MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D), this                            May 16 2019, 7:38 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                          CLERK
                                                                        Indiana Supreme Court
purpose of establishing the defense of res judicata,                       Court of Appeals
                                                                             and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
K. Aaron Heifner                                       Curtis T. Hill, Jr.
Anderson, Indiana                                      Attorney General of Indiana
                                                       Evan Matthew Comer
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jose Cervantes,                                            May 16, 2019
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           18A-CR-569
        v.                                                 Appeal from the Madison Circuit
                                                           Court
State of Indiana,                                          The Hon. Thomas Newman, Jr.,
                                                           Judge
Appellee-Petitioner.
                                                           Trial Court Cause No.
                                                           48C04-1606-F4-1295



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-569 | May 16, 2019                     Page 1 of 9
                                          Case Summary
[1]   Jose Cervantes pled guilty to Level 4 felony burglary and Level 6 felony theft,

      and the trial court ordered him to serve three years on work release and three

      on home detention. Not even three weeks into Cervantes’s work-release

      placement, a correctional officer at the housing facility discovered him sitting in

      a cloud of cigarette smoke with ashes at his feet. Hours later, the same officer

      smelled burning K2 spice coming from the bathroom and found Cervantes

      sitting on a toilet with ashes on his upper torso. Cervantes flushed something

      down the toilet when the officer approached. The State petitioned to have

      Cervantes’s placement revoked on the basis that he had violated the terms of

      work-release, that he had committed the new crime of obstruction of justice,

      and also that he was not satisfying his financial obligations. The trial court

      found all of the State’s allegations to be true and ordered that Cervantes serve

      his entire sentence in the Department of Correction (“DOC”). Cervantes

      contends that the State failed to produce sufficient evidence to establish that he

      had violated the terms of work-release and that the trial court abused its

      discretion in ordering that he serve his entire sentence in the DOC. Because we

      disagree, we affirm.


                            Facts and Procedural History
[2]   On December 13, 2017, Cervantes pled guilty to Level 4 felony burglary and

      Level 6 felony theft. Cervantes admitted that he had committed his crimes after

      consuming Xanax. The trial court imposed a six-year sentence, consisting of


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-569 | May 16, 2019   Page 2 of 9
      three years of work release to be followed by three years of home detention.

      Under the terms of his placement, Cervantes was required to follow the work-

      release rules, including zero-tolerance policies regarding alcohol consumption,

      illicit drug consumption, and the smuggling of tobacco or cigarettes into the

      housing facility.1 Cervantes began his work-release placement on December 29,

      2017.

[3]   At 12:15 a.m. on January 18, 2018, Correctional Officer Charles Kirby was

      walking through the dormitory in which Cervantes was housed, smelled

      tobacco smoke in the bunk area, and witnessed Cervantes surrounded by smoke

      with ashes near his feet. Officer Kirby charged Cervantes with a rule violation

      for being in an “Area of smoke.” App. Vol. II p. 127. At 2:56 a.m., Officer

      Kirby conducted another walkthrough and smelled the odor of burning K2

      spice (a controlled substance2) coming from the restroom. When Officer Kirby

      entered the restroom, he saw Cervantes on a toilet holding a small object near

      his lips with ashes covering his upper torso. After Cervantes saw Officer Kirby,

      he immediately placed the object into the toilet and flushed it. A review of

      security camera footage taken shortly before Officer Kirby’s second encounter

      with Cervantes showed Cervantes licking a “joint like object” in his hand as he




      1
        Although there is no documentary indication in the record that smuggling tobacco into the housing facility
      was forbidden, both parties seem to agree that the possession or use of tobacco in the facility would have
      constituted a rule violation.
      2
        Synthetic cannabinoids are generally referred to as “K2” or “Spice” and are synthetic drugs which are
      banned pursuant to Indiana Code section 35-31.5-2-321.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-569 | May 16, 2019                       Page 3 of 9
      walked to the restroom from the dormitory area. Tr. p. 19. Officer Kirby

      charged Cervantes with a rule violation for obstruction of justice.

[4]   Later that day, the State petitioned to revoke Cervantes’s work-release

      placement, alleging that he (1) had committed the new crime of obstruction of

      justice, (2) had violated the terms of his work-release placement by “being in an

      Area of Smoke[,]” and (3) was not current in his payments. Appellant’s App.

      Vol. II p. 116. On February 7, 2018, the trial court conducted an evidentiary

      hearing, at which, inter alia, Madison County Work Release Case Manager

      Konnor McCoy testified that Cervantes was $380.97 behind in his work-release

      payments. After the hearing, the trial court found that Cervantes had violated

      the terms of community corrections by committing a new offense, being in an

      area of smoke, and failing to meet his financial obligations. The trial court

      revoked Cervantes’s work-release placement and ordered him to serve his six-

      year sentence in the DOC.


                                Discussion and Decision
[5]   We review the revocation of a placement in a community-corrections program

      the same as we do the revocation of probation. Cox v. State, 706 N.E.2d 547,

      549 (Ind. 1999). Both probation and community-corrections programs serve as

      alternatives to incarceration and both are made at the sole discretion of the trial

      court. Id. A defendant is not entitled to serve a sentence in either probation or

      a community-corrections program. Id. Rather, placement in either is a “matter

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



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-569 | May 16, 2019   Page 4 of 9
      Million v. State, 646 N.E.2d 998, 1002 (Ind. Ct. App. 1995) (internal quotation

      omitted)).

              Our standard of review of an appeal from the revocation of a
              community corrections placement mirrors that for revocation of
              probation. A probation hearing is civil in nature and the State
              need only prove the alleged violations by a preponderance of the
              evidence. We will consider all the evidence most favorable to
              supporting the judgment of the trial court without reweighing
              that evidence or judging the credibility of witnesses. If there is
              substantial evidence of probative value to support the trial court’s
              conclusion that a defendant has violated any terms of probation,
              we will affirm its decision to revoke probation.
      Cox, 706 N.E.2d at 551 (citations omitted).


                              I. Sufficiency of the Evidence
[6]   Cervantes contends that the State failed to prove that he violated the terms of

      his work-release placement. Specifically, Cervantes argues that there is

      insufficient evidence to establish that he was in possession of or smoked a

      cigarette, that he possessed or disposed of K2 spice, or that he was

      unreasonably behind in his work-release payments. While it is well-settled that

      “probation may be revoked on evidence of violation of a single condition[,]”

      Heaton v. State, 984 N.E.2d 614, 618 (Ind. 2013), we choose to address all of

      Cervantes’s claims.

[7]   As for the allegation that Cervantes was in an area of smoke, Officer Kirby

      testified that he smelled tobacco smoke in the bunk area and saw Cervantes

      alone in an area of smoke with ashes near his feet. Officer Kirby also testified

      that Cervantes was in the bunk by himself and there was nobody else around


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-569 | May 16, 2019    Page 5 of 9
      him. This testimony is sufficient to support an inference that Cervantes was

      smoking a cigarette in the dormitory. Cervantes’s argument is an invitation to

      reweigh the evidence, which we will not do. See Cox, 706 N.E.2d at 551.

[8]   There is also sufficient evidence to establish that Cervantes committed the new

      crime of obstruction of justice, which requires evidence that Cervantes “altered,

      damaged, or removed any record, document or thing, with the intent to prevent

      it from being produced as evidence in any official proceeding or investigation.”

      Ind. Code § 35-44.1-2-2(a)(3). Officer Kirby, while conducting a second

      walkthrough, smelled burning K2 spice coming from the restroom and found

      Cervantes sitting on a toilet holding an object near his lips with ashes covering

      his upper torso. Cervantes immediately flushed the object in his hand down the

      toilet. Moreover, a review of security camera footage taken shortly before

      Kirby’s second encounter with Cervantes showed Cervantes licking a “joint like

      object” in his hand as he walked to the restroom. Tr. p. 19. This is more than

      enough to prove by a preponderance of the evidence that Cervantes committed

      the offense of obstruction of justice by disposing of physical evidence of illicit

      drug use. Cervantes points to his testimony that he had nothing in his hand and

      was merely performing a “courtesy flush[.]” Tr. p. 30. The trial court was

      under no obligation to credit this testimony and did not. As with his previous

      argument, Cervantes is requesting that we reweigh the evidence, which we will

      not do. See Cox, 706 N.E.2d at 551.

[9]   Finally, there is the trial court’s finding that Cervantes failed to meet the

      financial obligations associated with his placement in work release. Where the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-569 | May 16, 2019     Page 6 of 9
       State alleges a failure to meet a financial obligation, it must prove that the

       defendant recklessly, knowingly, or intentionally failed to pay by a

       preponderance of the evidence. Ind. Code § 35-38-2-3(g); Runyon v. State, 939

       N.E.2d 613, 616–17 (Ind. 2010). It is the defendant’s burden to prove that he

       cannot pay even though he has made “sufficient bona fide efforts to pay so as to

       persuade the trial court that further imprisonment should not be ordered.”

       Runyon, 939 N.E.2d at 617.

[10]   Cervantes does not dispute that he was $380.97 in arrears, nor does he actually

       claim that he lacked the ability to pay before the State petitioned to revoke his

       work-release placement. Cervantes points only to his testimony that he was in

       possession of a check (at least at the time of the evidentiary hearing) that would

       have allowed him to satisfy his obligations. While one could, perhaps, infer

       from this that Cervantes was claiming that he had been previously unable to

       pay, the trial court was under no obligation to credit this testimony, and

       apparently did not. In the end, even if we were to assume that Cervantes’s

       failure to satisfy his financial obligations is an insufficient basis on which to

       revoke his work-release placement, we reiterate that “probation may be revoked

       on evidence of violation of a single condition.” Heaton, 984 N.E.2d at 618.

       Cervantes has failed to establish that the State produced insufficient evidence to

       sustain the trial court’s findings that he violated the terms of his work-release

       placement.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-569 | May 16, 2019   Page 7 of 9
                                     II. DOC Commitment
[11]   Cervantes also contends that the trial court abused its discretion in ordering him

       to serve his entire six-year sentence in the DOC. Once a trial court finds that a

       defendant has violated the terms of his placement, the court must then

       determine whether the violation merits revocation of that placement. Woods v.

       State, 892 N.E.2d 637, 640 (Ind. 2008). A violation of even one term of a

       defendant’s community corrections placement can justify a complete revocation

       of his placement. Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014) (citing

       Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007)), trans. denied.

       Community corrections programs like work release operate as alternatives to a

       commitment to the DOC, and placement in these programs is left to the sound

       discretion of the trial court. Million, 646 N.E.2d at 1001. “An abuse of

       discretion occurs if the trial court’s decision is against the logic and effect of the

       facts and circumstances before the court.” Abernathy v. State, 852 N.E.2d 1016,

       1020 (Ind. Ct. App. 2006). On appeal, we consider only the evidence favorable

       to the trial court’s judgment and neither reweigh the evidence nor judge the

       credibility of the witnesses who testified below. Braxton v. State, 651 N.E.2d

       268, 270 (Ind. 1995).

[12]   We conclude that Cervantes has failed to establish an abuse of discretion in this

       regard. A defendant who receives the benefit of an alternative placement is

       bound to abide by a specific set of terms and conditions, which are intended to

       ensure that he serves a genuine period of rehabilitation and the community is

       protected from harm while he remains at large. Grubb v. State, 734 N.E.2d 589,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-569 | May 16, 2019   Page 8 of 9
       592 (Ind. Ct. App. 2000). Following Cervantes’s guilty plea to Level 4 felony

       burglary and Level 6 felony theft (which were apparently committed under the

       influence of Xanax), he was given the opportunity to avoid commitment to the

       DOC altogether, if, inter alia, he demonstrated that he could go without habit-

       forming substances. Yet, not even three weeks into Cervantes’s three-year

       placement in work release, he committed two rules violations within just a few

       hours by smoking a cigarette and then destroying evidence of a K2 spice joint

       that he was smoking. Moreover, Cervantes’s criminal record indicates a

       continuing problem with substance abuse, as he has prior convictions for two

       counts of marijuana possession; possession of cocaine, methamphetamine, or a

       schedule I or II narcotic drug; and two counts of driving while intoxicated.

       Given Cervantes’s history and his unwillingness to abide by the terms of work

       release for even three weeks, we cannot say that the trial court abused its

       discretion in deciding that a more restrictive placement in the DOC was

       warranted.

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


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-569 | May 16, 2019   Page 9 of 9
