MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                               FILED
regarded as precedent or cited before any                                 Jan 24 2020, 10:10 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
Kristin A. Mulholland                                    Curtis T. Hill, Jr.
Appellate Public Defender                                Attorney General
Crown Point, Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Demario Dajuan Barnes,                                   January 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1720
        v.                                               Appeal from the
                                                         Lake Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Salvador Vasquez, Judge
                                                         The Honorable
                                                         Natalie Bokota, Magistrate
                                                         Trial Court Cause No.
                                                         45G01-1609-F4-31



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1720 | January 24, 2020                   Page 1 of 9
                                              Case Summary
[1]   Demario Dajuan Barnes admitted violating his community-corrections

      placement for not immediately returning to community corrections after

      clocking out of work, and the trial court ordered him to serve the remainder of

      his three-year sentence in the Department of Correction. He now appeals,

      arguing that he was not given the opportunity to offer mitigating evidence that

      his violation did not warrant revocation of his community-corrections

      placement and that the trial court abused its discretion in ordering him to serve

      the remainder of his sentence in the DOC. We affirm.



                               Facts and Procedural History
[2]   In January 2017, Barnes pled guilty to Level 4 felony burglary and was

      sentenced to three years in prison (to be served consecutive to his sentences in

      two other cause numbers). In June 2018, Barnes, pro se, filed a motion to

      modify his sentence. The trial court granted Barnes’s motion and ordered him

      “to serve the remainder of his sentence in the Lake County Community

      Transition Court” (“CTC”).1 Appellant’s App. Vol. II p. 85. Barnes started




      1
          The Lake County Courts’ website describes CTC as follows:
               The Lake County Community Transition Court (CTC) is a program designed to assist
               individuals transition from the Indiana Department of Correction (IDOC) back to their
               community while still being supervised. The Community Transition Court transfers the
               individuals’ placement to Lake County Community Corrections eight (8) to twelve (12) months
               prior to their Earliest Possible Release Date (EPRD) from the IDOC. The process is intended to
               assist these individuals reengage in the community by offering more support than they would
               otherwise receive upon release from the IDOC.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1720 | January 24, 2020                  Page 2 of 9
      CTC on July 16, 2018, and was placed in the Kimbrough Work Program. Id. at

      115.


[3]   Approximately three months after starting the Kimbrough Work Program, on

      October 10, 2018, Lake County Community Corrections filed a “petition to

      expel” Barnes from the program, alleging that he violated several rules. Id. at

      92. Barnes was arrested and held without bond in the Lake County Jail. A

      hearing on the petition to expel was eventually held in January 2019. On

      January 15, the trial court denied the petition and ordered that Barnes “be

      returned to CTC.” Id. at 113.


[4]   A little over a month later, on February 24, Barnes was in a car with his

      girlfriend after clocking out of work and did not immediately return to

      community corrections, in violation of the Kimbrough Work Program’s rules.

      The next day, February 25, Lake County Community Corrections asked the

      trial court to remand Barnes to the Lake County Jail “[d]ue to a program

      violation.” Id. at 114. Barnes was arrested and held without bond. On March

      5, Lake County Community Corrections filed a “petition to expel” Barnes from

      community corrections, claiming that he violated two rules of the Kimbrough

      Work Program. Id. at 115. Specifically, Barnes was alleged to have violated

      Rule 6 for having time that was unaccounted for on “numerous occasions” and

      Rule 52 for failing to pay fees. See id. (“When reviewing client’s paystubs and




      Lake County Courts, Lake Cty. Cmty. Transition Court, https://www.lakecountyin.org/portal/group/lc-
      courts/page/lctc (last visited Jan. 13, 2020).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1720 | January 24, 2020              Page 3 of 9
      time out of the building it was determined that he has had time that was

      unaccounted for on numerous occasions. Client’s whereabout during these

      times are unknown.”).


[5]   A hearing was held before a magistrate on June 25. At the hearing, defense

      counsel made a proffer that she had hired an investigator, who spoke with

      Barnes’s employer and determined that “all but one” of the “numerous

      occasions” were actually accounted for, as the employer verified that Barnes

      had “work[ed] over” on those occasions. June 25, 2019 Tr. pp. 20, 23. The

      State did not dispute this proffer of evidence. Barnes admitted the February 24

      incident, which the magistrate accepted. See id. at 22.2


[6]   Defense counsel then asked the magistrate to “allow[] [Barnes] to go back to”

      CTC. Id. at 24. Barnes explained that he did not return to community

      corrections on February 24 because his girlfriend was his ride and she had just

      found out she was pregnant and was suicidal. Barnes admitted that what he did

      “wasn’t the smart thing to do”; however, he said that “life came at [him] at an

      unexpected moment” and that it was “really almost like a life or death

      situation” for his girlfriend. Id. at 26. Barnes asked the magistrate for “another

      chance” at CTC. Id. at 27. The magistrate ordered Barnes to serve the




      2
       Defense counsel told the trial court that Barnes was also going to admit to failing to pay fees, but this was
      never addressed at the hearing.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1720 | January 24, 2020                     Page 4 of 9
      remainder of his three-year sentence in the DOC3 but said that she was going to

      take Barnes’s request to go back to CTC “under advisement” so that she could

      “discuss[]” it with the presiding judge, Judge Vasquez. Id. at 25. The

      magistrate “set a date for ruling . . . on or before” July 2. Id. at 28. Later that

      same day, June 25, the following order was entered:


              Upon consultation with the presiding judge, the request to
              participate in [CTC] is denied. The defendant is to be
              transported to the Department of Correction for execution of the
              sentence imposed.


      Appellant’s App. Vol. II p. 132.


[7]   Thereafter, Barnes filed a motion to set sentencing hearing, arguing that a

      sentencing hearing had been scheduled for July 2, but he was “not brought to

      Court” for that hearing. Id. at 133. Accordingly, he claimed that he was

      “denied his right to be present at Sentencing, his right to make a statement at

      sentencing & his right to present evidence for Sentencing.” Id. The magistrate

      denied the motion, explaining that she did not set a sentencing hearing for July

      2 but rather a date for ruling and that the sentencing hearing had already been

      held on June 25, at which time Barnes made a statement.4 Id. at 135.




      3
       According to the abstract of judgment, as of June 25, 2019, Barnes had 497 days of credit time to apply
      against his three-year sentence. Appellant’s App. Vol. II p. 150.
      4
       On appeal, Barnes appears to repeat his claim that the magistrate scheduled a sentencing hearing for July 2
      but never held it. As just explained above, the magistrate set a date for ruling, not a sentencing hearing.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1720 | January 24, 2020                  Page 5 of 9
[8]    Barnes now appeals.



                                  Discussion and Decision
[9]    Barnes appeals the revocation of his community-corrections placement. For

       purposes of appellate review, we treat a hearing on a petition to revoke a

       placement in a community-corrections program the same as a hearing on a

       petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g

       denied. Both probation and community-corrections programs serve as

       alternatives to commitment to the Department of Correction and are made at

       the sole discretion of the trial court. Id. A defendant is not entitled to serve a

       sentence in either probation or a community-corrections program. Id. Rather,

       placement in either is a “matter of grace” and a “conditional liberty that is a

       favor, not a right.” Id. (quotations omitted).


[10]   Barnes first contends that his due-process rights were violated because he did

       not have the opportunity to offer mitigating evidence that his violation did not

       warrant revocation of his community-corrections placement and that he should

       be returned to CTC. Probation revocation, and hence community-corrections

       revocation, is a two-step process. First, the court must make a factual

       determination that a violation of a condition of probation or community

       corrections actually occurred. See Woods v. State, 892 N.E.2d 637, 640 (Ind.

       2008). If a violation is proven, then the trial court must determine if the

       violation warrants revocation of probation or community corrections. See id.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1720 | January 24, 2020   Page 6 of 9
[11]   When a probationer or community-corrections participant admits to the

       violation, the court can proceed to the second step of the inquiry and determine

       whether the violation warrants revocation. See id. However, a probationer or

       community-corrections participant who admits the allegations against him must

       still be given an opportunity to offer mitigating evidence suggesting that the

       violation does not warrant revocation. See id.


[12]   Barnes argues that he “was not afforded the opportunity to fully address the

       question of his request for readmission to” CTC. Appellant’s Br. p. 12. But

       Barnes was afforded this opportunity. At the June 25 hearing, both defense

       counsel and Barnes asked the magistrate to send him back to CTC despite his

       rule violation. Defense counsel argued that Barnes had already paid the price

       for his rule violation because he had been in the Lake County Jail for several

       months already. See June 25, 2019 Tr. p. 24. And Barnes testified about the

       circumstances surrounding his rule violation, claiming that it was a “life or

       death situation.” See id. at 25-26. As for Barnes’s related argument that he

       “should have been permitted a hearing before the presiding judge to make his

       case for readmission,” Appellant’s Br. pp. 12-13, he cites no authority that a

       hearing before the presiding judge is required when a magistrate consults with

       that judge in making a decision. There was no due-process violation here.


[13]   Barnes next contends that the trial court “abused its discretion when it revoked

       his placement in community corrections and ordered him to serve the

       remainder of” his three-year sentence in the DOC. Id. at 9. He argues that his

       single rule violation “was not a sufﬁcient basis upon which to remove [him]

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1720 | January 24, 2020   Page 7 of 9
       from the transition court and to impose the full remainder of his sentence to be

       served in prison.” Id. Instead, he claims that the court “should have permitted

       some portion of the sentence to be served in a placement which would permit

       some transitional assistance.” Id. at 11.


[14]   A trial court’s sentencing decision for a community-corrections violation is

       reviewable using the abuse-of-discretion standard. See Prewitt v. State, 878

       N.E.2d 184, 188 (Ind. 2007). In addition, violation of a single condition of a

       community-corrections placement is sufficient to revoke that placement.

       See Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App. 2011), trans. denied.

       Here, a little over one month after being returned to CTC after spending several

       months in jail, Barnes violated the Kimbrough Work Program’s rules by not

       immediately returning to community corrections after clocking out of work. He

       explained that he did not immediately return because he was faced with the

       imminent threat of his girlfriend’s suicide. The magistrate, however, was not

       persuaded:


               So when you commit a crime and you’re incarcerated, you give
               up the opportunity to be present with family for a variety of
               moments. A family member is dying, you can’t be there. A child
               is being born, you can’t be there. Someone is going to commit
               suicide, you need to call 911, you can’t be there.


                                                     *****


               You have no right . . . to decide that you’re not going to go back
               to the center. You’re serving a sentence, just like if you were in
               prison. It’s technically an escape is what it is. You could have

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1720 | January 24, 2020   Page 8 of 9
               been charged with another felony for not getting back there on
               time. And so in a way, you’re really receiving a benefit by just
               being made to serve out this sentence.


       June 25, 2019 Tr. pp. 26, 27. When Barnes told the magistrate that he felt he

       deserved “another chance,” the magistrate responded:


               Well, why would the Court feel confident that if something else
               came up down the line you wouldn’t think that you have the
               right to make that decision to not fulfill your sentence again?


       Id. at 27. Given that Barnes was given the benefit of participating in CTC and

       then violated the rules for—as he puts it—“no reason” a little over one month

       after being returned to CTC, id. at 26, we affirm the trial court’s revocation of

       his community-corrections placement and its order that he serve the remainder

       of his sentence in the DOC.


[15]   Affirmed.


       Najam, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1720 | January 24, 2020   Page 9 of 9
