 Pursuant to Ind.Appellate Rule 65(D),                        Apr 30 2014, 6:37 am
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                               ATTORNEYS FOR APPELLEE:

KURT A. YOUNG                                         GREGORY F. ZOELLER
Nashville, Indiana                                    Attorney General of Indiana

                                                      LARRY D. ALLEN
                                                      Deputy Attorney General
                                                      Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

SHANNON L. SIMONS,                                    )
                                                      )
       Appellant-Defendant,                           )
                                                      )
                vs.                                   )      No. 07A05-1308-CR-436
                                                      )
STATE OF INDIANA,                                     )
                                                      )
       Appellee-Plaintiff.                            )


                        APPEAL FROM THE BROWN CIRCUIT COURT
                            The Honorable Judith A. Stewart, Judge
                                Cause No. 07C01-1301-FD-15


                                            April 30, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
       After pleading guilty to operating a motor vehicle while intoxicated as a class D

felony, Shannon Lynne Simons was alleged to have committed a violation of the conditions

of her community corrections placement and probation. Simons appeals from the trial court’s

order revoking a portion of her probation, contending that the trial court abused its discretion

by concluding that a violation had occurred, and by ordering that she serve ninety days of her

previously suspended sentence.

       We affirm.

       On January 15, 2013, Simons was involved in a single-vehicle crash after losing

control of her car, nearly striking another vehicle, and going over an embankment after

striking a guardrail. Upon arriving in response to a call about the accident, Nashville Police

Department Officer Tim True observed that Simons smelled strongly of alcohol, her speech

was slurred, and her eyes were red and watery. Simons was arrested and the charges filed

against her were elevated to class D felonies because she had a prior conviction for operating

a vehicle while intoxicated within five years of the current offense.

       Pursuant to a plea agreement, Simons pleaded guilty to class D felony operating a

motor vehicle while intoxicated.       The trial court sentenced Simons to 545 days of

incarceration with ninety days executed in a community corrections work-release program.

Of the conditions of her probation, Simons was not to use or possess alcohol, and was not to

“attend any place where you must be 21 years of age to enter except as necessary for

employment.” Appellant’s Appendix at 8, 29 (handwritten addition italicized). Another

condition provided that “[t]he successful completion of any executed time in the above


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sentence is a condition of your probation. You shall comply with all conditions of the Road

Crew/Work Release/House Arrest program(s) and pay all required fees for said programs.”

Id. at 8, 29.

       On June 18, 2013, Simons began her work release under the supervision of

community corrections. Simons was employed by a pizza restaurant. On June 22, 2013,

Simons, who smelled of alcohol, returned from work to the community corrections facility.

Simons was tested and her blood alcohol content was measured at a level of .13. The State

filed a petition requesting the revocation of Simons’ probation based upon the positive

alcohol test. The trial court held a hearing at which Simons admitted she had consumed

alcohol and violated the conditions of her work release. The trial court found that Simons

had violated the terms of her placement with community corrections. Simons’s counsel

challenged whether Simons was in violation of the terms of her probation, contending that

the probationary period had not yet begun. The trial court rejected Simons’s counsel’s

argument and the matter proceeded to disposition.

       The trial court found that Simons had violated the terms of her suspended sentence

and modified Simons’s probation. The trial court revoked ninety days of Simons’s

suspended sentence, with the provision that if Simons were admitted to an inpatient drug-

treatment program, complied with the treatment, and successfully completed the program,

Simons would not be required to serve the remaining portion of her jail sentence. Simons

now appeals. Additional facts will be supplied as needed.




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       Community corrections programs, like probation, serve as alternatives to commitment

to the DOC, and both are made at the sole discretion of the trial court. McQueen v. State, 862

N.E.2d 1237 (Ind. Ct. App. 2007). Placement on probation or in a community corrections

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

v. State, 646 N .E.2d 998, 1002 (Ind. Ct. App. 1995). We review challenges to the revocation

of placement in a community corrections program using the standard of review we use when

reviewing a revocation of probation. See Monroe v. State, 899 N.E.2d 688 (Ind. Ct. App.

2009). A revocation hearing is civil in nature, and the State need prove an alleged violation

by only a preponderance of the evidence. Id. When reviewing a decision to revoke, we will

not reweigh the evidence or judge the credibility of witnesses, and will consider only the

evidence most favorable to the trial court’s decision. Id. We will affirm the trial court if

there is substantial evidence of probative value supporting revocation. Id.

       The record reflects that Simons admitted that she had consumed alcohol in violation of

the conditions of her placement with community corrections, and that admission was

supported by the positive test result indicating a BAC of .13. Simons initialed and signed a

list of conditions in advance of her participation in the work-release program. One of the

conditions was that Simons “shall not use or possess alcohol whatsoever.” Appellant’s

Appendix at 36.

       Simons had previously served a period of time on probation for a conviction for

possession of a controlled substance and operating a vehicle while intoxicated. A portion of

Simons’s probation and suspended sentence in that case was revoked because she initially


                                               4
failed to complete a substance abuse program and tested positive for opiates, hydrocodone

and methadone specifically, without possessing a valid prescription for them. Simons

eventually completed and was released from her court-ordered outpatient drug treatment

program, but those running the program were unaware that she had failed a drug screen at the

same time she was released from the program. Simons admitted that she had problems

making and keeping appointments for drug abuse treatment, but was eventually able to

complete the program.

       On June 18, 2013, Simons’s baseline drug screen resulted in a positive test for

methadone. Simons’s original probation officer, Jennifer Acton, stated that she knew Simons

struggled with addiction, particularly with opiates, which Simons combined with alcohol.

Acton further stated that Simons had never demonstrated a desire to seek help for her

addictions. Simons admitted that she failed her baseline drug screen because she decided to

“party a little bit”. Transcript at 26. There was substantial evidence of probative value

supporting the revocation of Simons’s probation.

       Simons argues, however, that although she may have violated a term or condition of

her work release and placement with community corrections, she did not violate a condition

of her probation as her probationary period had not yet begun. Simons focuses on language

contained in the trial court’s order on guilty plea, sentencing, probation, and commitment,

which provides that probation begins “upon release from incarceration.” Appellant’s

Appendix at 7.




                                             5
       By statute, a trial court may revoke a person’s probation if the person has violated a

condition of probation during the probationary period. Ind. Code Ann. § 35-38-2-3 (West,

Westlaw current with all 2013 legislation). As this court stated in Baker v. State, 894 N.E.2d

594, 596 (Ind. Ct. App. 2008) (quoting Ashba v. State, 570 N.E.2d 937, 939 (Ind. Ct. App.

1991)), regarding when a person’s probationary period begins and considering federal-court

reasoning on the subject, as a matter of “‘sound policy . . . courts should be able to revoke

probation for a defendant’s offense committed before the sentence commences,’” as “‘an

immediate return to criminal activity is more reprehensive than one which occurs at a later

date.’” The statute permits the trial court to terminate probation before a defendant has

completed serving his sentence or may revoke probation before the defendant enters the

probationary phases of his sentence. Ashba v. State, 570 N.E.2d 937 (Ind. Ct. App. 1991). A

defendant’s probationary period begins immediately after sentencing. Baker v. State, 894

N.E.2d 594 (Ind. Ct. App. 2008).

       The trial court could have ordered that Simons serve the entirety of her previously

suspended sentence based on the community corrections violation alone. I.C. § 35-38-2.6-5

provides that when a person placed in a community corrections program violated the terms of

the placement, the trial court may, among other things, revoke the placement and commit the

person to the Department of Correction for the remainder of the person’s sentence.

Application of the principle from Ashba to the context of revocation of the community

corrections placement has resulted in the holding that under the language of the statute, there

is nothing expressly limiting a trial court’s discretion to revoke a placement in community


                                              6
corrections to those occasions when the violation occurs during the period of placement.

Million v. State, 646 N.E.2d 998 (Ind. Ct. App. 1995).

      Simons’s arguments that she was without notice that she could have her probation

revoked because of her behavior in community corrections is unavailing. Simons was given

and signed the terms of her probation on the day she was sentenced. One of those terms

prohibited her use or possession of alcohol, and prohibited her from entering a place where

admittance is allowed only to those who are more than twenty-one years of age, except as

necessary for purposes of employment. Simons was put on notice that the successful

completion of any executed time was a condition of her probation, and that she was required

to be compliant with all conditions of the work-release program. The trial court did not

abuse its discretion by revoking a portion of Simons’s probation.

      Judgment affirmed.

MATHIAS, J., and PYLE, J., concur.




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