Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                        Oct 27 2014, 9:12 am
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.

ATTORNEYS FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

RUTH JOHNSON                                        GREGORY F. ZOELLER
Marion County Public Defender Agency                Attorney General of Indiana
Indianapolis, Indiana
                                                    CYNTHIA L. PLOUGHE
MICHAEL G. MOORE                                    Deputy Attorney General
Indianapolis, Indiana                               Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

SHELLEY L. KING,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 49A05-1404-CR-153
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Lisa F. Borges, Judge
                            Cause No. 49G04-1111-FB-82378



                                         October 27, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Shelley L. King appeals the revocation of both his placement in community

corrections and his probation, contending that the condition of his community corrections

placement that prohibited disrespectful behavior was unreasonably vague and was not a

condition of his probation.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       In November 2011, the State charged King with Class B felony burglary, Class D

felony theft, Class A misdemeanor criminal mischief, and Class A misdemeanor carrying

a handgun without a license. Pursuant to the plea agreement accepted by the trial court,

King pleaded guilty to the burglary and handgun charges and the remaining counts were

dismissed. King was sentenced on June 19, 2012, to a term of eight years for the burglary

conviction, with six years executed and two years suspended. The first four years of that

sentence were to be served with the Department of Correction (“DOC”), followed by two

years with the Marion County Community Corrections Program (“MCCC”). King was

also placed on probation for one year. For the handgun conviction, King was sentenced to

a concurrent one-year sentence.

       Also, at sentencing, the trial court issued an Order of Commitment to Community

Corrections and an Order of Probation, both documents required and received King’s

signature. In relevant part, the Order of Commitment required King to “comply with all

rules [and] regulations” of community corrections. Appellant’s App. at 56. The Order of

Probation required King to “strictly comply” with its terms, and it explained, “If the



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Department finds that you have violated a condition at any time during the probationary

period, a petition to modify or revoke your probation may be filed . . . .” Id. at 59.

       In August 2013, King entered the Duvall Residential Center (“DRC”), which was

part of the MCCC work release program. As a prerequisite to becoming a resident, King

was required to sign a contract regarding conditions of placement. Tr. at 31-32. Condition

10 of that contract read in part, “You shall cooperate and be respectful with any member of

Community Corrections staff, security staff, anyone conducting business for Community

Corrections, any visitors to the facility and fellow inmates.” State’s Ex. 1 (emphasis

added). King placed his signature on the last page under a boldfaced paragraph that read:

       I understand each of the rules above and have indicated my understanding by
       placing my initials in front of each rule. I agree to follow each of the rules
       above. I acknowledge that any failure to abide by the rules above may result
       in a Notice of Violation being filed with the Court or the [DOC]; whichever
       is appropriate. If the Court or the [DOC] finds that I am in violation of the
       rules, my placement within Community Corrections may be revoked and I
       may be ordered to serve my sentence in the [DOC]. Additionally, a violation
       of any rule may result in an Administrative Hearing. If I am found in
       violation at the Administrative Hearing, I may be deprived of all or part of
       my “good time” credit. Violations may also be reported to the Marion
       County Prosecutor or other law enforcement and may result in my arrest and
       criminal prosecution. If I am on probation, I understand that a violation of
       the above rules may result in the Court revoking my probation and ordering
       me to serve all or part of any suspended sentence in the [DOC].

Id. (emphasis added)

       On December 22, 2013, King and about six other DRC residents approached Duwan

Jackson, another resident. Jackson was sitting on his bunk at the DRC when King and the

others tried to take Jackson’s money. King also threatened to beat up Jackson. Tr. at 36.

Jackson feared for his safety and reported the incident to Sergeant Linda Goodner, an


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employee of Marion County Community Corrections who, at that time, worked at DRC.

Id. at 15.

       Sergeant Goodner watched a surveillance video of the incident, which showed King

and others approaching Jackson as he sat on his bunk. Sergeant Goodner testified that the

video revealed that the altercation appeared “pretty heated” and the group “kept getting

closer” to Jackson. Id. at 44. The group moved their hands as if “trying to wave [Jackson]

on,” but Sergeant Goodner also noticed that the group was blocking Jackson from leaving

the dorm. Id. According to Sergeant Goodner, King was near the front of the group, was

speaking towards Jackson, and appeared “agitated.” Id. at 44, 46-47.

       Based on this incident, the MCCC filed a notice of violation alleging that King had

violated the terms and conditions of his placement in community corrections by

“threaten[ing] another Duvall resident.” Appellant’s App. at 67. Soon thereafter, the

Marion County Probation Department filed a similar notice alleging that King had violated

probation by violating the conditions of his community corrections placement.           A

consolidated hearing was held on March 16, 2014. Following the close of evidence, the

trial court found by a preponderance of the evidence that King had violated both his

community corrections placement and the terms of his probation. The trial court revoked

King’s placement with the MCCC and his probation and sentenced him to serve the balance

of his sentence with the DOC. King now appeals.

                           DISCUSSION AND DECISION

       King first contends that the condition of his community corrections placement

requiring King to be “respectful” with fellow inmates was unreasonably vague.

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Appellant’s Br. at 3. King asserts he has a due process right to have conditions of

supervised release that are sufficiently clear to inform him of what conduct will result in

his being returned to prison, and that the condition that he be “respectful” did not

adequately advise him what conduct would result in a violation. Id.

       The State recognizes that “a probationer or resident of a community corrections

facility must be given adequate notice to the conduct expected of him and the violations

that could end his placement with community corrections.” Appellee’s Br. at 6. Likewise,

a probationer or a resident in community corrections “has a due process right to conditions

of supervised release that are sufficiently clear to inform him of what conduct will result

in his being returned to prison.” Id. (citing Smith v. State, 779 N.E.2d 111, 118 (Ind. Ct.

App. 2002), trans. denied). The State argues, however, that such person “should not be

permitted to wait for appeal before challenging a term or condition on the grounds of

vagueness.” Id. We agree.

       King has waived his vagueness argument. King did not object to the condition at

the time it was imposed, nor did he argue during the consolidated evidentiary hearing that

the term “respectful” was vague or unclear. During the hearing, King asserted that

Jackson’s testimony was “wholly incredible,” and that King did not violate the terms and

conditions of his placement in community corrections because he was not truly part of the

group that threatened Jackson and, based on King’s physical size, Jackson could not truly

have been threated into giving King any money. Tr. at 49-50. Because King failed to raise

an argument regarding the vagueness of the term “respectful” at any time prior to this

appeal, he has waived appellate review of this argument. See Robinette v. State, 641 N.E.2d

                                            5
1286, 1288 (Ind. Ct. App. 1994) (probationer waived argument concerning constitutional

validity of probation condition for failing to raise issue at time condition was imposed or

at his probation revocation hearing).

         King next maintains that the trial court abused its discretion when it revoked King’s

probation upon finding that he violated the terms of his community corrections contract.

Because the revocation of King’s probation was based on his having violated the terms of

his community corrections placement, we address those issues in turn.

         On appeal, 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. Holmes

v. State, 923 N.E.2d 479, 482 (Ind. Ct. App. 2010); Cox v. State, 706 N.E.2d 547, 549 (Ind.

1999).      Probation and community corrections programs serve as alternatives to

commitment to the DOC, and both programs are made at the sole discretion of the trial

court. Holmes, 923 N.E.2d at 482. A defendant is not entitled to serve a sentence in either

probation or a community corrections program; rather placement is a matter of grace and

a conditional liberty that is a favor, not a right. Id. (internal quotations omitted).

         Our standard of review of an appeal from the revocation of a community corrections

placement mirrors that for revocation of probation. Id. at 483. A probation hearing is civil

in nature, and the State need only prove the alleged violations by a preponderance of the

evidence. Id. We consider the evidence most favorable to the judgment of the trial court

and do not reweigh that evidence or judge the credibility of the witnesses. Id. If there is

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



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defendant has violated any terms of probation or community corrections, we affirm its

decision to revoke. Id.

        King was initially sentenced on June 19, 2012. That same date, King executed an

Order of Commitment to Community Corrections and an Order of Probation. Appellant’s

App. at 56, 59. In relevant part, the Order of Commitment required King to “comply with

all rules [and] regulations” of the MCCC. Id. at 56. In August 2013, King entered the

DRC, a part of the MCCC work release program. A condition for placement in the DRC,

Condition 10, required King to “cooperate and be respectful with any member of

Community Corrections staff . . . and fellow inmates.” State’s Ex. 1 (emphasis added).

Once allegations were made that King violated the conditions of community corrections,

the trial court was charged with the duty of determining whether those allegations were

true.

        Following the consolidated evidentiary hearing addressing the allegations that King

violated the conditions of placement in community corrections, the trial court concluded:

        It strikes me that a person who is an inmate at Duval[l] has no option if they
        feel threatened other than to approach staff. That is exactly what Mr. Jackson
        did. He testified, and I thought credibly . . . . His testimony was that the
        defendant and six other people tried to take his money or tried to get him to
        give his money up, and told him he was going to beat him up. It could be
        that the defendant is smaller than Mr. Jackson but the defendant and five
        other people certainly all crowded around, which is what I heard from the
        testimony that was on the video, that there were a whole group of people
        crowded around, that is intimidating and that is being a person who is
        participating in a group that is making a threat to another inmate. I found
        [Jackson’s] testimony to be credible. Sergeant Goodner, when she testified,
        certainly corroborated Mr. Jackson’s testimony about what happened. She
        saw it on the video and came to court and told us about that. When I look at
        that, I do think the State has met the burden of proving that it is more likely


                                              7
       than not, that what Mr. Jackson said is true, that the defendant did violate the
       rules of Duval[l].

Tr. at 51-52. The trial court did not abuse its discretion in revoking King’s placement in

community corrections after finding that he violated the DRC’s condition to be respectful

to other inmates when, while accompanied by about six other residents, King approached

Jackson and threatened to take his money and beat him up.

       King insists that a violation of the community corrections’ condition to be respectful

to fellow inmates cannot also support a revocation of his probation where that condition

was not a condition of his probation. Specifically, King argues that the Order of Probation

never advised him that a violation of a community corrections’ rule would result in a

violation of his probation. Appellant’s Br. at 8. King insists that “[i]f that was a proper

basis for a violation, [he] was entitled to have been informed of such at sentencing. Id.

       At sentencing, King executed the Order of Commitment to Community Corrections,

which in relevant part, required King to “comply with all rules [and] regulations” of the

MCCC. Appellant’s App. at 56. While King did not know at that time what the specific

rules and regulations were for remaining in community corrections, it should have been no

surprise to King that threatening to beat up and to steal money from another DRC resident

would be a violation of the rules of community corrections.

       Furthermore, when King was admitted to the DRC, and before he had taken action

against Jackson, King knew exactly what behavior was required to remain in the DRC and

what the consequences were for violating such conditions. As a prerequisite to becoming

a resident of DRC, King agreed to “be respectful with . . . fellow inmates.” State’s Ex. 1.


                                              8
Additionally, King placed his signature on the last page of the conditions under a boldfaced

paragraph that specifically stated,

       I acknowledge that any failure to abide by the rules above may result in a
       Notice of Violation being filed with the Court or the [DOC]; whichever is
       appropriate. If the Court or the [DOC] finds that I am in violation of the
       rules, my placement within Community Corrections may be revoked and I
       may be ordered to serve my sentence in the Indiana [DOC]. . . . Violations
       may also be reported to the Marion County Prosecutor or other law
       enforcement and may result in my arrest and criminal prosecution. If I am
       on probation, I understand that a violation of the above rules may result in
       the Court revoking my probation and ordering me to serve all or part of any
       suspended sentence in the [DOC].

State’s Ex. 1 (emphasis added). King concedes that “[a] trial court may revoke probation

before a probationer has entered the probationary phases of his sentence.” Appellant’s Br.

at 7. The trial court did not abuse its discretion when it revoked King’s probation and

placement in community corrections after finding that King violated the terms of his

community corrections placement.

       Affirmed.

BAKER, J., and ROBB, J., concur.




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