                                                                                FILED
                                                                            Apr 18 2018, 9:28 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Christopher Sturgeon                                       Curtis T. Hill, Jr.
Clark County Public Defender’s Office                      Attorney General of Indiana
Jeffersonville, Indiana                                    J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Michael Flowers,                                           April 18, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           10A01-1703-CR-586
        v.                                                 Appeal from the Clark Circuit
                                                           Court
State of Indiana,                                          The Honorable Andrew Adams,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           10C01-1006-FB-108



Brown, Judge.




Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018                       Page 1 of 15
[1]   Michael Flowers appeals the trial court’s revocation of his placement in a

      community corrections program. Flowers raises one issue which we revise and

      restate as whether the doctrine of res judicata precludes the trial court’s

      revocation of his placement. We reverse and remand.


                                         Facts and Procedural History

[2]   On September 27, 2012, Flowers entered a plea agreement in which he agreed

      to plead guilty to aggravated battery as a class B felony and the State agreed to

      dismiss the remaining counts against him. The plea agreement provided that

      Flowers would be sentenced to sixteen years executed at the Department of

      Correction and that the State had no objection to Flowers serving the “last six

      (6) year term (three (3) years actual) in the Clark County Work Release

      Program.”1 Appellant’s Appendix Volume II at 140. The court’s sentencing

      order states that it accepted Flowers’s plea and “sentences [him] to the Indiana

      Department of Correction for a sixteen (16) year-executed term of

      imprisonment.” Id. at 156. The order also states: “The State has no objection

      to [Flowers] serving the last six (6) year term (three (3) years actual) in the Clark

      County Work Release Program if approved by the Court.” Id.




      1
        Both parties cite to a copy of the plea agreement found in the presentence investigation report. The table of
      contents in the Appellant’s Appendix lists “Statement of Plea Agreement; September 27, 2012” as appearing
      on pages 114-121. Appellant’s Appendix Volume I at 4. Unlike the plea agreement found in the presentence
      investigation report, the plea agreement beginning on page 114 includes the handwritten phrase “IF
      APPROVED BY THE COURT” following the statement: “The State has no objection to the Defendant
      serving the last six (6) year term (three (3) years actual) in the Clark County Work Release Program.”
      Appellant’s Appendix Volume II at 117.

      Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018                           Page 2 of 15
[3]   On December 7, 2016, the State filed a Petition to Revoke Placement in

      Community Corrections Work Release alleging that Flowers failed to follow

      the rules of the Clark County Community Corrections Program by: “[p]ositive

      drug screen for Methamphetamine on 11/22/2016. Mr. Flowers admitted to

      the use of Methamphetamine and signed an admission form stating that he used

      said substance on 12/7/2016”; having “multiple late returns to the work release

      facility ranging from 5 minutes to over an hour”; and being in arrears in

      program fees in the amount of $7,210.50. Id. at 161.


[4]   On January 18, 2017, the court held a hearing on the petition to revoke

      placement. Flowers admitted to the violations. Valerie, Flowers’s case

      manager, indicated she believed Flowers’s behavior would prevent him from

      qualifying to re-enter community corrections. She testified that Flowers “could

      not comply with the terms and conditions of Work Release.” Transcript

      Volume II at 18. The prosecutor recommended that Flowers serve the

      remainder of his sentence in the Department of Correction. Flowers’s counsel

      recommended that the court modify the sentence and order Flowers to serve the

      balance of his sentence on home incarceration. The court found that Flowers

      violated the terms and conditions of work release, granted the change of

      placement, and stated that “the executed portion, balance of the executing

      portion of the sentence be served as a direct placement in the Clark County




      Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018   Page 3 of 15
      Community Corrections and is given credit for forty-two (42) actual days good

      time credit.”2 Id. at 28.


[5]   On January 24, 2017, Flowers’s counsel filed a Notice of Withdrawal of Public

      Defender. On January 26, 2017, the court held a hearing3 at which it stated, “I

      think that you entered, placed you back on the, to Community Corrections,”

      and “[f]or some reason, Judge, I was out, Judge South has not been back to sign

      an order. I went ahead and signed it.” Id. at 29. The court informed Flowers

      “this is a zero tolerance policy,” and Flowers stated that he understood. Id.

      The court also told Flowers that it was sending him to the community

      corrections program.4


[6]   In a letter dated January 31, 2017, Clark County Community Corrections

      Director Lindon Dodd wrote to the trial court informing it that the Clark

      County Community Corrections “feels that . . . Flowers no longer qualifies to

      be in this program” and that “[t]here are numerous violations and other actions

      that I feel justified denying him to return to Community Corrections.”




      2
        A chronological case summary (“CCS”) entry dated January 18, 2017, states: “Court orders Defendant be
      placed in the Clark County Community Corrections Program for the remainder of executed sentence, with
      credit for 42 actual days. Senior Judge Nicholas South presiding.” Appellant’s Appendix Volume II at 10.
      The record does not contain a separate order dated January 18, 2017.
      3
          The CCS states that Flowers was represented by counsel.
      4
       A CCS entry states in part: “Defendant to be released to Community Corrections.” Appellant’s Appendix
      Volume II at 11. The record does not contain a copy of a separate order.

      Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018                      Page 4 of 15
      Appellant’s Appendix Volume II at 226. Director Dodd requested that Flowers

      not be returned to the program.


[7]   On February 2, 2017, Flowers filed a letter with the court which stated in part:


              On 1-30-17 I had Jerry from “Jerry’s Place” to speak with
              [Director Dodd] of the Clark County [Community] Corrections
              and was told [Director Dodd] was going to go against the court
              order and not allow [me] to return or be placed in the Clark
              County [Community] Corrections on house arrest because he has
              personal reasons for Director [Dodd] not to let me out of jail.

              I Michael Flowers am asking the Clark County Circuit Court to
              be brought before this court again for a[] possible alternative
              placement of probation over that [Community] Corrections.

              An[d] to be brought before the Clark County Circuit Court an[d]
              be told why [Director Dodd] of the Clark County [Community]
              Corrections can refuse a court order that was signed on 1-26-17
              because of personal reasons.

              And if I can be released until this matter is brought before your
              court I am being illegally detained in the Clark County Jail after
              my placement hearing.

      Id. at 228-229.


[8]   On February 15, 2017, the court held a revocation hearing. At the beginning of

      the hearing, Flowers’s counsel objected to the proceedings and asked the court

      to execute the prior orders made by the court on January 18th. The court noted

      the objection, provided the background of the case, and noted that the court

      was informed on February 1, 2017, that Flowers “did not qualify or that they

      were not accepting Mr. Flowers back into the Community Corrections


      Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018     Page 5 of 15
      Program.” Transcript Volume I at 4. The court stated: “We will note your

      objection to the previously ordered – order of the Court by Senior Judge

      Nicholas South on January 18th, 2017 and we will note that any court order by

      a senior judge can be reviewed by the presiding judge, as well as modified or

      altered by the presiding judge.” Id. The court also stated:


              The problem we have here is Community Corrections isn’t
              willing to accept Mr. Flowers. I can’t order them to accept him,
              it’s their program. Similar to the Department of Corrections, I
              don’t have the authority to tell the Department of Corrections
              what to do. If they’re not willing to accept Mr. Flowers, then I
              don’t have anything but to allow him to serve the remainder of
              his sentence.


      Id. at 4-5.


[9]   Flowers’s counsel then moved to withdraw the admission that was made on

      January 18th, and the court granted the motion. Galadriel Ballard testified that

      Flowers violated the terms and conditions for not using any drugs or substances

      not prescribed by a doctor. He also testified that the late returns resulted in

      unaccounted time which was a violation of the work release process and that

      Flowers did not pay program fees in excess of $7,000. Ballard testified that he

      listed the dates for the late returns of about seventeen in total spanning a little

      over a year. He also testified that it was the position of the Clark County

      Community Corrections that it would not welcome Flowers back to community

      corrections. Director Dodd testified that he thought Flowers was a danger to

      the community and to himself.


      Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018    Page 6 of 15
[10]   Flowers’s counsel made an offer of proof stating that he thought the testimony

       would show that Flowers was a suspect or a person of interest in a murder

       investigation of two people that involved a cell phone that was allegedly

       identified to “this individual” and that Flowers would “deny any involvement

       in any of that sort of thing.” Id. at 19. The court noted the offer of proof.


[11]   The prosecutor requested the court to find that Flowers violated the terms of the

       work release program and that he serve the remainder of his sentence.

       Flowers’s counsel asked the court to find that the punishment that had been

       imposed on Flowers to that point was adequate “for those violations, if

       accepted as true, and to direct the Community Corrections to accept him as

       Judge South had and to disregard, as the Court indicated, the underlying real

       reasons as to why we’re here.” Id. at 20.


[12]   The court found that Flowers violated the terms of the community corrections

       program and granted the request of the community corrections program to

       revoke Flowers’s placement in the program.


                                                     Discussion

[13]   The issue is whether the doctrine of res judicata precludes the trial court’s

       revocation of Flowers’s placement in the community corrections program.

       Flowers asserts that the February 15, 2017 hearing on the State’s petition to

       revoke placement in community corrections was barred by res judicata. The

       State argues that the doctrine of res judicata did not bar the revocation of

       Flowers’s placement in community corrections. It asserts that Flowers’s status

       Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018   Page 7 of 15
       or his placement with community corrections was heard over the course of

       three separate hearings and that evidence at the third hearing was not presented

       at the earlier two hearings. The State also asserts that the doctrine of res judicata

       does not apply to a proceeding like this one, which is not treated as an

       adversarial criminal proceeding.


[14]   The Indiana Supreme Court has held that “[r]es judicata is a legal doctrine

       intended ‘to prevent repetitious litigation of disputes that are essentially the

       same, by holding a prior final judgment binding against both the original parties

       and their privies.’” Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 993 (Ind.

       2014) (quoting Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013)). “It applies

       ‘where there has been a final adjudication on the merits of the same issue

       between the same parties.’” Id. (quoting Gayheart v. Newnam Foundry Co., Inc.,

       271 Ind. 422, 426, 393 N.E.2d 163, 167 (1979)).


[15]   Generally, Ind. Code § 11-12-1-1 defines a community corrections program as:


               a community based program that provides preventive services,
               services to offenders, services to persons charged with a crime or
               an act of delinquency, services to persons diverted from the
               criminal or delinquency process, services to persons sentenced to
               imprisonment, or services to victims of crime or delinquency, and
               is operated under a community corrections plan of a county and
               funded at least in part by the state subsidy provided in IC 11-12-
               2.


       Ind. Code § 35-38-2.6-2 defines a community corrections program as “a

       program consisting of residential and work release, electronic monitoring, day


       Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018   Page 8 of 15
       treatment, or day reporting that is: (1) operated under a community corrections

       plan of a county and funded at least in part by the state subsidy provided under

       IC 11-12-2; or (2) operated by or under contract with a court or county.” Ind.

       Code § 35-38-2.6-4.2(a) provides that “[a] community corrections program shall

       establish written criteria and procedures for determining if an offender or

       alleged offender is eligible for direct placement supervision under this chapter.”

       Ind. Code § 35-38-2.6-4.2(b) provides that “[t]he criteria and procedures

       established under subsection (a) must establish a record keeping system that

       allows the department or community corrections program to quickly determine

       if an offender or alleged offender is in violation of the terms of a direct

       placement order issued under this chapter.” We also observe that Ind. Code §

       33-23-2-4 provides: “All courts retain power and control over their judgments

       for ninety (90) days after rendering the judgments in the same manner and

       under the same conditions as they retained power and control during the term

       of court in which the judgments were rendered.”


[16]   We have previously held:


               For 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 [Department of Correction]
               and both are made at the sole discretion of the trial court. A
               defendant is not entitled to serve a sentence in either probation or
               a community corrections program. Rather, placement in either is



       Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018      Page 9 of 15
                a matter of grace and a conditional liberty that is a favor, not a
                right.


       Withers v. State, 15 N.E.3d 660, 663-664 (Ind. Ct. App. 2014) (quoting Monroe v.

       State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009) (citations and quotation marks

       omitted)).


[17]   To the extent Flowers asserts that there was nothing new at the February 15th

       hearing, we disagree. Following the trial court’s order in January that Flowers

       be placed in the community corrections program, the director of the community

       corrections program informed the court that he felt justified denying Flowers’s

       return to community corrections and requested that Flowers not be returned to

       the program. Further, Flowers sent a letter to the court essentially requesting a

       hearing. Under these circumstances and in light of Ind. Code § 33-23-2-4, we

       cannot say that the doctrine of res judicata warrants reversal.5


[18]   Nonetheless, we believe the trial court’s analysis was flawed in two respects

       warranting remand for reconsideration and entry of a new order. First, we note

       that the trial court stated at the February 15, 2017 hearing that “any court order

       by a senior judge can be reviewed by the presiding judge, as well as modified or




       5
         To the extent Flowers cites Shumate v. State, 718 N.E.2d 1133 (Ind. Ct. App. 1999), we do not find that case
       instructive. In Shumate, we addressed whether a decision by this Court reversing the revocation of probation
       constituted a final judgment on the merits that precluded relitigation. 718 N.E.2d at 1135. We held that the
       reversal of the trial court’s judgment revoking Shumate’s probation was a judgment on the merits and
       satisfied the “judgment on the merits” element of res judicata. Id. at 1136. Here, we are not confronted with
       a prior appellate decision reversing a revocation of a placement in community corrections. Thus, we find
       Shumate distinguishable.

       Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018                         Page 10 of 15
       altered by the presiding judge.” Transcript Volume I at 4. This statement

       equates the role and authority of a senior judge with that of a commissioner or a

       magistrate, which finds no support in the law. Ind. Code § 33-23-3-3 sets forth

       the powers and duties of senior judges and plainly states that a senior judge

       who is appointed to serve in a county may, with the consent of the circuit court

       judge (which, presumably, occurred in this case, as Judge South was permitted

       to preside over the first revocation hearing) “sit as the judge of the consenting

       judge’s court in any matter as if the senior judge were the elected judge or

       appointed judge of the court.” In other words, a court order entered by a senior

       judge must be treated precisely the same as any order entered by any presiding

       judge. The trial court was, in fact, entitled to revisit Judge South’s order, but

       not because of his status as a senior judge. Instead, the trial court was permitted

       to do so by virtue of Ind. Code § 33-23-2-4, which, as previously noted,

       provides that all courts “retain power and control over their judgments for

       ninety (90) days after rendering the judgments in the same manner and under

       the same conditions as they retained power and control during the term of court

       in which the judgments were rendered.”


[19]   Second, the trial court believed that its proverbial hands were tied by the refusal

       of Community Corrections to accept Flowers as a client: “The problem we have

       here is Community Corrections isn’t willing to accept Mr. Flowers. I can’t

       order them to accept him, it’s their program.” Transcript Volume 1 at 4-5. This

       analysis is flawed. Ind. Code § 35-38-2.6-5 is the primary statutory source of

       authority given to Community Corrections programs. That statute authorizes


       Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018   Page 11 of 15
       the Community Corrections Director to choose between the following courses

       of action if a client violates the terms of the placement:


               (1) Change the terms of the placement.

               (2) Continue the placement.

               (3) Reassign a person assigned to a specific community
               corrections program to a different community corrections
               program.

               (4) Request that the court revoke the placement and commit the
               person to the county jail or department of correction for the
               remainder of the person’s sentence.

               The community corrections director shall notify the court if the
               director changes the terms of the placement, continues the
               placement, or reassigns the person to a different program.

       Ind. Code § 35-38-2.6-5 (emphasis added). The statute reveals that the

       Community Corrections program is not authorized to make the decision to

       revoke; instead, it must make that request of the court, which then has the

       authority to grant or deny the request. The final sentence of the statute, which

       omits a possibility of a Community Corrections program conducting a sua

       sponte revocation, emphasizes the fact that the program has no right to do so.


[20]   The trial court was incorrect to believe that it was required to accept the

       Community Corrections program’s decision to revoke Flowers’s placement.

       Instead, the trial court should have treated that decision as a request for the

       court to revoke Flowers’s placement, which it would have been free to grant or

       deny. See Morgan v. State, 87 N.E.3d 506, 510 (Ind. Ct. App. 2017) (“With the


       Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018   Page 12 of 15
       statute at issue, the community corrections director is given the ability to

       manage the community corrections program but not to revoke placement or

       resentence participants. Although the community corrections director can

       recommend revocation of placement, it remains the trial court’s duty to

       determine whether revocation will be ordered.”), trans. denied. We also note

       that even if the trial court chose to grant the request that Flowers not be

       readmitted to Community Corrections, it was not bound to remand Flowers to

       the Department of Correction as the court could have considered other

       alternatives as well.


[21]   It may very well be that the trial court will ultimately arrive at the same

       determination. Nevertheless, we remand so that the trial court can reconsider

       its decision by making a proper analysis and then enter a new order.


                                                     Conclusion

[22]   For the foregoing reasons, we reverse and remand.


[23]   Reversed and remanded.


       Baker, J., concurs.


       Riley, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018   Page 13 of 15
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Michael Flowers,                                           Court of Appeals Case No.
                                                                  10A01-1703-CR-586
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Riley, Judge, dissenting.


[24]   I find the majority’s analysis concerning the trial court’s statements about the

       authority of both senior judges and Community Corrections is wholly irrelevant

       to the issue before this court on appeal. Therefore, I dissent. Simply, Indiana

       Code section 33-23-2-4 authorized the trial court to modify the January 18,

       2017 order granting placement in Community Corrections within ninety days.

       During that timeframe, based upon the recommendation of Community

       Corrections that Michael Flowers was not qualified for the program, the trial


       Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018               Page 14 of 15
court properly ordered his revocation in accordance with Indiana Code section

35-38-2.6-5(4). Accordingly, I would affirm the trial court.




Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018   Page 15 of 15
