MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Feb 29 2016, 9:28 am
this Memorandum Decision shall not be
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
David W. Stone, IV                                       Gregory F. Zoeller
Anderson, Indiana                                        Attorney General of Indiana

                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Cortez Laquez McDonald,                                  February 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         48A04-1507-CR-881
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela Warner
Appellee-Plaintiff                                       Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-1207-FD-1227



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016   Page 1 of 7
                                             Case Summary
[1]   Cortez Laquez McDonald appeals the trial court’s revocation of his community

      corrections placement at the Continuum of Sanctions (“COS”). McDonald

      contends that there was insufficient evidence to support the trial court’s finding

      that he violated the terms of his community corrections program and that the

      trial court abused its discretion in revoking his community corrections

      placement. Finding the evidence sufficient and no abuse of discretion, we

      affirm.


                                 Facts and Procedural History
[2]   In April 2013, McDonald pled guilty to class A misdemeanor possession of

      marijuana. The trial court sentenced McDonald to twelve months in the COS

      day reporting program, to be served consecutive to his sentence in a different

      case. Placement in the COS program required McDonald to adhere to the

      following conditions: complete the HIRE program, pay certain fees, submit to

      urine drug screens, and obey all laws of the United States and Indiana Tr. at 41,

      43.


[3]   In December 2014, McDonald began living with his girlfriend Laney

      Hendricks. In March 2015, McDonald became upset because Hendricks was

      not home when he returned around one in the morning. The couple began

      arguing over the phone and through text messages. When Hendricks arrived

      home about thirty minutes later, the argument became physical. McDonald

      slapped Hendricks with his open hand, grabbed her shirt, and pushed her


      Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016   Page 2 of 7
      around the apartment several times, causing scratches on her chest. Id. at 19-

      22. When Hendricks wanted to leave the apartment, McDonald took her

      phone and keys and stood in front of the door, prohibiting her from leaving.

      Several hours later, McDonald gave Hendricks her things and she left. Later,

      Hendricks went to the Anderson Police Department and gave a statement

      alleging that McDonald threatened her with bodily harm while armed with a

      gun. Officer Joe Garrett took Hendricks’s report and stated that there were

      visible scratches on her neck and chest area. Id. at 37. In April 2015,

      McDonald was arrested and charged with criminal confinement, intimidation,

      pointing a firearm, and domestic battery.


[4]   In April 2015, the COS director filed a notice of termination alleging that

      McDonald had violated the terms of the COS program by failing to complete

      the HIRE program, failing to pay $53 in fees, failing three drug screens by

      testing positive for marijuana, and committing the aforementioned new

      criminal offenses. The trial court held evidentiary hearings on May 26 and

      June 29, 2015. At the first hearing, McDonald appeared with counsel and

      admitted that he had failed to complete the HIRE program, was not current

      with his fees, and had used marijuana once during the relevant time. Id. at 5-6.

      At the second hearing, Hendricks admitted that a firearm had not been involved

      in the incident and that she had lied to get McDonald a harsher punishment.

      Id. at 24-25. McDonald’s attorney conceded that McDonald had violated the

      terms of his community corrections program as to the HIRE program, fees, and




      Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016   Page 3 of 7
      drug screens, and stated that the only violation at issue was the new criminal

      offenses. Id. at 43.


[5]   In light of the testimony given during the evidentiary hearings, the trial court

      found that McDonald had violated the terms of his community corrections

      placement by failing to complete the HIRE program, failing to pay fees, testing

      positive for marijuana three times, and committing criminal confinement and

      domestic battery against Hendricks. The trial court revoked McDonald’s COS

      placement and ordered him to serve 359 days in the county jail. This appeal

      ensued.


                                     Discussion and Decision

          Section 1 – Sufficient evidence supports the trial court’s
        finding that McDonald violated the terms of his community
                            corrections program.
[6]   McDonald contends that the evidence is insufficient to support the trial court’s

      finding that he violated the terms of his community corrections program. 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. Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App.

      2014), trans. denied. A revocation of community corrections placement hearing

      is civil in nature, and the State need only prove the alleged violations by a

      preponderance of the evidence. Id. We consider only the evidence most

      favorable to the trial court’s judgment and do not reweigh the evidence or judge

      the credibility of the witnesses. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008).
      Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016   Page 4 of 7
[7]   McDonald argues that the trial court’s findings regarding the HIRE program,

      fees, and drug screens are not supported by his admission. Further, he argues

      that the court’s reliance on Hendricks’s testimony is improper and therefore the

      State did not prove by a preponderance of the evidence that he violated the

      terms of his community corrections program. We disagree.


[8]   As indicated above, McDonald’s counsel admitted that McDonald violated the

      terms of his COS program by failing to complete the HIRE program, failing to

      pay his program fees, and failing three urine drug screens; the only violation at

      issue was the commission of the new criminal offenses. “A clear and

      unequivocal admission of fact by an attorney is a judicial admission which is

      binding on the client.” Parker v. State, 676 N.E.2d 1083, 1086 (Ind. Ct. App.

      1997). Consequently, McDonald may not challenge the admitted violations on

      appeal. 1


[9]   McDonald argues that the trial court’s reliance on Hendricks’s testimony for his

      offenses of criminal confinement and domestic battery is improper because she

      lied about whether a gun was involved in the incident and therefore cannot be

      deemed credible. This is merely a request for us to reweigh the evidence and




      1
        Notwithstanding, McDonald’s argument lacks merit. He contends that he was unable to complete the
      HIRE program because he was incarcerated; we fail to see how being jailed for new criminal offenses is a
      valid excuse for not complying with a community corrections requirement. Next, he argues that the State
      had the burden to prove that he could pay his fees, caselaw tells us otherwise. “[I]t is the defendant
      probationer’s burden … to show facts related to an inability to pay.” Runyon v. State, 939 N.E.2d 613, 617
      (Ind. 2010). Finally, McDonald asserts that he used marijuana once and not three times, as the trial court
      found. An admission to a single violation is sufficient to revoke community corrections placement. Treece, 10
      N.E.3d at 60.

      Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016           Page 5 of 7
       judge Hendricks’s credibility, which we will not do. Woods, 892 N.E.2d at 639.

       The trial court did not find that McDonald pointed a firearm at Hendricks, and

       Officer Garrett testified that Hendricks had visible scratches on her neck and

       chest. 2 We conclude that the State established by a preponderance of the

       evidence that McDonald violated the terms of his COS program as found by the

       trial court.


               Section 2 - The trial court did not abuse its discretion in
              revoking McDonald’s community corrections placement.
[10]   McDonald also contends that the trial court abused its discretion in revoking

       his community corrections placement. A defendant is not entitled to serve a

       sentence in either probation or a community corrections program. Treece, 10

       N.E.3d at 56. Placement in either is a matter of grace and a conditional liberty

       that is a favor, not a right. Id. The standard of review of an appeal from the

       revocation of a community corrections placement mirrors that for revocation of

       probation. Id. First, the court must make a factual determination that a

       violation of a condition actually occurred. Vernon v. State, 903 N.E.2d 533, 537

       (Ind. Ct. App. 2009), trans. denied. If a violation is proven, then the trial court

       must determine if the violation warrants a revocation. Id. Violation of a single

       condition of placement is sufficient to revoke placement. Treece, 10 N.E.3d at

       60.




       2
           Consequently, we reject McDonald’s invitation to apply the incredible dubiosity doctrine.

       Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016         Page 6 of 7
[11]   A trial court’s sentencing decision to revoke a defendant’s placement in

       community corrections is reviewed for an abuse of discretion. An abuse of

       discretion occurs only where the trial court’s decision is clearly against the logic

       and effect of the facts and circumstances before the court. State v. Hunter, 898

       N.E.2d 455, 458 (Ind. Ct. App. 2008). Indiana Code Section 35-38-2.6-5 (2014)

       states that if a person violates the terms of the placement, the court may, after a

       hearing, do any of the following: change the terms of the placement, continue

       the placement, or revoke the placement and commit the person to the

       Department of Correction for the remainder of the person’s sentence.


[12]   McDonald’s argument that the trial court abused its discretion in revoking his

       community corrections placement is premised upon his claim that one or more

       of the trial court’s findings of violations were improper, which we have already

       decided against him. Moreover, his admission to violating three conditions of

       the community corrections program is alone sufficient to warrant revocation.

       Therefore, we find no abuse of discretion and affirm the trial court’s revocation

       of his community corrections placement.


[13]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016   Page 7 of 7
