MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Jul 29 2020, 11:26 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 S. Churchward                                     Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Myriam Serrano
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Alonzo J. Clark,                                          July 29, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-151
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Frances C. Gull,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause Nos.
                                                          02D04-1507-F6-680, 02D05-1903-
                                                          F6-267



Altice, Judge.


                                       Case Summary

Court of Appeals of Indiana | Memorandum Decision 20A-CR-151 | July 29, 2020                   Page 1 of 8
[1]   Alonzo Clark appeals the two-and-one-half-year executed sentence that was

      imposed following his convictions and probation violation for various drug

      offenses under two separate cause numbers. Clark contends that the trial court

      improperly ordered him to serve executed time in the Indiana Department of

      Correction (DOC), rather than permitting him to participate in work release or

      in a community corrections program.


[2]   We affirm.


                                  Facts and Procedural History

[3]   In January 2016, Clark pled guilty to possession of a controlled substance, a

      level 6 felony, under Cause F6-680 and was sentenced to one year and 183 days

      in the DOC. The trial court suspended one year of the sentence and ordered

      Clark to serve the remaining 183 days on home detention.


[4]   On March 21, 2017, the Allen County Probation Department (probation

      department) filed a notice of probation violation, alleging that Clark had failed

      to complete court-ordered counseling sessions or pay fines and costs.

      Thereafter, on April 11, 2017, Clark entered into a modification agreement with

      the State that resulted in a six-month extension of his probation for violating the

      conditions of probation.


[5]   The probation department filed another petition to revoke Clark’s probation on

      April 18, 2017, alleging that Clark had failed to attend and complete other




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-151 | July 29, 2020   Page 2 of 8
      counseling sessions. Two days later, the trial court issued a warrant for Clark’s

      arrest.


[6]   On March 3, 2019, while the warrant was still active, Clark was arrested on

      new charges under Cause F6-267 that included possession of a narcotic drug,

      possession of a controlled substance, and possession of a synthetic drug or

      synthetic drug lookalike substance. Thus, the State amended its petition to

      revoke Clark’s probation on March 8, 2019.



[7]   On April 15, 2019, Clark pled guilty to the charges in Cause F6-267 and

      admitted to the probation violation alleged in Cause F6-680. The trial court

      took the guilty pleas under advisement, placed Clark in a diversion program,

      and terminated supervised probation. It was agreed that if Clark successfully

      completed a program through the drug court, he would be discharged from

      probation under Cause F6-680 and the charges under Cause F6-267 would be

      dismissed.


[8]   On June 3, 2019, Clark violated the rules imposed by the drug court and was

      “sanctioned with jail time.” Appellant’s Appendix at 113. On November 18,

      2019, the State filed a petition to terminate Clark’s participation in the drug

      court program, alleging that Clark had committed additional criminal offenses

      and had failed to attend and complete a counseling program. That same day,

      Clark appeared in court with counsel and admitted to violating the terms and

      conditions of the agreement. As a result, the trial court ordered Clark “revoked

      from drug court.” Drug Court Transcript at 5.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-151 | July 29, 2020   Page 3 of 8
[9]    At a dispositional and sentencing hearing on December 19, 2019, the trial court

       identified Clark’s criminal record that consisted of three prior misdemeanor

       convictions and one prior felony conviction, and “failed efforts at rehabilitation

       covering a period of time from 2014 to 2019,” as aggravating factors. Sentencing

       Transcript at 8. The trial court pointed out that Clark was “given the benefit of

       short jail sentences, longer jail sentences, time in the alcohol countermeasures

       program, active adult probation, home detention, and ultimately the drug court

       program.” Id. The court further noted that Clark was on probation when he

       committed the Cause F6-267 offenses. As a result, Clark was sentenced to a

       term of one-and-one-half years of incarceration on each offense in Cause F6-

       267 to run concurrently with each other, but consecutively to the sentence

       imposed in Cause F6-680. The trial court revoked the previously suspended

       one-year sentence in Cause F6-680 and ordered Clark to serve that term in the

       DOC. Thus, Clark was ordered to serve an executed two-and-one-half-year

       aggregate sentence in the DOC.


[10]   Clark now appeals.


                                      Discussion and Decision

[11]   We initially observe that sentencing determinations are generally within the

       trial court’s discretion, and we review a sentencing decision only for an abuse of

       discretion. Fleming v. State, 143 N.E.3d 987, 989 (Ind. Ct. App. 2020). While

       Clark frames his argument on appeal as an abuse of discretion challenge, he

       actually argues that it was inappropriate for the trial court to impose a fully

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-151 | July 29, 2020   Page 4 of 8
       executed sentence following the probation revocation under Cause F6-680 and

       his convictions in Cause F6-267 “based on the nature of . . . the offenses along

       with his character.” Appellant’s Brief at 14.


[12]   We may revise a sentence authorized by statute if, after due consideration of the

       trial court’s decision, we find the sentence inappropriate in light of the nature of

       the offense and the character of the offender. Indiana Appellate Rule 7(B).

       Deference to the trial court “prevail[s] unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character).” Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015). It is the defendant’s burden to

       persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d

       1073, 1080 (Ind. 2006).


[13]   Our Supreme Court has determined that “[t]he place that a sentence is to be

       served is an appropriate focus for application of our review and revise

       authority.” Biddinger v. State, 868 N.E.2d 407, 414 (Ind. 2007). “Nonetheless, .

       . . it will be quite difficult for a defendant to prevail on a claim that the

       placement of his or her sentence is inappropriate.” Fonner v. State, 876 N.E.2d

       340, 343 (Ind. Ct. App. 2007). This is because the question under Indiana

       Appellate Rule 7(B) is not whether another sentence is more appropriate; the

       question is whether the sentence imposed is inappropriate. King v. State, 894

       NE.2d 265, 268 (Ind. Ct. App. 2008). “A defendant challenging the placement



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-151 | July 29, 2020    Page 5 of 8
       of a sentence must convince us that the given placement is itself inappropriate.”

       Id.


[14]   Probation, work release, and community corrections programs all serve as

       alternatives to commitment to the DOC and are made at the sole discretion of

       the trial court. See Ind. Code § 35-38-2-6-3(a); Cox v. State, 706 N.E.2d 547, 549

       (Ind. 1999). A defendant is not entitled to serve a sentence in any of these

       alternatives. Cox, 706 N.E.2d at 549. Rather, placement in these programs is a

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

       v. State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014), trans. denied.


[15]   As to the nature of the offense, Clark’s conduct in committing the charged

       offenses amounted to nothing more than that necessary to establish the

       statutory elements of those crimes. As for Clark’s character, however, the

       evidence demonstrated that he was given multiple opportunities to complete his

       sentence for possession of a controlled substance under Cause F6-680 in an

       alternative program. More specifically, Clark was permitted to serve one year

       of his sentence on probation. However, Clark failed to follow the terms and

       conditions of probation, and even after the trial court had extended his

       probation for six months following an initial violation, an arrest warrant was

       subsequently issued because of additional violations. And while that warrant

       was active, Clark was arrested again and charged with the three drug offenses

       under Cause F6-267.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-151 | July 29, 2020   Page 6 of 8
[16]   As for Cause F6-267, the evidence demonstrated that Clark was afforded the

       opportunity to participate in drug court and have those charges dismissed upon

       successful completion of a rehabilitation program. Clark, however, was

       terminated from the program because he was unsuccessfully discharged from a

       counseling center, had missed a scheduled case management appointment, and

       was subsequently arrested for committing yet another criminal offense.


[17]   In March 2019, the probation department filed a report with the trial court,

       stating that Clark had “been given many more chances than he should have

       received to complete the program” and officers “tried and tried to work with

       Mr. Clark [but,] [i]t [was] evident that he ha[d] no intention of following the

       Court’s order.” Appellant’s Appendix at 39. The report concluded that Clark was

       “no longer appropriate for probation.” Id. Clark admitted to violating the

       terms of his probation and pled guilty to the three drug charges in Cause F6-

       267.


[18]   In sum, Clark demonstrated on numerous occasions that he is not successful

       when situated in less restrictive placements. In fact, the trial court observed that

       Clark’s efforts at rehabilitation failed over a five-year period. The trial court

       was not required to give Clark another opportunity to participate in alternative

       placement, and based on Clark’s criminal history, his repeated substance abuse,

       and the many failed attempts at rehabilitation, we conclude that the trial court’s

       order for Clark to serve his executed sentence in the DOC was not

       inappropriate. Thus, we decline to revise Clark’s sentence.



       Court of Appeals of Indiana | Memorandum Decision 20A-CR-151 | July 29, 2020   Page 7 of 8
[19]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-151 | July 29, 2020   Page 8 of 8
