 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,             Sep 03 2014, 10:18 am
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
DANIEL DIXON                                       GREGORY F. ZOELLER
Lawrence County Public Defender Agency             Attorney General of Indiana
Bedford, Indiana
                                                   JUSTIN F. ROEBEL
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

KRISTEN SHANE LESTER,                              )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )        No. 47A01-1402-CR-95
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                APPEAL FROM THE LAWRENCE SUPERIOR COURT I
                        The Honorable Michael A. Robbins, Judge
        Cause Nos. 47D01-1011-FD-1378, 47D01-1012-FD-1408, 47D01-1101-FD-60


                                        September 3, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
          Kristen Lester (“Lester”) appeals the order of the Lawrence Superior Court

revoking Lester’s direct placement in community corrections and placing him in the

custody of the Indiana Department of Correction (“DOC”). On appeal, Lester claims that

the trial court was without jurisdiction and authority to modify his placement in

community corrections.

          We affirm.

                                    Facts and Procedural History

          On December 12, 2011, Lester entered into plea agreements in three causes: Cause

No. 47D01-1011-FD-1378 (“Cause No. FD-1378”), Cause No. 47D01-1012-FD-1408

(“Cause No. FD-1408”), and Cause No. 47D01-1101-FD-60 (“Cause No. FD-60”). In

these agreements, Lester pleaded guilty to Class D felony theft, Class D felony receiving

stolen property, and Class D felony operating a vehicle while a habitual traffic violator.

Lester also admitted to being an habitual offender. The trial court accepted Lester’s pleas,

and that same day, sentenced Lester pursuant to the plea agreement as follows: in Cause

No. FD-1387, an executed sentence of one and one-half years for theft, enhanced by three

years as a result of the habitual offender adjudication; in Cause No. FD-1408, an

executed sentence of one and one-half years, to be served consecutively to the sentence in

Cause No. FD-1378;1 and in Cause No. FD-60, an executed sentence of one and one-half

years, to be served consecutively to the sentences in the other two causes. Pursuant to the

terms of the plea agreement, Lester was ordered to serve his sentences “executed” in



1
    In Cause No. FD-1408, Lester’s driver’s license was also suspended for life.

                                                      2
direct placement at the Wabash Valley Community Corrections Male Work Release

Center. See Appellant’s App. pp. 25, 29, 30, 35, 37, 42.

       On December 31, 2012, Lester violated the terms of his placement by leaving the

Wabash Valley Community Corrections Male Work Release Center and not returning.

On October 11, 2013, the State filed a motion requesting that the trial court revoke

Lester’s direct placement in community corrections and order him to serve the remainder

of his sentence in the DOC. Lester responded on December 4, 2013, by filing a motion to

dismiss the State’s motion to revoke, claiming that the trial court lacked jurisdiction to

revoke Lester’s placement. The trial court held a hearing on the matter on December 18,

2013, and the following day entered an order denying Lester’s motion to dismiss.

       At a revocation hearing held on January 22, 2014, the trial court found that the

State had met its burden of proving that Lester had violated the terms of his direct

placement in community corrections. At a dispositional hearing held on January 29,

2014, the trial court ordered Lester to serve the remainder of his sentence at the DOC.2

Lester now appeals.

                                    Standard of Review

       We have explained before that:

       [f]or purposes of appellate review, we treat a hearing on a petition to revoke
       a placement in a community corrections program the same as we do a
       hearing on a petition to revoke probation. The similarities between the two
       dictate this approach. 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. A defendant is not entitled to serve a

2
  Lester had 790.5 days remaining on his sentence in Cause No. FD-1378 and 67.5 days left on his
sentence in Cause No. FD-60. Lester had completed his sentence in Cause No. FD-1408.

                                               3
       sentence in either 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.
                                            ***
       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 the 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.

Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009) (citations and internal

quotations omitted). Here, the parties also contest the applicability of certain statutes.

The interpretation of statutes is a pure question of law that we review de novo. Pittman v.

State, 9 N.E.3d 179, 183 (Ind. Ct. App. 2014).

                                    Discussion and Decision

       Lester claims that the trial court lacked jurisdiction and authority to alter his

placement in community corrections.              A defendant may be placed in community

corrections as a condition of probation or as a direct placement. See Shaffer v. State, 755

N.E.2d 1193, 1194-95 (Ind. Ct. App. 2001) (Vaidik, J., concurring). Here, Lester was

placed in community corrections as a direct placement, not as a condition of probation.

Such direct placement into community corrections is governed by Indiana Code chapter

35-38-2.6.3 This chapter applies to defendants convicted of a felony whenever any part




3
  We refer to the version of the statutes in effect at the time of Lester’s sentence and the revocation
hearing.

                                                  4
of the sentence may not be suspended under Indiana Code sections 35-50-2-24 or 35-50-

2-2.1.5 Here, except as provided in Chapter 2.6, the trial court could not suspend any

portion of the sentences for Lester’s Class D felony convictions that was in excess of the

minimum sentence for a Class D felony because Lester had been convicted of other

felonies and been on probation within the past three years. See I.C. § 35-50-2-2(b)(3)

(2013).6

        Pursuant to Indiana Code section 35-38-2.6-3(a) (2013), the trial court can: “at the

time of sentencing, suspend the sentence and order a person to be placed in a community

corrections program as an alternative to commitment to the department of correction.

The court may impose reasonable terms on the placement.”7 And, under Indiana Code

section 35-38-2.6-4 (2013), “[i]f the court places a person in a community corrections

program under this chapter, the court shall suspend the sentence for a fixed period to end


4
  This section provides limits on when a trial court can suspend a sentence for a felony. Relevant here is
the provision which provides that a trial court can suspend only that portion of a sentence for a Class D
felony that was in excess of the minimum sentence if “less than three (3) years have elapsed between the
date the person was discharged from probation, imprisonment, or parole, whichever is later, for a prior
unrelated felony conviction and the date the person committed the Class D felony for which the person is
being sentenced.” Ind. Code § 35-50-2-2(b)(3) (2013).
5
  This section provides limits on when a trial court can suspend a sentence for a person convicted of a
felony who also had a juvenile record consisting of acts that would have been certain felonies had they
been committed by an adult. Ind. Code § 35-50-2-2.1 (2013).
6
  The State cites Reffett v. State, 844 N.E.2d 1072, 1074 (Ind. Ct. App. 2006), for the proposition that no
part of a habitual offender enhancement can be suspended. See also Howard v. State, 873 N.E.2d 685,
690-91 (Ind. Ct. App. 2007) (following Reffett). We note, however, that other cases from this court have
disagreed with Reffett and since held that a trial court may suspend habitual offender and habitual
substance offender enhancements, subject to the general, statutory non-suspension rules. See Kilgore v.
State, 922 N.E.2d 114, 120 (Ind. Ct. App. 2010); Bauer v. State, 875 N.E.2d 744, 749 (Ind. Ct. App.
2007).
7
  Such placement is also subject to availability of residential beds or home detention units and also
subject to the community corrections program receiving a pre-sentence investigation report from the
probation agency. See I.C. § 35-38-2.6-3(b), (d).

                                                    5
not later than the date the suspended sentence expires.” (emphasis added). Particularly

relevant to the present case, Section 5 of this chapter stated:

       If a person who is placed under this chapter violates the terms of the
       placement, the court may, after a hearing, do any of the following:
          (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.

I.C. § 35-38-2.6-5 (2013).

       Here, Lester does not deny the allegations that he failed to return to the

community corrections program and thereby violated the terms of his placement. This

case would therefore seem to call for a straight-forward application of Section 5, under

which the trial court was well within its discretion to revoke Lester’s placement and

commit him to the DOC.

       Lester, however, claims that Section 5, and indeed, all of Chapter 2.6, is

inapplicable to him because the trial court ordered that he serve his sentence “executed”

in community corrections as opposed to “suspended” in community corrections. More

specifically, Lester claims that all of Chapter 2.6 is applicable only to those who have

been placed in direct placement in community corrections and have had their sentences

“suspended.” Here, however, both the plea agreements and the trial court’s sentencing

orders stated that Lester was to serve his sentences “executed” in community corrections.

See Appellant’s App. pp. 25, 29, 30, 35, 37, 42. For the reasons explained below, we

disagree with Lester.




                                              6
       This court has recognized before that the traditional “bright line between

suspended-sentence punishments and executed-sentence punishments has been blurred by

the implementation of . . . new[er] alternative programs.” Gardner v. State, 678 N.E.2d

398, 401 (Ind. Ct. App. 1997). In particular, “[t]he community corrections program

presents a hybrid between conditions of probation for a suspended sentence and executed

sentence punishments.” Tubbs v. State, 888 N.E.2d 814, 816 (Ind. Ct. App. 2008) see

also Gardner, 678 N.E.2d at 401 (“With the community corrections programs . . . we

have a hybrid punishment involving a suspended sentence which may be revoked, yet

requires the defendant receive credit for time served.”).

       Thus, the fact that the plea agreements and sentencing orders stated that Lester

was to serve his sentences “executed” in community corrections is not dispositive,

because community corrections is somewhere in between a traditional “executed”

sentence in the DOC and a traditional “suspended” sentence subject to the terms of

probation. Indeed, with regard to the community corrections statutes, our supreme court

has held that “the legislature’s reference to a ‘suspended sentence’ . . . means that any

requirement that the offender actually serve time incarcerated through the Department of

Correction (commonly referred to as “executed time”) is suspended during the

community corrections placement period.” Purcell v. State, 721 N.E.2d 220, 223 (Ind.

1999). Thus, by ordering Lester to serve his sentences in community corrections, the trial

court necessarily “suspended” the requirement that he serve the non-suspendible portions




                                             7
of his sentences in the DOC. The reference in the plea agreements and sentencing orders

to Lester serving his sentences “executed” does not alter this.8

        We therefore conclude that Lester’s placement in community corrections was

subject to Indiana Code chapter 35-38-2.6, and more specifically Indiana Code section

35-38-2.6-5, which clearly authorizes the trial court to revoke Lester’s placement in

community corrections and order him to serve the remainder of his sentences in the DOC.

        Lester’s argument that the plea agreement requires that he serve all of his time in

community corrections is accordingly unavailing. There is no authority outside the

statutory framework that would allow the trial court to sentence Lester to some sort of

non-statutory placement in community corrections that is not subject to revocation. Nor

do we think that allowing the trial court to revoke Lester’s placement in community

corrections is a violation of the terms of his plea agreement. By agreeing to be placed in

community corrections, Lester necessarily agreed to be subject to revocation of such

placement.9

                                             Conclusion

        The trial court did not lack jurisdiction or authority to revoke Lester’s direct

placement in community corrections. By placing Lester in community corrections, the

trial court necessarily suspended that portion of the Lester’s sentences that could not be

otherwise suspended. The statute granting the trial court the authority to sentence Lester

8
  The references to Lester serving his sentence “executed” in community corrections should instead be
understood to refer to the fact that, unlike probation, a defendant serving a sentence in community
corrections earns credit for the time served. See Gardner, 678 N.E.2d at 401.
9
  Indeed, defendants often enter into plea agreements wherein they will be placed on probation, yet it is
understood that such probation may be revoked if they fail to abide by the terms of probation.

                                                   8
to direct placement in community corrections also provides that the trial court may

revoke the placement if the defendant violates the terms of his placement. Therefore, the

trial court did not err in denying Lester’s motion to dismiss the State’s petition to revoke

Lester’s placement in community corrections, nor did the trial court abuse its discretion

in revoking Lester’s placement in community corrections after Lester left and failed to

return to community corrections. We therefore affirm the judgment of the trial court.

       Affirmed.

RILEY, J., and CRONE, J., concur.




                                             9
