MEMORANDUM DECISION                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                                 May 12 2017, 8:07 am

this Memorandum Decision shall not be                                       CLERK
                                                                        Indiana Supreme Court
regarded as precedent or cited before any                                  Court of Appeals
                                                                             and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kevin Pettiford,                                        May 12, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1612-CR-2678
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Jeffrey Marchal,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G06-1512-F4-42934



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017             Page 1 of 8
                                Case Summary and Issue
[1]   Kevin Pettiford appeals the trial court’s revocation of his placement in

      community corrections and order that he serve the balance of his six-year

      sentence in the Indiana Department of Correction (“DOC”). Concluding the

      trial court did not abuse its discretion in doing so, we affirm.



                            Facts and Procedural History
[2]   On February 24, 2016, Pettiford pleaded guilty to two counts of burglary, both

      Level 4 felonies, and was sentenced to six years for each count, to be served

      concurrently in a community corrections program. Pettiford was placed on

      work release. Following a notice of violation and hearing in March, Pettiford

      was found in violation of the terms of his placement but was continued on

      community corrections with his placement modified to home detention.

      Following a second notice of violation and hearing in April, Pettiford was again

      found in violation of the terms of his placement but continued on home

      detention “with strict compliance.” Appellant’s Appendix, Vol. II at 114.


[3]   On October 25, 2016, Marion County Community Corrections filed another

      notice of violation alleging Pettiford failed to charge his electronic monitoring

      device, resulting in the device shutting down on October 24 at 4:40 p.m.,

      leaving him unmonitored and his whereabouts unknown. The notice further

      alleged he failed to comply with his monetary obligation to community

      corrections. The notice was amended on October 27 to indicate Pettiford’s


      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017   Page 2 of 8
      electronic monitoring device resumed monitoring on October 25 at 1:12 a.m.,

      but he had nonetheless failed to maintain contact with community corrections

      in the interim.


[4]   The trial court held a contested violation hearing on November 17, 2016. A

      representative of Marion County Community Corrections testified the

      electronic monitoring device gives several warnings—in the form of a visual

      alarm, vibration, and/or phone calls from the monitoring center—over the

      course of several hours before it shuts down due to lack of charge. She testified

      the monitoring center attempted on several occasions to contact Pettiford after

      his device shut down on October 24 using the phone number they had on

      record for him, but he never answered. Pettiford testified he did get the visual

      and tactile warnings the device needed to be charged. He plugged the device in

      as soon as he got home from work and it appeared to be charging while he was

      at home all night watching Monday Night Football. He did not receive any

      phone calls from the monitoring center. He testified he bought a new phone a

      week or so before and left a message for his case manager giving him the new

      number. Pettiford testified that at his regularly-scheduled meeting with his case

      manager on October 25,


              I just asked him, I asked him if he had received the voice mail of
              the new number, and he looked on his computer and he said, the
              914 number, and I said yes, that’s correct. He repeated the
              number, so I wanted to make sure and confirm that he had in fact
              received that number, and he confirmed that he did receive that
              voice mail and he had that number in his system.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017   Page 3 of 8
      Transcript, Volume II at 25-26. When he met with maintenance thereafter,

      they issued a new charger for his device. Pettiford’s case manager testified that

      he only became aware of Pettiford’s new number on October 25, and he

      updated his phone number that day. The case manager had no recollection or

      record of Pettiford leaving a voice mail prior to that day.


[5]   The trial court found Pettiford in violation of his community corrections

      placement:

              This is largely one of credibility, and unfortunately, Mr. Pettiford
              doesn’t have much credibility with this Court as this is not the
              first time he’s been in front of me on a violation. It’s not the
              second time he’s been in front of me on a violation. It’s the third
              time he’s been in front of me on a violation. And he was placed
              back on strict compliance. The more credible evidence is that
              Mr. Pettiford did not bother to tell [his case manager] about the
              new number until after he met with him on the 25th and he had
              seven hours for which he was unaccounted for, and he made no
              effort to let Community Corrections know where he was and that
              constitutes failure to maintain contact.


              So, I’m finding the State has met its burden as to allegations one
              [failing to charge his device] and three [failing to maintain
              contact]. It has not met its burden as to allegation two [failing to
              comply with monetary obligations].


      Id. at 29. As for the sanction, the trial court stated:


              [A]fter [Pettiford] was violated the first time, his placement was
              modified from Work Release to Home Detention which is
              something we rarely see. And yet after that, he’s been given
              more than one additional opportunity to get through this and he

      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017   Page 4 of 8
               can’t. I also note that he was sentenced just in February. And so
               here we are less than a year into a six-year sentence which he
               agreed upon, and he’s violated three times. I really have no
               options here. I’m going to revoke his placement on Community
               Corrections. He’s going to serve the balance of his sentence in
               the Department of Correction.


      Id. at 33. Pettiford now appeals.



                                Discussion and Decision
                                     I. Standard of Review
[6]   The issue raised by Pettiford is whether the trial court abused its discretion in

      revoking his placement in community corrections and ordering him to serve the

      remainder of his sentence in the DOC. For purposes of our review, the

      revocation of a community corrections placement is treated the same as the

      revocation of probation. Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App.

      2016).


[7]   Revocation is a two-step process: first, the trial court must make a factual

      determination that a violation of a condition of placement occurred, and if a

      violation is proven, the trial court must then determine if the violation warrants

      revocation. Id. The trial court’s revocation decision is within its sound

      discretion. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). The State

      must prove the alleged violations by a preponderance of the evidence, and on

      appeal, we consider all the evidence supporting the trial court’s judgment

      without reweighing that evidence or judging the credibility of the witnesses.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017   Page 5 of 8
       Johnson, 62 N.E.3d at 1229. One violation of a condition of placement is

       enough to support revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App.

       2015). If there is substantial evidence of probative value supporting the trial

       court’s conclusion that a defendant has violated any terms of his placement, we

       will affirm its decision to revoke the placement. Johnson, 62 N.E.3d at 1229.


[8]    As for the sanction upon revoking placement, we review a trial court’s

       sentencing decision for an abuse of discretion. Id. A trial court abuses its

       discretion when its decision is against the logic and effect of the facts and

       circumstances before it. Id. at 1230.


                                II. Revocation of Placement
[9]    Pettiford contends that under the totality of the circumstances, the trial court

       abused its discretion in determining that his violations warranted revoking his

       placement, citing Ripps, 968 N.E.2d 323.


[10]   In Ripps, the defendant pleaded guilty to child molesting and a portion of his

       sentence was suspended to probation. One of the conditions of his probation

       was that he not live within 1,000 feet of a youth program center. Some years

       into his probation, the defendant, now suffering from terminal cancer,

       congestive heart failure, and pulmonary disease, moved into an assisted-living

       facility and registered his address with the sheriff’s department. His probation

       was revoked upon the trial court finding his residence was within 1,000 feet of a

       youth program center and he was ordered to serve the nearly three years

       remaining of his sentence in prison. On appeal, we considered the “totality of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017   Page 6 of 8
       the circumstances” presented by the case: the defendant’s age and medical

       condition; his attempt to adhere to the terms of his probation by reporting his

       new address; the technical nature and ambiguity of the measurement placing

       him in violation of the residency restriction; that he was in the process of

       moving out of the improper residence when he was arrested; and his having

       wrongly served time in prison for a prior revocation based on an offense that

       was later vacated as a violation of ex post facto principles. Id. at 328. Under

       these circumstances, we held it “was unreasonable for the trial court to

       determine [the] violation warranted revoking [the defendant’s] probation.” Id.


[11]   Pettiford does not claim he did not violate the terms of his placement. Instead,

       he claims the circumstances of his violation do not warrant revocation because

       he provided his case manager with his new phone number when he got it,

       plugged his device into the charger when prompted and believed it to be

       charging while he was home as required on the night in question, and reported

       to his case manager as scheduled the morning after he was unmonitored for

       several hours. Thus, he contends he, like the defendant in Ripps, “took steps to

       adhere” to the conditions of his placement. Brief of Appellant at 8. He also

       notes he had a job and was voluntarily attending counseling. We do not believe

       the circumstances of this case rise to the level of the circumstances in Ripps that

       made revocation unreasonable. Even if, as Pettiford claims, he was unable to

       charge his device due to an equipment malfunction, he took no steps to notify

       anyone of the malfunction during the seven hours it was not operating, and he

       offered no explanation for why the device suddenly began charging in the


       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017   Page 7 of 8
       middle of the night. He claims he gave his case manager his new phone

       number at least a week prior to this incident, but the case manager had no

       recollection and no record of that. The trial court specifically rejected

       Pettiford’s version of events, and as that was a credibility call, we are bound to

       give the trial court’s determination on that matter credence. See Johnson, 62

       N.E.3d at 1229. Moreover, in the eight months between Pettiford’s placement

       in community corrections and this incident, Pettiford had already violated the

       terms of his placement twice. Accordingly, we conclude the trial court did not

       abuse its discretion in revoking Pettiford’s community corrections placement

       and ordering that he serve the remainder of his sentence in the DOC.



                                               Conclusion
[12]   The trial court did not abuse its discretion in revoking Pettiford’s placement in

       community corrections and remanding him to the DOC to serve the remainder

       of his sentence. The trial court’s judgment is affirmed.


[13]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017   Page 8 of 8
