MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jan 03 2019, 8:48 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ann M. Sutton                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Aikman,                                          January 3, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1653
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G04-1704-F5-13287



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019                   Page 1 of 7
[1]   Following a contested hearing, the trial court revoked Kenneth Aikman’s

      placement in community corrections and his probation, and it ordered Aikman

      to execute his six-year sentence in the Indiana Department of Correction (the

      DOC). On appeal, Aikman argues that the trial court should not have held a

      contested hearing and that Aikman should have been given the benefit of his

      admission to the violation, receiving only five years in the DOC.


[2]   We affirm.


                                          Discussion & Decision


[3]   In February 2018, Aikman pled guilty to three counts of Level 5 felony battery

      resulting in bodily injury to a public safety official. On February 20, 2018, the

      trial court sentenced Aikman to concurrent sentences of six years with two

      years suspended to probation. His four-year executed term was to be served in

      community corrections. Accordingly, Aikman was placed at the Duvall

      Residential Center (Duvall).


[4]   On Saturday, May 5, 2018, William Beck, a community corrections officer,

      observed Aikman exchange something with another resident at Duvall. Beck

      came down from the catwalk and recovered a “brown wet substance rolled in

      paper” from Aikman’s pocket. Transcript at 38. Believing that the substance

      was tobacco, Beck simply took it from Aikman. Aikman’s behavior was

      “normal” at the time. Id. at 39.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019   Page 2 of 7
[5]   Later that same day, around 3:15 p.m., Duvall’s dayshift supervisor Michael

      McGrath received a notification that “someone might be under the influence.”

      Id. at 35. On his way through the center, McGrath encountered Aikman, who

      was unable to keep his balance and “screaming saying he was on fire.” Id.

      Aikman was taken by ambulance to the hospital.


[6]   Aikman returned from the hospital at approximately 9:30 that evening and

      spoke with Duvall’s manager Shannon Bowling at the doorstep. Aikman told

      her that he had “overdosed on some stuff that he got from the Hispanics in A

      dorm.” Id. at 31. Aikman then went into the facility and was searched by the

      nightshift supervisor, who found a brown substance wrapped in white paper in

      Aikman’s pocket. Bowling asked Aikman what the substance was, and he

      responded, “the stuff that I was smoking earlier that sent me to the hospital.”

      Id. Aikman indicated that he forgot it was in his pocket. The substance was

      believed to be fentanyl.1


[7]   On May 9, 2018, the State filed a notice of community corrections violation

      with the trial court. The notice alleged that Aikman had violated Duvall’s rules

      regarding the possession or use of a controlled substance and the possession of

      dangerous/deadly contraband. Additionally, the State filed a notice of

      probation violation the following week.




      1
        Two employees that came in direct contact with the substance were taken to the hospital due to illness, and
      the facility was evacuated of all residents. The fire department, police, and board of health all responded to
      the scene. The facility was cleaned with bleach to make sure it was safe for the return of the residents.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019                    Page 3 of 7
[8]   On May 18, 2018, the trial court held a hearing regarding the alleged violations.

      Aikman, who was represented by counsel, indicated that he wanted to admit

      the violations but with an explanation. His subsequent “admission” ended up

      being that he picked up an unknown substance from the floor for the sole

      purpose of turning it over to a guard but then he became ill and forgot that it

      was in his pocket. Based on Aikman’s version of events, the trial court

      determined, with the agreement of Aikman’s counsel, that a contested hearing

      would need to be held.


[9]   On the morning of the contested hearing on June 22, 2018, the trial court

      inquired as to whether Aikman wanted to admit the violations. The court

      informed Aikman regarding the preponderance-of-the-evidence standard and

      warned that if the State brings in all its evidence, “it may be difficult for you to

      maintain a good argument.” Id. at 11. The court advised him to talk with his

      attorney about “anything else that might be available” because otherwise he

      could get “full backup” time. Id. at 11-12. Aikman then gave a long account of

      his version of events, sticking with his original story but admitting that he knew

      what he picked up was some type of drug. The trial court responded that

      Aikman’s statement constituted an admission to knowingly possessing the drug.

      When the trial court indicated that he was facing six years of backup time,

      Aikman seemed surprised. The court told Aikman to talk with his attorney.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019   Page 4 of 7
[10]   When the hearing resumed, the parties began to address the appropriate

       sanction. The court indicated that Aikman could not return to Duvall.2 As the

       court went through Aikman’s criminal record, his counsel stated that Aikman

       still wanted a contested hearing. The court swore in the witnesses and began

       the contested hearing. The State called its first witness, but Aikman interrupted

       and began asking questions about the possible sanction. A colloquy ensued

       between Aikman, counsel, and the court regarding the time remaining on the

       sentence. The court determined that 876 days remained on the executed

       portion of the sentence and then two years of probation, which could be

       revoked. Aikman responded that he would like to think about it because “that’s

       a long time…for, you know, trying to help the people keep that stuff out of their

       facility.” Id. at 23. Aikman’s counsel then verified that the court was amenable

       to revoking only one of the two years of probation (along with the executed

       sentence) if Aikman admitted the violations. The court and counsel clarified

       that this would mean about thirty months of actual time served in the DOC.

       Aikman asked if he “could have leniency” and the court responded that this

       was lenient. Id. at 28. He then agreed to admit the violations but in the next

       breath asked if he could think about this for a month. The court responded,

       “Oh, for the love of Pete, no.… You either want the agreement or you don’t

       want the agreement and I’m going to listen to the evidence and – and I’ll make




       2
           The court noted that Aikman had been improperly placed there in the beginning due to a prior sex offense.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019                   Page 5 of 7
       up my own mind then on what to do.” Id. at 29. Aikman responded, “Yeah”,

       and the court proceeded with a contested hearing. Id.


[11]   The State presented several witnesses, and Aikman testified in his own defense,

       maintaining his version of events that conflicted with the State’s evidence.

       Additionally, on cross-examination, Aikman acknowledged that he had been

       sanctioned twice before at Duvall for possession or use of a controlled

       substance. At the conclusion of the hearing, the trial court found Aikman in

       violation, revoked his placement in community corrections and his probation,

       and ordered execution of the six-year sentence at the DOC.


                                             Discussion & Decision


[12]   On appeal, Aikman argues that he should have received the benefit of his

       admission, and the contested hearing should not have occurred. In other

       words, he contends that the trial court should have imposed the five-year

       sentence agreed by the parties because he admitted to the violations.


[13]   It is well established that probation is a matter of grace left to trial court

       discretion, not a right to which a criminal defendant is entitled. 3 Prewitt v. State,

       878 N.E.2d 184, 188 (Ind. 2007). Once a trial court has exercised its grace by

       ordering probation rather than incarceration, the trial court has considerable




       3
         The same is true with respect to placement in a community corrections program. See Monroe v. State, 899
       N.E.2d 688, 691 (Ind. Ct. App. 2009) (“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.”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019                  Page 6 of 7
       leeway in deciding how to proceed. Id. Accordingly, a trial court’s sentencing

       decisions for probation violations are reviewable for an abuse of discretion and

       reversible only where the decision is clearly against the logic and effect of the

       facts and circumstances. Id.


[14]   Aikman’s sole argument is that he tried to admit the violations without the need

       of a contested hearing. The record, however, establishes the illusory nature of

       Aikman’s admission and that he vacillated between wanting and not wanting a

       contested hearing. We agree with Aikman’s assertion on appeal that “it really

       made no sense for him to proceed to the contested hearing.” Appellant’s Brief at

       10. But Aikman had ample opportunity to forgo a contested hearing and accept

       the five-year offer on the table. Aikman balked one too many times and ended

       up with a contested hearing at which the State presented damning evidence

       against him and rebutted his self-serving story. Based on the evidence

       presented, the trial court ordered Aikman to serve his six-year sentence in

       prison. The trial court acted within its discretion, and Aikman has only himself

       to blame for not receiving the lesser term.


[15]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019   Page 7 of 7
