      MEMORANDUM DECISION
                                                                           Mar 05 2015, 8:56 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                       Gregory F. Zoeller
      Indianapolis, Indiana                                    Attorney General of Indiana
                                                               Christina D. Pace
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Kap Thang,                                               March 5, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               49A02-1406-CR-393
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        Lower Court Cause No.
                                                               49G21-1310-FD-66727
      Appellee-Plaintiff
                                                               The Honorable Gary Miller, Judge




      Pyle, Judge


                                         Statement of the Case
[1]   Kap Thang (“Thang”) appeals the trial court’s order revoking his community

      corrections placement. He argues that the trial court did not afford him due

      process during his hearing and that insufficient evidence supported the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-393 | March 5, 2015         Page 1 of 8
      revocation of his placement. Concluding that the trial court did not violate

      Thang’s due process rights and that sufficient evidence supported revocation of

      his placement, we affirm the trial court’s order.


[2]   We affirm.


                                                    Issues
[3]   1. Whether the trial court violated Thang’s due process rights during his
      hearing.

[4]   2. Whether sufficient evidence supported the trial court’s order revoking
      Thang’s community corrections placement.

                                                     Facts
[5]   On October 10, 2013, the State charged Thang with Class D felony invasion of

      privacy. Thang pled guilty on February 3, 2014, and the trial court sentenced

      him to three (3) years executed with one year in the Department of Correction

      and two (2) years on home detention with global positioning system (“GPS”)

      monitoring to keep him away from the victim.


[6]   After his release from the Department of Correction, Thang began his

      community corrections placement on April 10, 2014. Thang only speaks

      Burmese. Marion County Community Corrections (“MCCC”) works with

      Burmese interpreters, and one was used throughout the entire intake process

      with Thang. Thang initialed and signed a seven-page contract detailing the

      conditions of his placement. Relevant to the alleged violations, Thang agreed

      to the following:



      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-393 | March 5, 2015   Page 2 of 8
                      MARION COUNTY COMMUNITY CORRECTIONS


                                                     ****


              2. If [I] leave [my] residence without permission from Home Detention
              and/or permission from Community Corrections and/or fail to return,
              I will be considered an Absconder and a violation with a warrant
              request will be sent to Court.


                   MARION COUNTY COMMUNITY CORRECTIONS GPS
                                  PROGRAM


                                                     ****


              6. You will not enter, slow down, stop, or re-enter areas that are
              defined by your GPS unit to be off limits to you. If your GPS unit
              indicates that you are in an “exclusion area and to leave
              immediately[,]” you are in an exclusion area and must turn around
              and exit immediately. From that point forward, you must use an
              alternate route and not re-enter that area. Contact your CSM for
              further clarification. In some cases you will have to travel out of your
              way to avoid excluded areas. Clients will not be excused from
              entering exclusion zones due to entering the highway. They will be
              expected to find an alternate route.


      (State’s Ex. 1 at 5, 8).


[7]   On the same day, MCCC received an alert that Thang entered the exclusionary

      zone. The GPS handling center placed a call to Thang’s device, but he did not

      answer. MCCC then called Thang’s reported phone number. Thang’s pastor

      answered the phone, and MCCC requested that the pastor have Thang contact

      them. Thang was scheduled to be out of his residence from 1:30 p.m. until 5:30



      Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-393 | March 5, 2015   Page 3 of 8
       p.m. MCCC received another alert that Thang had not returned to his

       residence by that time.


[8]    MCCC filed a violation with the trial court on April 10, 2014, alleging that

       Thang entered the exclusionary zone and violated his curfew. The trial court

       issued a warrant for Thang’s arrest, and he surrendered the next day. The trial

       court scheduled a violation hearing for May 14, 2014.


[9]    At the hearing, MCCC court team member Katherine Shiba (“Shiba”) testified

       that she was formally a case manager and was in charge of a caseload of clients

       speaking Burmese. She further stated that the MCCC’s standard operating

       procedure with Burmese clients was to have interpreters read the MCCC

       contract line by line with clients and answer any questions. Thang admitted the

       violations but offered evidence in an effort to show that his intentions “were not

       sinister” and that the violations were due to a language barrier. (Tr. 35). The

       trial court found Thang in violation of his community corrections placement

       and ordered that he serve the remainder of his sentence in the Department of

       Correction. Thang now appeals.


                                                   Decision
[10]   Thang appeals the revocation of his community corrections placement.

       Specifically, Thang asserts that the trial court violated his due process rights

       because “the record is devoid of any evidence showing that the conditions of

       [his] community corrections placement were conveyed to him in a language he

       could understand.” (Thang’s Br. 3). In the alternative, he claims that the State

       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-393 | March 5, 2015   Page 4 of 8
       did not present substantial evidence showing “that Thang had actual notice of

       the conditions of his placement.” (Thang’s Br. 8).


       1. Due Process

[11]   Our supreme court has held that “the due process requirements . . . for

       probation revocations are also required when the trial court revokes a

       defendant’s placement in a community corrections program.” Cox v. State, 706

       N.E.2d 547, 549 (Ind. 1999). “As a result, a defendant in a community

       corrections program is entitled to representation by counsel, written notice of

       the claimed violations, disclosure of the opposing evidence, an opportunity to

       be heard and present evidence, and the right to confront and cross-examine

       witnesses in a neutral hearing before the trial court.” Id. at 550. Non-English-

       speaking defendants have “the right to have [their] proceeding simultaneously

       translated to allow for effective participation.” Martinez Chavez v. State, 534

       N.E.2d 731, 736 (Ind. 1989) (citing United States ex rel. Negron v. State of New

       York, 434 F.2d 386 (2d Cir. 1970)). Interpreters are necessary “to implement

       fundamental notions of due process such as the right to be present at trial, the

       right to confront one’s accusers, and the right to counsel.” Id. at 737.


[12]   Here, Thang does not allege that he failed to receive any of the previously

       mentioned rights. Indeed, the trial court conducted the hearing with an

       interpreter, and Thang was assisted by counsel. Thang also presented evidence,

       cross-examined the State’s witness, and made no allegation that he failed to

       receive written notice of his violations or that evidence was withheld.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-393 | March 5, 2015   Page 5 of 8
       Nevertheless, Thang calls our attention to Ponce v. State, 9 N.E.3d 1265 (Ind.

       2014) to support his argument that the trial court violated his due process rights.


[13]   In Ponce, our supreme court vacated Ponce’s plea of guilty after he

       demonstrated a defective interpretation of the constitutional rights he waived

       during his hearing. The Court found as follows:

               Courts have long recognized that a foreign language defendant’s
               capacity to understand and appreciate the proceedings, to
               participate with his counsel, to confront his accusers, and to
               waive rights knowingly and intelligently, is undermined without
               an interpreter actively participating in his defense. Undoubtedly,
               the defendant is denied due process when, among other things,
               what is told [to] him is incomprehensible [or] the accuracy and
               scope of a translation at a hearing or trial is subject to grave
               doubt.


       Id. at 1272. (internal citations and quotation marks omitted).


[14]   Ponce clearly deals with ensuring that the proceedings at a hearing or trial for

       foreign-language defendants are fair. Thang challenges what MCCC told or did

       not tell him during his intake into community corrections. This argument is

       more appropriate for a sufficiency of the evidence review rather than a violation

       of due process. “Due process is far more than a term of art.” Id. at 1268.

       (emphasis in original). “[T]he fundamental requirement of procedural due

       process is the opportunity to be heard at a meaningful time in a meaningful

       manner.” Id. (quoting Perdue v. Gargano, 964 N.E.2d 825, 832 (Ind. 2012)).

       The record reveals no errors in how the trial court conducted Thang’s hearing.

       Accordingly, the trial court did not deny Thang due process.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-393 | March 5, 2015   Page 6 of 8
       2. Sufficiency of the Evidence

[15]   Thang argues that the State did not present substantial evidence that he had

       actual notice of the terms of his community correction placement. Specifically,

       he asserts that the testimony of MCCC representative Shiba regarding Thang’s

       intake process was speculation because she was not present at the time.


[16]   “For the 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, 706 N.E.2d at 549. The decision to

       revoke probation or placement in a community corrections program is within

       the sole discretion of the trial court. Woods v. State, 892 N.E.2d 637, 639 (Ind.

       2008). We will review that decision for an abuse of discretion. Id. We

       consider the evidence only most favorable to the judgment and do not reweigh

       the evidence or judge the credibility of witnesses. Id. We will affirm if there is

       substantial evidence of probative value to support the trial court’s decision that

       the defendant violated the program’s terms. Id. at 639-40.


[17]   Here, Thang admitted that he violated the terms of his community corrections

       placement by entering the exclusionary zone and violating his curfew. Further,

       Thang initialed and signed a seven page contract and admitted that community

       corrections had explained the terms of his placement. Nevertheless, now on

       appeal, Thang claims he did not receive actual notice of the terms of his

       placement. He calls our attention to the transcript, where his attorney asked if

       MCCC told him that he had to be home by a certain time and Thang

       responded, “I don’t know.” (Tr. 27). Yet, when asked on cross examination

       Court of Appeals of Indiana | Memorandum Decision 49A02-1406-CR-393 | March 5, 2015   Page 7 of 8
       whether he knew that he was not supposed to enter the exclusionary zone,

       Thang answered, “She wasn’t there.” (Tr. 29). In other words, Thang offered a

       justification for being in the exclusionary zone. The trial court could infer from

       his justification that he knew not to be in the area and thus understood the

       terms of his placement. In addition, Thang’s characterization of Shiba’s

       testimony about MCCC’s operating procedures is simply a request to reweigh

       the evidence, which we will not do. Given Thang’s testimony, Shiba’s

       testimony, and the signed paper work from community corrections, we

       conclude that Thang had actual knowledge of his conditions of placement.

       Substantial evidence supports the revocation of Thang’s community corrections

       placement.


[18]   Affirmed.


       Barnes, J., and May, J., concur.




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