 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
                                                                FILED
                                                              Jul 24 2012, 8:40 am
 any court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.                        CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER                                     GREGORY F. ZOELLER
Indianapolis, Indiana                                 Attorney General of Indiana

                                                      GEORGE P. SHERMAN
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ALAN WEIR,                                            )
                                                      )
       Appellant-Defendant,                           )
                                                      )
               vs.                                    )      No. 49A04-1201-CR-22
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Grant W. Hawkins, Judge
                             Cause No. 49G05-1103-FC-15238


                                            July 24, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       Alan Weir pled guilty to Class C felony escape and was sentenced to two years on

community corrections home detention as an alternative to the Indiana Department of

Correction and two years suspended but with no probation. When Weir later violated the

terms of his community corrections placement, the trial court sentenced him to the

balance of his home-detention sentence and his previously suspended two-year sentence

in the DOC. Weir now appeals, arguing that the trial court did not have the authority to

sentence him to his previously suspended two-year sentence in the DOC. We conclude

that the trial court had such authority and therefore affirm.

                               Facts and Procedural History

       In March 2011, the State charged Weir with Class C felony escape and two counts

of Class A misdemeanor resisting law enforcement for fleeing from the police while

waiting to be taken into custody. Weir was on probation for Class C felony child

molesting under Cause No. 49G05-0909-FC-81199 (Cause No. 81199) at the time.

       In June 2011, Weir pled guilty to Class C felony escape. According to the plea

agreement, the State agreed to dismiss the two counts of resisting law enforcement as

well as the pending probation violation in Cause No. 81199. The parties agreed to the

following sentence, “Four (4) years, with two (2) years executed and (2) years

suspended.” Appellant’s App. p. 56 (capitalization omitted). Placement and remaining

terms were left to the trial court’s discretion. Id. In addition, Weir was to complete all

terms and conditions imposed under his probation in Cause No. 81199 as a condition of

his sentence for escape. Id.


                                              2
        At Weir’s June 14, 2011, guilty-plea and sentencing hearing, the trial court

accepted the plea agreement and sentenced Weir to four years with two years served

through the Marion County Community Corrections home-detention program and two

years suspended. Tr. p. 19. As a condition of Weir’s community corrections placement,

the trial court ordered Weir to complete the original terms of his sex-offender treatment

in Cause No. 81199. Id. The prosecutor made a point to inform Weir that “this is his

chance and this is his break and that if there are any violations of these conditions or

terms I will follow this case to its conclusion and make sure he spends the remainder of

the time in the Department of Correction.” Id. at 20. The trial court agreed:

        So do you understand that, Mr. Weir? I will say it is fairly rare for us to not
        give full backup for someone who commits escape while on probation, so I
        hope that you consider that going forward, because if you do violate the
        terms of your probation – Community Corrections and probation, then the
        next stop is the Department of Correction. You understand?

Id. at 20-21. Weir said he understood. Id. at 21. Although the trial court alluded to

probation, both Weir and the State agree on appeal that the trial court never placed Weir

on probation; rather, the trial court sentenced Weir to two years of community corrections

home detention as an alternative to the DOC and two years suspended. See Appellant’s

App. p. 17 (June 14 CCS entry), 17-18 (June 16 CCS entry), 62-63 (Order of

Commitment to Community Corrections), 66 (Sentencing Order).1




        1
         Weir argues that the trial court erroneously made changes to his sentence after his sentencing
hearing. However, we agree with Weir that he was never placed on probation. In addition, in light of our
conclusion that the trial court had the authority to sentence Weir to his previously suspended sentence of
two years in the DOC even though he was not on probation, we do not need to address these concerns.
                                                    3
       On November 3, 2011, Marion County Community Corrections filed a Notice of

Community Corrections Violation alleging that Weir’s equipment was compromised and

as a result he was not being monitored. The Notice provided:

       Notice is hereby given the client that, should the court find you have
       violated the terms of your sentence, Community Corrections may
       recommend that your sentence be modified, or that it be revoked and the
       originally suspended sentence be imposed by the court.

Id. at 74 (capitalization omitted).

       A hearing was held on December 21, 2011.             At the time, Weir had been

unmonitored for thirty-five days. Weir explained that his equipment stopped working

and he took it off; however, he never went to the Community Corrections office to have it

repaired or replaced. The trial court found that Weir violated the terms of his community

corrections placement and sent him “to the Department of Correction for four years,

credit for 147 days.” Tr. p. 30. The trial court gave Weir “the remainder of his sentence

and his backup time” even though he was not on probation. Id. The court explained,

       His acts violate the suspended sentence, even though it doesn’t violate the
       probation. Otherwise there’d be no point to give a suspended sentence. So
       I’m giving him four years and if you think that’s a mistake, I’d invite you to
       file a motion to correct errors so we can have that argument.

Id.

       Although Weir never filed a motion to correct error, he now appeals raising this

very issue.

                                  Discussion and Decision

       Weir “does not contest the [trial] court’s authority to order that the balance of his

two-year home detention be served at the Indiana Department of Correction.”


                                             4
Appellant’s Br. p. 5. Instead, he contends that the trial court erred in ordering his two-

year suspended sentence be served at the DOC. He argues that because (1) the trial court

did not put him on probation at his sentencing hearing and (2) there were no probation

terms for him to violate, the trial court did not have the authority to order him to serve his

previously suspended two-year sentence at the DOC.

        For purposes of appellate review, we treat the revocation of placement in a

community corrections program the same as we do the revocation of probation. Brown v.

State, 947 N.E.2d 486, 489 (Ind. Ct. App. 2011), trans. denied.                      Placement in a

community corrections program is an alternative to commitment at the DOC and made at

the sole discretion of the trial court. Id. A defendant is not entitled to serve his sentence

in a community corrections program but, as with probation, placement in the program is a

“matter of grace” and a “conditional liberty that is a favor, not a right.” Id.

        Indiana Code chapter 35-38-2.6 governs this issue.2 Indiana Code section 35-38-

2.6-3(a) provides that 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 at the DOC. In addition, the court may impose reasonable terms on the

placement. Ind. Code § 35-38-2.6-3(a). If the court places a person in a community

corrections program under chapter 2.6, the court shall suspend the sentence for a fixed

period to end not later than the date the suspended sentence expires. Ind. Code § 35-38-

2.6-4. In addition,



        2
           This chapter applies to the sentencing of Weir because he was on probation for Class C felony
child molesting when he committed Class C felony escape and therefore part of his sentence was not
eligible to be suspended. See Ind. Code § 35-38-2.6-1(a)(1).
                                                   5
       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.

Ind. Code § 35-38-2.6-5.

       Here, in compliance with the plea agreement, the trial court sentenced Weir to four

years with two years executed and two years suspended as follows: two years in a

community corrections program as an alternative to the DOC and two years suspended

with no probation. When Weir later violated the terms of his community corrections

placement, the two-year suspended portion of his sentence was still outstanding.

Accordingly, the trial court sentenced Weir to the balance of his home-detention sentence

and his previously suspended two-year sentence in the DOC, not just the balance of his

home-detention sentence in the DOC. We, however, find that Section 35-38-2.6-5 gives

the trial court the authority to do exactly this. That is, if a person violates the terms of his

community corrections placement, the court may, after a hearing, “Revoke the placement

and commit the person to the department of correction for the remainder of the person’s

sentence.” (emphasis added).

       Although Weir argues that “it is unreasonable to construe this provision to permit

anything more than the ordering of the service at the Department of Correction of the

remaining portion of the community correction sentence,” Appellant’s Reply Br. p. 4,

there is simply nothing in Section 35-38-2.6-5 that limits the trial court’s authority to

commit the person to the DOC for only the remainder of his community corrections


                                               6
sentence.   Rather, once a person violates the terms of his community corrections

placement, the entire suspended sentence may be served in the DOC. See Patterson v.

State, 750 N.E.2d 879 (Ind. Ct. App. 2001). Because Weir violated the terms of his

community corrections placement, the trial court could also order him to serve his

previously suspended two-year sentence in the DOC; it does not matter that Weir was not

placed on probation for this portion of his sentence. Otherwise, as the trial court aptly

observed, there would be no point in giving a defendant a suspended sentence. There is

no abuse of discretion.

       Affirmed.

CRONE, J., and BRADFORD, J. concur.




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