Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                              Aug 18 2014, 9:27 am
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:

DONALD E.C. LEICHT                                         GREGORY F. ZOELLER
Kokomo, Indiana                                            Attorney General of Indiana

                                                           CYNTHIA L. PLOUGHE
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

ANTHONY D. DUNN,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 34A02-1402-CR-99
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE HOWARD SUPERIOR COURT
                        The Honorable William C. Menges, Jr., Judge
                              Cause No. 34D01-0903-FB-307


                                         August 18, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                        Case Summary

          Anthony D. Dunn (“Dunn”) appeals an order revoking his community corrections

placement and committing him to the Indiana Department of Correction (“the DOC”) for the

remainder of his sentence for Dealing in Cocaine.1 We affirm the revocation and remand for

correction of mathematical error in the calculation of credit time.

                                             Issues

          Dunn presents two issues for review:

          I.      Whether the State proved his violation of a term of his community
                  corrections placement by a preponderance of the evidence; and
          II.     Whether the trial court erred when imposing a sanction for the
                  violation.

                                Facts and Procedural History

          On April 21, 2010, Dunn pled guilty to Dealing in Cocaine. He was sentenced to ten

years imprisonment, with eight years suspended to probation.

          Over time, the State filed several petitions to revoke Dunn’s probation. On September

20, 2012, he was found to be in violation of the terms of his probation; he was ordered to

serve 220 days of his previously-suspended sentence. On March 14, 2013, Dunn was again

found to be in violation of the terms of his probation. He received credit for 144 days of

incarceration and was ordered to serve 874 days of his previously-suspended sentence. He

was permitted to do so on in-home detention.




1
    Ind. Code § 35-48-4-1.

                                                 2
        On May 14, 2013, the State filed a notice of non-compliance with the community

correction home detention division and Dunn was arrested. He was released on bond on

August 21, 2013.

        On August 22, 2013, Dunn appeared at the community correction home detention

office and insisted that a coordinator remove his home-detention bracelet.2 Because the

coordinator responsible for affixing bracelets was out, Dunn was instructed to return the next

day. He did not do so. On August 30, 2013, the State filed a petition to revoke Dunn’s

suspended sentence. On January 23, 2014, the trial court conducted a hearing and Dunn was

again found to be in violation of the home-detention terms, this time for failure to return to

the community corrections home detention office as directed.

        Dunn was ordered to serve 2,598 days, the purported balance of his previously-

suspended sentence. This appeal ensued.

                                       Discussion and Decision

                        Sufficiency of the Evidence to Support Revocation

        A probation revocation hearing is not equivalent to an adversarial criminal

proceeding. Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999). However, the Due Process

Clause applies to probation revocation proceedings, and the due process rights of a

probationer include: “written notice of the claimed violations, disclosure of the evidence

against him, an opportunity to be heard and present evidence, the right to confront and cross-



2
 Apparently, the bracelet was to be immediately replaced with a new one. Community corrections employee
Leah Camp testified: “I was told he still had his bracelet on but we start all their paperwork over to refigure
their out date.” (Tr. 10.)

                                                      3
examine witnesses, and a neutral and detached hearing body[.]” Id. at 549. Because

probation revocation procedures “are to be flexible, strict rules of evidence do not apply.” Id.

       A reviewing court treats a petition to revoke a placement in a community corrections

program the same as a petition to revoke probation. Id. Community corrections is “a

program consisting of residential and work release, electronic monitoring, day treatment, or

day reporting[.]” Ind. Code § 35-38-2.6-2. A defendant is not entitled to serve a sentence in

either probation or a community corrections program. Monroe v. State, 899 N.E.2d 688, 691

(Ind. Ct. App. 2009). Rather, such placement is a “matter of grace” and a “conditional liberty

that is a favor, not a right.” Million v. State, 646 N.E.2d 998, 1002 (Ind. Ct. App. 1995).

       Probation may be revoked for violation of a probation condition. Runyon v. State,

939 N.E.2d 613, 616 (Ind. 2010). The State must prove the violation by a preponderance of

the evidence. Id. If a defendant violates the terms of his placement in community

corrections, the court may, after a hearing:

       (1)    Change the terms of the placement.
       (2)    Continue the placement.
       (3)    Revoke the placement and commit the person to the department of
              correction for the remainder of the person’s sentence.

Ind. Code § 35-38-2.6-5.

       Dunn contends that the State failed to prove he had violated “any actual written rule

that he had read or signed.” Appellant’s Brief at 5. The State responds that Dunn was made

aware of his obligation to comply with directives of the community corrections division

personnel when the trial court issued its order of March 14, 2013, providing in pertinent part:



                                               4
       The balance of the defendant’s imposed sentence shall be served on In-Home
       Detention through Community Corrections. . . . As a specific condition of
       Probation, the Defendant is ordered to follow any and all recommendations
       made by the Probation Department or Community Corrections including, but
       not limited to, treatment and education.

(App. 11.)

       Dunn participated in placement in community corrections, a condition of which was

that he submit to program directives. To support the allegation of a violation, the State

presented testimony from Howard County Community Corrections home detention

coordinator Leah Camp (“Camp”). Camp testified that she was “responsible for putting the

bracelets on” when Dunn was “on in-home detention.” (Tr. 6.) According to Camp, Dunn

was released from jail on August 21, 2013 and was “to be put back on in-home detention.”

(Tr. 7.) Dunn appeared at the community corrections office on August 22, 2013 and

“demanded his bracelet be taken off.” (Tr. 9-10) Because Camp was out of the office, Dunn

was directed to return on the following day for electronic monitoring services. He failed to

do so. As such, the State established that Dunn violated a term of his probation and

placement – he did not submit to the supervision of community corrections. Pursuant to

Indiana Code Section 35-38-2.6-5(3), the trial court had the option of revoking Dunn’s

placement and committing him to the DOC to serve a portion of his sentence. The probation

revocation decision is supported by sufficient evidence.

                                         Sanction

       Dunn alternately contends that his “sentence is inappropriate” or that the “sentence

imposed on January 23, 2014 is illegal.” Appellant’s Brief at 1, 5. More particularly, he


                                             5
argues that the order that he serve 2,598 days of his previously-suspended sentence

incorporates an erroneous mathematical calculation and, further, the trial court erred in

specifying that the term was to be served consecutive to another term of imprisonment.

       In the context of probation revocation, our supreme court has determined that the

Indiana Appellate Rule 7(B) standard for revision of inappropriate sentences “is not the

correct standard to apply when reviewing a trial court’s actions” because the action “is not a

criminal sentence as contemplated by the rule.” Jones v. State, 885 N.E.2d 1286, 1290 (Ind.

2008). Like probation, a community corrections program serves as an alternative to

commitment to the DOC, at the sole discretion of the trial court. Monroe v. State, 899

N.E.2d 688, 691 (Ind. Ct. App. 2009). As in the probation context, a community corrections

revocation hearing is civil in nature. Decker v. State, 704 N.E.2d 1101, 1104 (Ind. Ct. App.

1999). Community corrections revocation proceedings are “based upon violations of

community corrections rules rather than upon the commission of a crime[.]” McQueen v.

State, 862 N.E.2d 1237, 1244 (Ind. Ct. App. 2007). Accordingly, the revocation of a

community corrections placement is not equivalent to the imposition of a criminal sentence.

Appellate Rule 7(B), governing the review of criminal sentences, is not applicable to

community corrections revocation decisions.

       Because the trial court was not imposing a criminal sentence, the trial court was not

required to consider Indiana Code Section 35-50-1-2(d), providing for the imposition of

consecutive sentences in some circumstances. The reference to serving the reinstated term

“consecutively to any pending cases or any sentence he may be serving,” App. 29, is an


                                              6
apparent response to defense counsel’s advisement in open court that Dunn was then facing a

murder charge, and is mere surplusage.

       However, we agree with Dunn that the reinstated term is something other than 2,598

days. Dunn had a suspended sentence of eight years (365 days X 8 = 2,920). He was given

credit, pursuant to the trial court’s order of September 20, 2012, for 220 days. He was given

credit, pursuant to the trial court’s order of March 14, 2013, for 144 days. 2,920 less 364

equals 2,556 days. However, it also appears from comments of the trial court that Dunn was

entitled to credit “from May 14th, 2013 through August 21st, 2013, which the court finds to be

99 actual days or 100 days calculated by the Department of Correction or 200 days, day-for-

day credit, and again from October 6th, 2013, through yesterday, January 22nd, 2014, which

the court finds to be 108 actual days or 109 days, day-for-day credit, 218 days[.]” (Tr. 18.)

       Accordingly, we remand for recalculation of credit time and revision of the order on

petition to revoke.

                                        Conclusion

       The decision to revoke Dunn’s placement in community corrections and order

reinstatement of his previously-suspended sentence is supported by sufficient evidence. We

remand for correction of a mathematical error.

       Affirmed and remanded.

NAJAM, J., and PYLE, J., concur.




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