MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   Aug 16 2017, 9:33 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Darnell Levon Johnson,                                   August 16, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A05-1703-CR-592
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         48C04-1608-F6-1583



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-592 | August 16, 2017       Page 1 of 6
[1]   Darnell L. Johnson appeals the revocation of both his community corrections

      placement and his probation. He contends the trial court abused its discretion

      by ordering him to serve his full sentence in the Department of Correction (the

      DOC).


[2]   We affirm.


                                       Facts & Procedural History


[3]   On September 29, 2016, Johnson pled guilty to Level 6 felony possession of a

      narcotic drug, Level 6 felony unlawful possession of syringe, Level 6 felony

      possession of methamphetamine, Class A misdemeanor possession of a

      controlled substance, and Class A misdemeanor resisting law enforcement. On

      November 21, 2016, the trial court sentenced Johnson to fully concurrent

      sentences, resulting in an aggregate term of thirty months. The court ordered

      twelve months suspended to probation and the remaining eighteen months to

      be served in community corrections, specifically in the Continuum of Sanctions

      Program through the Community Justice Center (the COS Program).


[4]   After completing his intake for the COS Program, Johnson had to wait for

      available bed space at the work release facility until December 15, 2016. On

      that date, he was transported from the Madison County Detention Center to the

      work release facility to begin serving his time in the COS Program. At the

      facility, he was given a two-hour pass to obtain his personal belongings.

      Johnson understood that he was required to return within two hours. Johnson

      did not return to the facility. As a result, a petition to terminate Johnson’s

      Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-592 | August 16, 2017   Page 2 of 6
      participation in the COS Program was filed on December 21, 2016. The trial

      court terminated Johnson’s participation in the COS Program pending further

      hearing and issued a warrant for Johnson’s arrest on December 28, 2016.


[5]   Thereafter, on January 9, 2017, Johnson failed to appear for a pre-trial

      conference in another criminal case out of Madison County. This resulted in

      the issuance of another warrant for his arrest. Johnson was subsequently

      arrested in another county on January 27, 2017, and transferred to the Madison

      County Detention Center two days later.


[6]   On February 1, 2017, the State filed a notice of violation of suspended sentence.

      The State alleged two violations: (1) Johnson committed a new criminal offense

      – Level 6 felony failure to return to lawful detention, which charge was filed on

      January 19, 2017 – and (2) Johnson failed to successfully complete the executed

      portion of his sentence through the COS Program.


[7]   On February 13, 2017, the trial court held an evidentiary hearing on both the

      petition to terminate participation in the COS Program and the notice of

      probation violation. At the hearing, Johnson did not deny that he failed to

      timely return to the work release facility. He claimed, however, that he did

      eventually return in the middle of the night and was told by staff to leave. He

      left the facility and did not return. At the hearing, Johnson claimed that his

      violation was due to “a misunderstanding between [him] and staff as to what

      you were supposed to do”. Transcript at 32.




      Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-592 | August 16, 2017   Page 3 of 6
[8]    The trial court did not buy Johnson’s account, stating at the conclusion of the

       hearing:


               [W]hen you come to court today, instead of…taking
               responsibility, you came up with what the Court finds I don’t
               think it’s a stretch to say it’s kind of a preposterous story about
               what happened. It really was just not believable. So, you came
               in and said things that just weren’t true in order to cover up your
               conduct, and because of that, I just don’t find that community
               correction is a reasonable way to resolve this matter. I just don’t
               think it’s going to be successful for you.


       Id. at 34. Accordingly, the trial court terminated Johnson’s participation in the

       COS Program and revoked the suspended portion of his sentence. Johnson was

       ordered to serve the balance of his sentence in the DOC.


                                           Discussion & Decision


[9]    On appeal, Johnson acknowledges that he violated probation, as well as the

       terms of his placement in the COS Program. He argues only that the sanction

       imposed by the trial court constituted an abuse of discretion in light of the

       explanation he provided at the hearing. Johnson asserts that “there was

       nothing particularly egregious about his alleged failure to return to lawful

       detention charge” and notes his ability to secure employment and his

       “commitment to remain drug free”. Appellant’s Brief at 10.


[10]   Both community corrections programs and probation serve as alternatives to

       commitment to the DOC and are made at the sole discretion of the trial court.

       Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). Placement in either is a matter of

       Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-592 | August 16, 2017   Page 4 of 6
       grace and a conditional liberty that is a favor, not a right. Id. After a hearing

       and upon finding that a violation occurred, the trial court may revoke the

       defendant’s placement in community corrections and commit the person to the

       DOC for the remainder of his sentence. Christie v. State, 939 N.E.2d 691, 694

       (Ind. Ct. App. 2011) (citing Ind. Code § 35-38-2.6-5). The court may also

       revoke the defendant’s probation and order all or part of the previously

       suspended sentence to be executed. I.C. § 35-38-2-3(h)(3).


[11]   We review the trial court’s sentencing decision in a revocation proceeding for

       an abuse of discretion. Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App.

       2011). An abuse of discretion will be found if the trial court’s decision is

       against the logic and effect of the facts and circumstances. Id.


[12]   The trial court did not abuse its discretion by ordering Johnson to serve his

       entire thirty-month sentence, including the previously suspended term, in the

       DOC. After being granted considerable grace by the trial court, Johnson

       committed a new crime by failing to return to the COS Program on his first day

       of placement. He continued to avoid serving his sentence until he was arrested

       about six weeks later. During this time, he also failed to appear for a pre-trial

       conference in another criminal matter. At the revocation hearing, Johnson then

       fabricated a story to explain his actions. The nature of Johnson’s violation

       warranted the sanction imposed.


[13]   Judgment affirmed.




       Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-592 | August 16, 2017   Page 5 of 6
Baker, J. and Bailey, J., concur.




Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-592 | August 16, 2017   Page 6 of 6
