MEMORANDUM DECISION
                                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          Jun 28 2018, 8:37 am

regarded as precedent or cited before any                                          CLERK
                                                                               Indiana Supreme Court
court except for the purpose of establishing                                      Court of Appeals
                                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joel Frye,                                               June 28, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-347
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Sarah K. Mullican,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D03-1508-F5-2019



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-347 | June 28, 2018                       Page 1 of 5
                                          Case Summary
[1]   Joel Frye (“Frye”) appeals the revocation of his direct placement in home

      detention, presenting the sole issue of whether the State presented sufficient

      evidence to support the revocation. We affirm.



                            Facts and Procedural History
[2]   In 2016, Frye pleaded guilty to Burglary, as a Level 5 felony, and admitted his

      status as a habitual offender. The trial court imposed a five-year sentence—

      which it enhanced by five years—and ordered that Frye serve four years in

      home detention, with the remaining six years suspended to probation. Later in

      2016, the State successfully petitioned to revoke Frye’s placement in home

      detention. At that point, Frye was transferred to work release for several

      months, and he eventually returned to home detention.


[3]   On December 21, 2017, the State again petitioned to revoke Frye’s placement

      in home detention. The State alleged, inter alia, that Frye had tested positive for

      T.H.C. and alcohol-related compounds in May of 2017. The trial court held a

      hearing on the State’s petition, at which Frye’s counsel admitted that there had

      been a positive screen. In argument to the court, counsel asserted that Frye had

      been “substantially in compliance.” Tr. Vol. II at 26. Counsel acknowledged

      that “there were positive screens earlier in the year,” but argued that there had

      not been a positive screen for six to eight months. Id. at 26-28. Counsel also

      clarified that the dispute was only to other allegations in the petition.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-347 | June 28, 2018   Page 2 of 5
[4]   The court revoked Frye’s placement, and ordered that Frye serve the remaining

      executed portion of his sentence at the Indiana Department of Correction.


[5]   Frye now appeals.



                                 Discussion and Decision
[6]   Placement in a community corrections program is a conditional liberty that is a

      matter of grace, not a right. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). “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.” Id. (footnote omitted). Because a revocation

      proceeding is civil in nature, the State need only prove an alleged violation by a

      preponderance of the evidence. Id. at 551. Moreover, proof of a single

      violation is sufficient to support revoking the placement. Bussberg v. State, 827

      N.E.2d 37, 44 (Ind. Ct. App. 2005), trans. denied. Upon determining that a

      defendant has violated a term of his placement, the court may “revoke the

      placement and commit the person to the county jail or department of correction

      for the remainder of the person’s sentence.” Ind. Code § 35-38-2.6-5.


[7]   We review revocation decisions for an abuse of discretion, which occurs “where

      the decision is clearly against the logic and effect of the facts and circumstances,

      or when the trial court misinterprets the law.” Heaton v. State, 984 N.E.2d 614,

      616 (Ind. 2013) (citation omitted). In reviewing the court’s decision to revoke

      the placement, we “consider all the evidence most favorable to supporting the


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-347 | June 28, 2018   Page 3 of 5
      judgment of the trial court without reweighing that evidence or judging the

      credibility of witnesses.” Cox, 706 N.E.2d at 551. We will affirm the decision if

      there is substantial evidence of probative value supporting its determination that

      the defendant violated a condition of his placement in the program. Id.


[8]   Frye argues that the State did not introduce evidence of the conditions of his

      placement in home detention. Thus, according to Frye, there is no evidence

      that Frye violated an actual condition of his placement.1 Yet, the State

      introduced evidence that there had been a positive screen for T.H.C. and

      alcohol, and Frye admitted to as much.2 Moreover, counsel clarified that the

      dispute was only to “the fees” and to lockdown-related allegations, Tr. Vol. II

      at 27, while pointing out that there had been “no new allegations” concerning

      alcohol or drugs, id. at 28. Ultimately, Frye’s strategy was to argue that he was

      substantially compliant and that the remoteness of the positive screen warranted

      leniency. Frye may not now inconsistently argue that there was no violation.

      Smith v. State, 765 N.E.2d 578, 582 (Ind. 2002) (noting that “judicial




      1
        To the extent Frye is arguing that he did not have notice of the conditions, he has waived this argument by
      raising it for the first time on appeal. See Leonard v. State, 80 N.E.3d 878, 884 n.4 (Ind. 2017).
      2
        After argument from Frye’s counsel, the court asked, “[Y]ou don’t dispute that he was positive for alcohol
      and marijuana?” Tr. Vol. II at 27. Counsel responded, “No your Honor. He’s already . . . admitted on the
      stand that those were correct.” Id. In a footnote, Frye asserts that counsel mischaracterized his earlier
      testimony. Yet, putting aside whether Frye’s testimony constituted an admission to nearly all of the
      allegations, even before Frye testified, counsel acknowledged—when questioning Frye’s case manager—that
      Frye “had T.H.C. last in May . . . about eight (8) months ago.” Id. at 7. Moreover, we note that admissions
      can be made by a party or his attorney, and can “occur[] at any point in a judicial proceeding.” Stewart v.
      Alunday, 53 N.E.3d 562, 568 (Ind. Ct. App. 2016).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-347 | June 28, 2018                       Page 4 of 5
       estoppel . . . prevent[s] a party from asserting a position in a legal proceeding

       inconsistent with one previously asserted.”).


[9]    We accordingly conclude that there is sufficient evidence to support the

       revocation of Frye’s placement in home detention.


[10]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-347 | June 28, 2018   Page 5 of 5
