MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                Jul 18 2019, 8:48 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.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                       Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Burnett,                                           July 18, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-130
        v.                                                Appeal from the Madison Circuit
                                                          Court
State of Indiana,                                         The Honorable Mark Dudley,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          48C06-1807-F5-1798



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019                     Page 1 of 6
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Robert Burnett (Burnett), appeals the trial court’s

      revocation of his home detention and the imposition of his previously-

      suspended sentence.


[2]   We affirm.


                                                    ISSUE
[3]   Burnett presents this court with one issue on appeal, which we restate as:

      Whether the trial court abused its discretion by ordering Burnett to serve his

      entire previously-suspended sentence after he violated the terms of his home

      detention.


                           FACTS AND PROCEDURAL HISTORY

[4]   On October 17, 2018, Burnett pleaded guilty to Count I, burglary, a Level 5

      felony, and Count II, theft, a Level 6 felony. The trial court subsequently

      sentenced Burnett to two years in the Department of Correction (DOC) for the

      Level 5 felony and to ten months in the Madison County Detention Center for

      the Level 6 felony. Burnett’s sentences were to run concurrently, and the trial

      court gave Burnett the “privilege of serving” his two-year sentence on home

      detention “subject to the terms and conditions of [] said program.” (Appellant’s

      App. Vol. II, p. 14).


[5]   On October 29, 2018, the Madison County Probation Office (Probation Office)

      filed an amended notice of probation violation, alleging that Burnett had


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019   Page 2 of 6
      “[f]ailed to appear for Home Detention hook-up on October 19, 2018.”

      (Appellant’s App. Vol. II, p. 16).


[6]   Prior to being convicted for the burglary and theft offenses, Burnett lived with

      Tim Roof (Roof). Following Burnett’s conviction, Roof did not let Burnett

      move back in. On November 17, 2018, Roof returned from a hunting trip. At

      around 2:00 a.m., Roof was awakened by a loud banging on his front door. It

      sounded “like somebody was trying to break in” (Transcript p. 10). Roof

      grabbed a gun and walked to the hallway. As his front door opened, Roof

      yelled, “stop[,] I got a gun I’ll shoot.” (Tr. p. 11). The door closed, and its

      knob fell to the floor. Burnett then yelled, “Tim, Tim it’s me. I’m cold.” (Tr.

      p. 11). Roof “didn’t know what to do” because Burnett was “not in the best of

      shape,” so he allowed Burnett to sleep on his couch. (Tr. pp. 13-14). Roof

      proceeded to gather his other guns that were in the living room and he took

      them to his bedroom because Burnett had “just broke[n]” into his home, and he

      “didn’t know what [Burnett’s] intentions were.” (Tr. p. 11). Roof stayed up all

      night with his rifle. Roof’s brother, whom Roof had sent a text message, called

      the police later that morning. When the police arrived, Roof “was very

      shaken,” “upset,” and “scared,” and there was a rock in the trashcan outside

      with the same debris as the broken door handle. (Tr. pp. 25, 27, 30). On the

      same day, the State filed an Information, charging Burnett with Level 6 felony

      residential entry and Class B misdemeanor criminal mischief.


[7]   On November 21, 2018, the Probation Office filed an amended notice of

      probation violation, alleging that on November 18, 2018, Burnett had

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019   Page 3 of 6
       accumulated two new offenses—i.e., Level 6 felony residential entry and Class

       B misdemeanor criminal mischief.


[8]    On December 19, 2018, at a hearing on the notice of home detention violation,

       Burnett admitted to at least one of the violations—that he had failed to report to

       the Probation Office for his home detention hook-up appointment. The State

       also presented evidence surrounding Burnett’s residential entry and criminal

       mischief offenses. At the conclusion of the hearing, the trial court revoked

       Burnett’s home detention and ordered Burnett to serve the balance of his

       previously-suspended sentence in the DOC.


[9]    Burnett now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[10]   Burnett appeals the trial court’s order revoking his placement on home

       detention and the imposition of the balance of his previously-suspended

       sentence.


[11]   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. Treece v. State, 10 N.E.3d 52, 57 (Ind. Ct. App. 2014). A defendant is not

       entitled to serve a sentence in either a 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. Id. The standard of review of an appeal from

       the revocation of a community corrections placement mirrors that for

       revocation of probation. Id. That is, a revocation of community corrections
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019   Page 4 of 6
       placement hearing is civil in nature, and the State need only prove the alleged

       violations by a preponderance of the evidence. Id.


[12]   At the revocation hearing, Burnett admitted that he had failed to appear for his

       hook-up appointment with the Probation Office. In addition, the State also

       presented evidence that Burnett had committed additional offenses while on

       probation—i.e., residential entry and criminal mischief.


[13]   Burnett argues that the facts surrounding the residential entry and criminal

       mischief offenses indicate that he did not commit these new offenses. Burnette

       claims that he had previously lived with Roof, and although Roof claimed he

       was scared by his entry, “Roof permitted Burnett to remain in the residence,

       spend the night, sleep on his couch and let him eat his food. Additionally,

       [Roof] did not call the police on him.” (Appellant’s Br. p. 8).


[14]   Contrary to his assertions, Roof unequivocally testified that Burnett broke his

       door handle and entered his house without his permission. The State

       corroborated Roof’s testimony with the testimony of the responding officer,

       who saw a rock in the trashcan outside of the door with the same debris as the

       broken door handle. From this evidence, the trial court reasonably concluded

       by a preponderance of the evidence that Burnett committed residential entry

       and criminal mischief. Burnett’s argument is merely a request for this court to

       reweigh the evidence, which it will not do. See Woods v. State, 892 N.E.2d 637,

       639 (Ind. 2008). Moreover, Burnett’s admission that he failed to appear for the

       hook-up appointment with the Probation Office was sufficient for the trial court


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019   Page 5 of 6
       to revoke his home detention. See Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct.

       App. 2005) (holding that a “single violation of the conditions of probation is

       sufficient to support the [trial court's] decision to revoke probation.”), trans.

       denied.


[15]   Here, the State met its burden of proving by a preponderance of the evidence

       that Burnett had violated the terms of his home detention; therefore, we hold

       that the trial court did not abuse its discretion by revoking Burnett’s home

       detention.


                                             CONCLUSION
[16]   In sum, we conclude that the trial court did not abuse its discretion by revoking

       Burnett’s placement on home detention. Accordingly, we affirm the trial court

       order that Burnett serve the balance of his previously suspended sentence.


[17]   Affirmed.


[18]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019   Page 6 of 6
