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                    Mar 07 2014, 5:39 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

LAURA M. TAYLOR                                 GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                LARRY D. ALLEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JIMEL PIMPTON,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1308-CR-676
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Steven R. Eichholtz, Judge
                       The Honorable Michael S. Jensen, Magistrate
                            Cause No. 49G20-1003-FB-15739



                                       March 7, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Jimel Pimpton appeals the revocation of his placement in community corrections.

Pimpton raises two issues, which we revise and restate as whether the trial court abused

its discretion in revoking his placement in a community corrections program and ordering

that he serve the remaining portion of his sentence in the Department of Correction

(“DOC”). We affirm.

       In December 2010, Pimpton pled guilty to unlawful possession of a firearm by a

serious violent felon as a class B felony, and in January 2011 the court sentenced him to

eight years with six years to be served in the DOC and two years in a community

corrections program.

       On June 28, 2013, a Notice of Community Corrections Violation was filed

alleging that Pimpton violated the conditions of approved passes on June 17, June 19, and

June 20, 2013, that he habitually violated the rules of the Duvall Residential Center

(“Duvall”), and that he failed to comply with his monetary obligation. The notice further

provided that, with respect to the passes on June 17 and June 19, 2013, Pimpton was

released from Duvall to attend group sessions with a health services provider, that he

reported to the provider late and was not permitted to participate in the sessions, and that

he reported late back to Duvall. With respect to the pass on June 20, 2013, the notice

provided that Pimpton failed to report at all to the health services provider. The notice

also stated that Pimpton had received seven conduct reports since his arrival at Duvall on

April 24, 2013, that Duvall’s policy dictates that a resident is deemed a habitual rule

violator after receiving five conduct reports in a six-month period, that on May 28, 2013,

Pimpton received a conduct report for possession or use of a controlled substance and

                                             2
was deprived of six days of good time credit, that on May 30, 2013, he received a

conduct report for violation of a conditional pass and was deprived of four days of good

time credit, that on June 14, 2013, he received a conduct report for violation of a

condition of a pass and was deprived of forty-six days of good time credit, that on June

24, 2013, he received a conduct report for violation of a condition of a pass, and that on

June 25, 2013, he received a conduct report for possession or use of a controlled

substance. Finally, the notice provided that Pimpton had not made any payments toward

his financial obligation and was currently $994 in arrears.

       On July 18, 2013, the court held a hearing at which Pimpton admitted the

allegations that he habitually violated the rules of Duvall and that he failed to comply

with his monetary obligation, and the State withdrew the other allegations. The court

then informed Pimpton that he would give up certain rights by admitting to being in

violation, including the right to have a hearing at which the State would have to prove

that he was in violation, and Pimpton indicated that he understood and still wished to

admit to the violations. The trial court then asked what it should know about Pimpton.

His counsel noted that Pimpton admitted to receiving seven conduct reports and asked

him what he wanted the trial court to know about any issues he was having at Duvall, and

Pimpton stated that he “wasn’t found guilty of all those write-ups,” that he “only was

found guilty of like three or four of them,” that he had “a certain issue with a certain

officer” which he addressed with his counselor and tried to address with “some of the

higher-ups,” that he filed “a grievance on like four of those writeups come from the same

officer,” and that he can admit that he was wrong but that he “was provoked a lot by a

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certain officer.” Transcript at 3. Pimpton also stated that the reason he had not paid any

money was because Duvall required his prospective employer to complete certain tasks

before Pimpton would be approved to work for the employer, that a few of the places he

had attempted to obtain a job did not want to deal with Duvall, and that he did obtain a

job at a barber shop but that “they had me on Door 13 so I couldn’t leave to go to work

until I got this over with” but that he had a job waiting for him. Id. at 5.

       The State argued that Pimpton’s presentence investigation report (“PSI”) indicated

that he has an extensive juvenile and adult criminal history, that every time he was on

probation it was revoked, he is serving a sentence for his fifth felony conviction, he was

on parole when he was arrested on the current case, and that he had several write-ups

both in the local jail and the DOC. The State argued that Pimpton’s behavior on work

release was no different than it had been anywhere else, that he was no longer a good

candidate for the program, and that he should spend the balance of his sentence in the

DOC. Pimpton addressed the court and stated that he had only four write-ups during the

time he was at the DOC and reiterated that most of the write-ups at Duvall came from

one officer. The court noted that it looked at Pimpton’s latest progress report and that,

during the times he spent in prison, he had twenty-one write-ups, and that it is not a

correctional officer’s fault that he was late on a pass and brought a controlled substance

into Duvall. The court found that Pimpton violated conditions of his placement in the

community corrections program, revoked his placement, and ordered that he serve the

remainder of his sentence in the DOC.



                                              4
        The issue is whether the court erred or abused its discretion in revoking Pimpton’s

placement in a community corrections program and ordering that he serve the remaining

portion of his sentence in the DOC.               Pimpton contends the State failed to present

evidence that the rules of the Duvall Center was a condition of his community correction

placement, that his placement was not conditioned on any “monetary obligation,” and

that the State did not prove that he failed to make such required payments. Appellant’s

Brief at 5.      He further argues that the State did not establish that he recklessly,

knowingly, or intentionally fell behind on his payments, and asserts that the “alleged

violations were not serious enough to justify the imposition of a 640 day period of

incarceration.”1 Id. at 6. The State notes that Pimpton admitted to two of the five

allegations against him, that he was permitted to introduce mitigating evidence, he was

able to give an explanation for his failure to make payments to Duvall, and that, since

Pimpton admitted the allegations of his violation at the outset of the hearing, neither side

produced additional evidence.            The State argues that the court properly relied on

Pimpton’s admissions and that it was unnecessary for the court to engage further in the

first inquiry of a factual finding and instead proceed to the second step of whether

Pimpton’s placement should be revoked. The State also maintains that the court did not

abuse its discretion in ordering Pimpton to serve the remainder of his sentence, 604 days,

in the DOC and noted that Pimpton had a lengthy history of disciplinary actions while

incarcerated, an extensive criminal history, he never successfully completed probation,

that he was completing the sentence for his fifth felony conviction as an adult, and that, in

        1
         The State, in its appellee’s brief, states that Pimpton “was given credit time for a total of 2,316
days, which left 604 days left on his sentence.” Appellee’s Brief at 5 (citing Transcript at 9).
                                                     5
the two months he was at Duvall, he had received seven conduct reports, at least two of

which related to the use or possession of a controlled substance.

       Placement in community corrections is at the sole discretion of the trial court.

Toomey v. State, 887 N.E.2d 122, 124 (Ind. Ct. App. 2008) (citing Ind. Code § 35-38-

2.6-3(a) (a court “may . . . order a person to be placed in a community corrections

program as an alternative to commitment to the department of correction”)). Ind. Code §

35-38-2.6-5 provides:

       If a person who is placed under this chapter violates the terms of the
       placement, the court may, after a hearing, do any of the following:

              (1)    Change the terms of the placement.

              (2)    Continue the placement.

              (3)    Revoke the placement and commit the person to the
                     department of correction for the remainder of the
                     person’s sentence.

       For purposes of appellate review, we treat a hearing on a petition to revoke a

placement in a community corrections program the same as we do a hearing on a petition

to revoke probation. Holmes v. State, 923 N.E.2d 479, 482 (Ind. Ct. App. 2010) (citing

Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied). A defendant is not entitled

to serve a sentence in either probation or a community corrections program. Id. Rather,

placement in either is a “matter of grace” and a “conditional liberty that is a favor, not a

right.” Id. (citing Cox, 706 N.E.2d at 549 (quoting Million v. State, 646 N.E.2d 998,

1002 (Ind. Ct. App. 1995) (internal quotation omitted))). Thus our standard of review of

an appeal from the revocation of a community corrections placement mirrors that for

revocation of probation. Id. at 483 (citing Cox, 706 N.E.2d at 551). A probation hearing
                                             6
is civil in nature and the State need prove the alleged violations by only a preponderance

of the evidence. Cox, 706 N.E.2d at 549. We will consider all the evidence most

favorable to supporting the judgment of the trial court without reweighing that evidence

or judging the credibility of witnesses. Id. If there is substantial evidence of probative

value to support the trial court’s conclusion that a defendant has violated any terms of

probation, we will affirm its decision to revoke probation. Id. The violation of a single

condition is sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct.

App. 1999).

       Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640

(Ind. 2008). First, the court must make a factual determination that a violation of a

condition of probation actually occurred. Id. If a violation is proven, then the trial court

must determine if the violation warrants revocation of the probation.         Id. When a

probationer admits to the violations, the evidentiary hearing is unnecessary. Id. Instead,

the court can proceed to the second step of the inquiry and determine whether the

violation warrants revocation. Id. However, a probationer who admits the allegations

against him must still be given an opportunity to offer mitigating evidence suggesting

that the violation does not warrant revocation. Id.

       The record shows that Pimpton admitted the allegations that he habitually violated

the rules of Duvall and that he failed to comply with his monetary obligation and thus

that he violated the terms of his placement in the community corrections program. The

trial court gave him an opportunity to present mitigating evidence suggesting that his

violations did not warrant revocation, and Pimpton presented several arguments as to

                                             7
why he wanted the court to order that he be returned to his placement rather than serve

his time in the DOC.

       Based upon the record, and in light of the evidence regarding Pimpton’s criminal

history and conduct reports and write-ups while incarcerated and in community

corrections, we conclude that the trial court did not err or abuse its discretion in revoking

Pimpton’s placement in community corrections and ordering him to serve the remaining

portion of his sentence in the DOC.

       For the foregoing reasons, we affirm the judgment of the trial court.

       Affirmed.

ROBB, J., and BARNES, J., concur.




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