MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                        Aug 27 2020, 8:10 am
court except for the purpose of establishing                                         CLERK
the defense of res judicata, collateral                                          Indiana Supreme Court
                                                                                    Court of Appeals
estoppel, or the law of the case.                                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Tina L. Mann
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bradley L. Stout, Jr.,                                   August 27, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-954
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D01-1305-FC-1574



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-954 | August 27, 2020           Page 1 of 7
                                         Statement of the Case
[1]   Bradley L. Stout, Jr. appeals his sentence following the trial court’s revocation

      of his placement in a work release program. Stout presents a single issue for

      our review, namely, whether the trial court abused its discretion when it

      ordered him to serve the balance of his previously suspended sentence in the

      Vigo County Jail.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On May 8, 2013, Stout was placed in a work release program as a pretrial

      placement for a prior offense. However, Stout fled from that placement on May

      27. Accordingly, the State charged him with escape, as a Class C felony.

      Thereafter, Stout entered into a plea agreement in which he agreed to plead

      guilty to failure to return to lawful detention, as a Class D felony. On August

      12, the court accepted Stout’s guilty plea and sentenced him to three years

      suspended to probation. 1


[4]   Just over one month later, on September 20, the State filed a notice of probation

      violation in which it alleged that Stout had failed a drug test. The State later

      amended that notice to include allegations that Stout had failed another drug




      1
        In the same plea agreement, Stout pleaded guilty to conversion, as a Class A misdemeanor, for the prior
      offense. The court sentenced Stout to one year suspended to probation for that offense, which sentence was
      to run consecutive to his sentence for failure to return to lawful detention.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-954 | August 27, 2020                  Page 2 of 7
      test, failed to enroll in a drug program, failed to submit to drug screens, and

      committed invasion of privacy. Stout admitted to the allegations, and the court

      returned him to probation. On November 10, 2014, the State filed another

      notice of probation violation and alleged that Stout had tested positive for

      illegal drugs on several occasions, failed to report to work, and failed to engage

      in a drug program. Stout again admitted to the violations, and the court

      ordered him to participate in a jail linkage program. Stout successfully

      completed that program, and the court returned him to probation.


[5]   Thereafter, on March 14, 2016, the State filed another notice of probation

      violation. In that notice, the State alleged that Stout had violated the terms of

      his probation when he committed theft and possession of a controlled

      substance. In a plea agreement, Stout admitted that he had violated the terms

      of his probation. The court returned Stout to probation.


[6]   Then, in 2017, the State alleged that Stout had again violated the terms of his

      probation when he missed thirteen drug screens, failed drug tests, and failed to

      report to probation. On November 20, Stout failed to appear for a hearing. As

      a result, the trial court issued an arrest warrant, which remained active for two

      years until it was served on September 26, 2019. The court then held a fact-

      finding hearing on the State’s petition on October 28. Following the hearing,

      the court found that Stout had violated the terms of his probation and ordered

      him to serve the remainder of his sentence on work release.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-954 | August 27, 2020   Page 3 of 7
[7]   On March 12, 2020, the State filed a petition to revoke Stout’s placement on

      work release. In that petition, the State alleged that Stout had committed

      thirteen violations. Specifically, the State alleged that Stout had: tested positive

      for drugs on three occasions; been in unauthorized areas; possessed a lighter on

      multiple occasions; been disrespectful to a corrections officer; failed to

      participate in a mandatory cleaning; possessed a cigarette; possessed a “green

      leafy synthetic lookalike substance”; and failed to submit to a drug test.

      Appellant’s App. Vol. II at 108.


[8]   Following a hearing, the court found that Stout had violated the terms of his

      placement. The court then stated that it did not “have a lot of choices here. I

      don’t have work release available . . . . I don’t have in-home detention

      available. I don’t have DOC available. You are doing an executed sentence.

      There’s no probation on this. I’m not going to return you to probation.” Tr. at

      52. Accordingly, the court ordered Stout to serve the balance of his previously

      suspended sentence in the Vigo County Jail. This appeal ensued.


                                     Discussion and Decision
[9]   Stout appeals the trial court’s order that he serve the balance of his previously

      suspended sentence. We begin by noting that 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).
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-954 | August 27, 2020   Page 4 of 7
[10]   This Court treats a petition to revoke placement in a community corrections

       program the same as a petition to revoke probation. See Cox v. State, 706

       N.E.2d 547, 549 (Ind. 1999). Upon finding that a defendant has violated a

       condition of his placement, the trial court may “revoke the placement and

       commit the person to the county jail or department of correction for the

       remainder of the person’s sentence.” Ind. Code § 35-38.2.6-5(a)(4) (2020). We

       review the trial court’s sentencing decision following the revocation of

       probation for an abuse of discretion. Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct.

       App. 2006). An abuse of discretion occurs “only where the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances”

       before the court. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018) (per curiam).


[11]   On appeal, Stout does not dispute that he repeatedly violated the conditions of

       his probation and work release program. Instead, he asserts that the trial court

       abused its discretion when it ordered him to serve the balance of his previously

       suspended sentence because his placement was only revoked due to “several

       technical violations,” and because he was not taking his “mental health

       medication” at the time he entered the work release program. Appellant’s App.

       at 9. He further asserts that the mother of his children had become unemployed

       “as a result of the shuttering of businesses during the pandemic” and that he

       needed to work to support their children. Id. at 9-10. In essence, he maintains

       that, “[g]iven the nonviolent and minor nature” of his original offense and

       subsequent violations, “and considering the risk inmates face[] from the




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-954 | August 27, 2020   Page 5 of 7
       coronavirus while incarcerated,” the court should have placed him back on

       probation. Id. at 10.


[12]   But the trial court’s judgment is supported by substantial evidence and was

       within the court’s discretion. From the time the court placed Stout on

       probation, he repeatedly violated the terms of his placement. Indeed, the State

       filed numerous notices of probation violations between September 20, 2013,

       which was just over one month after he was initially placed on probation, and

       2016 for allegations that included failed drug tests, missed drug tests, failure to

       engage in a drug treatment program, and the commission of new crimes. But

       each time, the court showed leniency and returned him to probation.


[13]   Then, in 2017, the State filed another notice of probation violation after Stout

       missed drug screens, failed drug screens, and failed to report to probation.

       Stout failed to appear for a hearing, and the court issued an arrest warrant,

       which remained active for two years. Once Stout finally appeared before the

       court, the court again found that he had violated the terms of his probation and

       placed him in a work release program. Less than six months later, Stout

       committed thirteen more acts that each constituted a violation of his placement.

       In other words, since the case began in 2013, the trial court repeatedly showed

       Stout leniency and gave him opportunities to avoid incarceration, but Stout

       continued to violate the terms of his placement.


[14]   We acknowledge that the coronavirus has caused a global pandemic and has

       resulted in millions of people, including the mother of Stout’s children, losing


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-954 | August 27, 2020   Page 6 of 7
       their jobs. However, that does not change the fact that Stout had numerous

       opportunities to avoid incarceration and remain working to support his family.

       Instead, Stout chose to repeatedly violate the terms of his placement. The

       court’s order that he serve the balance of his previously suspended sentence is

       supported by the record and was well within the trial court’s discretion. We

       affirm the court’s judgment.


[15]   Affirmed.


       Bradford, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-954 | August 27, 2020   Page 7 of 7
