Opinion
24A-CR-436
08-29-2024
Joshua Drew Burton, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT A. David Hutson LORCH NAVILLE WARD New Albany, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana, Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Clark Circuit Court The Honorable Bradley B. Jacobs, Judge Trial Court Cause No. 10C02-2104-F6-439
ATTORNEY FOR APPELLANT A. David Hutson LORCH NAVILLE WARD New Albany, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana, Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
May, Judge.
[¶1] Joshua Drew Burton appeals following the revocation of his placement in community corrections. Burton argues the trial court abused its discretion when it revoked his community corrections placement and ordered him to serve the remainder of his sentence incarcerated. We affirm.
Facts and Procedural History
[¶2] On April 12, 2021, the State charged Burton with Level 6 felony possession of methamphetamine and Level 6 felony possession of a narcotic drug. The State also alleged Burton was a habitual offender. On September 30, 2022, Burton pled guilty to both Level 6 felonies and admitted his habitual offender status. On February 8, 2023, the trial court imposed concurrent six-month sentences for the Level 6 felonies and increased the sentence for possession of methamphetamine by two years as the habitual offender enhancement. The court suspended six months of the sentence to community corrections and also ordered the two-year executed sentence served on community corrections.
[¶3] On July 10, 2023, the State charged Burton with Level 4 felony arson and Level 6 felony battery in Crawford County, Indiana. On July 26, 2023, the State filed a petition to revoke Burton's home detention because of Burton's accrual of those additional charges. On October 27, 2023, the trial court held its initial hearing on the petition to revoke placement. The trial court allowed Burton to continue in community corrections in exchange for admitting he violated his placement by committing misdemeanor criminal mischief. On November 2, 2023, Burton signed a contract acknowledging and agreeing to home detention conditions that included "zero tolerance" for violations. (App. Vol. 2 at 131.)
In the Crawford County action, the State dismissed the battery charge, and a jury acquitted Burton of arson but found him guilty of a lesser charge of Class B misdemeanor criminal mischief.
[¶4] As part of the home detention program, Burton wore an ankle monitor, and he needed to be pre-approved by Community Corrections staff when leaving home for work, shopping, or appointments. Several times, Burton left his home before the approved time or returned home after the approved time. Other unapproved movements included stopping at a gas station, stopping for food on the way home from work, and circling the parking lot of a property for rent with a person who was driving him home from work.
[¶5] On December 14, 2023, the State filed a second petition to revoke Burton's home detention. The petition alleged Burton had eight unapproved movements and was in arrears in program fees. The Community Corrections Executive Director requested that Burton serve the remainder of his sentence incarcerated. On December 19, 2023, the trial court held an initial hearing on the second petition to revoke placement. On January 23, 2024, the trial court heard testimony, revoked Burton's placement, and ordered Burton to serve the remainder of his sentence incarcerated.
Discussion and Decision
[¶6] Burton argues the trial court abused its discretion when it revoked his placement in community corrections and ordered him to spend the remainder of his sentence in the Department of Correction. "For the purpose 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." Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh'g denied. Probation and community corrections programs are alternatives to the Indiana Department of Correction that are made available to convicted persons at the sole discretion of the trial court. McQueen v. State, 862 N.E.2d 1237, 1242 (Ind.Ct.App. 2007). A defendant is not entitled to either alternative, and placement therein is a "matter of grace" and a "conditional liberty that is a favor, not a right." Cox, 706 N.E.2d at 549.
[¶7] Burton argues the trial "court did not give proper consideration to mitigating circumstances" and that "the nature of the violations are minor." (App. Vol. 2 at 12-13.) In support of his argument that the trial court did not adequately consider his circumstances, Burton cites Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008). In Woods, our Indiana Supreme Court reviewed the application of a "strict compliance" probation agreement between Woods and the State. Id. In reliance on that strict compliance provision, the trial court refused to allow Woods an opportunity to explain his violations. Id. at 639. Our Indiana Supreme Court held that "the very notion that violation of a probationary term will result in revocation no matter the reason is constitutionally suspect." Id. at 641. "[E]ven a probationer who admits the allegations against him must still be given an opportunity to offer mitigating evidence suggesting that the violation does not warrant revocation." Id. at 641 (citing United States v. Holland, 850 F.2d 1048, 1051 (5th Cir. 1998) (per curium)).
[¶8] Unlike Woods, Burton was provided an opportunity to explain his violations and request alternative sanctions. Burton explained:
I know I have a bad criminal history but when you gave me this home arrest I really have been doing everything I was supposed to. I got a job the first day. I have been sober sir. I tried; I have been using this time to turn everything around. I have been doing the complete opposite of what I did before. Even turning myself in. A lot of cases I have before were for like running from the police and stuff like that. I tried to show you that I really have turned things around.(Tr. Vol. 2 at 52.) Burton and his counsel were also allowed to argue mitigating circumstances, and the trial court addressed those proposed mitigating circumstances before announcing its decision. Because Burton was given an opportunity to explain and request leniency, Woods is distinguishable.
[¶9] Burton also argues the trial court erred by mentioning his criminal history as a reason to revoke when his criminal history had not changed between his first and second probation violation. When Burton's counsel raised this same argument at the hearing, the trial judge explained: "I can appreciate that Mr. Burton. The problem is you are [sic] past does catch up to you at some point." (Id.) Although Burton did not accumulate more criminal charges between his first and second revocation hearings, his history is still relevant because it shows his repeated contacts with the criminal justice system and his failure to be rehabilitated. See Milliner v. State, 890 N.E.2d 789, 793 (Ind.Ct.App. 2008) (a defendant's continued offenses and probations violations "show a lack of respect for the law and for the opportunities afforded him"), trans. denied. As the trial court explained: "We already did a revocation on this case with placement once already. Gave you that slap on the wrist, took seven days and sent you back and then within a couple of months we are back here on the violation. . . you have run out of chances." (Tr. Vol. 2 at 53-54.)
[¶10] After a violation is found, the trial court has discretion to change the terms of placement, continue the placement, or revoke the placement and commit the person to IDOC for the remainder of the person's sentence. Ind. Code § 35-382.6-5. Burton violated his placement multiple times by failing to be where he was allowed to be, and only six weeks had passed between Burton signing the new conditions of his placement in Community Corrections and the filing of the new petition to revoke. Accordingly, we cannot say the trial court abused its discretion by ordering Burton to spend the remainder of his sentence incarcerated. See McQueen v. State, 862 N.E.2d 1237, 1242 (Ind.Ct.App. 2007) (trial court did not abuse its discretion in revoking community corrections placement when the defendant continued to violate conditions after being given a second chance).
Conclusion
[¶11] The trial court did not abuse its discretion when it revoked Burton's direct placement in community corrections and ordered him to serve the remainder of his sentence incarcerated. We accordingly affirm.
[¶12] Affirmed.
Brown, J., and Pyle, J., concur.