Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                                        Oct 30 2013, 5:46 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

RUTH ANN JOHNSON                                 GREGORY F. ZOELLER
LILABERDIA BATTIES                               Attorney General of Indiana
Marion County Public Defender’s Office
Indianapolis, Indiana                            AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

LAWRENCE HARRIS,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 49A02-1301-CR-80
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Sheila Carlisle, Judge
                           Cause No. 49G03-1202-FB-11073




                                      October 30, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issues

       Lawrence Harris appeals the trial court’s order revoking his placement in

community corrections and committing him to the Indiana Department of Correction

(“DOC”) to execute the remainder of his sentence. Harris presents two issues for our

review, which we restate as: 1) whether the trial court abused its discretion when it

revoked Harris’s placement in community corrections; and 2) whether the trial court

abused its discretion in ordering the execution of Harris’s sentence in the DOC.

Concluding the trial court did not abuse its discretion, we affirm.

                               Facts and Procedural History

       On February 21, 2012, the State charged Harris with burglary, a Class B felony,

and theft, a Class D felony. The State and Harris entered into a plea agreement in which

Harris agreed to plead guilty to burglary in exchange for the State dismissing the theft

charge. In April 2012, the trial court, pursuant to the terms of the plea agreement,

sentenced Harris to seven years, six of which were to be served on work release through

Marion County Community Corrections, with the final year suspended to probation.

       In June 2012, community corrections filed a Notice of Community Corrections

Violation alleging Harris failed to return as scheduled from an approved pass. The State

also filed a Notice of Probation Violation based on this incident. Harris admitted the

violation and the trial court took disposition under advisement pending completion of

Harris’s community corrections placement although it did modify his placement to

Brandon Hall residential facility. In October 2012, community corrections filed a report

advising the court that Harris had been disciplined due to bringing a controlled substance

into the facility and using tobacco. Also in October 2012, community corrections filed a
                                             2
Notice of Community Corrections Violation alleging that Harris did not return to

Brandon Hall following an approved absentee pass. The Notice was later withdrawn

because Harris did return to the facility, albeit two hours late.

       Subsequently, on December 14, 2012, at approximately 7:00 a.m., Harris received

a pass approving his absence from Brandon Hall to visit Drug Lab. He was required to

return by 9:30 a.m. However, as of 3:00 p.m., when a Notice of Community Corrections

Violation was filed, Harris had not returned to the facility, and community corrections

was unable to contact him. Brandon Hall policy is that a resident is designated “Failure

to Return” two hours after the scheduled return time. Harris was missing for five days,

after which he voluntarily surrendered to authorities.

       During the hearing on the Notice of Community Corrections Violation, Harris

admitted that he failed to return on time but indicated that extenuating circumstances

were the reason for his unapproved absence – specifically, Harris had been absent to

attend his sister’s funeral.    Harris argued that his sister’s death was a mitigating

circumstance that the court should take into consideration in its disposition. The trial

court revoked his placement in community corrections and ordered him to serve the

remainder of his six year sentence in the DOC. Harris now appeals.

                                  Discussion and Decision

                                   I. Standard of Review

       Placement in community corrections is a “matter of grace” and a “conditional

liberty that is a favor, not a right.” Toomey v. State, 887 N.E.2d 122, 124 (Ind. Ct. App.

2008) (quoting Million v. State, 646 N.E.2d 998, 1001 (Ind. Ct. App. 1995)). Further,

“[b]oth probation and community corrections programs serve as alternatives to
                                               3
commitment in the DOC and both are made at the sole discretion of the trial court.”

Holmes v. State, 923 N.E.2d 479, 482 (Ind. Ct. App. 2010). A reviewing court treats a

petition to revoke placement in a community corrections program the same as a petition

to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). Therefore, when

reviewing the trial court’s decision, we utilize the abuse of discretion standard. Prewitt v.

State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of discretion occurs when the decision

is clearly against the logic and effect of the facts and circumstances before the court. Id.

                  II. Revocation of Community Corrections Placement

       Harris argues the trial court abused its discretion when it revoked his placement in

community corrections. Revocation is a two-step process. Morrissey v. Brewer, 408

U.S. 471, 485 (1972). First, the court must make a factual determination that a violation

of a condition of probation actually occurred. Id. Second, if the violation is proven, the

trial court must determine whether the violation warrants revocation of the probation. Id.

Indiana Code section 35-38-2-3 codifies certain due process requirements, including an

evidentiary hearing. See Butler v. State, 951 N.E.2d 255, 259 (Ind. Ct. App. 2011).

However, when a probationer admits to a violation, the procedural safeguards and the

evidentiary hearing are not required. Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct.

App. 1997). Instead, the trial court can proceed directly to the second step and determine

whether the violation warrants revocation. Id. The probationer is entitled in either case

to present mitigating evidence to demonstrate the violation does not warrant revocation.

Sparks v. State, 983 N.E.2d 221, 225 (Ind. Ct. App. 2013).

       A single violation is sufficient to warrant revocation. Hubbard v. State, 683

N.E.2d 618, 622 (Ind. Ct. App. 1997). For example, in Toomey v. State, we held the
                                              4
defendant’s failure to return to community corrections for four days after his scheduled

return time was alone sufficient for revocation of his placement in community

corrections. 887 N.E.2d at 125. Here, the trial court revoked Harris’s community

corrections placement upon finding that Harris had violated the terms of his placement by

absconding for five days on a two-hour pass. During the hearing, Harris admitted to the

violation. However, he argued that he failed to return because he was attending his

sister’s funeral and then obliging her last wish by taking care of her husband thereafter.

Further, he noted that he voluntarily surrendered to authorities. Harris contends these

circumstances “should have weighed heavily on the determination to revoke his

placement.” Brief of Appellant at 6. Harris’s argument on appeal is merely a request that

we reweigh the evidence in his favor, which we will not do. See Dokes v. State, 971

N.E.2d 178, 179 (Ind. Ct. App. 2012) (noting that on review of probation revocation, “we

will look to the evidence most favorable to the State and neither reweigh the evidence nor

judge the credibility of witnesses.”). Harris had previous incidents of failing to return,

knew how to obtain approval for an absentee pass yet failed to do so here, and did not

contact anyone at the facility to explain his absence. The trial court did not abuse its

discretion when it revoked Harris’s community corrections placement after he repeatedly

– and in this particular instance, egregiously – violated the terms of that placement.

                              III. Sentence after Revocation

       Harris argues that even though he violated the terms of his community corrections

placement, the trial court abused its discretion in ordering a fully-executed sentence in the

DOC as a sanction for the violation. Upon finding a community corrections violation, the

trial court at its discretion may impose one or more of the following sanctions: 1) change
                                             5
the terms of the placement; 2) continue the placement; or 3) revoke the placement and

commit the person to the DOC for the remainder of the sentence. Ind. Code § 35-38-2.6-

5.

       Here, the trial court revoked Harris’s placement and committed him to the DOC

for the remainder of his six year sentence upon finding that on multiple occasions, Harris

had violated the terms of his placement in community corrections. Specifically, the first

violation occurred in June 2012, when he returned to the facility one day late. The trial

court took disposition on that violation under advisement pending completion of Harris’s

placement. The second alleged violation – although the formal notice thereof was later

withdrawn by the State – occurred in October 2012, when he returned to the facility two

hours late. And finally, the December 2012 violation, when he failed to return for five

days. On each occasion, Harris was granted an absentee pass but failed to return at the

scheduled time. As the trial court stated, Harris has been given ample opportunity to

benefit from his community corrections placement, and instead, he has made the

conscious decision to disregard the terms of his placement and take advantage of the

relative freedom afforded by community corrections versus incarceration. Moreover, that

Harris voluntarily returned from an unapproved absence does not mitigate the fact that he

violated the terms of his placement by being absent in the first place.

       Harris also contends the trial court failed to properly consider the extenuating

circumstances of his December 14, 2012, departure. He concedes that the circumstances

of his departure are not a defense, but suggests they should be considered in mitigating

the sanction. Harris argues the loss of his sister obstructed his thought processes and

clouded his judgment. This argument lacks merit for two reasons. First, Harris did not
                                             6
return after his sister’s funeral but remained absent for several additional days. Second,

Harris was familiar with the absentee pass process, as evidenced by his repeated use of

the process.   Using the absentee pass process for his sister’s funeral would have

preempted a violation, assuming he had returned as scheduled. Additionally, the trial

court did consider the circumstances of Harris’s absence and indicated that had Harris

returned after his sister’s funeral – and not four days later – it might have factored those

circumstances into its determination of the appropriate sanction. But noting the length of

his absence and his previous violations, the trial court imposed what it believed to be the

appropriate consequence for Harris’s violation, and we cannot say that the trial court

abused its discretion when it ordered Harris to execute the remainder of his sentence in

the DOC.

                                        Conclusion

       We affirm the trial court’s revocation of Harris’s placement in community

corrections and its order committing him to the DOC to serve the remainder of his

sentence.

       Affirmed.

RILEY, J., and KIRSCH, J., concur.




                                             7
