MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jun 12 2019, 8:45 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
Menes Ankh El                                            Curtis T. Hill, Jr.
New Castle, Indiana                                      Attorney General of Indiana

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Wendell Brown a/k/a Menes                                June 12, 2019
Ankh El,                                                 Court of Appeals Case No.
Appellant-Petitioner,                                    18A-CR-2594
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable Lisa F. Borges,
State of Indiana,                                        Judge
Appellee-Respondent.
                                                         Trial Court Cause Nos.
                                                         49G04-1204-FC-25485
                                                         49G04-1208-FC-59353



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2594 | June 12, 2019                   Page 1 of 9
                                            Case Summary
[1]   After being found guilty of committing a number of criminal acts, Wendell

      Brown, a/k/a Menes Ankh El,1 was sentenced in two separate criminal

      matters, in part, to concurrent four-year alternative sentences. In each case,

      two of the four years were to be served in community corrections, the

      remaining two years were suspended, and Brown was placed on probation.

      Following a violation of the terms of his community corrections placement and

      his probation, the trial court revoked the entire four-year alternative sentence in

      each case and ordered Brown to serve the revoked sentences in the Department

      of Correction (“DOC”). The trial court further ordered that the revoked

      sentences be served concurrently.


[2]   Brown subsequently sought habeas relief in both cases, arguing that the trial

      court’s order that he serve four years in the DOC amounted to an illegal

      sentence. The cases were consolidated by the trial court which denied Brown’s

      request for relief. Brown challenges the ruling of the trial court on appeal. We

      affirm.



                             Facts and Procedural History




      1
        We note that at some point since the inception of the underlying criminal cases, Brown appears to have
      adopted the name Menes Ankh El. While we recognize that Brown refers to himself by Ankh El, we will
      continue to refer to him as Brown.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2594 | June 12, 2019                    Page 2 of 9
[3]   On April 19, 2013, the State charged Brown under Cause Number 49G03-1204-

      FC-25485 (“Cause No. FC-25485”) as follows: Count 1 – Class C felony

      burglary, Count 2 – Class C felony forgery, Count 3 – Class D felony theft,

      Count 4 – Class A misdemeanor criminal trespass, and Count 5 – Class A

      misdemeanor driving while suspended. He was subsequently found guilty of

      Counts 1, 2, and 5. On August 2, 2013, Brown was sentenced to an aggregate

      four-year term with two years executed in community corrections and two

      years suspended. He was also placed on probation for one year.


[4]   On August 27, 2012, the State charged Brown under Cause Number 49G03-

      1208-FC-59353 (“Cause No. FC-59353”) as follows: Counts 1 through 5 –

      Class C felony forgery, Count 6 – Class D felony theft, Counts 7 through 10 –

      Class D felony intimidation, and Count 11 – Class A misdemeanor

      intimidation. He was subsequently found guilty of all but the theft charge. On

      September 13, 2013, Brown was sentenced on Counts 4, 7, 8, 9, 10, and 11 to

      an aggregate two-year term with both years executed in the DOC. As for

      Counts 1, 2, 3, and 5, Brown was sentenced to an aggregate four-year term with

      two years executed in community corrections and two years suspended. He

      was also placed on probation for one year. The trial court ordered that the

      sentence imposed for Counts 4, 7, 8, 9, 10, and 11 would run consecutively to

      Brown’s sentence in Cause No. FC-25485 while the sentence imposed for

      Counts 1, 2, 3, and 5 would run concurrently to his sentence in Cause No. FC-

      25485.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2594 | June 12, 2019   Page 3 of 9
[5]   The State subsequently filed petitions to revoke Brown’s placement in

      community corrections and the suspended portions of his sentences in both

      Cause No. FC-25485 and Cause No. FC-59353, alleging that he had violated

      the terms of his placement and conditional release by committing a new crime.

      In both cases, on June 22, 2015, the trial court found Brown in violation,

      revoked his sentence, and ordered him to serve the entire four-year term in the

      DOC. The sentences were ordered to run concurrently.


[6]   On May 16, 2018, Brown filed a verified petition for a writ of habeas corpus.

      The trial court denied Brown’s petition on August 16, 2018, finding that

      Brown’s sentence was not unlawful. The trial court also denied Brown’s

      subsequent requests for reconsideration.



                                 Discussion and Decision
[7]   On appeal, Brown contends that the trial court erred in denying his habeas

      petition because the four-year sentence that was imposed following revocation

      is unlawful.


              The purpose of a writ of habeas corpus is to determine the
              lawfulness of custody or detention of the defendant and may not
              be used to determine collateral matters not affecting the custody
              process. A defendant is entitled to a writ of habeas corpus if he
              or she is unlawfully incarcerated and is entitled to immediate
              release. We review the trial court’s habeas decision for an abuse
              of discretion. Without reweighing the evidence, this court
              considers only that evidence most favorable to the judgment and
              reasonable inferences drawn therefrom.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2594 | June 12, 2019   Page 4 of 9
      Hardley v. State, 893 N.E.2d 740, 742–43 (Ind. Ct. App. 2008) (internal citations

      omitted).


[8]   Brown argues that his sentence is unlawful because it exceeds the amount of

      suspended time. For its part, the State contends that the sentence is lawful,

      arguing that because placement in community corrections can be revoked, the

      sentence did not exceed the maximum that could be imposed following

      revocation. We agree with the State.


        I. Overview of Community Corrections Programs and
       Standard of Review Following Revocation of Placement
                     in Community Corrections
[9]   Community corrections programs were “established by the General Assembly

      to encourage counties to develop and operate a coordinated local corrections-

      criminal justice system as an effective alternative to imprisonment at the state

      level.” Million v. State, 646 N.E.2d 998, 999–1000 (Ind. Ct. App. 1995) (internal

      quotation omitted). A trial court may, at the time of sentencing, “suspend the

      sentence and order a person to be placed in a community corrections program

      as an alternative to commitment to the [DOC].” Ind. Code § 35-38-2.6-3. “A

      community corrections program consists of residential and work release,

      electronic monitoring, day treatment, or day reporting.” Million, 646 N.E.2d at

      1000 (internal quotations omitted). “The court may impose reasonable terms

      on the placement or require the director of the community corrections program

      to impose reasonable terms on the placement.” Ind. Code § 35-38-2.6-3.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2594 | June 12, 2019   Page 5 of 9
[10]           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. The
               similarities between the two dictate this approach. Both
               probation and community corrections programs serve as
               alternatives to commitment to the [DOC] and both are made at
               the sole discretion of the trial court. A defendant is not entitled
               to serve a sentence in either probation or a community
               corrections program. Rather, placement in either is a matter of
               grace and a conditional liberty that is a favor, not a right.


       Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999) (internal citations and quotations

       omitted). A revocation hearing is in the nature of a civil proceeding and the

       alleged violation need be proven only by a preponderance of the evidence.

       Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998).


        II. Revocation of Placement in Community Corrections
[11]   Brown argues that the sentence imposed following revocation is unlawful

       because “the suspended time in both cases was only [two] years. [Thus, t]he

       maximum amount of time that could be given for a probation revocation, in

       either case, was [two] years.” Appellant’s Br. p. 4. In support, Brown claims

       that Indiana Code section 35-38-2-3(h) “does not provide an option for the

       court to [impose a sentence] in excess of the suspended time.” Appellant’s Br.

       p. 5.


[12]   Brown correctly states that Indiana Code section 35-38-2-3(h) provides that

       after finding that a probationer has violated the terms of his probation, a trial

       court may “[o]rder execution of all or part of the sentence that was suspended


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2594 | June 12, 2019   Page 6 of 9
       at the time of initial sentencing.” Brown fails to recognize, however, that

       similar to Indiana Code section 35-38-2-3(h), Indiana Code section 35-38-2.6-5

       provides that if a person who is placed in community corrections violates the

       terms of his placement, “the community corrections director may … [r]equest

       that the court revoke the placement and commit the person to the county jail or

       [DOC] for the remainder of the person’s sentence.” Thus, Indiana Code

       sections 35-38-2-3(h) and 35-38-2.6-5 explicitly state that, following a violation

       of the terms of an offender’s alternative placement, the trial court may revoke

       the alternative placement and commit the offender to the DOC.


[13]   Here, as an alternative to a four-year commitment in the DOC, the trial court

       placed Brown in community corrections for two years and suspended the final

       two years with Brown serving the first of the suspended years on probation.

       After Brown violated the terms of his placement and probation, the trial court

       revoked the placement and ordered Brown to serve the entire four-year term in

       the DOC. In doing so, the trial court awarded Brown credit for the time he had

       already served in community corrections, ordering that Brown should be given

       credit for a total of 352 days.2 Pursuant to the clear language of Indiana Code

       sections 35-38-2-3(h) and 35-38-2.6-5, we conclude that the sentence imposed

       by the trial court is lawful.




       2
         As we will discuss in greater detail below, nothing in the record indicates that Brown was not given credit
       for all of the time that he had served in community corrections prior to revocation.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2594 | June 12, 2019                      Page 7 of 9
            III. Alternative Arguments Relating to Credit Time
[14]   Alternatively, Brown argues that the sentence is unlawful as it relates to Cause

       No. FC-59353 because “the initial sentence had been served due to

       misinterpretations and miscalculations of the abstract of judgment by [DOC]

       and Marion County Community Corrections (MCCC).” Appellant’s Br. p. 5.

       Brown’s argument appears to be based on an inaccurate understanding of the

       sentence imposed by the trial court. Brown cites to the abstract of judgment

       prepared by the trial court at the time of sentencing in support. However,

       review of the abstract of judgment indicates that Brown’s description of the

       sentence does not accurately reflect the sentence imposed by the trial court. It

       also does not support Brown’s claim that he had completed his sentence in

       Cause No. FC-59353.


[15]   Brown further argues that he should have been granted an additional forty-three

       days of credit time in relation to Cause No. FC-25485. Brown, however, has

       waived this argument on appeal by failing to include materials necessary for

       review of the argument in the record submitted to this court, see Cavallo v. Allied

       Physicians of Michiana, LLC, 42 N.E.3d 995, 999 n.1 (Ind. Ct. App. 2015)

       (providing that appellants who fail to include the materials necessary for our

       review risk waiver of the affected issues), and by failing to provide proof that he

       exhausted his administrative remedies through the DOC before seeking relief




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2594 | June 12, 2019   Page 8 of 9
       from this court.3 See Neff v. State, 888 N.E.2d 1249, 1252 (Ind. 2008) (providing

       that a prisoner who files a motion to correct an erroneous award of credit time

       must first demonstrate that he has exhausted the remedies available through the

       DOC offender grievance process). Waiver notwithstanding, the only

       documents included in the appellate record that give any insight to the amount

       of credit time awarded are the trial court’s sentencing documents showing that

       Brown was given credit time in the amount of 352 days and the trial court’s

       habeas order indicating as such. The trial court’s habeas order further indicates

       that Brown and the State “entered into an Agreed Entry on Credit Time” which

       stated that Brown was entitled to receive credit time in the amount of 352 days.

       Appellant’s App. Vol. II p. 19. Brown has failed to establish that he was denied

       any credit time to which he was entitled. Consequently, he has failed to prove

       that he was subjected to an illegal sentence in this regard.


[16]   The judgment of the trial court is affirmed.


       Crone, J., and Tavitas, J., concur.




       3
         The same is true to the extent that Brown argues that he was improperly ordered to serve twenty-eight days
       for a parole violation, because Brown failed to include the documents necessary for us to review this claim in
       the appellate record.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2594 | June 12, 2019                      Page 9 of 9
