Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not

                                                             FILED
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res                        Feb 19 2013, 9:17 am
judicata, collateral estoppel, or the law
of the case.
                                                                  CLERK
                                                                of the supreme court,
                                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

PETER D. TODD                                    GREGORY F. ZOELLER
Elkhart, Indiana                                 Attorney General of Indiana

                                                 CHANDRA K. HEIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ANTHONY E. THOMAS,                               )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )    No. 20A03-1208-CR-377
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                     APPEAL FROM THE ELKHART SUPERIOR COURT
                           The Honorable Evan S. Roberts, Judge
                              Cause No. 20D01-1006-FC-19


                                      February 19, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

      Anthony Thomas appeals the trial court’s revocation of his placement in a work

release center. We affirm.

                                          Issue

      Thomas raises one issue, which we restate as whether the trial court abused its

discretion by revoking his placement in a work release center.

                                          Facts

      On June 22, 2010, the State charged Thomas with Class C felony battery resulting

in bodily injury to a pregnant woman, Class D felony domestic battery with a child

present, Class D felony strangulation, Class A misdemeanor domestic battery, and Class

D felony domestic battery with a prior conviction. Thomas pled guilty to Class D felony

domestic battery with a child present, and the trial court sentenced him to three years

suspended to probation to be consecutive to his sentence from another case.

      On December 14, 2011, the State filed a petition alleging that Thomas had

violated the terms of his probation by testing positive for marijuana, and Thomas

admitted the violation. On May 31, 2012, the trial court revoked his probation and

ordered him to serve the three-year suspended sentence.          However, the trial court

recommended placement in a work release center if Thomas qualified.

      On June 14, 2012, the work release center notified the trial court that, on June 8,

2012, Thomas tested positive for marijuana. The work release center could not send him

to work knowing that he had tested positive for an illegal drug. The work release center

placed Thomas on restriction but would consider him for participation when he submitted

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a negative urine screen. The trial court issued a bench warrant for Thomas’s arrest. At a

hearing on the matter, Thomas again admitted to violating the terms of his probation, and

the trial court ordered that Thomas complete the balance of his sentence at the

Department of Correction. Thomas now appeals.

                                         Analysis

       Thomas argues that the trial court abused its discretion by revoking his placement

in a work release center. Thomas argues that, instead of placement in the Department of

Correction, the trial court should have continued his placement in the work release center.

       Both probation and community corrections programs serve as alternatives to

commitment to the Department of Correction, and both are made at the sole discretion of

the trial court. McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007) (citing

Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)). 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. (quoting Cox, 706 N.E.2d at 549). 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.       Id.    We will consider all the evidence most

favorable to the judgment of the trial court without reweighing that evidence or judging

the credibility of witnesses. Id. If there is substantial evidence of probative value to

support the trial court’s conclusion that a defendant has violated any terms of community

corrections, we will affirm its decision to revoke placement. Id.



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      According to Thomas, the trial court should have ordered a continuation of the

work release placement because he did not have a prior positive drug test on work

release, he did not have behavioral problems on work release, and the State did not

request removal from the program. However, the trial court was well within its discretion

to revoke Thomas’s placement in the work release program here. Thomas had previously

had his probation revoked for a positive drug test, and the trial court gave Thomas the

chance to serve his suspended sentence on work release. Shortly thereafter, he tested

positive for marijuana again. Given Thomas’s repeated violations, the trial court did not

abuse its discretion when it ordered Thomas to serve the remainder of his suspended

sentence in the Department of Correction rather than in a work release program.

                                      Conclusion

      The trial court properly ordered Thomas to serve the remainder of his suspended

sentence in the Department of Correction. We affirm.

      Affirmed.

BAKER, J., and RILEY, J., concur.




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