MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                           FILED
court except for the purpose of establishing                                  Feb 28 2020, 11:23 am

the defense of res judicata, collateral                                             CLERK
estoppel, or the law of the case.                                              Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Khidhr Hardister,                                        February 28, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2146
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese Flowers,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable James K. Snyder,
                                                         Commissioner
                                                         Trial Court Cause No.
                                                         49G02-1902-F5-4933



Bradford, Chief Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020                  Page 1 of 7
                                          Case Summary
[1]   Khidhr Hardister was sentenced to five years, with one year suspended and four

      years in community corrections, after pleading guilty to Level 5 felony robbery.

      He was initially placed on home detention, but his placement was modified to

      work release after he violated the terms of his home-detention placement.

      Hardister then violated the conditions of his work-release placement by using

      illegal drugs. Following a revocation hearing, the trial court revoked

      Hardister’s placement in community corrections and one-year suspended

      sentence and ordered him to serve the remainder of his five-year sentence in the

      Department of Correction (“DOC”). On appeal, Hardister challenges both the

      sufficiency of the evidence to support the revocation of his community-

      corrections placement and the trial court’s order that he serve the remainder of

      his sentence in the DOC. We affirm.



                            Facts and Procedural History
[2]   On February 7, 2019, Hardister was charged with Level 5 felony robbery, Level

      6 felony intimidation, and Level 6 felony residential entry. On May 1, 2019,

      Hardister pled guilty to Level 5 felony robbery. In exchange, the State agreed

      to dismiss the remaining charges. On May 24, 2019, Hardister was sentenced

      to five years with one year suspended and the remaining four years served in

      community corrections. He was then placed on home detention.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020   Page 2 of 7
[3]   Two days after sentencing, Hardister violated the terms of his home-detention

      placement by tampering with and attempting to remove his electronic

      monitoring device. On May 28, 2019, a notice of violation was filed. His

      placement was subsequently modified from home detention to work release.

      Hardister was ordered to be in strict compliance with both community

      corrections and probation and was placed in the Duvall Residential Center

      (“Duvall”). On June 19, 2019, Hardister signed his conditions of placement,

      including the condition that he “shall not consume or possess alcohol or illegal

      drugs at any time while serving [his] sentence with Community Corrections,

      including while [he is] outside of the facility.” State’s Ex. 1.


[4]   Shortly after being placed at Duvall, an incident report was filed after Hardister

      was found in possession of “Katy,” a form of synthetic marijuana. Tr. p. 28.

      No notice of violation was filed at this time. On July 9, 2019, staff at Duvall

      found Hardister lying unconscious in front of their building. After regaining

      consciousness, Hardister had to be assisted into the facility because he could not

      walk steadily. He also appeared dazed and his pupils were dilated. Hardister

      admitted to the staff that “he had taken hits of Katy.” Tr. p. 15.


[5]   Notices of violation were filed on July 9, 2019 and July 10, 2019. The July 9,

      2019 notice alleged that Hardister “failed to comply with the rules and

      regulations of [Duvall] regarding the possession or use of a controlled or illegal

      substance, including synthetic and look-a-like substances.” Appellant’s App.

      Vol. II p. 101. It also alleged that he failed to maintain contact with



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020   Page 3 of 7
      community corrections. The July 10, 2019 notice alleged that Hardister “failed

      to comply with” community corrections. Appellant’s App. Vol. II p. 104.


[6]   The trial court conducted a revocation hearing on August 15, 2019. At the

      conclusion of this hearing, the trial court found that Hardister had committed a

      violation, revoked Hardister’s probation and placement in community

      corrections, and ordered him to serve the remainder of his five-year sentence in

      the DOC.



                                 Discussion and Decision
      I. Sufficiency of the Evidence to Support the Revocation
          of Hardister’s Community-Corrections Placement
[7]   Hardister contends that the evidence is insufficient to support the revocation of

      his community-corrections placement.


              For purposes of appellate review, we treat a hearing on a petition
              to revoke a placement in a community corrections program the
              same as we do a hearing on a petition to revoke probation. The
              similarities between the two dictate this approach. Both
              probation and community corrections programs serve as
              alternatives to commitment to the Department of Correction and
              both are made at the sole discretion of the trial court. A
              defendant is not entitled to serve a sentence in either probation or
              a community corrections program. Rather, placement in either is
              a matter of grace and a conditional liberty that is a favor, not a
              right.

              ****


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020   Page 4 of 7
              Our standard of review of an appeal from the revocation of a
              community corrections placement mirrors that for revocation of
              probation. A probation hearing is civil in nature and the State
              need only prove the alleged violations by a preponderance of the
              evidence. We will consider all the evidence most favorable to
              supporting 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 probation,
              we will affirm its decision to revoke probation.


      Cox v. State, 706 N.E.2d 547, 549, 551 (Ind. 1999) (internal quotations,

      citations, and footnotes omitted).


[8]   Hardister was aware that as a condition of his placement at Duvall, he was

      prohibited from possessing or using any illegal drugs. Hardister testified during

      the revocation hearing that he had not taken or possessed Katy. The trial court,

      however, was not obligated to believe Hardister’s testimony. See Thompson v.

      State, 804 N.E.2d 1146, 1149 (Ind. 2004) (“As a general rule, factfinders are not

      required to believe a witness’s testimony[.]”).


[9]   Contrary to Hardister’s claim that he had not used illegal drugs, the State

      presented evidence indicating that he had done so. Specifically, the State

      presented evidence that the staff at Duvall found Hardister lying unconscious in

      front of their building and, after regaining consciousness, he had to be assisted

      into the facility because he could not walk steadily. He also appeared dazed

      and his pupils were dilated. Hardister admitted to the staff that “he had taken

      hits of Katy.” Tr. p. 15. Katy is “[b]etter known as spice or synthetic


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020   Page 5 of 7
       marijuana.” Tr. p. 15. Spice or synthetic marijuana is an illegal drug. See

       Indiana Code §§ 35-48-2-4(d)(22), 35-48-1-9.3. Hardister’s condition when he

       was found unconscious by the staff at Duvall coupled with his admission that

       he took hits of Katy supported the conclusion that Hardister was under the

       influence of a controlled substance. The evidence is sufficient to prove that it

       was “more likely than not that [Hardister] did in fact use and or possess illegal

       substances.” Tr. p. 32. The State’s evidence is sufficient to support the trial

       court’s revocation of Hardister’s placement in community corrections.

       Hardister’s claim to the contrary amounts to an invitation to reweigh the

       evidence, which we will not do. Cox, 706 N.E.2d at 551.


         II. Order to Serve Remainder of Sentence in the DOC
[10]   Hardister also contends that the trial court abused its discretion in ordering that

       he serve the remainder of his five-year sentence in the DOC. The trial court’s

       decision as to the sanction imposed following a determination that a defendant

       violated the terms of his community-corrections placement “is reviewable using

       the abuse of discretion standard.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007). “An abuse of discretion occurs where the decision is clearly against the

       logic and effect of the facts and circumstances.” Id. “Indiana Code section 35–

       38–2.6–5 provides that if a person placed directly in community corrections

       violates the terms of the placement, the trial court may, after a hearing, revoke

       the placement and commit the person to the DOC for the remainder of the

       sentence.” Christie v. State, 939 N.E.2d 691, 694 (Ind. Ct. App. 2011).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020   Page 6 of 7
[11]   Again, after pleading guilty, Hardister was sentenced to five years with one year

       suspended and four years in community corrections. Hardister committed a

       violation almost immediately after being sentenced. The trial court could have

       revoked Hardister’s probation and community-corrections placement following

       this first violation but did not. Instead, the trial court gave Hardister another

       chance to avoid incarceration by modifying his placement from home detention

       to work release. Less than a month later, Hardister was the subject of an

       incident report after he was found in possession of Katy. He soon thereafter

       committed the violation at issue in this appeal.


[12]   By accepting an alternative placement, Hardister agreed to abide by certain

       conditions. Hardister, however, failed to abide by those conditions. In

       revoking Hardister’s community-corrections placement and ordering that he

       serve the remainder of his five-year sentence in the DOC, the trial court noted

       that Hardister committed numerous violations within a short time following his

       placement in community corrections, including violations committed after he

       was given a second chance to remain in community corrections. We cannot

       say that the trial court abused its discretion in determining that Hardister was

       “no longer a good candidate” for community corrections and ordering him to

       serve the remainder of his sentence in the DOC. Tr. p. 35.


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


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020   Page 7 of 7
