                                                                      Mar 31 2015, 9:47 am




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Jay Rodia                                                 Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Tyree Hill,                                               March 31, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1409-CR-632
              v.                                                Appeal from the Marion Superior
                                                                Court

      State of Indiana,                                         The Honorable Gary L. Miller, Judge
      Appellee-Plaintiff
                                                                Cause No. 49G21-1307-FD-47406




      Najam, Judge.


                                        Statement of the Case
[1]   Tyree Hill appeals the trial court’s order for him to serve the entirety of his

      original sentence in the Department of Correction (“DOC”) following the

      court’s revocation of his placement on home detention. Hill raises a single issue

      for our review, namely, whether the trial court abused its discretion when it

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      resentenced him without expressly taking into account evidence that Hill claims

      demonstrates that he has a mental disability. We reject this argument on

      appeal. However, because it is clear from the face of the trial court’s sentencing

      order that it erred when it ordered Hill to serve the entirety of his previously

      suspended sentence in the DOC without credit for the time Hill had served on

      home detention, we reverse and remand for resentencing.


                                  Facts and Procedural History
[2]   On September 26, 2013, Hill pleaded guilty to strangulation, a Class D felony,

      and resisting law enforcement, as a Class A misdemeanor. Pursuant to the

      terms of his plea agreement, the trial court sentenced Hill to 730 days on home

      detention with GPS monitoring, which were to be served through the Marion

      County Community Corrections program. According to the conditions of his

      placement on home detention, Hill was not permitted to leave his residence

      except for traveling to and from a fixed location for employment or if Hill had

      received permission from his case manager at least forty-eight hours

      beforehand.


[3]   On February 7, 2014, Troy Blazier, Hill’s case manager, discussed with Hill

      several unapproved absences Hill had committed, and Blazier formally warned

      Hill that he must not leave his residence without permission. Nonetheless, on

      July 11, Blazier received an alert that Hill had left his residence without

      permission. On July 12, Blazier received another alert.




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[4]   On July 15, the State filed a notice of community corrections violation against

      Hill. The trial court held a hearing on the notice on August 13. At that

      hearing, Hill’s sister, Terrin York, testified that Hill suffers from “a mental

      disability. He has a shunt in his head . . . to help him function and [to] keep

      water off his brain.” Tr. at 12. But Hill had informed Blazier that his absence

      on July 11 was due to a trip to the grocery store, and his absence on July 12 was

      to attend a family reunion.


[5]   The trial court found that Hill violated the terms of his home detention when he

      left his residence for unapproved reasons on July 11 and July 12. Accordingly,

      the court revoked Hill’s placement in home detention. The court then

      addressed the proper amount of credit time to which Hill was entitled, as

      follows:

              Well, because of that other case, I don’t know whether he’s
              entitled to credit time on this case or not. I can’t tell from the
              orders. . . . Under the circumstances, we will show that
              placement at Community Corrections is revoked. The balance of
              the sentence will be imposed. . . . That will be, at least, 730 days
              at the [DOC], less whatever credit you are legally entitled to.


      Id. at 29-30. However, in its ensuing written sentencing order, the trial court

      ordered Hill to serve his entire original 730-day sentence in the DOC, with only

      sixteen days of credit time awarded. Those sixteen days reflected Hill’s actual

      days incarcerated immediately prior to the court’s hearing on the State’s notice

      of community corrections violation. Appellant’s App. at 13. This appeal

      ensued.

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                                      Discussion and Decision
[6]   Hill appeals the trial court’s order that he serve the entirety of his original

      sentence following the court’s revocation of his home detention. Generally, 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, placement in either is a ‘matter of grace’ and a ‘conditional liberty that

      is a favor, not a right.’” Id. (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind.

      1999)). Once a court has exercised this grace, the judge has considerable

      leeway in deciding how to proceed. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

      2007). It is thus within the discretion of the court to determine the conditions

      of the defendant’s placement and to revoke that placement if those conditions

      are violated. Heaton, 984 N.E.2d at 616. Accordingly, a court’s placement

      decision is subject to review for abuse of discretion. Smith v. State, 963 N.E.2d

      1110, 1112 (Ind. 2012). An abuse of discretion occurs where the decision is

      clearly against the logic and effects of the facts and circumstances before the

      court. Id.


[7]   Under Indiana Code Section 35-38-2.6-5:

              If a person who is placed [in a community corrections program]
              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.



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              (3) Revoke the placement and commit the person to the
              department of correction for the remainder of the person’s sentence.


      (Emphasis added.)


[8]   Here, Hill’s only argument on appeal is that the trial court abused its discretion

      when it did not account for his mental disability when it resentenced him. For

      support, he cites Patterson v. State, 659 N.E.2d 220, 222-23 (Ind. Ct. App. 1995),

      in which we stated: “The probationer’s mental state at the time and under the

      circumstances of the alleged violation is a factor to be considered. We therefore

      hold that, at a minimum, a probationer’s mental state must be considered in the

      dispositional determination of a probation revocation proceeding.”


[9]   However, in Patterson, the probationer was alleged to have violated the

      conditions of his probation when he committed a new criminal offense.

      Indeed, our statement above was couched in that context: “[b]ecause the

      conduct” alleged to have been a violation of the conditions of probation “must

      be unlawful, this requirement of proof would seem to contemplate a degree of

      culpability with regard to the alleged conduct.” Id. at 222. And even if the

      probationer were to present evidence on his behalf, this would not necessarily

      be “dispositive” on appeal, as it is “well within the prerogative of the [trial]

      court to determine that, notwithstanding the asserted mental condition, the

      circumstances [of the probationer’s conduct] indicated a knowing or intentional

      course of conduct.” Id. at 223.




      Court of Appeals of Indiana | Opinion 49A02-1409-CR-632 | March 31, 2015       Page 5 of 7
[10]   Patterson is easily distinguished from Hill’s case. First, Hill was not alleged to

       have committed a new crime; rather, he was alleged to have left his residence

       without authorization. Hill presents no cogent argument that the “degree of

       culpability” required to commit a crime is equivalent to that required to leave a

       residence. Id. at 222. Moreover, insofar as Hill did present evidence of his

       alleged mental disability for the trial court to take into account, that evidence

       consisted solely of his sister’s testimony. It was within the court’s discretion to

       give that testimony little or no weight, and we will not reweigh that evidence on

       appeal. See id. at 223.


[11]   Nonetheless, while we disagree with Hill’s argument on appeal, the trial court

       did err when it ordered Hill to serve the entirety of his original sentence without

       any credit for the time he had spent on home detention. “A sentence which is

       contrary to, or violative of, the penalty mandated by the applicable statute is an

       illegal sentence.” Lockhart v. State, 671 N.E.2d 893, 904 (Ind. Ct. App. 1996).

       “It is the duty of appellate courts to bring illegal sentences into compliance.”

       Devaney v. State, 578 N.E.2d 386, 389 (Ind. Ct. App. 1991) (quotation omitted).

       Thus, even though Hill does not raise this issue, we will address it sua sponte.

       E.g., Young v. State, 901 N.E.2d 624, 626 (Ind. Ct. App. 2009), trans. denied.


[12]   As our supreme court has explained:


               We believe the legislature’s intent is made clear by its language in
               Ind. Code § 35-38-2.6-5 (1993): “If a person who is placed [in a
               community corrections program] violates the terms of the
               placement, the court may . . . [r]evoke the placement and commit
               the person to the department of correction for the remainder of the

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               person’s sentence” (emphasis supplied). If an offender was not
               entitled to credit for time served, the commitment after
               revocation would not be for the “remainder” of the offender’s
               sentence but for the entire sentence.


       Purcell v. State, 721 N.E.2d 220, 223 (Ind. 1999) (alterations original). Here, the

       trial court did not give Hill credit for the time he had served on home detention.


[13]   The State asserts in a footnote in its brief that the trial court “apparently

       believed that Hill’s credit for time served on home detention would apply to

       another case of Hill’s.” Appellee’s Br. at 2 n.1. But while the court’s

       sentencing order states that Hill’s credit time in the instant matter is to be

       applied to another cause number, the sentencing order calculates that credit

       time as sixteen days, which reflects only the time Hill was incarcerated prior to

       the hearing on the revocation of his placement in the community corrections

       program. The order does not account for the time Hill actually served on home

       detention. As such, we are not persuaded that the trial court properly credited

       Hill with all the time to which he is entitled by statute. We reverse the court’s

       sentencing order and remand with instructions that the court resentence Hill

       and give him credit for time he served on home detention.


[14]   Reversed and remanded with instructions.


       Mathias, J., and Bradford, J., concur.




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