FOR PUBLICATION

ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

DAVID T.A. MATTINGLY                        GREGORY F. ZOELLER
Mattingly Legal, LLC                        Attorney General of Indiana
Lafayette, Indiana
                                            BRIAN REITZ
                                            Deputy Attorney General
                                            Indianapolis, Indiana


                                                                  May 29 2014, 10:42 am



                            IN THE
                  COURT OF APPEALS OF INDIANA

FLOYD WILLIAM TREECE,                       )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 79A05-1309-CR-458
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                        The Honorable Randy J. Williams, Judge
                            Cause No. 79D01-1007-FB-15



                                   May 29, 2014


                            OPINION- FOR PUBLICATION


CRONE, Judge
                                     Case Summary

       Floyd William Treece was convicted of possession of methamphetamine and

possession of an illegal drug lab and admitted to being a habitual offender. He was

sentenced to an aggregate term of fourteen years, which included a term of commitment to

the Department of Correction (“DOC”), followed by time in a community corrections

program, and the remainder suspended to probation. Before the scheduled release date from

his DOC commitment, he requested and was granted assignment to a community transition

program (“CTP”) for the last 120 days of his DOC commitment. He was assigned to the CTP

at Tippecanoe County Community Corrections (“TCCC”).

       During his time in the CTP, Treece discovered another person sitting in his chair and

kicked him in the face, which was a violation of TCCC’s rule against assault and battery. He

admitted to the violation, and TCCC removed him from its CTP. When Treece was released

from the DOC, he reported to TCCC for the community corrections portion of his sentence.

TCCC informed him that he had been rejected from participation in any of its programs as a

result of his violent rule violation. The State filed a motion requesting that Treece be

committed to the DOC and that his placement in community corrections be revoked, which

the trial court granted.

       Treece appeals the revocation of his community corrections placement. He argues

that the trial court abused its discretion in revoking his community corrections placement

because (1) the TCCC did not have the authority to reject his placement in community

corrections for a rule violation he committed while assigned to the CTP because the CTP is a


                                             2
DOC program and the DOC is not statutorily authorized to reject an inmate’s placement in

community corrections as a disciplinary action; and (2) the trial court failed to consider the

progress he made toward rehabilitation during his DOC commitment. We conclude that the

CTP is a TCCC program and that the statutes governing the DOC’s disciplinary actions do

not apply to TCCC. Therefore, TCCC had the authority to reject Treece from his placement

in community corrections for a violation he committed while in the CTP. We also conclude

that the trial court was not required to consider his progress toward rehabilitation when

determining whether his rule violation warranted revocation of his community corrections

placement. We conclude that he committed an act of violence, and therefore the trial court

did not abuse its discretion in revoking his community corrections placement. Therefore, we

affirm. We also remand for the trial court to clarify its sentencing order.

                              Facts and Procedural History

       Treece pled guilty to class D felony possession of methamphetamine and class C

felony possession of an illegal drug lab and admitted to being a habitual substance offender.

The trial court sentenced Treece to consecutive terms of three years for possession of

methamphetamine, six years for possession of an illegal drug lab, and five years for being a

habitual substance offender, for an aggregate term of fourteen years. The trial court ordered

Treece to “execute eight (8) years at the [DOC] to include two (2) years with [TCCC] at a

level to be determined by Community Corrections.” Appellant’s App. at 15. The sentencing

order also stated that “[Treece’s] sentence calls for an executed term of imprisonment of ten

years.” Id. at 17. The trial court ordered that four years be suspended and that Treece be


                                              3
placed on supervised probation for four years. In addition, the sentencing order provided,

“[Treece] shall obey all Community Corrections Rules. If he is rejected from Community

Corrections, that time will be spent in the Department of Correction.” Id. at 16.

       Treece was incarcerated at the Westville Correctional Facility. By letter dated

February 1, 2013, he informed the trial court that his release date was July 25, 2013, and

requested assignment to a CTP for the last 120 days of his commitment to the DOC. After

the trial court received a recommendation from the TCCC CTP recommendation panel that

Treece be assigned to the CTP, the court granted Treece’s request and ordered the DOC to

assign him to the CTP. Id. at 28. Treece was transported to TCCC to serve in its CTP until

July 25, 2013, at which time he was to begin serving the two-year portion of his sentence

with TCCC pursuant to the sentencing order.

       On June 22, 2013, Treece was serving in the CTP at TCCC when he returned to the

TCCC day room and found that someone was sitting in a seat that he had formerly occupied.

Tr. at 10. A still from the video recording of the room in which the incident occurred shows

over sixty seats, almost all of which were unoccupied. Appellant’s App. at 33. Instead of

taking one of the other seats, Treece kicked the person in the face. A TCCC hearing officer

conducted a hearing, at which Treece admitted to kicking the inmate in the face. The hearing

officer concluded that Treece violated TCCC Rule 212 regarding assault and battery. Id. at

32. As a consequence of his rule violation, TCCC removed him from its CTP.

       On July 9, 2013, the trial court received notice from TCCC that it was rejecting Treece

from the community corrections portion of his sentence due to fighting while he was in its


                                              4
CTP. Id. at 29. TCCC explained that it had a “zero tolerance for participants that fight” and

that if “a participant fights while on [TCCC] they will never be accepted for placement

again.” Id.

       On July 25, 2013, Treece was released from commitment to the DOC. He reported to

TCCC to serve his two years in community corrections pursuant to the sentencing order, at

which time he was informed that TCCC was rejecting his placement in its program. On July

26, 2013, the State filed a motion to commit Treece to the DOC, asking the court to revoke

his community corrections placement and remand him to the custody of the DOC for the two

years that he was supposed to serve in community corrections. At the hearing on the State’s

motion, Treece argued that TCCC did not have the authority to reject him from its program

because at the time of his rule violation he was still in the CTP, which, he argued, was a

DOC program. The trial court concluded that TCCC could reject Treece based upon his rule

violation while assigned to its CTP and granted the State’s motion. Treece appeals.

                                 Discussion and Decision

                                    Standard of Review

       Treece presents two arguments that the trial court abused its discretion in revoking his

community corrections placement. Before addressing his arguments on the merits, we

observe,

       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. A defendant is not entitled to serve a sentence in either probation or a
       community corrections program. Rather, placement in either is a matter of
       grace and a conditional liberty that is a favor, not a right.


                                              5
              The standard of review of an appeal from the revocation of a
       community corrections placement mirrors that for revocation of probation.
       That is, a revocation of community corrections placement hearing is civil in
       nature, and the State need only prove the alleged violations by a preponderance
       of the evidence.

McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007) (citations and quotation

marks omitted).

              Probation revocation is a two-step process. First, the court must make a
       factual determination that a violation of a condition of probation actually has
       occurred. If a violation is proven, then the trial court must determine if the
       violation warrants revocation of the probation. Indiana has codified the due
       process requirements at Ind. Code § 35-38-2-3 by requiring that an evidentiary
       hearing be held on the revocation and providing for confrontation and cross-
       examination of witnesses and representation by counsel. When a probationer
       admits to the violations, the procedural due process safeguards and an
       evidentiary hearing are not necessary. Instead, the court can proceed to the
       second step of the inquiry and determine whether the violation warrants
       revocation. In making the determination of whether the violation warrants
       revocation, the probationer must be given an opportunity to present evidence
       that explains and mitigates [his] violation.

Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005) (citations omitted), trans. denied.

                    Section 1 – TCCC’s Authority to Reject Treece

       Treece’s first argument is that the trial court erred in concluding that TCCC had the

authority to reject him from the community corrections portion of his sentence based on a

rule violation he committed while still committed to the DOC. The State does not directly

address TCCC’s authority to reject an inmate but argues that the trial court’s discretion to

revoke an offender’s placement in a community corrections program may be exercised before

the offender’s placement commences, citing Ashba v. State 570 N.E.2d 937 (Ind. Ct. App.

1991), cert. denied (1992) and Million v. State, 646 N.E.2d 998 (Ind. Ct. App. 1995).


                                              6
       In Ashba, this Court held that the trial court could properly revoke Ashba’s probation

before his probationary period began for an offense that he committed while he was on parole

from the DOC. 570 N.E.2d at 940. The court explained that the terms of Ashba’s probation

attached to his suspended sentence from the moment that the sentence was imposed. Id.; see

also Baker v. State, 894 N.E.2d 594, 596-98 (Ind. Ct. App. 2008) (holding that probation may

be revoked for commission of crime while serving executed portion of sentence). In Million,

this Court held that the trial court did not abuse its discretion in revoking Million’s placement

in a community corrections program before that placement began for conduct that occurred

while he was in work release for a prior conviction. 646 N.E.2d at 1002; see also Toomey v.

State, 887 N.E.2d 122, 124-25 (Ind. Ct. App. 2008) (holding that trial court did not lack

authority to revoke home detention upon defendant’s violation of conditions of work release).

       Treece acknowledges Ashba and Million but argues that they are inapposite because

neither case involved a CTP. He argues that TCCC had no authority to reject him because

(1) a CTP is a DOC program, (2) permissible DOC disciplinary actions are provided for by

statute, and (3) such disciplinary actions do not include rejection from a community

corrections program.

       To the extent that our analysis of Treece’s argument relies on statutory interpretation,

we observe that

       [b]ecause it presents a question of law, we review a matter of statutory
       interpretation using a de novo standard. When interpreting a statute, our goal
       is to determine and give effect to the legislature’s intent in promulgating it.
       Thus, we begin by examining the language of the statute, presuming that the
       words were selected to express their common and ordinary meanings. Where
       the statute is unambiguous, we accord each word and phrase its plain, ordinary,

                                               7
        and usual meaning, without having to resort to rules of construction to
        decipher meanings.

Leedy v. State, 998 N.E.2d 307, 309-10 (Ind. Ct. App. 2013) (citations omitted), trans. denied

(2014).

        Treece’s argument begins with the assertion that a “CTP is a DOC program.”

Appellant’s Br. at 6. In support, he cites Indiana Code Chapter 11-10-11.5, which governs

the assignment of offenders to CTPs.1 Indiana Code Section 11-10-11.5-1 states in relevant

part, “This chapter applies to a person: (1) who is committed to the [DOC] under IC 35-50

for one (1) or more felonies.” Section 11-10-11.5-1 merely states that the provisions in that

chapter for assignment to a CTP apply to persons who are committed to the DOC. The fact

that a CTP is for an offender committed to the DOC does not mean that a CTP is a DOC

program.

        Treece’s assertion that a CTP is a DOC program completely ignores the numerous

statutory provisions that indicate that a CTP is operated by a community corrections program.

CTP is defined by Indiana Code Section 11-8-1-5.5 as follows:

         “Community transition program” means assignment of a person committed to
        the [DOC] to:

                 (1) a community corrections program; or

                 (2) in a county or combination of counties that do not have a
                 community corrections program, a program of supervision by the
                 probation department of a court;


        1
           For example, Indiana Code Chapter 11-10-11.5 provides for the commencement and duration of the
CTP (Sections 5, 6, and 9), the DOC’s duties such as notification of a defendant’s eligibility to the trial court
and the prosecutor (Sections 2 and 4), transportation of the offender (Sections 7 and 8), and the collection and
distribution of the offender’s earnings while in the CTP (Section 12).

                                                       8
      for a period after a person’s community transition program commencement
      date until the person completes the person’s fixed term of imprisonment, less
      the credit time the person has earned with respect to the term.

(Emphasis added.)

      Community corrections program means

      a community based program that provides preventive services, services to
      offenders, services to persons charged with a crime or an act of delinquency,
      services to persons diverted from the criminal or delinquency process, services
      to persons sentenced to imprisonment, or services to victims of crime or
      delinquency, and is operated under a community corrections plan of a county
      and funded at least in part by the state subsidy provided in IC 11-12-2.

Ind. Code §11-12-1-1 (emphasis added). Counties are required to establish CTPs as part of

their community corrections programs. Ind. Code § 11-12-10-1. Also, a county may

establish a community corrections advisory board to operate its community corrections

programs, which may be operated for any of the following:

      (1) The prevention of crime or delinquency.

      (2) Persons sentenced to imprisonment in a county or local penal facility other
      than a state owned or operated facility.

      (3) Committed offenders.

      (4) Persons ordered to participate in community corrections programs as a
      condition of probation.

Ind. Code § 11-12-1-2 (emphasis added). Further, a CTP may include any of the services

provided by a community corrections program: “A community transition program for a

county must provide services that improve an offender’s chances of making a successful

transition from commitment to employment and participation in the community without the



                                            9
commission of further crimes. The program may include any of the services described in IC

11-12-1-2.5[2].” Ind. Code § 11-12-10-2.

        While assigned to a CTP, “a person must comply with the rules concerning the

conduct of persons in the [CTP] … that are adopted by the community corrections advisory

board establishing the program” and “any conditions established by the sentencing court for

the person.” Ind. Code § 11-10-11.5-11(a) (emphasis added). If a person violates a CTP rule

or any condition established by the sentencing court, the CTP is authorized to take the

following actions:

        The [CTP], following a hearing and upon a finding of probable cause that the
        offender has failed to comply with a rule or condition under section 11 of this
        chapter, may:

                 (1) request a court to issue a warrant ordering the department to
                 immediately:

                         (A) return the offender to the [DOC]; or

                         (B) reassign the offender to a program or facility administered
                         by the [DOC]; or

                 (2) take disciplinary action against an offender who violates rules of
                 conduct. Disciplinary action under this subdivision may include the
                 loss of earned credit time under IC 35-50-6-5.


        2
           Indiana Code Section 11-12-1-2.5 lists services that community corrections programs may include:
residential or work release programs; house arrest, home detention, and electronic monitoring programs;
community restitution or service programs; victim-offender reconciliation programs; jail services programs; jail
work crews; community work crews; juvenile detention alternative programs; day reporting programs; faith
based programs; and other community corrections programs approved by the DOC. This section has been
amended, effective July 1, 2014, to read, “The community corrections programs described in section 2 of this
chapter shall use evidence based services, programs, and practices that reduce the risk for recidivism among
person who participate in the community corrections programs.” Pub. Law 158-2014. However, Indiana Code
Section 11-12-10-2 has not been amended and continues to permit CTPs to include any of the services
permitted by community corrections programs.


                                                      10
Ind. Code § 11-10-11.5-11.5(b). This statutory framework shows that a CTP is not a DOC

program but a community corrections program provided for persons committed to the DOC.

Further, community corrections programs set their own rules and policies to which an

offender is subject.

       Here, when Treece was assigned to a CTP he was assigned to TCCC, which operated

the CTP. Treece violated TCCC rules. TCCC took the action of removing Treece from its

CTP, as it is authorized to do. See id. TCCC also has a policy to reject any person who

commits an act of violence while participating in one of its programs from any further

participation in its programs. It is of no moment that Treece was still committed to the DOC

when he violated TCCC rules. Treece’s commitment to the DOC does not render TCCC

powerless from enforcing its rules and policies.

       Treece argues that the CTP is subject to the disciplinary rules promulgated under

Indiana Code Chapter 11-11-5 based on Section 11-11-5-1(a), which provides, “This chapter

applies to persons: (1) placed in a community corrections program; or assigned to a [CTP].”

Although Chapter 11-11-5 applies to offenders who are assigned to a CTP, we disagree with

Treece that the disciplinary rules in Sections 11-11-5-3 and -4 limit the authority of CTPs to

impose their own disciplinary measures on persons in their programs who violate their rules.

Section 11-11-5-3 lists permissible disciplinary actions and states, “The [DOC] may impose

any of the following as disciplinary action.” (Emphasis added.) Likewise, Section 11-11-5-4

lists impermissible disciplinary actions and provides, “The [DOC] may not impose the

following as disciplinary action.” (Emphasis added.) We observe that “[i]t is just as


                                             11
important to recognize what the statute does not say as it is to recognize what it does say.”

Dugan v. State, 793 N.E.2d 1034, 1036 (Ind. 2003). We conclude that Sections 11-11-5-3

and -4 specifically limit the actions that the DOC may take against offenders while they are

placed in a community corrections program or assigned to a CTP. Sections 11-11-5-3 and -4

control the DOC’s disciplinary actions with regard to offenders in a CTP, but they do not

control or limit a CTP’s disciplinary actions with regard to offenders in CTP.

       A CTP’s authority to discipline offenders when they are assigned to a CTP is granted

in Indiana Code Section 11-10-11.5-11.5(b), which provides that a CTP may remove an

offender from its program upon a rule violation or take “disciplinary action” against the

offender. It does not say that a CTP may take disciplinary action under Indiana Code Section

11-11-5-3. If the legislature wanted CTPs to take only the disciplinary actions listed in

Section 11-11-5-3, it could have cited to that section. We conclude that the TCCC had the

authority to reject Treece from its community corrections programs after he violated its rules

while assigned to its CTP.

            Section 2 – Trial Court’s Failure to Consider Treece’s Progress

       Treece also argues that even if TCCC had the authority to reject him from community

corrections for his CTP rule violation, the trial court abused its discretion in revoking his

placement by failing to account for his achievements while committed to the DOC.

Specifically, he argues that he completed his GED and the Clean Lifestyle is Freedom

Forever (CLIFF) program, had obtained fulltime employment, and was “seemingly being

rehabilitated.” Appellant’s Br. at 10. Initially, we observe that trial courts are not required to


                                               12
balance “aggravating or mitigating circumstances when imposing sentence in a probation

revocation proceeding.” Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993),

overruled in part by Patterson v. State, 669 N.E.2d 220, 223 n.2 (Ind. Ct. App. 1995)

(holding that in a probation revocation proceeding, probationer’s mental health should be

considered).3 In addition, violation of a single condition of placement is sufficient to revoke

placement. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). Here, Treece did not

merely break a rule, he engaged in an act of violence after minimal provocation. Someone

was sitting in a seat that he had previously sat in, and rather than taking one of the many

other unoccupied seats, he kicked the person in the face. We conclude that the trial court did

not abuse its discretion in revoking Treece’s placement in community corrections.

                      Section 3 – Remand for Sentencing Clarification

        Treece received an aggregate sentence of fourteen years. The sentencing order states

that Treece “shall execute eight (8) years at the [DOC] to include two (2) years with [TCCC]

at a level to be determined by Community Corrections” and “that four (4) years of the

sentences of imprisonment should be, and the same hereby are, suspended and [Treece]

placed on supervised probation for four (4) years.” Appellant’s App. at 15. Do we interpret

this order to mean eight years at the DOC plus two years with TCCC plus four years




        3
          This is not to be confused with the probationer right to “an opportunity to present evidence that
explains and mitigates [his] violation.” See Sanders, 825 N.E.2d at 955.


                                                    13
suspended for a total sentence of fourteen years?4 Based on Treece’s release date from the

DOC of July 25, 2013, and the State’s calculation of his time served,5 it appears that the DOC

interpreted the sentencing order to mean that the eight years executed consists of six years at

the DOC and two years with TCCC. If that is the case, Treece’s sentence will be only twelve

years, not fourteen. The sentencing order’s paragraph pertaining to the cost of Treece’s

incarceration stated that “[his] sentence calls for an executed term of imprisonment of ten

years.” Id. at 17. The chronological case summary reads, “[Treece] sentenced to 14 years to

execute 10 years.” Id. at 7. “[I]t is our duty to ‘correct sentencing errors, sua sponte, if

necessary.’” Jones v. State, 775 N.E.2d 322, 331 (Ind. Ct. App. 2002) (quoting Dickson v.

State, 624 N.E.2d 472, 474 (Ind. Ct. App. 1993)). Accordingly, we remand to the trial court

to clarify Treece’s sentence.

        Affirmed and remanded.

BAKER, J., and BARNES, J., concur.




        4
         Indiana Code Section 35-38-2.6-3 indicates that if the trial court decides to place a defendant in a
community corrections program as an alternative to commitment to the DOC, the trial court should suspend the
defendant’s sentence. We also observe that the trial court may order participation in community corrections
programs as a condition of probation. Ind. Code § 11-12-1-2.

        5
           “[Treece] was released from the DOC portion of his executed sentence on July 25, 2013 – eight
hundred and five (805) days after sentencing. Assuming [Treece] earned and retained all good time credit
available to him in this case, he has completed two thousand one hundred and ninety (2,190) days – or six
years – of his eight-year executed sentence.” Appellant’s App. at 30 (emphasis added).


                                                     14
