MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jan 30 2020, 10:17 am
court except for the purpose of establishing
the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Paul J. Podlejski                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Qashaun Thomas,                                          January 30, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1711
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C04-1807-F3-1918



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020               Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Qashaun Thomas (Thomas), appeals the sanction

      imposed by the trial court following the revocation of his commitment to work

      release.


[2]   We affirm.


                                                    ISSUE
[3]   Thomas presents the court with one issue, which we restate as: Whether the

      trial court abused its discretion when it ordered Thomas to execute four years of

      his sentence with the Indiana Department of Correction (DOC) following the

      revocation of his work release commitment.


                      FACTS AND PROCEDURAL HISTORY
[4]   On July 26, 2018, and October 30, 2018, the State filed an Information,

      charging Thomas with Level 3 felony dealing in a narcotic drug (heroin); Level

      4 felony unlawful possession of a firearm by a serious violent felon; Level 5

      felony possession of a narcotic drug (heroin), and Class A misdemeanor

      carrying a handgun without a license. On July 26, 2018, the State also filed a

      notice of its intention to file a habitual offender enhancement against Thomas.

      On February 12, 2019, Thomas pleaded guilty to the Level 3 felony dealing in a

      narcotic drug charge. On February 13, 2019, Thomas was allowed to begin

      work release pending sentencing. The pre-sentence investigation report filed

      prior to sentencing revealed that on December 8, 2015, Thomas had been

      sentenced to two years in the Michigan Department of Corrections following
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020   Page 2 of 8
      his guilty plea to delivery/manufacture of marijuana and possession of cocaine

      charges. The pre-sentence investigation also revealed that on May 12, 2016,

      Thomas had been sentenced to two years in the Michigan Department of

      Corrections following his guilty plea to a felony firearm charge.


[5]   On March 26, 2019, the trial court conducted Thomas’ sentencing hearing. The

      trial court acknowledged Thomas’ good conduct since being granted pre-

      sentencing work release, rejected the State’s request for a sentence fully

      executed with the DOC, and sentenced Thomas to seven years, four of which

      were to be served on work release, with three years suspended to probation.

      The trial court advised Thomas that it was putting him on what it called “a

      short leash,” meaning that violation of his work release conditions that would

      be considered less significant for other offenders would be treated more

      seriously for him because of his criminal record. (Transcript Vol. II, p. 20).

      The trial court noted that the State had made compelling arguments against a

      work release placement but that “sometimes people get chances that they really

      don’t deserve because we want to help them to make some changes in their

      life.” (Tr. Vol. II, p. 21). As part of his work release commitment, Thomas

      received a copy of, and agreed to abide by, the Madison County work release

      facility’s policies and rules.


[6]   On May 7, 2019, Thomas was informed by his employer, Bridges of Hope, that

      he was being laid off. Thomas did not inform his work release case manager,

      Rose Horvath (Horvath), that he had been terminated. On May 8, 2019, at

      7:44 a.m., Thomas was released for work as usual and did not return to work

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020   Page 3 of 8
      release until 9:19 p.m. Although Thomas stopped by Bridges of Hope that day

      around 8:30 a.m. to return his work shirts and retrieve a document, he was not

      at Bridges of Hope the remainder of the day. Thomas did not have permission

      to be anywhere but Bridges of Hope on May 8, 2019.


[7]   On May 9, 2019, Thomas turned in his weekly pass showing his schedule and

      whereabouts. Due to having no confirmation signatures for time spent at Band

      of Brothers on May 1, 2019, the Anderson Center on May 7, 2019, and his job

      search time on May 9, 2019, Thomas had eight hours of unaccounted-for time

      that week. On May 10, 2019, due to Thomas’ accumulation of unaccounted-

      for time, Horvath instructed Thomas that he could attend the one-hour Jump

      Start program at Man4Man Ministries but that he could not stay at Man4Man

      afterwards because she wanted him to be at a location where he was required to

      clock in and out, something that was not consistently available at Man4Man.

      On May 14, 2019, Thomas was released to attend Jump Start and should have

      returned to work release by 9:30 a.m., but he did not return until 5:03 p.m.

      When Horvath discussed with Thomas the fact that he had not followed her

      order, he acknowledged that he knew that he was not supposed to be away

      from the facility.


[8]   On May 16, 2019, the State filed a petition to terminate Thomas’ work release

      commitment in which it alleged that Thomas had violated the terms of work

      release on May 8, 2019, by having twelve hours and forty-nine minutes of

      unaccounted-for time; on May 8, 2019, by committing the new offense of

      failure to return to lawful detention; on May 9, 2019, for having accumulated

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020   Page 4 of 8
       eight hours of unaccounted-for time; on May 14, 2019, by failing to obey a

       direct order; and by owing $290.44 to work release. On June 25, 2019, the trial

       court held an evidentiary hearing on the State’s petition at which Horvath

       testified about the allegations and Thomas testified regarding his version of

       events. The trial court found that the State had proven by a preponderance of

       the evidence that Thomas had violated the terms of his work release as alleged.


[9]    The trial court proceeded to hear argument regarding what sanction to impose

       following the revocation of Thomas’ work release placement. The trial court

       found that, in spite of his criminal record, Thomas had been given an

       opportunity to stay in the community through his work release commitment,

       Thomas had been given specific rules to follow so that all of his time would be

       accounted for, but that Thomas had not followed those rules. The trial court

       ordered Thomas to serve the four years with the DOC that had previously been

       his commitment to work release.


[10]   Thomas now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[11]   Thomas challenges the sanction imposed by the trial court following the

       revocation of his placement on work release. As part of its sentencing decision,

       a trial court may suspend a defendant’s sentence and order him to be placed in

       a community corrections program as an alternative to a commitment to the

       DOC. Ind. Code § 35-38-2.6-3(a). A defendant is not entitled to serve a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020   Page 5 of 8
       sentence in a community corrections program. Cox v. State, 706 N.E.2d 547,

       549 (Ind. 1999). Such a placement is a matter of grace on the part of the trial

       court that is a favor and not a right. Id. If a trial court determines that a

       defendant has violated the terms of his community corrections placement, it

       may “revoke the placement and commit the person to the . . . [DOC] for the

       remainder of the person’s sentence.” See I.C. § 35-38-2.6-5(4). We review a

       trial court’s decision on what sanction to impose following revocation for an

       abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse

       of the trial court’s discretion occurs when its decision is clearly against the logic

       and effect of the facts and circumstances before it. Id.


                                                   II. Sanction

[12]   Upon revoking Thomas’ work release commitment, the trial court ordered

       Thomas to execute the four years of his sentence that it had previously ordered

       him to serve on work release. The trial court found that Thomas had been

       shown leniency at sentencing for the underlying Level 3 felony dealing in a

       narcotic drug conviction, that he had been given specific rules and regulations

       to follow by the work release facility, but that he had failed to abide by those

       rules. Given the seriousness of the underlying conviction, the tremendous

       opportunity to avoid the DOC that Thomas had been afforded given his

       previous criminal record, the fact that Thomas had only been on work release

       for approximately three months before he started violating the terms of his

       conditional freedom, and the number of violations he incurred, we do not find

       any abuse of discretion on the part of the trial court in ordering Thomas to


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020   Page 6 of 8
       execute his sentence with the DOC. This is particularly true in light of the trial

       court’s advisement at sentencing that Thomas was on a “short leash” and that

       violations of work release conditions that would have been treated more

       leniently if incurred by another offender would be treated more seriously for

       him. (Tr. Vol. II, p. 20).


[13]   Thomas argues that the trial court abused its discretion because his violations

       were in furtherance of the goals of work release because most of his

       unaccounted-for time was spent attending programs and looking for work.

       Thomas also argues that this was the first notice of violation filed against him

       by the State, the violations were merely technical, and that he had otherwise

       performed well on work release. We do not find these arguments to be

       persuasive because the whole purpose of work release is to allow offenders to

       work while being closely monitored in the community. The trial court was

       under no obligation to credit Thomas’ explanations that he was looking for

       work and attending programs at the times the State alleged he had

       unaccounted-for time. The fact remains that he did not have the latitude to set

       his own schedule, no matter what he was doing. Finding no abuse of the trial

       court’s discretion, we affirm its order that Thomas execute four years of his

       sentence with the DOC. See Prewitt, 878 N.E.2d at 188.


                                             CONCLUSION
[14]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it ordered Thomas to serve four years with the DOC following

       the revocation of his work release commitment.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020   Page 7 of 8
[15]   Affirmed.


[16]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020   Page 8 of 8
