MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      Jul 29 2020, 11:38 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
P. Jeffrey Schlesinger                                    Curtis T. Hill, Jr.
Office of the Public Defender                             Attorney General of Indiana
Crown Point, Indiana
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Samuel J. Sendrow
                                                          Certified Legal Intern



                                           IN THE
    COURT OF APPEALS OF INDIANA

Emmanuel Lee Haymon,                                      July 29, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          20A-CR-170
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          45G04-1605-F4-15



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-170 | July 29, 2020                            Page 1 of 11
                                        Statement of the Case
[1]   Emmanuel Haymon (“Haymon”) appeals the revocation of his placement in a

      community corrections program. Haymon, who admitted that he had violated

      rules of the community corrections program, argues that the trial court abused

      its discretion by ordering him to serve the remainder of his sentence at the

      Indiana Department of Correction (“DOC”). Concluding that there was no

      abuse of discretion, we affirm the trial court’s judgment.


[2]   Affirmed.


                                                      Issue
              Whether the trial court abused its discretion by ordering Haymon
              to serve the remainder of his sentence in the Indiana Department
              of Correction.

                                                      Facts
[3]   In May 2016, the State charged Haymon with: Count 1, Level 4 felony dealing

      in a narcotic drug; Count 2, Level 4 felony dealing in a narcotic drug; and

      Count 3, Level 6 felony dealing in a substance represented to be a controlled

      substance. In May 2017, Haymon entered a plea agreement and pled guilty to

      an amended charge of Level 5 felony dealing in a narcotic drug in exchange for

      the State’s dismissal of the remaining charges. The parties agreed that Haymon

      would be sentenced to five (5) years, with two (2) years executed in the DOC

      and three (3) years to be served in the Lake County Community Corrections




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-170 | July 29, 2020   Page 2 of 11
      Program (“community corrections”). The trial court accepted Haymon’s plea

      and sentenced him in accordance with the plea agreement.1


[4]   Haymon completed the DOC portion of his sentence, and then, in September

      2018, began serving the remaining portion of his sentence in the community

      corrections program, which included a work release program. In September

      2019, community corrections filed a “Petition to Expel” Haymon from the

      program, alleging that Haymon had violated the conditions of his placement

      by: (1) returning to the facility late on three different occasions; (2) possessing

      contraband, i.e., rolling papers, on July 24, 2019; (3) testing positive for alcohol

      on July 13 and September 11, 2019; (4) failing to call the mandatory drug

      screen line from June 27 to July 1, 2019; and (5) failing to pay fees. (App. Vol.

      2 at 104). The petition also noted that Haymon had “demonstrated a total

      disregard” for the rules of the program and that “his actions indicate[d] that he

      [wa]s beyond the effective control of this form of supervision.” (App. Vol. 2 at

      104).


[5]   The trial court held multiple hearings in relation to the petition to expel. At the

      September 26, 2019 hearing, Haymon’s counsel informed the trial court that

      counsel had sent an evaluation notice to community corrections to see if it




      1
       The presentence investigation report (“PSI”) compiled at the time of sentencing reveals that then thirty-two-
      year-old Haymon had five misdemeanor convictions, one felony conviction entered as a misdemeanor, and
      one felony conviction. He also had previous unsuccessful attempts at probation. The PSI also revealed that
      Haymon admitted that he had used various drugs—including alcohol, marijuana, heroin, cocaine, PCP,
      Xanax, and ecstasy—and that he had an addiction to marijuana and heroin. The PSI also showed that he
      had undergone alcohol and drug treatment in the past.

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-170 | July 29, 2020                     Page 3 of 11
      would take Haymon back into the program and that community corrections

      had declined his request. Haymon’s counsel requested the trial court to reset

      the hearing so that counsel could further consult with Haymon. The trial court

      agreed and reset the revocation hearing.


[6]   At the October 31, 2019 hearing, Haymon’s counsel told the trial court that

      Haymon was “not opposing the substance of the petition to expel” but that he

      wanted to “explor[e] an alternative on the sentencing[,]” such as placement in

      the Community Transition Court (“CTC”). (Tr. Vol. 2 at 12). The trial court

      commented that “when someone is expelled from Lake County Community

      Corrections, it generally prohibits [his] participation in CTC, because one starts

      in CTC in [community corrections].” (Tr. Vol. 2 at 13). Nevertheless, upon

      Haymon’s counsel’s request, the magistrate judge granted Haymon’s request to

      be evaluated for CTC and stated that she would consult with her presiding

      judge on the issue. Shortly thereafter, community corrections assessed Haymon

      for admission into CTC and then notified the trial court that it had determined

      that Haymon was “NOT APPROPRIATE” for CTC. (App. Vol. 2 at 71).


[7]   During the November 21, 2019 hearing, Haymon admitted that he had violated

      some of the terms of his community corrections placement as alleged.

      Specifically, he admitted that he had tested positive for alcohol in June and

      September, had failed to call the mandatory drug screen line, and had possessed

      rolling papers. The trial court then granted the petition to expel Haymon from

      community corrections. When the trial court moved to a consideration of

      sentencing, Haymon’s counsel stated that “despite the petition [to expel] being

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-170 | July 29, 2020   Page 4 of 11
      granted,” Haymon was requesting the trial court to return him to community

      corrections. (Tr. Vol. 2 at 21). Haymon acknowledged that he had “a

      substance abuse problem” when he was arrested in this case. (Tr. Vol. 2 at 22).

      Haymon told the trial court that he felt that community corrections was “trying

      to send [him] back to prison for basically blowing hot off alcohol[,]” and he

      suggested that community corrections should have placed him in an Alcoholics

      Anonymous class or redone his case plan. (Tr. Vol. 2 at 21). The trial court

      pointed out to Haymon that his violations were “not just an issue of the

      alcohol” but also included other violations such as his failure to call the

      mandatory drug screen line. (Tr. Vol. 2 at 23). Upon the trial court’s inquiry

      into Haymon’s case plan, community corrections informed the trial court that

      Haymon had completed an Awakenings program that dealt with alcohol issues.

      The trial court then rescheduled the hearing so that it could further consider the

      sentencing issue and obtain “some information concerning his case plan” and

      “what was offered to him in terms of those treatment options.” (Tr. Vol. 2 at

      24).2


[8]   At the December 9, 2019 hearing, Haymon’s counsel told the trial court that

      Haymon wished to return to community corrections but understood “that that’s

      not likely.” (Tr. Vol. 2 at 29). Ultimately, the trial court rescheduled the

      hearing due to a docketing issue.




      2
          The trial court also wanted to further consider a credit time argument that is not at issue in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-170 | July 29, 2020                            Page 5 of 11
[9]    During the December 19, 2019 hearing, Haymon’s counsel asked the trial court

       whether it was going to return Haymon to community corrections, and the trial

       court responded, “Well no. I mean that’s -- no, absolutely not. He already

       made admissions and we already granted the petition so that he would not be

       returning . . . . Under what circumstances would we -- why would we be doing

       that . . . ? I guess I’m confused.” (Tr. Vol. 2 at 40). Haymon’s counsel stated

       that Haymon had “no problem” with “being found in violation” of community

       corrections, but he wanted the trial court to “order him to remain on

       community corrections.” (Tr. Vol. 2 at 40). The trial court responded that

       “when someone has violated the [community corrections] rules and a petition

       to expel has been granted, by definition, it’s an expulsion from the program.

       We’ve granted the expulsion. So having granted that, we would not be putting

       him back there.” (Tr. Vol. 2 at 40-41). When Haymon’s counsel stated that

       Haymon had asked community corrections if it would consider taking him

       back, a community corrections representative confirmed that it had filed the

       petition to expel Haymon from community corrections because it wanted him

       removed from the placement.


[10]   The trial court revoked Haymon’s community corrections placement and

       ordered him to serve the remaining three (3) years of his sentence in the DOC.

       The trial court recommended that Haymon be placed in the “Purposeful

       Incarceration Therapeutic Community Program” and informed Haymon that,

       upon his successful completion of the program, the court would consider a

       sentence modification. (App. Vol. 2 at 111). Haymon now appeals.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-170 | July 29, 2020   Page 6 of 11
                                                    Decision
[11]   Haymon argues that the trial court abused its discretion by ordering him to

       serve his remaining three-year sentence at DOC instead of returning him to the

       community corrections placement. He contends that the trial court

       “misunderstood” its authority under INDIANA CODE § 35-38-2.6-5, believing

       that its “only option” was to revoke his community corrections placement and

       to order him to serve his remaining sentence at DOC. (Haymon’s Br. 6, 9).


[12]   We review a trial court’s ruling on a petition to revoke a defendant’s placement

       in a community corrections program the same as we do for a ruling on petition

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

       “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. (citations and

       internal quotation marks omitted). We review a trial court’s decision in a

       community corrections proceeding for an abuse of discretion. McQueen v. State,

       862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007). An abuse of discretion occurs

       where the decision is clearly against the logic and effect of the facts and

       circumstances. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).


[13]   When a defendant placed in a community corrections program violates the

       terms of the placement, INDIANA CODE § 35-38-2.6-5 authorizes a community

       corrections director to choose among the following courses of action:


               (1) Change the terms of the placement.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-170 | July 29, 2020   Page 7 of 11
           (2) Continue the placement.

           (3) Reassign a person assigned to a specific community
           corrections program to a different community corrections
           program.

           (4) Request that the court revoke the placement and commit the person to
           the county jail or department of correction for the remainder of the
           person’s sentence.

I.C. § 35-38-2.6-5 (emphasis added).3 If the community corrections director

exercises its authority to take any of the actions listed under subsections (1)-(3),

the director is required to notify the trial court of such changes to a defendant’s

community corrections placement. Id. (specifying that a community

corrections director “shall” notify the court). Thus, under this statute, “the

community corrections director is given the ability to manage the community

corrections program but not to revoke placement or resentence participants.”

Morgan v. State, 87 N.E.3d 506, 510 (Ind. Ct. App. 2017), trans. denied. When

subsection (4) is at issue, as it is here, “only the trial court may, at the request of




3
    Prior to a 2015 amendment to INDIANA CODE § 35-38-2.6-5, the statute provided:

         If a person who is placed under this chapter violates the terms of the placement, the court may,
         after a hearing, do any of the following:
           (1) Change the terms of the placement.
           (2) Continue the placement.
           (3) Revoke the placement and commit the person to the department of correction for the
           remainder of the person’s sentence.
After 2015, this statute was again amended. Most recently, during the 2020 legislative session, our general
assembly amended INDIANA CODE § 35-38-2.6-5, effective July 1, 2020, to specify that a “prosecuting
attorney” also has the authority to “request that the court revoke the placement and commit the person to the
county jail or department of correction for the remainder of the person’s sentence.” I.C. § 35-38-2.6-5(b).
Here, the petition to revoke Haymon’s community corrections placement was filed prior to this amendment,
and this recent amendment is not at issue in this case.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-170 | July 29, 2020                        Page 8 of 11
       the director, revoke a defendant’s placement and order the defendant to execute

       the remaining portion of the defendant’s sentence.” Breda v. State, 142 N.E.3d

       482, 487 (Ind. Ct. App. 2020), reh’g denied. See also Flowers v. State, 101 N.E.3d

       242, 248 (Ind. Ct. App. 2018) (explaining that a trial court has the authority to

       grant or deny a community corrections director’s request to revoke a

       defendant’s placement); Morgan, 87 N.E.3d at 510 (“Although the community

       corrections director can recommend revocation of placement, it remains the

       trial court’s duty to determine whether revocation will be ordered.”).


[14]   Haymon does not dispute that he violated the terms of his community

       corrections placement. Indeed, he admitted to violating various terms of his

       community corrections placement by testing positive for alcohol in June and

       September, failing to call the mandatory drug screen line, and possessing rolling

       papers. Haymon suggests that his admissions to violating the terms of

       community corrections “did not mean he had to be expelled from community

       corrections” and that the “trial court abused its discretion by failing to realize

       that the best rehabilitative option was to return Haymon to community

       corrections with additional substance abuse treatment.” (Haymon’s Br. 9).


[15]   Here, after community corrections filed the petition to expel Haymon from the

       community corrections placement, the trial court held more than one hearing to

       determine whether to grant or deny community corrections’ petition. At an

       initial hearing, after Haymon’s counsel indicated that community corrections

       had declined Haymon’s request to take him back into the program, the trial

       court allowed Haymon additional time to determine how he wanted to proceed.

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-170 | July 29, 2020   Page 9 of 11
       At the October hearing, Haymon’s counsel told the trial court that Haymon

       was not opposing the substance of the petition to expel but that he wanted to

       “explor[e] an alternative on the sentencing[,]” such as placement in CTC. (Tr.

       Vol. 2 at 12). The trial court granted Haymon’s request to further investigate

       the option and to be evaluated for admission into CTC. This action indicates

       that the trial court was open to considering other options aside from ordering

       Haymon to serve his remaining sentence at DOC. Ultimately, however,

       Haymon was deemed not appropriate for admission to CTC.


[16]   Thereafter, in the November hearing, Haymon admitted to violating the terms

       of his community corrections placement by testing positive for alcohol in June

       and September, failing to call the mandatory drug screen line, and possessing

       rolling papers. The trial court then granted the petition to expel Haymon from

       community corrections. When the trial court moved to a consideration of

       sentencing, Haymon’s counsel stated that “despite the petition [to expel] being

       granted,” Haymon was requesting the trial court to return him to community

       corrections. (Tr. Vol. 2 at 21). After the trial court discussed Haymon’s

       community corrections case plan with Haymon and a community corrections

       representative, the trial court then rescheduled the hearing so that it could

       further consider the sentencing issue and obtain “some information concerning

       his case plan” and “what was offered to him in terms of those treatment

       options.” (Tr. Vol. 2 at 24). This action also indicates that the trial court did

       not automatically determine that its only option was to order Haymon to serve

       his remaining sentence at DOC.


       Court of Appeals of Indiana | Memorandum Decision 20A-CR-170 | July 29, 2020   Page 10 of 11
[17]   Ultimately, at the December 19, 2019 hearing, the trial court revoked

       Haymon’s community corrections placement and ordered him to serve the

       remaining three (3) years of his sentence in the DOC. Additionally, the trial

       court incorporated a rehabilitative option. Recognizing Haymon’s substance

       abuse issues, the trial court recommended that Haymon be placed in the

       purposeful incarceration program while at the DOC, and it informed Haymon

       that, upon his successful completion of the program, the court would consider a

       sentence modification. Because the record reflects that the trial court ordered

       Haymon to serve all three years in the DOC, not because of a misunderstanding

       of its options but rather because of the facts in this case, we affirm the trial

       court’s judgment.


[18]   Affirmed.


       Kirsch, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-170 | July 29, 2020   Page 11 of 11
