Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                                            Jun 19 2014, 10:09 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

JILL M. ACKLIN                                    GREGORY F. ZOELLER
Acklin Law Office, LLC                            Attorney General of Indiana
Westfield, Indiana
                                                  KATHERINE MODESITT COOPER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RAVEN N. YOUNG,                                   )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )     No. 62A01-1401-CR-29
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                       APPEAL FROM THE PERRY CIRCUIT COURT
                           The Honorable Lucy Goffinet, Judge
                             Cause No. 62C01-1308-FD-495




                                        June 19, 2014



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge
                                Case Summary and Issue

      Raven Young appeals the revocation of her placement in a community corrections

day reporting program and the order to execute her suspended sentence in the Indiana

Department of Correction. Young raises one issue for our review: whether she was

denied due process rights during the revocation process. Concluding her due process

rights were not denied, we affirm.

                              Facts and Procedural History

      Young pleaded guilty in September 2013 to possession of methamphetamine and

maintaining a common nuisance, both Class D felonies. As a condition of the plea

agreement, she was required to enter the Day Reporting Program of the Perry Community

Corrections Department (the “Program”). The plea agreement provided for consecutive

sentences on each count; Young was ordered to serve sixty days in jail followed by

thirty-four months suspended, contingent upon successful participation in the Program.

In November 2013, the State filed a notice of violation of the conditions of the Program,

alleging Young tested positive for amphetamines during a home visit, communicated

with other individuals convicted of a felony, was dishonest about her job status, and did

not perform thirty-five hours of community service while not working the week of

November 4, 2013.

      At the initial hearing on the violations, the court advised Young of the allegations

against her, and Young stated she understood the allegations. The court also stated:

              Ma’am, you have the following rights in this case. You have the
      right to an attorney. If you cannot afford one, the Court would appoint one
      to represent you. You have the right to have a hearing on the allegations
      made in the Notice that I just read to you, and at that hearing the State must
                                            2
      prove by a preponderance of the evidence that you violated a term or
      condition of the program before you could be found in violation.

Transcript at 4-5. Upon Young’s request, the court appointed an attorney for her. At a

status conference on December 11, 2013, Young admitted all of the allegations against

her without a specific agreement on the disposition of the case. After accepting the

admission, the court entertained argument as to a recommended sanction, then, at the

dispositional hearing, allowed Young’s counsel to again speak on her behalf. Upon

recommendation from Community Corrections, the court determined Young was

ineligible for the Program and revoked the suspended portion of her sentence. Young

now appeals.

                                Discussion and Decision

                                 I. Standard of Review

      Upon appellate review, a hearing on a petition to revoke a placement in a

community corrections program is treated the same as a hearing on a petition to revoke

probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). This is because of the

similarities between the two. Id. A defendant is not entitled to serve her sentence on

probation or in a community corrections program; that placement is a “matter grace” and

a “conditional liberty that is a favor, not a right.” Id. (quoting Million v. State, 646

N.E.2d 998, 1002 (Ind. Ct. App. 1995)).

      The decision to revoke probation or placement in a community corrections

program is within the sole discretion of the trial court. Woods v. State, 892 N.E.2d 637,

639 (Ind. 2008). We will review that decision for an abuse of discretion. Id. We

consider the evidence only most favorable to the judgment and do not reweigh the

                                           3
evidence or judge the credibility of witnesses. Id. We will affirm if there is substantial

evidence of probative value to support the trial court’s decision that the defendant has

violated the program’s terms.             Id. at 639-40.        While these proceedings are not the

equivalent to an adversarial criminal proceeding, there are still due process rights,

including:

        (a) written notice of the claimed violations of parole; (b) disclosure to the
        parolee of evidence against him; (c) opportunity to be heard in person and
        to present witnesses and documentary evidence; (d) the right to confront
        and cross-examine adverse witnesses (unless the hearing officer specifically
        finds good cause for not allowing confrontation); (e) a ‘neutral and
        detached’ hearing body such as a traditional parole board, members of
        which need not be judicial officers or lawyers; and (f) a written statement
        by the factfinders as to the evidence relied on and reasons for revoking
        parole.

Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

                                         II. Probation Revocation

        Young argues the judge1 did not advise her of the right to present evidence and

witnesses at the hearing, and therefore, she was denied procedural due process.2

        Probation revocation is a two-step process. Sparks v. State, 983 N.E.2d 221, 224

(Ind. Ct. App. 2013). First the court makes a factual determination that a probation

condition has been violated. Id. Second, if the violation is proven, the trial court

determines whether the violation warrants revocation of the probation. Id. Indiana has

codified the due process requirements of Morrissey in Indiana Code section 35-38-2-3.


        1
           The State argues we should assume Young’s attorney advised her of this right in discussing whether to
admit the violations. We will not speculate as to discussions between Young and her counsel that are not contained
in the record.
        2
          Young argues the same protections afforded to a defendant who pleads guilty under Indiana Code section
35-35-1-2 should apply to probation revocation hearings as part of the minimum requirements of procedural due
process, but points us to no authority to support this position. We decline to do so.

                                                        4
Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997). When a probationer admits

the violations, she is no longer is entitled to the procedural safeguards during a revocation

proceeding, and an evidentiary hearing is unnecessary. Woods, 892 N.E.2d at 640. The

court may then skip to the second step to determine if revocation is warranted. Id. “In

making the determination of whether the violation warrants revocation, the probationer

must be given an opportunity to present evidence that explains and mitigates her

violation.” Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied.

       Young admitted all four violations of the Program as alleged. Because she

admitted the violations, she was no longer entitled to the procedural safeguards under

Morrissey. Woods, 892 N.E.2d at 640. This includes the right to present evidence and

witnesses at an evidentiary hearing. After Young admitted the violations, the court

properly skipped ahead to step two in the probation revocation procedure to determine if

a revocation was warranted.        The court also properly allowed Young to present

arguments and evidence at the hearing that explains and mitigates her violation, and she

actually did present an argument for leniency.

       Young makes no argument that she would actually have produced witnesses or

evidence at the hearing or that understanding she had the right to present witnesses and

evidence would have changed her decision to admit to the violations; further, she does

not give any indication of what evidence she would have presented or how it would have

varied from the arguments made on her behalf at the dispositional hearing. The trial

court followed proper procedure and did not deny Young due process.




                                             5
                                    Conclusion

      Concluding Young was not denied due process during the revocation proceedings,

we affirm.

      Affirmed.

RILEY, J., and BRADFORD, J., concur.




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