Court of Appeals of Indiana | Memorandu m Decision 19A

- CR

- 2173 | February 14, 2020 Page 1 of 9 

### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT David W. Stone, IV Anderson, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Thomas J. Flynn Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Jeffrey D. Shanks , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. February 14, 2020 Court of Appeals Ca se No. 19A

- CR

- 2173 Appeal from the Madison Circuit Court The Honorable Andrew Hopper, Judge Trial Court Cause No. 48C03

- 1812

- F6

- 3166

Riley , Judge
.Court of Appeals of Indiana | Memorandu m Decision 19A

- CR

- 2173 | February 14, 2020 Page 2 of 9 

### STATEMENT OF THE CASE

[1] Appellant

- Defendant, Jeffery Shanks ( Shanks ), appeals the trial court’s revocation of his probation and the imposition of his previously

- suspended

sentence

.

[2] We affirm

. 

### ISSUE

[3] Shanks prese nts this court with two issue s on appeal, which we restate as a single issue : Whether the trial court abused its discretion by revoking a portion of his probation and the imposition of the previously

- suspended sentence

.


### FACTS AND PROCEDURAL HISTORY

[4] On March 27 , 201 9 , Shanks pled g uilty to Level 6 felony unlawful possession of a syringe ; Level 6 felony possession of methamphetamine ; and Class B misdemeanor possession of marijuana . The trial court sentenced Shanks to

concurrent two

- year terms for each of his Level 6 felon y convictions and to a

one - year term for his Class B misdemeanor conviction

. All of Shanks’ sentence was suspended to probation.

[5] The terms of Shanks’ probation required him to abstain from the use of illegal drugs . Shanks was also required to su bmit urine samples for drug screens and pay his probation fees. On April 4, 2019 , Shanks produced a urine sample which tested positive for THC and methamphetamine. On April 8, 2019 , Shanks produced a diluted urine sample which was counted as a po sitive drugCourt of Appeals of Indiana | Memorandu m Decision 19A

- CR

- 2173 | February 14, 2020 Page 3 of 9 screen. On April 16, 2019, Shanks produced a urine sample , which tested positive for THC and methamphetamine.

[6] On April 23, 2019, the Madison County Probation Department (Probation Department) file d a notice of probation violat ion, alleging that Shanks had failed three drug screens and had also failed to pay administrative and probation fees

. On July 15, 2019, the trial court conducted a n initial hearing where Shanks denied the allegation s . On July 31 , 2019, another initial he aring

was held at which Shanks appeared to be under the influence of drugs, and he admitted to using “[m]ethamphetamine and [m]arijuana

. ” (Appellant’s App. Vol. II, p. 7). At the close of that hearing, Shanks was remanded to Madison County J ail.

[7] On August 1 , 2019, the Probation Department filed an Amended Notice of Violation , adding that Shanks had committed two new offense s ( possession of methamphetamine and marijuana)

. Since Shanks was in jail, he appeared v ia video , and denied the allegations

. On August 7, 2019, Shanks was released from jail

.

[8] O n August 9, 2019, Shanks reported to the Community Justice Center (Center)

to begin the Adult Day Reporting/Continuum of Sanctions program (ADR/COS). After the C enter completed Shanks ’ intake, they required Shanks to submit a urine sam ple for screening

. Shanks was incapable of produc ing a urine sample , and a t around 8:00 p.m. , S hanks w as permitted to go to the hospital since he was “ unable to urinate.” (Appellant’s App. Vol. II, p. 59).Court of Appeals of Indiana | Memorandu m Decision 19A

- CR

- 2173 | February 14, 2020 Page 4 of 9 Shanks was to return to the C enter the following morning at 8:00 a.m. with “hospital paperwork ” showing that he had received treatment

. (Appellant’s App. Vol. II, p. 59). Shanks failed to return to the Center as instructed ; rather, he returned to the C enter at 11:15 a.m. on August 12, 201 9 , with documentation that he had been seen at the St. Vincent emergency room for chronic back pain. On the same day, the C enter asked Shanks to produce a urine sample for testing, but Shanks was incapable of producing one . O n August 13, 2019, Shanks was terminated from the C enter’s ADR/COS
program.

[9] O n August 21, 2019, following a hearing as to the Probation Department’s Amended Notice of Violation, the trial court determined that Shanks had failed to produce drug screens as directed , to report to his probation meetings, and to
pay ADR/COS program fees. At the close of the hearing, the trial court revoked 120 days of Shanks probation and ordered him to serve the sentence in j ail . Upon the completion of his probation sanction , Shanks was ordered to serve the b alance of 522 days in t he ADR/COS program. On October 19,
2019 , Shanks was released from jail.

[10] Shanks now appeals. Additional facts will be provided as necessary.


### DISCUSSION AND DECISION

[11] “‘Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.’” Cain v. State , 30 N.E.3d 728, 731 (Ind. Ct. App. 2015) (quoting Prewitt v. State , 878 N.E.2d 184, 188 (Ind. 2007)), trans.Court of Appeals of Indiana | Memorandu m Decision 19A

- CR

- 2173 | February 14, 2020 Page 5 of 9 denied. “Courts in probation revocation hearings ‘may consider any relevant evidence bearing some substantial indicia of reliability.’” Id

. (quoting Cox v.
State , 706 N.E.2d 547, 551 (Ind. 1999)). “It is within the discretion of the trial court to determine the conditions of a defendant ’ s probation and to revoke probation if the conditions are violated.” Id

. Our court has said that “all probation requires ‘strict compliance’” because once the trial court extends this grace and sets its terms and conditions, the probationer is expected to comply with them strictly.” Id . at 731

- 32 (quoting Woods v. State , 892 N.E.2d 637, 641 (Ind. 2008)). “If the probationer fails to do so, then a violation has occurred.” Id

. We review a sanction imposed following revocation of probation for an abuse of discretion. Heaton v. State , 984 N.E.2d 614, 616 (Ind. 2013). “‘An abus e of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.’” Hutchison v. State , 82 N.E.3d 305, 310 (Ind. Ct. App. 2017) (quoting Prewitt , 878 N.E.2d at 188).

[12] Probation revocation is a two

- step proces s. First, the trial court must make a factual determination that a violation of a condition of probation occurred.
Heaton , 984 N.E.2d at 616. Second, if a violation is found, then the trial court must determine the appropriate sanctions for the violation

. Id

. Shanks claims
that the trial court’s determination that he failed to submit drug screen s was not supported by the evidence

. Also, he challenges the propriety of the sanction imposed.Court of Appeals of Indiana | Memorandu m Decision 19A

- CR

- 2173 | February 14, 2020 Page 6 of 9 

### A

. Probation Violation

[13] Shanks claims that he had a medical condition which prevented him from producing urine samples, thus, the trial cou rt’s determination that he had failed to submit to drug screens as directed by the Center is not supported by the evidence. After Shanks pleaded guilty to the underlyin g offenses in March
201 9 , his entire sentence was suspended to probation. The terms of his probation required him to produce urine sample s for drug screens. Explaining why he was unable to urinate on demand, Shanks claimed that about four y ears
ago, a ca theter had to be inserted for about a week in order to treat a blockage that prevented him from urinating

.

[14] Turning to the record, o n August 9, 2019, after the Center completed Shanks’ intake, they required Shanks to submit a urine specimen for a drug screen. Shanks was unable to produce a urine sample , and he alleged he had a medical condition preventing him from doing so. Based on his assertion, Shanks was directed to go to the hospital. Shanks was to return the following morning at 8:00 a.m. with hospital paperwork indicating that he had received treatment that would enable him to produce a urine sample

. Notwithstanding the fact that the hospital paperwork that he submitted to the C enter show ed that he had been treated for chronic back pain on Aug ust 1 0, 2019, the same medical record s confirmed that Shanks was prescribed Flomax , which would have enabled him to urinate. On August 12, 2019, f orty

- eight hours after he had been prescribed Flomax, the C enter asked Shanks to produce a urine specimen , bu t Shanks was incapable of producing one.Court of Appeals of Indiana | Memorandu m Decision 19A

- CR

- 2173 | February 14, 2020 Page 7 of 9 [15] At the close of the revocation hearing , the trial court was unconvinced of Shanks’ claim that a medical condition had prevented him from producing a urine sample for drug testing

. It noted,
Sir, it’s the [c]ourt’s recollection at the l ast hearing

. . . when you were taken into custody, you were sitting in the back of the courtroom passed out. Someone had to shake you awake when your hearing was called. The [c] ourt has difficulty believing that your refus al or inability to screen has something to do with a medical problem when that’s the behavior you exhibit. To participate in any of these [rehabilitative] programs, you have to be willing to abide by the rules. You have to give a screen. You can’t refus e a screen. You can’t sit in the courtroom, passed out, and then saying [sic] the inability to give a screen. That won’t work. So, you either need to be able to produce and be able to be safely monitored on the community corrections programs or you’ll h ave to spend the entire sentence in the Madison County Jail.
(Transcript pp. 29

- 30).

[16] A defendant serving a term of probation specifically agrees to accept conditions upon his or her behavior instead of imprisonment. Jones v. State , 838 N.E.2d 1146, 1148 (Ind. Ct. App. 2005). The conditions are designed to ensure that the probation serves as a period of genuine rehabilitation and that the public is not harmed by a probationer living within the community. Id

. Since the terms of Shanks’ probation included the mandate to produce urine samples for screening , it was incumbent upon Shanks to e xplain why he could not produce a urine sample

. Shanks offered the explanation that he had a problem in the past with urination , but that problem occurred four years prior. In addition, itCourt of Appeals of Indiana | Memorandu m Decision 19A

- CR

- 2173 | February 14, 2020 Page 8 of 9 appears that Shanks had no issues producing urine sample s in Apri l 2019 , but his urination problems arose after he had failed three drug screens. Moreover, after Shanks was allegedly prescribed medication to treat his urination problem, he was still unable to produce a urine specimen. The trial court was well within its discretion to reject Shanks’ excuses , and we find Shanks’ argument is nothing more than a request to reweigh the evidence , which we will not do. Because the evidence was sufficient to show that Shanks violated the terms of his probation by fail ing to produce a urine sample for drug testing, we conclude that the trial court’s O rder , revoking a portion of Shanks’ probation is supported by the evidence.



### B

. Sanction

[17] Shanks a lso argues that the trial court abused its discretion in ordering him to

s erve a portion of his suspended sentence in jail as a sanction for his probation violations. The State responds by arguing that the issue is moot because Shanks has already served the sanction

— i.e., 120 days in j ail. We agree.
[W]here the principal questions at issue cease to be of real controversy between the parties, the errors assigned become moot questions and this court will not retain jurisdiction to decide them. Stated differently, when we are unable to provide effective relief upon an issue, the issue is deemed moot, and we will not reverse the trial court ’ s determination where absolutely no change in the status quo will result.

J

ones v. State , 847 N.E.2d 190, 200 (Ind. Ct. App. 2006) ( internal citations and quotations omitted), tra ns. denied

. After the trial court determined that ShanksCourt of Appeals of Indiana | Memorandu m Decision 19A

- CR

- 2173 | February 14, 2020 Page 9 of 9 had violated his probation, the trial court sanction ed Shanks by sentencing him to serve 120 days in Madison County Jail. Shanks served his sentence and was released in October 2019. Because Shank s has already served his sentence, we decline to address the propriety of the sanction imposed. See Richardson v. State , 402 N.E.2d 1012, 1013 (Ind. Ct. App. 1980) (holding that this court does not “engage in discussions of moot questions or render advisory opinions”).


### CONCLUSION

[18] In sum , we conclude that the trial court properly revoked a portion of Shanks’ probation and the issue regarding the propriety of the sanction imposed is moot

.

[19] Affirmed.

[20] Baker, J. and Brown, J. concur