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Appeals court affirms revoked probation after test shows marijuana

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A man ordered to serve 90 days of a suspended one-year sentence for a conviction of misdemeanor marijuana possession wasn’t denied due process when his probation officer admitted evidence of a positive urinalysis, the Indiana Court of Appeals ruled.

In Andrew Wann v. State of Indiana, 32A01-1303-CR-123, Andrew Wann argued that the toxicology report was improperly admitted hearsay that didn’t meet the “substantial trustworthiness” test established in Reyes v. State, 868 N.E.2d 438, 440 n.1 (Ind. 2007). Wann also argued that the order to serve 90 days of his suspended sentence wasn’t authorized by statute.

Judge L. Mark Bailey wrote that the panel could not conclude from Reyes that, as Wann argued, an affidavit from a testing toxicologist was required to admit the urinalysis. And in any event, Wann had agreed to waive objection to the admissibility of the test results as a term of probation.

The court also rejected Wann’s argument that time he had served on the conviction, including good-time credit, plus time served on probation, was longer than the statutory maximum sentence of one year, and therefore it was outside the court’s discretion to order him to serve 90 days in jail.

“From the date of Wann’s November 10, 2009 sentence to his September 16, 2010 violation, 308 days had elapsed. The State alleged the violation within the probationary period, and subsequently proved the violation. Accordingly, the options of Indiana Code section 35-38-2-3(h) were available to the trial court, including an order for ‘execution of all or part of the sentence that was suspended at the time of initial sentencing.’ The trial court acted within its statutory discretion to order that Wann serve 90 days in jail," Bailey wrote for the panel that also included Judges Cale Bradford and Melissa May.
 

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  • Marijuana penalties too harsh
    58% of the American public believe that marijuana should be legalized. Marijuana is less harmful than alcohol or tobacco. No one has ever died smoking marijuana. In a few years we will all wonder how the legislature could ever have passed such legislation.

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  1. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

  2. Don't we have bigger issues to concern ourselves with?

  3. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  4. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  5. Different rules for different folks....

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