MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Apr 29 2019, 9:17 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Daniel Hageman                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jabara Kinchen,                                           April 29, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2532
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable Stanley Kroh,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G03-1702-F4-5507



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2532 | April 29, 2019                  Page 1 of 8
[1]   After Jabara Kinchen violated the rules of his work release program, the trial

      court revoked his placement and ordered Kinchen to serve the remainder of his

      previously-suspended four-year sentence at the Indiana Department of

      Correction (DOC). Kinchen appeals and asserts that the trial court abused its

      discretion when it determined that his violations warranted revocation of his

      community corrections placement.


[2]   We affirm.


                                   Facts & Procedural History
[3]   On February 8, 2017, City of Lawrence police responded to a residential

      burglary in progress. On February 10, 2017, the State charged Kinchen with

      Level 4 felony burglary, Level 6 felony theft, and Level 6 felony theft of a

      firearm. On May 10, 2017, Kinchen, age eighteen, entered into a plea

      agreement with the State pleading guilty to Level 4 felony burglary in exchange

      for an agreed sentence and dismissal of the remaining charges. The plea

      agreement called for a sentence of seven years, with four years executed and

      three years suspended, and two years of probation. The four years of executed

      time was to be served through Marion County Community Corrections

      (MCCC). On June 2, 2017, the trial court approved the plea agreement and

      sentenced Kinchen accordingly, and Kinchen was committed to MCCC.

      Pursuant to MCCC’s recommendation, Kinchen began serving his four-year

      executed sentence on home detention with GPS.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2532 | April 29, 2019   Page 2 of 8
[4]   On November 22, 2017, MCCC filed a Notice of Community Corrections

      Violation, alleging nine violations of conditions of MCCC. On December 8,

      2017, Kinchen admitted to violating conditions of community corrections by

      testing positive for THC, leaving his residence without authorization, failing to

      comply with MCCC rules and regulations, failing to maintain contact with

      MCCC, and failing to comply with his monetary obligations. The parties

      entered into an agreed entry on the violation, and the trial court ordered

      Kinchen to serve 100 days in jail after which he would return to community

      corrections monitoring.


[5]   On March 26, 2018, MCCC filed a Notice of Community Corrections

      Violation, alleging that MCCC received an alert of “device communication

      loss” such that Kinchen’s GPS was not providing his location, such that his

      whereabouts were unknown, he failed to maintain contact with MCCC, and

      failed to comply with his monetary obligations. Appellant’s Appendix Vol. II at

      105. At an April 20, 2018 hearing, the violation was withdrawn and Kinchen

      was returned to MCCC.


[6]   On April 24, 2018, MCCC filed a Notice of Community Corrections Violation,

      alleging that on April 21 MCCC received an alert that Kinchen’s GPS device

      was not sending a proper signal but was in motion, “possibly due to the device

      being compromised,” and his whereabouts were unknown for about five hours.

      Id. at 115. The notice also alleged that on April 22 Kinchen left home without

      authorization for about four hours and also failed to comply with monetary

      obligations. At a June 8, 2018 hearing, Kinchen admitted to violating MCCC

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2532 | April 29, 2019   Page 3 of 8
      rules and regulations, and, pursuant to an agreed entry, the trial court modified

      his placement to work release.


[7]   On August 3, 2018, MCCC filed a Notice of Community Corrections

      Violation, alleging that on July 29 and 31 Kinchen failed to comply with the

      rules and regulations of Duvall Residential Center (Duvall) regarding

      conditions of temporary leave and failed to comply with his monetary

      obligations. At the September 21, 2018 contested hearing, case manager Bruce

      Henry testified that at Duvall he supervises residents, including Kinchen, and

      that as a case manager his duties included holding meetings, sending residents

      for drug testing, making programming referrals, and addressing issues of

      misconduct. He stated that all residents are required to watch a video and go

      through an initial orientation in which the facility’s rules are explained to the

      residents and the residents sign an acknowledgement of the rules. Henry

      testified that residents are not free to leave the facility unless certain conditions

      are met, and even when those conditions are met, leaving the facility requires

      prior notice and approval from the case manager. Residents were permitted to

      travel to and from approved locations by bus, walk, or obtaining a ride from

      someone, but if the latter, the driver has to be approved in advance by the case

      manager and has to submit proof of a driver’s license and proof of insurance.

      Henry explained that residents check in and check out through a control center,

      and the center notes the times and dates, allowing the case managers to monitor

      absences.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2532 | April 29, 2019   Page 4 of 8
[8]   Henry stated that he discussed the rules of the facility with Kinchen “multiple

      times,” including the rules for temporary leave in order to go to work.

      Transcript Vol. 2 at 9. Henry testified that he told Kinchen that “when on an

      approved pass” he could only go to the approved location and needed to return

      on time. Id. at 10. Henry testified that Kinchen was approved to leave the

      facility on July 29, 2017 from 10:00 a.m. to 8:00 p.m. to go to work at Goodwill

      from 12:00 p.m. to 6:00 p.m. Kinchen was permitted to travel to work by bus.

      Kinchen returned to Duvall at 9:16 p.m. Henry testified that Kinchen was

      similarly approved to leave Duvall on July 31 from 12:45 p.m. to 10:00 p.m. to

      go to work at Goodwill by bus. Kinchen returned at 11:55 p.m. Henry did not

      give Kinchen permission to stop at any other locations on either July 29 or 31.


[9]   Duvall employee Patty Montgomery testified that she contacted Goodwill

      regarding Kinchen’s work shifts on July 29 and 31 and was advised that he left

      work at 6:00 p.m. on July 29 and 9:00 p.m. on July 31. Tia Stanford, a Duvall

      shift supervisor, testified that, on the evening of July 31, she stopped at the

      Steak & Lemonade restaurant to get dinner before work, and she saw Kinchen

      walk into the restaurant. She observed him arrive in a car, exit it, and walk

      inside with a woman. Stanford recalled that she smelled the odor of marijuana

      when Kinchen and the woman walked up to the counter where she was

      standing. Stanford returned to Duvall and shared with coworkers that she had

      seen him at the restaurant, and she testified that upon Kinchen’s return to

      Duvall the other shift supervisor with her agreed “that yeah, he did smell like

      the aroma of marijuana.” Id. at 31.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2532 | April 29, 2019   Page 5 of 8
[10]   Kinchen testified that, to travel to his job at Goodwill, he had to take two

       busses and walk a mile, and that because of this commute, Henry approved

       employment passes allotting two hours to travel to work and two hours to

       return. Kinchen acknowledged that on July 29 he did not return to Duvall on

       time, stating that he missed a bus. He also acknowledged that he returned late

       to Duvall on July 31. Kinchen denied both that he was in a vehicle and that he

       was at the Steak & Lemonade restaurant on July 31, 2018.


[11]   The trial court found that Kinchen had violated MCCC conditions regarding

       his temporary leave passes for work, revoked his placement on community

       corrections, and ordered that he serve the remainder of his four-year executed

       sentence at the DOC. In doing so, the trial court told Kinchen, “If this was the

       first violation, the Court very likely would be returning you to Community

       Corrections,” but this was a fourth violation and Kinchen had accrued a

       “pattern of violations.” Id. at 49. Kinchen now appeals.


                                        Discussion & Decision
[12]   Placement on probation or in a community corrections program is a matter of

       grace and not a right. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999); Treece v.

       State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014), trans. denied. Probation revocation

       is a two-step process. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). First,

       the court must make a factual determination that a violation of a condition of

       probation actually occurred. Id. Second, if a violation is proven, then the trial

       court must determine if the violation warrants revocation of the probation. Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2532 | April 29, 2019   Page 6 of 8
[13]   If a defendant violates the terms of his placement in community corrections, the

       court may: (1) change the terms of the placement; (2) continue the placement;

       (3) revoke the placement and commit the person to the DOC for the remainder

       of the person’s sentence. Ind. Code §35-38-2.6-5; Toomey v. State, 887 N.E.2d

       122, 124 (Ind. Ct. App. 2008). We review a trial court’s sentencing decision in

       a probation revocation proceeding for an abuse of discretion. Sanders v. State,

       825 N.E.2d 952, 957 (Ind. Ct. App. 2005), trans. denied. We consider only the

       evidence most favorable to the judgment and do not reweigh the evidence or

       judge the credibility of the witnesses. Id. at 954-55.


[14]   In arguing that that the trial court abused its discretion in revoking his

       placement in community corrections, Kinchen highlights that “while serving his

       sentence on community corrections, Kinchen had not been charged with a new

       criminal offense” and urges that sending him to the DOC “did not serve the

       purpose of reformation mandated by Article 1 § 18 of our Indiana Constitution”

       because revocation caused him to lose his Goodwill job and, per Indiana’s risk

       assessment system, unemployment increases likelihood of reoffending.

       Appellant’s Brief at 6, 8. We are unpersuaded by his arguments, and find no

       abuse of discretion in the trial court’s decision to revoke MCCC placement and

       order Kinchen to serve the remainder of his sentence at the DOC.


[15]   Here, as the State observes, the current violations need not be considered “as if

       they existed in a vacuum.” Appellee’s Brief at 12. Indeed, this was the fourth

       Notice of Violation that MCCC had filed since Kinchen’s placement in June



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2532 | April 29, 2019   Page 7 of 8
       2017. 1 By the time of the filing of the current violations, Kinchen had already

       admitted to and accumulated a number of other violations. Other than one

       100-day term in jail, Kinchen had been given the grace of continued placement

       in MCCC. The trial court did not abuse its discretion when it revoked his

       placement and ordered him to serve the remainder of his executed sentence at

       the DOC.


[16]   Judgment affirmed.


       Kirsch, J. and Vaidik, C.J., concur.




       1
        We recognize that for each of the four times that MCCC filed a Notice of Community Corrections
       Violation, the State filed a corresponding Notice of Probation Violation.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2532 | April 29, 2019               Page 8 of 8
