                                                                              FILED
                                                                         Oct 31 2016, 9:33 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Laura Paul                                                Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana

                                                                Monika Prekopa Talbot
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Justin S. Johnson,                                        October 31, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                28A05-1602-CR-309
              v.                                                Appeal from the Greene Superior
                                                                Court
      State of Indiana,                                         The Honorable Dena Martin,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                28D01-1409-F3-2




      Brown, Judge.

[1]   Justin S. Johnson appeals the trial court’s order revoking his community

      corrections placement and ordering him to serve the remainder of his executed

      Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016                   Page 1 of 15
      sentence in prison. Johnson raises one issue which we revise and restate as

      whether the trial court abused its discretion in revoking his placement in

      community corrections. We reverse and remand.


                                        Facts and Procedural History

[2]   On December 1, 2014, Johnson and the State executed a plea agreement which

      provided that Johnson would plead guilty to neglect of a dependent resulting in

      serious bodily injury as a level 3 felony and that sentencing would be left to the

      discretion of the trial court.


[3]   On January 9, 2015, the court held a guilty plea and sentencing hearing. The

      court accepted the plea agreement and Johnson’s guilty plea and, at Johnson’s

      request, admitted the reports of two health care professionals which were

      completed in 2010 under another cause in connection with a previous charge

      against Johnson for forgery. One of the reports noted that Johnson confirmed

      that he wrote another person’s name on a check for $1,000,000 and attempted

      to cash the check to obtain money to work on his house. The report stated in

      part that Johnson “was adequately oriented but appears to have marked

      learning, cognitive, and memory deficits,” that Johnson “reported that he has

      been admitted for psychiatric hospitalizations on at least 3-4 occasions due to

      manic like symptoms,” he has been diagnosed with borderline intellectual

      functioning, he “is likely to meet criteria for Mild Mental Retardation if he were

      formally tested,” “he has a history of lifelong learning difficulties,” and that he

      “has had consistent problems with obtaining and maintaining employment,

      housing and managing financial needs.” Defendant’s Exhibit B. The report

      Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 2 of 15
      also stated that “[p]erhaps a good capture of [Johnson’s] limited comprehension

      of his forgery is in his statement regarding his thinking at the time he attempted

      to cash the check, ‘I sort of knew it was wrong but didn’t really think people

      would mind.’” Id.


[4]   The court also noted that it had received a presentence investigation report

      (“PSI”) and an Alternative Sentencing Evaluation. The Alternative Sentencing

      Evaluation filed by a case manager with Greene County Community

      Corrections stated that, because Johnson had previously been on probation, the

      case manager had contacted Johnson’s probation officer “to see how capable

      [Johnson] was at understanding and following rules,” and the probation officer

      “reported that [Johnson] successfully completed his probation with no

      problems.” Appellant’s Appendix, Volume II (Confidential), at 112. The PSI

      indicated that Johnson was charged in July 2010 with forgery as a class C

      felony and theft as a class D felony, that the forgery count was dismissed, that

      in February 2011 the court ordered Johnson to serve two years on probation

      and found that he was eligible for a reduction to a misdemeanor upon the

      successful completion of probation, and that in February 2013 his conviction

      was modified to theft as a class A misdemeanor. The recitation of Johnson’s

      criminal history in the PSI shows that he had not previously been ordered to

      serve time in the Department of Correction (“DOC”). According to the PSI, he

      had been living in a trailer on his father’s property for about one month at the

      time of his arrest, had Medicaid prior to his incarceration, has been on social

      security disability since he was seven years old, had been employed at Steak N’


      Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 3 of 15
      Shake for about eleven months in 2011 and 2012, his overall risk assessment

      score places him in the low risk to reoffend category, and his debt was

      approximately $6,000 for medical, cable, and contract phone bills. The PSI

      also stated that a mitigating factor was that imprisonment would result in

      undue hardship to the person or the dependents of the person.


[5]   Following argument by Johnson’s counsel, the trial court stated “[y]es it is a

      mitigating circumstance your challenges, mental challenges that you are

      facing,” that “the probation officer wanted the Court to find that the

      imprisonment of the person would result in undue hardship to the person,

      which I believe that, as your attorney indicated I believe placing you in the

      [DOC] is not going to be beneficial to you,” and that “however you have to

      understand sir even with your limited ability that there are rules that you have

      to follow, rules not only to protect society from financial losses that is what we

      were talking about last time when you wrote the million dollar check.”

      Transcript at 18-19. The court also stated “your little baby got hurt this time,”

      “I can’t take the chance that is going to happen,” and “the fact that this was

      your child that you had the care and custody of, the fact that we had contact

      before not too long ago with the million dollar check that you wrote, you were

      put on probation, yes you did wonderful, but you are back, you have to

      understand that you have to follow the rules . . . .” Id. at 19.


[6]   The court sentenced Johnson to eleven years with seven years executed, which

      was to be served on home detention through community corrections, and four

      years suspended to probation. The court ordered that Johnson have no contact

      Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 4 of 15
      with the victim as a condition of probation. The home detention rules and

      conditions, which contained thirty-five numbered paragraphs, stated in part that

      home detention is defined as “the interior living area of the temporary or

      permanent residence of an offender,” or “if the offender’s residence is a multi-

      family dwelling, the unit in which the offender resides, and not the a) halls or

      common areas outside the unit where the offender resides; or b) other units

      occupied or unoccupied in the multi-family dwelling.” State’s Exhibit 1.


[7]   On December 14, 2015, Greene County Community Corrections filed a Notice

      alleging that, as of that day, Johnson was behind in fees in the amount of $668.

      The Notice alleged that, on or about October 7, 2015, Johnson was given

      permission to travel to Bloomington to visit the social security office and that

      instead he went to the Shalom Center; that on or about November 10, 2015, a

      field officer noticed Johnson outside his apartment on the porch; that on or

      about December 1, 2015, Johnson went to a bank at 5:17 a.m. and later that

      day refused to pay fees owed for GPS monitoring and paid $260 of $465 for the

      month of December; that on or about December 12, 2015, Johnson had leave

      and returns documented by his equipment and the monitoring company

      reported the GPS beacon was moved that day; and that on or about December

      13, 2015, the beacon was moved and there were several leaves and returns.


[8]   On January 11, 2016, the court held a modification hearing at which the State

      presented evidence that Johnson lived in a high-rise, multi-family dwelling, and

      the testimony of a case manager that, while Johnson received a verbal

      authorization to be outside of his dwelling on October 7, 2015, the instruction

      Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 5 of 15
was to report to the social security office in Bloomington and that he instead

went to the Shalom Center in Bloomington, and when later confronted by the

case manager he denied having gone anywhere but the social security office.

The case manager testified that on December 1, 2015, Johnson left his home at

about 5:17 a.m. and traveled to a bank without permission and, on cross-

examination, that there was a previously-arranged plan for Johnson to travel to

the bank at 8:00 a.m. The case manager further testified that the GPS

monitoring equipment reported that it was moved for short periods of time

within Johnson’s building on December 12 and 13, 2015, and that Johnson

denied moving the beacon. The case manager stated that “the unusual portion”

of the circumstance on December 12, 2015, was that Johnson “did not live [sic]

his inclusion zone, but it did indicate that he was moving about within the

building with the beacon which is also against policy.”1 Transcript at 47. The

case manager indicated that on December 13th information was received that

Johnson’s “beacon was moving and that he was outside of his or potentially

outside of his dwelling but still within his inclusion zone, he having spoken

with him about that denied having left his home or the inclusion zone, but the

monitoring company did indicate that they noted that he was outside of his

inclusion zone either above or below the unit that he was occupying.” Id. The

case manager stated that Johnson was originally sentenced to home detention



1
  The case manager testified that Johnson lived in a multi-level, multi-family dwelling, that the monitoring
company defined “a sphere” so “he can move up and down as well as laterally within that sphere,” and that
Johnson is not to be outside his apartment, “[b]ut because of the way the monitoring company’s equipment
functions there is a sphere called an inclusion zone that he is to remain within.” Transcript at 35.

Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016                        Page 6 of 15
       but had agreed to move to the work release center until he qualified for support

       through the Bloomfield Housing Authority and that he “seemed to function

       quite well at the work release center while he was there.” Id. at 48.


[9]    A community corrections field officer testified that, on approximately

       November 10th, he traveled to the high-rise where Johnson lived, pulled into

       the parking lot, observed Johnson sitting at a bench located outside underneath

       the canopy and just adjacent to the front door with another man, informed

       Johnson he was not to be outside, and walked him back to his apartment. The

       officer also testified that he met with Johnson several times over a period of a

       few months, that he recognized that Johnson had problems understanding

       things, and that he took his time to explain to Johnson that he could not be

       outside of the four walls of his apartment unless he was scheduled to leave.

       When asked if Johnson indicated whether he understood he was not supposed

       to be at the bench, the officer testified that Johnson indicated that he just

       wanted to go downstairs. At Johnson’s request, the court admitted into

       evidence the two reports prepared by the health care professionals in 2010. The

       State recommended that Johnson be transferred to the DOC for the remainder

       of his sentence, and Johnson’s counsel requested the court to place him at the

       work release facility and argued he has the funds to participate in the program.


[10]   The court asked whether Johnson, after returning from the bank, paid for his

       home detention, and the case manager answered that Johnson had the money

       in his pocket to pay for the month and chose not to do so. When asked “[s]o

       was [Johnson] having the funds to remain on the program was that an issue,”

       Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 7 of 15
       the case manager testified “it is or it was an issue yes.” Id. at 64. Johnson’s

       counsel asked the case manager if he was reluctant to pay all of the fees because

       he also needed to pay his rent, and the case manager stated that he “did indicate

       that was part of his issue that day” but that there was a discussion about his

       monetary obligations when he moved to home detention and he “felt

       comfortable with his monetary obligation that he had established with us and

       the high-rise.” Id. at 65. The case manager testified that Johnson receives $720

       per month, that his rent was $240 per month, and that as a GPS client he was

       charged fifteen dollars per day. When asked “[d]idn’t leave a lot for food did

       it,” the case manager testified “he represented that he was able to receive

       assistance from area churches and that he was willing to request assistance from

       local food banks in addition to applying for food stamps to be able to

       supplement his circumstances, we discussed all of these things on a number of

       occasions . . . .” Id. at 66. The case manager also indicated that, if Johnson

       were to be placed into the work release facility, he would be charged $110 per

       week.


[11]   The trial court stated that it was going to show that Johnson’s sentence would

       be modified to seven years executed in the DOC and that he would receive

       credit for time served in home detention, work release, and the Greene County

       Jail, which was 640 days total with good time credit.


                                                     Discussion

[12]   The issue is whether the trial court abused its discretion in revoking Johnson’s

       placement in community corrections and ordering him to serve the remainder
       Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 8 of 15
       of his executed sentence in the DOC. 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. Cox v.

       State, 706 N.E.2d 547, 549 (Ind. 1999). 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. Id. Placement on probation or

       in a community corrections program is a matter of grace and not a right. Id.; see

       State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015) (“The similarities between

       the two programs have led to common treatment in appellate review of a trial

       court’s decision to revoke either . . . .”). Our standard of review of an appeal

       from the revocation of a community corrections placement mirrors that for

       revocation of probation. Cox, 706 N.E.2d at 551. 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 witnesses, and if

       there is substantial evidence of probative value to support the court’s conclusion

       that a defendant has violated any terms of probation, we will affirm its decision

       to revoke probation. Id.


[13]   Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640

       (Ind. 2008); Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014) (setting forth

       the two-step process in addressing the revocation of placement in community

       corrections), trans. denied. First, the court must make a factual determination

       that a violation of a condition of probation actually occurred. Woods, 892

       Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 9 of 15
       N.E.2d at 640. If a violation is proven, then the trial court must determine if

       the violation warrants revocation of the probation. Id. “However, even a

       probationer who admits the allegations against him must still be given an

       opportunity to offer mitigating evidence suggesting that the violation does not

       warrant revocation.” Id. In addition, “failure to pay a probation user fee where

       the probationer has no ability to pay certainly cannot result in a probation

       revocation.” Id. at 641.


[14]   “We review a trial court’s sentencing decision in a probation revocation

       proceeding for an abuse of discretion.” Puckett v. State, 956 N.E.2d 1182, 1186

       (Ind. Ct. App. 2011) (citing Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct.

       App. 2006)). An abuse of discretion occurs if the trial court’s decision is against

       the logic and effect of the facts and circumstances before the court. Id. A

       defendant cannot collaterally attack the propriety of an original sentence in the

       context of a probation revocation proceeding. Id. However, a defendant is

       entitled to challenge the sentence a trial court decides to impose after revoking

       probation. Id. (citing Abernathy, 852 N.E.2d at 1020 (citing Stephens v. State, 818

       N.E.2d 936, 939 (Ind. 2004) (“A defendant is entitled to dispute on appeal the

       terms of a sentence ordered to be served in a probation revocation proceeding

       that differ from those terms originally imposed.”))). A trial court’s discretion in

       determining an appropriate sentence for a probation violation is not boundless.

       See id. at 1188.


[15]   Johnson argues that the nature of his violations were minor, that he did not

       commit any new offenses or violate the no contact order, and that, “[w]hen he

       Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 10 of 15
       was out of place, he was either very close to his small apartment, but still within

       his apartment building, leaving at the wrong time but going to the right place,

       or near where he was supposed to go.” Appellant’s Brief at 11. He further

       argues that the court had alternatives to sending him to the DOC and that it is

       undisputed that he had been successful in the work release program, had no

       disciplinary problems, and was able to pay his bills while on work release. He

       also argues that his community corrections fees were fifteen dollars per day or

       $450 in a thirty-day month, his rent was $240 per month leaving only thirty

       dollars per month for food, he would have been on the program for ten months

       at the time the notice to the court was filed which meant that he fell behind on

       average of only sixty-seven dollars per month, and that, given his financial

       constraints of $720 in social security disability benefits, his failure to keep

       current with his community corrections fees was due to an inability, not a

       refusal, to pay and that the shortage was not so egregious as to warrant

       placement in the DOC even with the other violations. Johnson also argues his

       financial burden would have been eased in work release given that he would

       not have to pay rent and the court imposed the most extreme sanction and

       bypassed other, likely more effective sanctions.


[16]   The State responds that Johnson violated the condition that he was to remain in

       the interior living area of the apartment unit in which he resided on at least five

       occasions, he was $668 in arrears at the time of the notice to the court, and that

       he had indicated to a case manager that he had the money to pay his monthly

       fee but chose not to pay. The State further asserts that the violations were not

       Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 11 of 15
       an isolated event but occurred over several weeks and that Johnson simply

       refused to abide by the rules placed upon him.


[17]   Johnson does not argue that he did not violate the term of his placement that he

       not leave his apartment. Rather, he challenges the sentence or sanction of

       serving the entire remaining portion of his executed sentence in prison.

       According to the PSI, he previously received a sentence for theft as a class D

       felony of two years suspended to probation with eligibility for reduction to a

       misdemeanor upon successful completion of probation, and that two years later

       his conviction was modified to a class A misdemeanor. His probation officer

       indicated that he successfully completed his probation with no problems, and

       the trial court noted that Johnson “did wonderful” on probation and that it

       believed that placing him in the DOC would not be beneficial for him.

       Transcript at 19. At the modification hearing, the case manager testified that

       Johnson originally moved to the work release center until he qualified for

       support through the Bloomfield Housing Authority and that he “seemed to

       function quite well at the work release center while he was there.” Id. at 48.

       The record demonstrates Johnson’s successful placement on work release in the

       past.


[18]   With respect to the nature of the violations, we note that the first violation

       involved Johnson visiting the Shalom Center in Bloomington although he had

       been given authorization to visit the social security office in Bloomington, the

       second violation involved Johnson sitting on a bench adjacent to the front door


       Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 12 of 15
       of his apartment building speaking with another man, that Johnson was given

       permission to travel to a bank at 8:00 a.m. on December 1, 2015, but left home

       to travel to the bank at 5:17 a.m., and that the other two violations involved

       Johnson moving the GPS monitoring equipment for short periods within the

       apartment building. We agree with Johnson that, when he was “out of place,

       he was either very close to his small apartment, but still within his apartment

       building, leaving at the wrong time but going to the right place, or near where

       he was supposed to go.” Appellant’s Brief at 11. We also believe that well-

       documented mental limitations or illness as presented in this case, and which

       are clearly shown in the record, are relevant and deserve careful consideration

       as a mitigator by any reviewing trial judge.


[19]   As for Johnson’s resources and fees, the record shows that he receives social

       security benefits of $720 per month, paid $240 in rent per month, was required

       to pay home detention fees of fifteen dollars per day, and was required to pay

       for his food and personal items with the remaining funds. The case manager

       stated that Johnson had represented he was able to receive assistance from area

       churches. The Notice indicated that, after Johnson returned from the bank on

       December 1, 2015, he paid $260 of his fees of $465 for the month of December,

       and the case manager agreed that Johnson was reluctant to pay all of the fees

       because he also needed to pay his rent. To the extent the court’s decision to

       revoke Johnson’s placement was based in part on his failure to make full

       payment of his fees of fifteen dollars per day, the record does not establish that

       Johnson had the ability to make full payment of the fees. Also, the case

       Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 13 of 15
       manager indicated that, if Johnson were placed into the work release facility, he

       would be charged $110 per week. Johnson has had prior success in a work

       release facility, he could more easily afford the work release placement fees if he

       did not have a rent payment, and placement in a work release facility is less

       severe than placement in the DOC, particularly given Johnson’s level of

       intellectual functioning.


[20]   The evidence supports the trial court’s determination that Johnson violated the

       term of his community corrections placement that he not leave his apartment

       and its decision to revoke the placement. However, under the circumstances

       reflected in the record, including the level of Johnson’s functioning and his

       resources, his previous successful placement on work release, the nature of the

       violation, and the severity of the court’s sentence, we conclude that the trial

       court abused its discretion in finding that Johnson’s violation warranted serving

       the entirety of the remaining portion of his executed sentence in the DOC. See

       Puckett, 956 N.E.2d at 1188 (noting that the offender admitted to violating the

       terms of his probation and that the trial court’s discussion did not reveal

       anything particularly egregious about the offender’s violation of failing to

       register as a sex offender and concluding that the trial court abused its

       discretion in ordering the offender to serve the entirety of his previously-

       suspended sentence); see also Sullivan v. State, 56 N.E.3d 1157, 1162 (Ind. Ct.

       App. 2016) (noting the offender did not dispute that he did not report as

       required by his community corrections placement and concluding in part, based

       on the nature of the violation and the sanction, that the trial court abused its

       Court of Appeals of Indiana | Opinion 28A05-1602-CR-309 |October 31, 2016   Page 14 of 15
       discretion in ordering the offender to serve the entire remaining portion of his

       executed sentence in prison) (citing Ripps v. State, 968 N.E.2d 323, 325-326

       (Ind. Ct. App. 2012) (noting the offender admitted to violating the terms of his

       probation and concluding in part that the trial court abused its discretion in

       ordering the offender to serve the remainder of his suspended sentence in prison

       in light of the offender’s medical condition and the technical nature of the

       violation)). Accordingly, we remand to the trial court with instructions to enter

       an order that Johnson be placed on work release for the remaining portion of

       his executed sentence.2


                                                      Conclusion

[21]   For the foregoing reasons, we reverse and remand for an order that Johnson be

       placed on work release for the remaining portion of his executed sentence.


[22]   Reversed and remanded.


       Robb, J., and Mathias, J., concur.




       2
         We note that Johnson has been incarcerated in the DOC since January 11, 2016. In addition to the credit
       previously awarded as noted in the court’s January 2016 abstract of judgment, Johnson is entitled to credit
       for time served, and any applicable good time credit, attributable to his incarceration in the DOC after the
       court’s January 11, 2016 modification.

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