Opinion
24A-CR-1764
12-23-2024
Charles E. Thomas, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Jamie C. Egolf Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jennifer Anwarzai Deputy Attorney General Maya Stirm Certified Legal Intern 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable Frances C. Gull, Judge The Honorable Samuel R. Keirns, Magistrate Trial Court Cause No. 02D05-2206-F3-47
ATTORNEY FOR APPELLANT Jamie C. Egolf Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jennifer Anwarzai Deputy Attorney General Maya Stirm Certified Legal Intern Indianapolis, Indiana
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] The trial court revoked Thomas' community corrections placement after Thomas failed to pay program fees and refused to agree to a budget. Thomas argues that the trial court abused its discretion by revoking his placement. We disagree and, accordingly, affirm.
Issue
[¶2] Thomas raises one issue, which we restate as whether the trial court abused its discretion by revoking Thomas' community corrections placement.
Facts
[¶3] On October 7, 2022, Thomas pleaded guilty to intimidation, a Level 5 felony. Pursuant to the plea agreement, the trial court sentenced Thomas to five years in the Department of Correction ("DOC"). On June 28, 2023, Thomas filed a motion for modification of placement based on his good behavior in prison.
The trial court granted the motion and authorized Thomas to serve the balance of his sentence in a work release placement at the Allen County Community Corrections Residential Services Facility.
[¶4] When Thomas began his work release program, he agreed to pay the $161 weekly fee to live at the facility plus additional program fees. Thomas thereafter obtained employment at a fast-food restaurant, where he worked twenty-two to thirty-nine hours per week earning $12.00 per hour.
[¶5] Over time, Thomas refused to pay the full $161 residential fee because he claimed he could not afford it. Thomas was spending approximately $50 per week on cigarettes and food purchased from the commissary and vending machines. Thomas has ulcerated colitis and claimed that, although the work release facility provided three meals per day, he could not eat food that had tomato, so Thomas supplemented his meals with "pop, chips, [and] candy[.]" Tr. Vol. II p. 13. Thomas also incurred expenses for his minor children. Thomas contributed to his daughter's dental plan, purchased track shoes for her, and purchased a uniform and shoes for his son's karate classes. Thomas paid child support through income withholding.
[¶6] The community corrections program required participants who could not afford fees to agree to a budget. Thomas' caseworker, Bailey Goodwin, worked with Thomas to create such a budget on four different occasions. The budgets accounted for Thomas' take-home pay, child support, other expenses for his children, food purchases, electronic monitoring, and medical expenses. Thomas, however, refused to sign and agree to the budget in accordance with program requirements. Thomas signed weekly fee forms agreeing to pay certain amounts toward outstanding fees by the next meeting, but Thomas would pay less than what he agreed.
[¶7] Goodwin recommended that Thomas increase his work hours or find additional employment and provided resources for Thomas to do so, but Thomas did not obtain additional employment. Thomas told Goodwin that, due to his age of sixty-one, additional employment "may be too much for him." Id. at 26.
[¶8] On May 24, 2024, the State filed a petition to revoke Thomas' community corrections placement. The petition alleged that Thomas violated community corrections requirements by: (1) failing to "maintain good behavior" by, on four occasions, refusing to sign a required budget form and failing to "agree to pay required financial obligations"; and (2) failing to pay fees, resulting in an outstanding balance of "$3,398.00 . . . for fees and $225.00 . . . for drug screens." Appellant's App. Vol. II pp. 68-69.
[¶9] The trial court held a hearing on the petition on June 28, 2024. Goodwin testified that the basis for the petition to revoke was Thomas' refusal to agree to follow a budget, not merely his failure to pay fees. She further testified that, although Thomas claimed he could not eat the food at the facility, the facility "could accommodate [Thomas'] dietary restrictions." Tr. Vol. II p. 18.
[¶10] The trial court determined that the State met its burden of proof to revoke Thomas' placement. The trial court explained that, unlike placement in the DOC, a person placed in community corrections is required to pay fees, to which Thomas had agreed. The trial court's decision to revoke placement was not based merely on Thomas' fee arrearage but also on the fact that Thomas was "able to pay" and chose not to due to "underemployment" or spending money on "luxury items," such as pop, candy, and cigarettes. Id. at 41. Thomas had "the ability to pay way more than [he was] showing," and Thomas was "not cooperating" with the work release program by his refusal to agree to a budget. Id. at 41, 42. The trial court, thus, revoked Thomas' work release placement and ordered that he be returned to the DOC. The abstract of judgment indicates that the basis for the revocation was "Technical Violations: Other: Failure to pay fees." Appellant's App. Vol. II p. 79. Thomas now appeals.
Discussion and Decision
[¶11] Thomas argues that the trial court abused its discretion by revoking his community corrections placement. We disagree.
I. Standard of Review
[¶12] "Indiana's community corrections program serves the purpose of providing an alternative to imprisonment in a state facility." Shepardv. State, 84 N.E.3d 1171, 1173 (Ind. 2017) (citing Ind. Code § 11-12-2-1). "The program consists of 'residential and work release, electronic monitoring, day treatment, or day reporting' that are operated at the county level." Id. (quoting Ind. Code § 3538-2.6-2). If the defendant violates the terms of their community corrections placement, then the trial court may revoke the placement. Livingston v. State, 113 N.E.3d 611, 614 (Ind. 2018) (citing Ind. Code § 35-38-2.6-5).
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. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). Both probation and community corrections programs serve as alternatives to commitment to the DOC and both are made at the sole
discretion of the trial court. Id. Placement on probation or in a community corrections program is a matter of grace and not a right. Id.; see State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015) . . . . Our standard of review of an appeal from the revocation of a community corrections placement mirrors that for revocation of probation. Cox, 706 N.E.2d at 551. 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, and if there is substantial evidence of probative value to support the court's conclusion that a defendant has violated any terms of probation, we will affirm its decision to revoke probation. Id.Johnson v. State, 62 N.E.3d 1224, 1229 (Ind.Ct.App. 2016).
II. The trial court did not abuse its discretion by revoking Thomas' community corrections placement.
[¶13] Thomas focuses his argument on whether the trial court abused its discretion by revoking his community corrections placement based only on his "nonpayment of fines and costs"; Thomas hardly discusses his failure to agree to follow a budget. Appellant's Br. p. 13. Although the abstract of judgment indicates that the basis for the revocation was "Technical Violations: Other: Failure to pay fees," Appellant's App. Vol. II p. 79, the trial court's dispositional statement reveals that its decision was also based on Thomas' refusal to agree to a budget, which is a separate issue. The community corrections program required participants who struggled to pay fees to agree to a budget, and community corrections worked with Thomas to create a budget that would account for his expenses and leave sufficient funds for him to pay program fees. Thomas, however, refused to agree to follow a budget.
[¶14] Thomas' refusal to agree to a budget, as required by the community corrections program, constitutes a violation of Thomas' placement and supports the trial court's revocation of that placement. This is true independently of Thomas' actual failure to pay fees.
[¶15] But Thomas's failure to pay fees also supports revocation. Indiana Code Section 35-38-2.6-5(b) governs community corrections violations and provides that, if a person placed in community corrections "violates the terms of the placement, the prosecuting attorney may request that the court revoke the placement and commit the person to the county jail or department of correction for the remainder of the person's sentence." The payment of fees is a requirement of a community corrections placement.
[¶16] Thomas directs us to statutes governing the revocation of probation and argues that the failure to pay fees is insufficient to revoke his community corrections placement. Unlike statutes governing probation violations, however, the community corrections violation statute, Indiana Code Section 35-38-2.6-5(b), contains no language suggesting that a community corrections program participant's failure to pay fees is insufficient to revoke the placement. Cf. Ind. Code § 35-38-2-3(g) ("Probation may not be revoked for failure to comply with conditions of a sentence that imposes financial obligations on the person unless the person recklessly, knowingly, or intentionally fails to pay."); -3(m) ("Failure to pay fines or costs (including fees) required as a condition of probation may not be the sole basis for commitment to the department of correction.").
[¶17] Moreover, even if we disregard the differences between the community corrections and probation statutes, the record does not support Thomas' argument that his failure to pay fees is insufficient to revoke his community corrections placement. In determining whether a probationer's failure to pay fees constitutes a sufficient violation to revoke probation, we employ the following framework:
[T]he State bears the burden of proving that (1) a defendant violated a term of probation involving a payment requirement and (2) the failure to pay was reckless, knowing, or intentional, [and] the defendant bears the burden of showing facts related to an inability to pay and indicating sufficient bona fide efforts to pay so as to persuade the trial court that further imprisonment should not be ordered.Mauch v. State, 33 N.E.3d 387, 391 (Ind.Ct.App. 2015) (citing Runyon v. State, 939 N.E.2d 613, 617 (Ind. 2010)).
[¶18] Here, the evidence indicates that Thomas knowingly failed to pay fees. See Ind.Code § 35-41-2-2(b) ("A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high probability that he is doing so."). Thomas did not pay fees despite knowledge of his arrears and the community corrections program's efforts to assist him in following a budget and increasing his income.
[¶19] Thomas argues that he was unable to pay fees and was "doing his best" to make payments. Appellant's App. Vol. II p. 16. The record, however, indicates that Thomas clearly had the ability to pay the fees and had many opportunities to modify his obstinate behavior. Although community corrections provided Thomas with resources to seek additional employment, Thomas was not working full time. Thomas was also spending approximately $50 per week on pop, candy, chips, and cigarettes. Although Thomas claimed that he made these purchases because he could not eat tomato-based food at the residential facility, the facility was able to accommodate Thomas' dietary restrictions. The budget plans drawn up by community corrections showed that Thomas had the ability to pay the required fees if he prioritized his spending.
[¶20] The trial court determined that Thomas had "the ability to pay way more than [he was] showing," and, as a result of his failure to pay fees, Thomas was in arrears in the amount of over $3,000.00. Tr. Vol. II p. 42. Because Thomas knowingly failed to pay fees despite the ability to do so, the trial court did not abuse its discretion by revoking Thomas' community corrections placement.
Conclusion
[¶21] The trial court did not abuse its discretion by revoking Thomas' community corrections placement. Accordingly, we affirm.
[¶22] Affirmed.
May, J., and DeBoer, J., concur.