COA rejects separation-of-powers argument in probation revocation appeal

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A man contesting the revocation of his probation did not convince the Indiana Court of Appeals that an Indiana statute violates the separation-of-powers provisions of the Indiana Constitution. The appellate court instead found, based on its own precedent, that the statute is not unconstitutional.

In Jacob M. Breda v. State of Indiana, 19A-CR-2023, Jacob Breda pleaded guilty to felony burglary and the state agreed to dismiss his remaining charges and recommend an executed 15-year sentence.

In 2018, Breda filed a motion to modify his sentence to placement in community corrections, stating that pursuant to his plea agreement, he had completed a program that was the equivalent of a purposeful incarceration program. Breda’s sentence was subsequently modified so that he was “placed in the Work Release Program as a Direct Commitment for the balance of the executed portion of the sentence.”

However, after being given a pass to look for employment, Breda admitted that he never returned to the work release facility as scheduled because he was using drugs. Breda’s probation was ultimately revoked, and he was ordered to serve the balance of his sentence in the DOC, with credit for 1,538 days served.

Breda appealed the revocation, arguing that Indiana Code Section 35-38-2.6-5 — which sets forth the options available to a community corrections director when a defendant violates the terms of a community corrections program — violates the separation of powers provisions of the Indiana Constitution.

The Indiana Court of Appeals affirmed the revocation order, concluding that Breda waived his argument by failing to present it to the trial court. Additionally, it noted that Breda failed to cite Morgan v. State, 87 N.E.3d 506, 509 (Ind. Ct. App. 2017) in his argument, much less attempt to distinguish Morgan from his own case.

“We therefore conclude, as we previously held in Morgan, that the current version of Indiana Code section 35-38-2.6-5 is not unconstitutional,” Judge Paul Mathias wrote for the appellate court. “The trial court still maintains the authority to sentence a defendant, including placement in a community corrections program.

“Once a defendant is in a community corrections program, the community corrections director can change the terms of the placement and reassign a defendant to a specific program, but only the trial court may, at the request of the director, revoke a defendant’s placement and order the defendant to execute the remaining portion of the defendant’s sentence,” the appellate court continued. “Thus, the statute does not constitute a violation of the separation of powers, either facially or as applied to Breda.”

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