MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jun 04 2020, 10:58 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                                   ATTORNEY FOR APPELLEE
David W. Stone IV                                        Tina L. Mann
Anderson, Indiana                                        Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Russell Edward Allender,                                 June 4, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1831
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark K. Dudley,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause Nos.
                                                         48C06-1809-F6-2322
                                                         48C06-1808-F2-2160



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1831 | June 4, 2020                   Page 1 of 8
                                 Case Summary and Issue
[1]   Russell Allender appeals the trial court’s revocation of his suspended sentence

      and participation in Madison County’s Community Corrections Continuum of

      Sanctions (“COS”) program, raising one issue for our review: whether the trial

      court abused its discretion in ordering him to serve the balance of his sentences

      in the Indiana Department of Correction (“DOC”). Concluding the trial

      court’s sanction was not an abuse of its discretion, we affirm.



                             Facts and Procedural History
[2]   In March 2019, Allender pleaded guilty to resisting law enforcement and failure

      to return to lawful detention, both Level 6 felonies.1 The failure to return to

      lawful detention charge arose when Allender was serving a sentence in

      community corrections and failed to return to the work release program after

      having been granted temporary leave for an appointment. While absent from

      work release, Allender was arrested, giving rise to the resisting law enforcement

      charge. The plea agreement left the sentence “[o]pen to the Court with a cap of

      three (3) years on the aggregate executed portion of the sentence.” Appendix of

      Appellant, Volume II at 44. On April 5, Allender was sentenced to two years



      1
        The charges were filed in two separate cause numbers. Cause 48C06-1808-F2-2160 (“Cause 2160”), filed
      August 24, 2018, charged Allender with dealing in methamphetamine, a Level 2 felony, resisting law
      enforcement, a Level 6 felony, and driving while suspended, a Class A misdemeanor. The dealing and
      driving while suspended charges were dismissed as part of the plea agreement. Cause 48C06-1809-F6-2322
      (“Cause 2322”), filed September 12, 2108, charged Allender with failure to return to lawful detention. The
      plea agreement also disposed of a charge in Cause 48C06-1805-F6-1454, which does not seem to be at issue
      in this case.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1831 | June 4, 2020                     Page 2 of 8
      for his conviction of failure to return to lawful detention and ordered to execute

      his sentence through the COS program beginning on work release. Id. at 80.

      With respect to his conviction of resisting law enforcement, Allender was

      sentenced to two years and ordered to execute one year of his sentence through

      the COS program beginning on work release, with one year suspended to

      probation. The sentences were ordered to be served consecutively. Allender

      was placed in the work release facility on April 22, 2019 to begin his COS

      sentence.


[3]   On May 13, the COS program filed a Notice of Adult Day

      Reporting/Continuum of Sanctions Termination in both cause numbers

      alleging two rule violations:


              a) On 05/07/2019, . . . Allender committed the new criminal
              offense of Possession of a Synthetic or Lookalike Substance, a C
              Misdemeanor.


              b) On 05/10/2019, . . . Allender committed an Adult Day
              Reporting/Continuum of Sanctions/Work Release violation of
              failing to meet financial obligations. Mr. Allender has $359.83 in
              arrears owed to the Work Release Program.


      Id. at 158. On May 17, the notice was amended to add an additional allegation:


              c) On 05/06/2019, . . . Allender submitted a random urine drug
              screen that was sent to Witham Laboratories for confirmation
              and returned positive for Synthetic Cannabinoids.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1831 | June 4, 2020   Page 3 of 8
      Id. at 159. And on June 20, the notice was amended a second time to add an

      additional allegation:


              d) On 06/16/2019, . . . Allender committed the Continuum of
              Sanctions/Work Release violation of Assault on a Work Release
              participant.


      Id. at 162.2


[4]   At the revocation hearing, Allender admitted to the violations alleged in

      subsections a, b, and c, but denied the allegations in subsection d because he did

      not remember attacking another work release participant or possessing a

      lookalike substance on June 16 because he “was on the K2 spice” on that day.

      Transcript, Volume II at 41. After hearing evidence on allegation d, the trial

      court found that he had committed the violation alleged therein. During the

      sanctions portion of the hearing, Allender testified:


              I’m tired of putting my family through this. I’m tired of putting
              myself through this. I . . . need help and . . . I’ve always tried to
              make excuses to you know hey I need to get better for my kids, I
              need to get better for this person. Now . . . going through this
              program . . . I found out the real problem and that I needed [to
              get] better for myself and that way you know everything follows,



      2
        Concurrently, the probation department filed a Notice of Violation of Suspended Sentence in Cause 2160
      on May 15 alleging that Allender had taken “substantial steps toward the commission of . . . Possession of
      Synthetic or Look-A-Like Substance” on May 7, id. at 120, and amended the notice on June 17 to allege that
      Allender had taken “steps toward the commission of . . . Battery with Bodily Injury; and Possession of
      Synthetic Look-A-Like Substance” on June 16, id. at 127. In addition, on May 10, the COS program gave
      notice to the trial court that Allender was serving a twenty-eight (fourteen actual) day sanction in the
      Madison County Correctional Complex for being so intoxicated at a treatment program meeting on May 10
      that he was returned to the work release facility by police. Id. at 119.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1831 | June 4, 2020                    Page 4 of 8
              falls in place. . . . I continued to . . . make excuse[s] to use and I
              don’t want it no more. Whatever happens today . . . I just want
              help. That’s all I’m asking.


      Id. at 49-50. Essentially, Allender asked the trial court to consider referral to

      Mental Health or Drug Court, “[w]hatever will give me help.” Id. at 50. The

      trial court found that Allender had violated the conditions of his COS and

      suspended sentence and ordered him to serve the remaining portion of his

      sentences in the DOC.



                                 Discussion and Decision
[5]   Allender’s sole argument is that the trial court abused its discretion in ordering

      him to execute his full sentence in the DOC because he “has finally recognized

      that he has a substance abuse problem [and h]is request for placement in either

      the local mental health court or drug court could give him the assistance he

      needs to end his substance abuse and the crimes that result from such abuse.”

      Brief of Appellant at 6. He contends that if he fails that program, then he could

      be sent to the DOC.


[6]   Both community corrections programs and probation serve as alternatives to

      commitment to the DOC and are ordered at the sole discretion of the trial

      court. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). Placement in either

      program is a matter of grace and a conditional liberty that is a favor, not a right.

      Id. “Once a trial court has exercised its grace by ordering probation rather than

      incarceration, the judge should have considerable leeway in deciding how to

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1831 | June 4, 2020     Page 5 of 8
      proceed.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Therefore, we

      review a decision to revoke placement in a community corrections program in

      the same way we review a decision to revoke probation. Cox, 706 N.E.2d at

      549. After a hearing and upon finding that a violation occurred, the trial court

      may revoke the defendant’s placement in community corrections and order all

      or part of the previously suspended sentence to be executed. Ind. Code § 35-38-

      2-3(h)(3). We review the sanction the trial court imposes in a revocation

      proceeding for an abuse of discretion. Puckett v. State, 956 N.E.2d 1182, 1186

      (Ind. Ct. App. 2011). An abuse of discretion will only be found if the trial

      court’s decision is against the logic and effect of the facts and circumstances

      before it. Id.


[7]   Here, within one month of being given the grace of serving his sentence in the

      COS program (and within two weeks of actually beginning the program),

      Allender began violating the terms of that program by continuing to use illicit

      substances and attacking another work release participant as a result. Before

      announcing a sanction at the revocation hearing, the trial court noted that

      Allender had been before the court “more than a couple times.” Tr., Vol. II at

      52. The trial court further noted that at Allender’s sentencing hearing in April,

      Allender acknowledged “this is his last chance . . . [a]nd I agreed[.]” Id.

      Concluding “this isn’t another chance[,]” and based on Allender’s admissions

      and the court’s findings as to the alleged violations, the trial court revoked the

      community corrections placement in both cause numbers and ordered him to

      serve his executed sentences in the DOC. Id.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1831 | June 4, 2020   Page 6 of 8
[8]   The trial court had previously shown Allender leniency by committing him to

      community corrections before these two cases arose. Even after Allender

      squandered that initial opportunity by being charged in these two cases, and

      even after he received a beneficial plea agreement that dismissed a Level 2

      felony charge in favor of these two Level 6 felony convictions, the trial court

      extended Allender additional grace. Yet Allender remained recalcitrant. See

      Tr., Vol. II at 52 (the trial court noting, “[Y]ou’ve been given more than a

      couple opportunities . . . to succeed in the community and you haven’t.”). The

      pre-sentence investigation report for these cases shows that as an adult,

      Allender has been arrested thirty-three times, has been convicted of eleven

      misdemeanors and six felonies (including the current offenses), and “has been

      on probation, parole, and community corrections multiple times, and has

      violated both community corrections and probation several times.” App. of

      Appellant, Volume II at 58.


[9]   We appreciate that Allender has struggled with substance abuse issues, and we

      hope he is genuine when he says he is tired of that life. Moreover, we hope that

      he will take advantage of any and all treatment programs available in the DOC.

      Nonetheless, he continued using drugs during his brief time in the COS

      program and we agree with the State that Allender’s behavior “represents a

      clear disregard for the rules and opportunity of a community corrections

      sentence.” Appellee's Brief at 11. The trial court’s orders that Allender serve

      the balance of his previously suspended sentences in the DOC are supported by




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1831 | June 4, 2020   Page 7 of 8
       the record and it was well within the trial court's discretion to decline to offer

       him further grace in the form of commitment to a problem solving court.



                                               Conclusion
[10]   The judgment of the trial court revoking Allender’s placement in community

       corrections and ordering him to serve the balance of his sentence in the DOC is

       affirmed.


[11]   Affirmed.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1831 | June 4, 2020   Page 8 of 8
