MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              Aug 10 2015, 8:40 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian J. Johnson                                         Gregory F. Zoeller
Danville, Indiana                                        Attorney General of Indiana

                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Paris V. Collins,                                        August 10, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A01-1504-CR-152
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Stephenie LeMay-
Appellee-Plaintiff                                       Luken, Judge
                                                         Trial Court Cause No.
                                                         32D05-1405-FD-424



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-152 | August 10, 2015     Page 1 of 9
[1]   On August 14, 2014, Appellant-Defendant Paris V. Collins pled guilty to Class

      D felony theft. Pursuant to the terms of his guilty plea, Collins was sentenced

      to 455 days to be served on work release through the Indiana Department of

      Correction (“DOC”). On February 10, 2015, Appellee-Plaintiff the State of

      Indiana (the “State”) filed a petition alleging that Collins had committed

      numerous violations of the terms and conditions of his work release placement.

      The trial court conducted an evidentiary hearing on the State’s petition on

      March 26, 2015, during which Collins admitted that he had violated the terms

      and conditions of his work release placement by committing the four violations

      alleged by the State. At the conclusion of the evidentiary hearing, the trial court

      found that Collins had violated the terms and conditions of his work release

      placement and ordered Collins to serve the remainder of his 455-day sentence in

      the DOC.


[2]   On appeal, Collins contends that the trial court abused its discretion in ordering

      him to serve the remainder of his 455-day suspended sentence in the DOC.

      Finding no abuse of discretion by the trial court, we affirm.



                            Facts and Procedural History
[3]   On May 23, 2014, the State charged Collins with Class D felony theft. In

      charging Collins, the State alleged that on or about May 21, 2014, Collins “did

      knowingly exert unauthorized control over the property of [another], to wit:

      One Ivy Tech Master Card Credit Card and iPod, with intent to deprive the

      owner of any part of its value or use.” Appellant’s App. p. 11.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-152 | August 10, 2015   Page 2 of 9
[4]   On August 14, 2014, Collins pled guilty to Class D felony theft. Pursuant to the

      terms of his guilty plea, the parties stipulated that Collins would be sentenced to

      455 days to be served on work release through the DOC. Collins’s plea

      agreement was “offered conditionally upon [Collins’s] admittance of the

      probation violation under cause number 32D05-1311-FD-1157[1] and agreed

      sentence of 275 days on said violation, to be served consecutive to the sentence

      in the current case for a total combined sentence of 730 days Work Release.”

      Appellant’s App. p. 16. The trial court accepted Collins’s plea agreement and

      sentenced Collins pursuant to its terms.


[5]   On February 10, 2015, the State filed a petition alleging that Collins had

      violated the terms and conditions of his work release placement. Specifically,

      the State alleged that Collins had violated the terms and conditions of his work

      release placement in the following ways:


              1.     Since his arrival to the [work release] facility on 8/19/14,
              [Collins] has had a plethora of informal violations. He has had
              formal violations for disorderly conduct, threatening another
              with bodily harm and refusing to obey an order. He had 30 good
              time credit/15 actual days revoked as a sanction for one of the
              violations.
              2.     On 2/7/15, [Collins] was terminated from employment at
              McDonald’s due to them being tired of his erratic behavior and
              smart mouth.
              3.     [Collins] currently has a balance [of] $297.53 [ ] because he
              hasn’t been paying his fees or turning in his time-sheets as he is



      1
       Cause Number 32D05-1311-FD-1157 relates to Collins’s prior conviction for auto theft, for
      which he was on probation at the time he committed the underlying offense.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-152 | August 10, 2015   Page 3 of 9
              supposed to.
              4.     Daily [Collins] is involved in disagreements with various
              residents because of his lack of self control. He is an antagonist
              and it is becoming too much for staff to maintain the safety and
              security of the facility and the residents within. He has failed to
              adjust despite all the modifications that have been put in place to
              try and allow him to remain within the facility.


      Appellant’s App. p. 22. In light of Collins’s alleged violations, the State

      requested that Collins be removed from the work release facility.


[6]   The trial court conducted an evidentiary hearing on the State’s petition on

      March 26, 2015. During the evidentiary hearing, Collins admitted that he had

      violated the terms and conditions of his work release placement by committing

      the violations alleged by the State. In admitting that he had committed the

      violations, Collins claimed that he believed a factor in his behavior was that he

      was allegedly not receiving certain prescribed medication while in the work

      release facility. Collins however, stated that he was “not blaming [his actions]

      on his medication” and acknowledged that he was “fully responsible for every

      action that went forth there.” Tr. p. 7. Collins further acknowledged that the

      court had “granted [him] a second chance and [he] failed.” Tr. p. 8. Collins

      apologized for his failure but claimed that he believed the result could be

      different if he were given another chance and, while in the program, given his

      medications and access to counseling.


[7]   At the conclusion of the evidentiary hearing, the trial court found that Collins

      had violated the terms and conditions of his work release placement and


      Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-152 | August 10, 2015   Page 4 of 9
      ordered Collins to serve the remainder of his 455-day sentence in the DOC.

      The trial court awarded Collins credit for 169 days served and 139 days of good

      time credit. This appeal follows.



                                 Discussion and Decision
[8]   Collins contends that the trial court abused its discretion in ordering him to

      serve the remainder of his 455-day sentence in the DOC. Specifically, Collins

      argues that the trial court should have ordered him to serve something “less

      than the entire suspended sentence.” Appellant’s Br. p. 4. For its part, the

      State contends that the trial court acted within its discretion in sentencing

      Collins.


                                     I. Standard of Review
[9]   “For purposes of appellate review, we treat a hearing on a petition to revoke

      placement in a community corrections program[2] the same as we do a petition

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

      Accordingly,

              [t]he standard of review of an appeal from the revocation of a
              community corrections placement mirrors that for revocation of
              probation. That is, a revocation of community corrections
              placement hearing is civil in nature, and the State need only



      2
         The term “community corrections program” means a program consisting of residential and
      work release, electronic monitoring, day treatment, or day reporting. See Ind. Code § 35-38-2.6-
      2.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-152 | August 10, 2015   Page 5 of 9
               prove the alleged violations by a preponderance of the evidence.
               We will consider all the evidence most favorable to the judgment
               of the trial court without reweighing that evidence or judging the
               credibility of witnesses. 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.


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

       omitted).


[10]   The Indiana Supreme Court has held that the similarities between the

       community corrections programs and probation dictate this approach as both

       serve as alternatives to commitment to the DOC and both are made at the sole

       discretion of the trial court. Cox, 706 N.E.2d at 549. “A defendant is not

       entitled to serve a sentence in either probation or a community corrections

       program.” Id. “Rather, placement in either is a matter of grace and a

       conditional liberty that is a favor, not a right.” Id. (internal citations and

       quotations omitted).


[11]   With respect to the potential penalties that a trial court may impose following a

       violation of the terms and conditions of an individual’s placement on work

       release, Indiana Code section 35-38-2.6-5 provides that


               If a person who is placed under this chapter violates the terms of
               the placement, the community corrections director may do any
               of the following:




       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-152 | August 10, 2015   Page 6 of 9
                 (1) Change the terms of the placement.
                 (2) Continue the placement.
                 (3) Reassign a person assigned to a specific
                 community corrections program to a different
                 community corrections program.
                 (4) Request that the court revoke the placement and
                 commit the person to the county jail or [DOC] for the
                 remainder of the person’s sentence.


        The community corrections director shall notify the court if the
        director changes the terms of the placement, continues the
        placement, or reassigns the person to a different program.


Further, Indiana Code section 35-38-2-3(h), which relates to the penalties

available following a determination that one has violated the terms of his

probation, provides that


        If the court finds that the person has violated a condition at any
        time before termination of the period, and the petition to revoke
        is filed within the probationary period, the court may impose one
        (1) or more of the following sanctions:


                 (1) Continue the person on probation, with or
                 without modifying or enlarging the conditions.
                 (2) Extend the person’s probationary period for not
                 more than one (1) year beyond the original
                 probationary period.
                 (3) Order execution of all or part of the sentence that
                 was suspended at the time of initial sentencing.



Finally, we have noted that a trial court is not required to balance aggravating

or mitigating circumstances when imposing a sentence in a probation

Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-152 | August 10, 2015   Page 7 of 9
       revocation proceeding. Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014),

       trans. denied.


                                               II. Analysis
[12]   In arguing that the court should have ordered him to serve something less than

       the remainder of his entire 455-day sentence, Collins asserts that he had (1) a

       limited criminal history and (2) behavioral problems which he was unable to

       address while in work release due to transportation issues.


[13]   With respect to his criminal history, the record reflects that Collins, who was

       approximately eighteen or nineteen years old at the time he committed the

       underlying offense, had both prior juvenile adjudications for theft and a prior

       adult conviction for auto theft. The record also reflects that a prior attempt at

       non-DOC placement had been unsuccessful as Collins was on probation for his

       auto theft conviction at the time he committed the underlying offense. In

       addition, the record is silent as to the nature of Collins’s claimed behavioral

       issues and it contained only Collins’s self-serving claim that he has previously

       met with, and feels it is necessary to continue to meet with, a counselor.

       Furthermore, in ordering that Collins serve the remainder of his 455-day

       sentence in the DOC, the trial court noted that Collins had not committed a

       non-personal theft such as shoplifting, but rather that Collins had committed

       what the trial court considered to be “very personal thefts.” Tr. p. 11.


[14]   As we noted in Treece, the trial court was not required to balance the allegedly

       mitigating factors claimed by Collins when sentencing him following his

       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-152 | August 10, 2015   Page 8 of 9
       admission that he had violated the terms and conditions of his placement on

       work release. Accordingly, in light of the fact that, upon review, we treat

       violations of the terms of one’s placement in a community corrections program

       the same as violations of the terms of one’s probation, coupled with the plain

       language of Indiana Code section 35-38-2.6-5 and Indiana Code section 35-38-

       2-3(h), we conclude that the trial court acted within its discretion in ordering

       Collins to serve the remainder of his 455-day sentence in DOC. Collins’s claim

       to the contrary effectively amounts to a request for this court to reweigh the

       decision of the trial court, which we will not do. See McQueen, 862 N.E.2d at

       1242.


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


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1504-CR-152 | August 10, 2015   Page 9 of 9
