Harris v. State
| Decision Date | 30 October 2013 |
| Docket Number | No. 49A02–1301–CR–80.,49A02–1301–CR–80. |
| Citation | 996 N.E.2d 869 |
| Parties | Lawrence HARRIS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Marion Superior Court; The Honorable Sheila Carlisle, Judge; Cause No. 49G03–1202–FB–11073.
Ruth Ann Johnson, Lilaberdia Batties, Marion County Public Defender's Office, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Lawrence Harris appeals the trial court's order revoking his placement in community corrections and committing him to the Indiana Department of Correction (“DOC”) to execute the remainder of his sentence. Harris presents two issues for our review, which we restate as: 1) whether the trial court abused its discretion when it revoked Harris's placement in community corrections; and 2) whether the trial court abused its discretion in ordering the execution of Harris's sentence in the DOC. Concluding the trial court did not abuse its discretion, we affirm.
On February 21, 2012, the State charged Harris with burglary, a Class B felony, and theft, a Class D felony. The State and Harris entered into a plea agreement in which Harris agreed to plead guilty to burglary in exchange for the State dismissing the theft charge. In April 2012, the trial court, pursuant to the terms of the plea agreement, sentenced Harris to seven years, six of which were to be served on work release through Marion County Community Corrections, with the final year suspended to probation.
In June 2012, community corrections filed a Notice of Community Corrections Violation alleging Harris failed to return as scheduled from an approved pass. The State also filed a Notice of Probation Violation based on this incident. Harris admitted the violation and the trial court took disposition under advisement pending completion of Harris's community corrections placement although it did modify his placement to Brandon Hall residential facility. In October 2012, community corrections filed a report advising the court that Harris had been disciplined due to bringing a controlled substance into the facility and using tobacco. Also in October 2012, community corrections filed a Notice of Community Corrections Violation alleging that Harris did not return to Brandon Hall following an approved absentee pass. The Notice was later withdrawn because Harris did return to the facility, albeit two hours late.
Subsequently, on December 14, 2012, at approximately 7:00 a.m., Harris received a pass approving his absence from Brandon Hall to visit Drug Lab. He was required to return by 9:30 a.m. However, as of 3:00 p.m., when a Notice of Community Corrections Violation was filed, Harris had not returned to the facility, and community corrections was unable to contact him. Brandon Hall policy is that a resident is designated “Failure to Return” two hours after the scheduled return time. Harris was missing for five days, after which he voluntarily surrendered to authorities.
During the hearing on the Notice of Community Corrections Violation, Harris admitted that he failed to return on time but indicated that extenuating circumstances were the reason for his unapproved absence—specifically, Harris had been absent to attend his sister's funeral. Harris argued that his sister's death was a mitigating circumstance that the court should take into consideration in its disposition. The trial court revoked his placement in community corrections and ordered him to serve the remainder of his six year sentence in the DOC. Harris now appeals.
Placement in community corrections is a “matter of grace” and a “conditional liberty that is a favor, not a right.” Toomey v. State, 887 N.E.2d 122, 124 (Ind.Ct.App.2008) ). Further, “[b]oth probation and community corrections programs serve as alternatives to commitment in the DOC and both are made at the sole discretion of the trial court.” Holmes v. State, 923 N.E.2d 479, 482 (Ind.Ct.App.2010). A reviewing court treats a petition to revoke placement in a community corrections program the same as a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind.1999). Therefore, when reviewing the trial court's decision, we utilize the abuse of discretion standard. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.2007). An abuse of discretion occurs when the decision is clearly against the logic and effect of the facts and circumstances before the court. Id.
Harris argues the trial court abused its discretion when it revoked his placement in community corrections. Revocation is a two-step process. Morrissey v. Brewer, 408 U.S. 471, 485 (1972). First, the court must make a factual determination that a violation of a condition of probation actually occurred. Id. Second, if the violation is proven, the trial court must determine whether the violation warrants revocation of the probation. Id.Indiana Code section 35–38–2–3 codifies certain due process requirements, including an evidentiary hearing. See Butler v. State, 951 N.E.2d 255, 259 (Ind.Ct.App.2011). However, when a probationer admits to a violation, the procedural safeguards and the evidentiary hearing are not required. Parker v. State, 676 N.E.2d 1083, 1085 (Ind.Ct.App.1997). Instead, the trial court can proceed directly to the second step and determine whether the violation warrants revocation. Id. The probationer is entitled in either case to present mitigating evidence to demonstrate the violation does not warrant revocation. Sparks v. State, 983 N.E.2d 221, 225 (Ind.Ct.App.2013).
A single violation is sufficient to warrant revocation. Hubbard v. State, 683 N.E.2d 618, 622 (Ind.Ct.App.1997). For example, in Toomey v. State, we held the defendant's failure to return to community corrections for four days after his scheduled return time was alone sufficient for revocation of his placement in community corrections. 887 N.E.2d at 125. Here, the trial court revoked Harris's community corrections placement upon finding that Harris had violated the terms of his placement by absconding for five days on a two-hour pass. During the hearing, Harris admitted to the violation. However, he argued that he failed to return because he was attending his sister's funeral and then obliging her last wish by taking care of her husband thereafter. Further, he noted that he voluntarily surrendered to authorities. Harris contends these circumstances “should have weighed heavily on the determination to revoke his placement.” Brief of Appellant at 6. Harris's argument on appeal is merely a request that we reweigh the evidence in his favor, which we will not do. See Pokes v. State, 971 N.E.2d 178, 179 (Ind.Ct.App.2012) (...
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