MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     FILED
court except for the purpose of establishing                             Apr 10 2018, 8:40 am
the defense of res judicata, collateral
                                                                              CLERK
estoppel, or the law of the case.                                         Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Vincent L. Scott                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Deshawn Hutcherson,                                      April 10, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A02-1708-CR-1970
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Steven R. Nation,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D01-0909-FB-95



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1970 | April 10, 2018             Page 1 of 6
                                          Case Summary
[1]   Appellant-Defendant Deshawn Hutcherson appeals the revocation of his

      placement in community corrections. In doing so, Hutcherson contends he was

      deprived of the opportunity to present mitigating evidence to show that

      revocation of his placement was not warranted. Because the record reveals that

      the trial court conducted a hearing during which Hutcherson was given the

      opportunity to present such evidence, we affirm.



                            Facts and Procedural History
[2]   On July 7, 2010, Hutcherson pled guilty under Cause Number 29D01-0909-FB-

      95 (“Cause No. FB-95”) to Class B felony burglary. Hutcherson was also found

      to be a habitual offender. He was sentenced to an aggregate term of sixteen

      years with fourteen years executed in the Department of Correction (“DOC”)

      and two years served in community corrections. Hutcherson began serving the

      community corrections portion of his sentence on or about February 4, 2016.


[3]   On March 15, 2016, Hutcherson was alleged to have violated the terms of his

      placement in community corrections (his “placement”) by committing a

      criminal act which resulted in him being charged with Class B misdemeanor

      possession of a synthetic drug. The trial court subsequently found that

      Hutcherson had violated the terms of his placement. As a result of this

      violation, Hutcherson was deprived of 180 days of good-time credit.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1970 | April 10, 2018   Page 2 of 6
[4]   In June of 2016, the terms of Hutcherson’s placement permitted him to leave

      the facility for approved employment. On June 9, 2016, Hutcherson was

      approved to leave the facility for work at 4:15 p.m. He was scheduled to return

      the facility by 1:15 a.m. the next morning. Hutcherson, however, failed to

      return as scheduled. Subsequent attempts to contact Hutcherson were

      unsuccessful. He was eventually located by police on July 19, 2016.


[5]   Following Hutcherson’s failure to return to the community corrections facility,

      he was again alleged to have violated the terms of his placement. He was also

      charged under Cause Number 29D01-1606-F6-4508 (“Cause No. F6-4508”)

      with Level 6 felony failure to return to lawful detention. Hutcherson admitted

      to the violation in Cause No. FB-95 on January 12, 2017. The trial court found

      “that the Defendant has violated the terms and conditions of Community

      Corrections as set forth in his admission. We’ll go ahead and at this point take

      disposition under advisement and we will proceed on that on the same day as

      sentencing under [Cause No. F6-4508].” Tr. Vol. II, pp. 34–35.


[6]   Hutcherson initially pled guilty under Cause No. F6-4508. His guilty plea was

      subsequently set aside, however, due to a disagreement regarding credit time.

      In setting aside Hutcherson’s guilty plea under Cause No. F6-4508, the trial

      court stated the following:


              So at this point the Defendant is asking for the trial concerning
              these matters, so the Court will at this point then vacate the plea
              negotiations and will proceed to set that matter for trial. And
              then we’ll set disposition upon [Cause No. FB-95] upon
              determination of guilt or innocence in [Cause No. F6-4508].

      Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1970 | April 10, 2018   Page 3 of 6
      Tr. Vol. II, pp. 48–49. Hutcherson was found guilty under Cause No. F6-4508

      following trial.


[7]   Hutcherson appeared before the trial court on June 29, 2017, for a joint

      sentencing and disposition hearing in Cause Nos. F6-4508 and FB-95. The trial

      court incorporated the record of “the proceedings under [Cause No. F6-4508]”

      and found that Hutcherson “has violated the terms and conditions of his

      commitment to Community Corrections.” Tr. Vol. II, p. 118. During this

      hearing, defense counsel was given the opportunity to present evidence to the

      trial court, but did not do so. At the conclusion of the hearing, the trial court

      revoked Hutcherson’s placement and ordered that the remainder of his

      suspended sentence be served in the DOC. This appeal follows.



                                 Discussion and Decision
[8]   Hutcherson argues on appeal that the trial court erroneously failed to conduct a

      hearing on the revocation of his placement during which he would have had the

      opportunity to present mitigating evidence to show that revocation of his

      placement was not warranted. The record, however, indicates otherwise.


[9]   “The standard of review of an appeal from the revocation of a community

      corrections placement mirrors that for revocation of probation.” McQueen v.

      State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007).


              Although probationers are not entitled to the full array of
              constitutional rights afforded defendants at trial, the Due Process
              Clause of the Fourteenth Amendment does impose procedural

      Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1970 | April 10, 2018   Page 4 of 6
               and substantive limits on the revocation of the conditional liberty
               created by probation. The minimum requirements of due process
               that inure to a probationer at a revocation hearing include: (a)
               written notice of the claimed violations of probation; (b)
               disclosure of the evidence against him; (c) an opportunity to be
               heard and present evidence; (d) the right to confront and cross-
               examine adverse witnesses; and (e) a neutral and detached
               hearing body.


       Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008) (internal citations, quotation,

       and brackets omitted).


[10]   Revocation is a two-step process. Id. “First, the court must make a factual

       determination that a violation of a condition of probation actually occurred.”

       Id. “If a violation is proven, then the trial court must determine if the violation

       warrants revocation of the probation.” Id. When an individual admits to the

       violations, an evidentiary hearing is unnecessary. Id. “Instead, the court can

       proceed to the second step of the inquiry and determine whether the violation

       warrants revocation.” Id. “However, even a probationer who admits the

       allegations against him must still be given an opportunity to offer mitigating

       evidence suggesting that the violation does not warrant revocation.” Id.


[11]   In this case, Hutcherson admitted to the violation of the terms of his placement.

       The trial court accepted his admission. It also found that the evidence

       presented in the trial for the related Cause No. F6-4508 proved that he violated

       the terms of his placement by failing to return to the placement facility. The

       trial court gave Hutcherson the opportunity to present mitigating evidence

       during the joint sentencing and disposition hearing in Cause Nos. F6-4508 and

       Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1970 | April 10, 2018   Page 5 of 6
       FB-95. It is not the fault of the trial court that defense counsel apparently chose

       not to present any such evidence. Hutcherson’s claim that the trial court did

       not provide him with the opportunity to present mitigating evidence is without

       merit.


[12]   The judgment of the trial court is affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1970 | April 10, 2018   Page 6 of 6
