Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
                                                               FILED
                                                             Apr 20 2012, 8:37 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                              CLERK
                                                                  of the supreme court,
case.                                                             court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DONALD C. SWANSON, JR.                           GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 IAN MCLEAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA


JAKESHA J. WILMS,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 02A03-1102-CR-46
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Frances C. Gull, Judge
                            Cause No. 02D04-1006-FD-613


                                       April 20, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

      Jakesha Wilms appeals her guilty plea and the termination of her participation in a

drug court diversion program. We affirm.

                                        Issues

      Wilms raises two issues, which we restate as:

             I.     whether she may challenge the factual basis supporting
                    her guilty plea; and

             II.    whether the trial court properly terminated her
                    participation in a drug court diversion program.

                                         Facts

      On June 30, 2010, Wilms was charged with Class D felony possession of a

controlled substance, Class A misdemeanor attempted criminal conversion, and Class B

misdemeanor false reporting or informing. On July 19, 2010, Wilms pled guilty to the

charges. The trial court took the guilty plea under advisement while Wilms participated

in a drug court diversion program.

      On December 6, 2010, the State filed a petition to terminate Wilms’s participation

in the drug court diversion program. The petition alleged that Wilms violated the terms

of her Drug Court Participation Agreement by failing to appear for a scheduled hearing

on August 9, 2010, absconding from the drug court diversion program, and being arrested

for false informing. According to the petition, a bench warrant was issued on August 10,

2010, and was served on December 2, 2010.




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         At a December 6, 2010 hearing, the trial court found that Wilms violated the terms

of the Drug Court Participation Agreement.1 A sentencing hearing was held on January

10, 2011, at which the trial court entered convictions on the offenses that Wilms had pled

guilty to on July 19, 2010. Finding that the aggravators balanced the mitigators, the trial

court sentenced Wilms to one-and-one-half-years in the Department of Correction

(“DOC”) for the Class D felony conviction, one year for the Class A misdemeanor

conviction, and sixty days for the Class B misdemeanor conviction. The trial court

ordered the sentences to be served concurrently. Wilms now appeals.

                                             Analysis

                                        I. Factual Basis

         Wilms argues that that the factual basis supporting the July 19, 2010 guilty plea is

insufficient. “One consequence of pleading guilty is restriction of the ability to challenge

the conviction on direct appeal.” Tumulty v. State, 666 N.E.2d 394, 395 (Ind. 1996).

Post-conviction relief is the proper vehicle for pursuing this type of claim. See id. at 396

(rejecting a defendant’s challenge to the factual basis supporting his guilty plea to an

habitual offender enhancement on direct appeal). Because Wilms may not challenge the

factual basis supporting her guilty plea on direct appeal, we do not reach the merits of the

claim.

            II. Termination of Participation in Drug Court Diversion Program




1
  A transcript of this hearing was not included in the record on appeal. Nevertheless, because of the
nature of Wilms’s argument regarding the termination of her participation in the drug court diversion
program, we are able to review her claim.
                                                 3
       Wilms argues that the trial court abused its discretion by terminating her

participation in the drug court diversion program and by sentencing her to the DOC

because there is no evidence of the efforts made to assist her with her addiction. The

parties contend that Wilms’s participation in the drug court diversion program is akin to a

community corrections program. “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.” McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007). 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.” Id. (internal quotations omitted).

       Our review of the decision to revoke a community corrections placement mirrors

that for the revocation of probation. Id. “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.” Id. We consider 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.

       Wilms suggests that the petition fails to allege and the State failed to prove that

“the best efforts” were given to assist her with her addiction. Appellant’s Br. p. 7. She,

however, provides no authority for the assertion that such must be alleged and proven

before one’s participation in a diversion program may be terminated. Thus, she has not

                                               4
established that the trial court erroneously terminated her participation in the drug court

diversion program.

       As for her sentence to the DOC, Wilms has not established that the trial court

abused its discretion. See Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (concluding

that a trial court’s sentencing decisions for probation violations are reviewable for an

abuse of discretion). “An abuse of discretion occurs where the decision is clearly against

the logic and effect of the facts and circumstances.” Id. Wilms, who was eighteen when

she was charged with the offenses, had a criminal history that involved at least thirteen

juvenile adjudications and three misdemeanor convictions as an adult. She had violated

terms of juvenile probation on multiple occasions. Under these circumstances, the trial

court did not abuse its discretion in terminating Wilms’s participation in drug court

diversion program and sentencing her to the DOC.

                                       Conclusion

       Wilms’s challenge to the factual basis surrounding her guilty plea is not

reviewable on direct appeal.      Further, Wilms has not established the trial court

improperly terminated her participation the drug court diversion program and sentenced

her to the DOC. We affirm.

       Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




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