR WARRANT ON REVOCATION OF DIRECT COMMITMENT[,]" alleging that Swallow had failed to comply with the terms of his placement on electronic home detention due to not having appropriate housing. Id. at 157. The trial court issued the warrant that same day. Id. at 159. On February 4, 2019, the trial court released Swallow back to home detention. Id. at 163. On March 12, 2019, DCCC filed another "PETITION FOR WARRANT ON REVOCATION OF DIRECT COMMITMENT[,]" alleging Swallow had failed to comply with the program's terms for failure to obtain appropriate housing. Id. at 164. The petition also alleged that on February 12, 2019 Swallow tested positive for methamphetamine, that on February 20, 2019 he tested positive for amphetamine, and that on March 5, 2019 he tested positive for amphetamine, methamphetamine, and THC, all in violation of the terms of his home detention. Id. at 164. The trial court issued the warrant that same day. Id. at 166.

[7] Following an April 29, 2019 fact-finding hearing, the trial court entered an order finding that the State carried its burden to prove that Swallow had violated the terms of his direct placement on home detention by using controlled substances, failing to complete required coursework in the Central Integrity Program, and failing to obtain "appropriate housing to complete his sentence on electronic home detention." Id. at 176-77; Appellant's App. Vol. 3 at 34. On May 6, 2019, the trial court held a dispositional hearing after which it ordered Swallow to serve an aggregate sentence of four years on his Level 5 felony domestic battery conviction, with two years executed in the DOC and two years suspended to supervised probation.¹ Appellant's App. Vol. 2 at 183-84; Appellant's App. Vol. 3 at 35. He was also ordered to submit to an alcohol and substance abuse evaluation and to complete the Central Integrity Program. Appellant's App. Vol. 2 at 183-84. Swallow's two years of supervised probation commenced on May 10, 2019, and Swallow initialed and signed the terms and conditions of his supervised probation. Id. at 187-92.

[8] On February 14, 2020, Swallow's probation officer filed a "PETITION FOR HEARING ON REVOCATON OF SUPERVISED PROBATION." Id. at 193-94. The petition alleged that Swallow failed to report to probation as directed by the terms of his probation, that he failed to appear for a February 12, 2020 "administrative hearing," that he failed to participate in the Central Integrity Program, which was required by the terms of his probation, that on November 12, 2019, he was charged under Cause Number 18H01-1911-CM-2010 with Class A misdemeanor trespass, and that on February 10, 2020, he was charged under Cause Number 05D01-2002-CM-48 with Class A misdemeanor resisting law enforcement. Id.

[9] On September 14, 2020, the trial court held a fact-finding hearing. Appellant's App. Vol. 3 at 39. At the hearing, Carl Barber, Jr. ("Chief Barber"), the chief of police for the Town of Gaston, testified that on September 29, 2019, he was dispatched to a residence at Gaston Village Green Trailer Park, where Swallow's mother lived. Tr. Vol. 2 at 5-9; State's Ex. 1. At that time, Chief Barber trespassed Swallow from his mother's residence, which meant that the information he relayed from the incident was "put in a computer system" showing that Swallow had "been trespassed and he's told not to return to the property." Tr. Vol. 2 at 7-9. Chief Barber testified that he was dispatched to Swallow's mother's residence on November 12, 2019, because she wanted Swallow to leave the residence. Id. at 5-6, 11-12. Chief Barber then arrested Swallow for criminal trespass after Swallow refused to leave the residence when Chief Barber asked him to do so, and Swallow was transported to the jail. Id. at 11-12; State's Ex. 1.

[10] Swallow's probation officer, Lyndsey Wilmes ("Wilmes") also testified at the hearing. Tr. Vol. 2 at 14. Wilmes testified that she had reviewed with Swallow the conditions of his probation, which included that he would obey the law, regularly report to probation, and complete the Central Integrity Program. Id. at 16; State's Ex. 2. She testified that after Swallow's probation began on May 10, 2019, she met with Swallow on two occasions but had her last in- person meeting with Swallow on October 24, 2019. Tr. Vol. 2 at 18-19. Swallow was in jail in November 2019 on criminal trespass charges, and after rescheduling, Swallow failed to appear for a December 17, 2019 meeting. Id. at 19. Wilmes then scheduled "an administrative hearing" with the chief probation officer for February 12, 2020, but Swallow failed to attend that meeting, and Wilmes later learned that Swallow did not appear for the administrative hearing because he had been arrested in a different county on February 9, 2020. Id. Swallow did not report the February 9, 2020 arrest as required by the terms of his probation. Id. at 20. As to his failure to complete the Central Integrity Program, Wilmes testified that Swallow went to the class when he was first referred but that he did not have transportation, and she stated that "the last discussion I had with him in October 2019 was that I would give him to the end of the year to try to figure out a way to get this class completed." Id.

[11] At the conclusion of the hearing, the trial court found that the State had met its burden to prove by a preponderance that Swallow had violated his probation by failing to report to probation as directed, failing to enroll in the Central Integrity Program, and committing the new offense of criminal trespass at his mother's house. Id. at 23; Appellant's App. Vol. 2 at 221. On September 21, 2020, the trial court held the dispositional hearing. Appellant's App. Vol. 3 at 39. Swallow's mother asked the trial court to show Swallow leniency and allow him to seek medical treatment because he was "a very sick man and is willing to go to treatment." Tr. Vol. 2 at 29. Swallow testified that he had owned his own business, that, until he was in and out of jail in the instant matter, he had had sole custody of his oldest son since his son was two years old, that he had started the Central Integrity Program, attending four of the classes, and that he was willing to resume probation. Id. at 31-34. Swallow stated that his mother was trying to "get the court to show mercy on [his] behalf" and that she was "try[ing] to make up something" and denied that he had any psychiatric or mental...