Pursuant to Ind.Appellate Rule 65(D),
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,
                                                                 FILED
                                                              Jun 11 2012, 9:58 am
collateral estoppel, or the law of the case.
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ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

WILLIAM S. FRANKEL, IV                              GREGORY F. ZOELLER
Wilkinson, Goeller, Modesitt,                       Attorney General of Indiana
 Wilkinson & Drummy, LLP
Terre Haute, Indiana                                JOSEPH Y. HO
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL L. CRISS,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 84A05-1111-CR-632
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE VIGO SUPERIOR COURT
                           The Honorable David R. Bolk, Judge
                             Cause No. 84D03-0811-FC-3590


                                          June 11, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                       Case Summary

       Michael L. Criss (“Criss”) appeals an order revoking his community corrections

placement and committing him to the Indiana Department of Correction (“the DOC”) to

serve three years of his sentence for Battery, as a Class C felony. He presents the sole issue

of whether the revocation was improperly predicated upon his failure to pay intake fees,

despite his financial inability to do so. We affirm.

                               Facts and Procedural History

       On March 29, 2010, Criss pled guilty to Battery; he was sentenced to four years

imprisonment, with two years suspended and two years to be served in the Vigo County

Community Corrections Program (“the Work Release Program”). Criss was ordered to begin

his sentence in work release within thirty days. After sentencing, Criss contacted the Work

Release Program and was given a reporting time of 9:00 a.m. on June 2, 2010.

       Criss did not report as scheduled on June 2, 2010. On June 4, 2010, a letter from

Criss, dated June 3, 2010, was filed in the Vigo County Superior Court. In the letter, Criss

asked for an extension of time to report to work release, due to a job loss and inability to pay

work release intake fees.

       On June 8, 2010, the State filed a petition to revoke Criss’s probation and placement

in the Work Release Program. The trial court set the matter for hearing on June 21, 2010.

Mail to Criss was returned due to an incorrect address, and he did not appear on the hearing

date. A warrant was issued for his arrest. On September 7, 2011, Criss appeared in police

custody and the petition to revoke probation was again set for hearing.

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       On October 6, 2011, the trial court heard evidence, found that Criss had violated the

terms of his probation, revoked his Work Release Program placement, and ordered three

years of his sentence to be served in the Indiana Department of Correction. This appeal

ensued.

                                   Discussion and Decision

       Criss concedes that he did not timely report to the Work Release Program. However,

he maintains that his failure to do so is attributable to an inability to pay intake fees, and that

the trial court should not revoke probation when he is unable to comply with its terms.

       A reviewing court treats a petition to revoke a placement in a community corrections

program the same as a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind.

1999). Community corrections is “a program consisting of residential and work release,

electronic monitoring, day treatment, or day reporting[.]” Ind. Code § 35-38-2.6-2. A

defendant is not entitled to serve a sentence in either probation or a community corrections

program. Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009). Rather, such

placement 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).

       Probation may be revoked for violation of a probation condition but, for violations of

financial conditions, only if the probationer recklessly, knowingly, or intentionally fails to

pay. Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010). The State must prove the violation

by a preponderance of the evidence. Id. If a defendant violates the terms of his placement in

community corrections, the court may, after a hearing:

                                                3
       (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.

       The State presented evidence that Criss did not report, as directed, to the Work

Release Program within thirty days of sentencing. He provided no reason to the court within

the thirty-day period. After failing to report, he filed a pro-se letter with the court; however,

it included no address. Mail from the court was returned for lack of a proper address, and

Criss had no further contact with the court until he was taken into custody in 2011. The State

established that Criss violated a term of his placement – he did not timely appear. Pursuant

to Indiana Code Section 35-38-2.6-5(3), the trial court had the option of revoking Criss’s

placement and committing him to the DOC to serve a portion of his sentence.

       Criss may in fact be indigent. However, his placement was not revoked for failure to

satisfy financial obligations. He cites no authority for the proposition that a trial court is

obligated to continue an indigent individual’s placement even though he fails to timely report

to his placement facility or provide a valid address. Criss has demonstrated no error of law

or abuse of discretion on the part of the trial court.

       Affirmed.

ROBB, C.J., and MATHIAS, J., concur.




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