MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             Jan 29 2016, 9:34 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
Timothy J. Burns                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel Killin,                                           January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1507-CR-759
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Ronnie Huerta,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G19-1503-CM-10179



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-759| January 29, 2016    Page 1 of 4
                                       Statement of the Case
[1]   Daniel Killin appeals the trial court’s order for Killin to serve the balance of his

      sentence in the Marion County Jail after the court revoked Killin’s placement

      on work release. Killin raises a single issue for our review, namely, whether the

      trial court abused its discretion when it ordered him to serve the balance of his

      sentence in jail. We affirm.


                                 Facts and Procedural History
[2]   On March 26, 2015, Killin pleaded guilty to operating a vehicle while

      intoxicated, as a Class A misdemeanor, and to possession of paraphernalia, as a

      Class A misdemeanor. The trial court sentenced Killin to an aggregate term of

      one year in Marion County Community Corrections on work release.


[3]   On March 31, Killin’s first full day of work release from the Duvall Residential

      Center (“Duvall”), Killin received an approved medical leave pass to visit

      Eskenazi Hospital. Pursuant to that pass, Killin was required to return to

      Duvall by 8:00 p.m. that day. But Killin did not return for sixty-seven days.

      Community Corrections filed a notice of violation and, at a subsequent hearing

      on June 4, Killin admitted to the violation. Despite Killin’s extensive absence,

      the court allowed him to continue on work release from Duvall but warned him

      that, “if you come back again, there’s nowhere else to go but the Department of

      Correction.” Tr. at 11.


[4]   On June 10, Killin received another short-term medical pass from Duvall.

      Again, Killin failed to return in accordance with the requirements of that pass.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-759| January 29, 2016   Page 2 of 4
      Community Corrections filed a second notice of violation on June 11, and

      Killin was arrested on June 13. At the ensuing hearing on the notice of

      violation, Killin admitted to the violation. The court then revoked Killin’s

      placement on work release and ordered him to serve the balance of his sentence

      in the Marion County Jail. This appeal ensued.


                                     Discussion and Decision
[5]   Killin appeals the trial court’s order that he serve the balance of his sentence in

      the Marion County Jail. We review the trial court’s decision to revoke

      placement in a community corrections program for an abuse of discretion,

      which occurs only when the decision is clearly against the logic and effect of the

      facts and circumstances before the trial court. Prewitt v. State, 878 N.E.2d 184,

      188 (Ind. 2007). We will consider only the evidence most favorable to the

      judgment of the trial court, and we will not reweigh the evidence on appeal or

      judge the credibility of witnesses. Smith v. State, 963 N.E.2d 1110, 1112 (Ind.

      2012). If there is substantial evidence of probative value to support the trial

      court’s conclusion that a defendant has violated any terms of his placement, we

      will affirm its decision to revoke that placement. Id.


[6]   Here, there is no dispute that Killin violated the terms of his placement on work

      release when he twice failed to reappear at Duvall prior to the expiration of his

      approved medical passes. Rather, the only issue on appeal is whether, as Killin

      states in his brief, “the trial court . . . g[a]ve enough weight to [Killin’s]

      mitigating circumstances” when it ordered him to serve the balance of his

      sentence in the Marion County Jail. Appellant’s Br. at 8. In particular, Killin
      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-759| January 29, 2016   Page 3 of 4
      asserts that his first failure to return was justified by extreme pain due to a prior

      car accident, and his second failure to return was justified by a family

      emergency in which his grandson had fallen off of a swing set and was injured.


[7]   Killin made these arguments to the trial court. And, after Killin’s first

      violation, the court gave Killin a second chance at work release, despite Killin

      having been absent without permission from Duvall for more than two months.

      However, within a few days after the court had warned him against committing

      another violation, Killin nonetheless again violated the conditions of his release

      when he was absent from Duvall for another two days, and Killin’s absence did

      not end because he returned or otherwise submitted himself to the court or

      other authority but only because he was arrested. In sum, Killin’s arguments

      on appeal are merely requests for this court to reweigh the evidence, which we

      will not do. We cannot say that the trial court abused its discretion when it

      ordered Killin to serve the balance of his sentence in the Marion County Jail.


[8]   Affirmed.


      Riley, J., and May, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-759| January 29, 2016   Page 4 of 4
