Darnell Loven Johnson v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Aug 16 2017, 9:33 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony C. Lawrence Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darnell Levon Johnson, August 16, 2017
Appellant-Defendant, Court of Appeals Case No.
48A05-1703-CR-592
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable David A. Happe,
Appellee-Plaintiff Judge
Trial Court Cause No.
48C04-1608-F6-1583
Altice, Judge.
Case Summary
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[1] Darnell L. Johnson appeals the revocation of both his community corrections
placement and his probation. He contends the trial court abused its discretion
by ordering him to serve his full sentence in the Department of Correction (the
DOC).
[2] We affirm.
Facts & Procedural History
[3] On September 29, 2016, Johnson pled guilty to Level 6 felony possession of a
narcotic drug, Level 6 felony unlawful possession of syringe, Level 6 felony
possession of methamphetamine, Class A misdemeanor possession of a
controlled substance, and Class A misdemeanor resisting law enforcement. On
November 21, 2016, the trial court sentenced Johnson to fully concurrent
sentences, resulting in an aggregate term of thirty months. The court ordered
twelve months suspended to probation and the remaining eighteen months to
be served in community corrections, specifically in the Continuum of Sanctions
Program through the Community Justice Center (the COS Program).
[4] After completing his intake for the COS Program, Johnson had to wait for
available bed space at the work release facility until December 15, 2016. On
that date, he was transported from the Madison County Detention Center to the
work release facility to begin serving his time in the COS Program. At the
facility, he was given a two-hour pass to obtain his personal belongings.
Johnson understood that he was required to return within two hours. Johnson
did not return to the facility. As a result, a petition to terminate Johnson’s
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participation in the COS Program was filed on December 21, 2016. The trial
court terminated Johnson’s participation in the COS Program pending further
hearing and issued a warrant for Johnson’s arrest on December 28, 2016.
[5] Thereafter, on January 9, 2017, Johnson failed to appear for a pre-trial
conference in another criminal case out of Madison County. This resulted in
the issuance of another warrant for his arrest. Johnson was subsequently
arrested in another county on January 27, 2017, and transferred to the Madison
County Detention Center two days later.
[6] On February 1, 2017, the State filed a notice of violation of suspended sentence.
The State alleged two violations: (1) Johnson committed a new criminal offense
– Level 6 felony failure to return to lawful detention, which charge was filed on
January 19, 2017 – and (2) Johnson failed to successfully complete the executed
portion of his sentence through the COS Program.
[7] On February 13, 2017, the trial court held an evidentiary hearing on both the
petition to terminate participation in the COS Program and the notice of
probation violation. At the hearing, Johnson did not deny that he failed to
timely return to the work release facility. He claimed, however, that he did
eventually return in the middle of the night and was told by staff to leave. He
left the facility and did not return. At the hearing, Johnson claimed that his
violation was due to “a misunderstanding between [him] and staff as to what
you were supposed to do”. Transcript at 32.
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[8] The trial court did not buy Johnson’s account, stating at the conclusion of the
hearing:
[W]hen you come to court today, instead of…taking
responsibility, you came up with what the Court finds I don’t
think it’s a stretch to say it’s kind of a preposterous story about
what happened. It really was just not believable. So, you came
in and said things that just weren’t true in order to cover up your
conduct, and because of that, I just don’t find that community
correction is a reasonable way to resolve this matter. I just don’t
think it’s going to be successful for you.
Id. at 34. Accordingly, the trial court terminated Johnson’s participation in the
COS Program and revoked the suspended portion of his sentence. Johnson was
ordered to serve the balance of his sentence in the DOC.
Discussion & Decision
[9] On appeal, Johnson acknowledges that he violated probation, as well as the
terms of his placement in the COS Program. He argues only that the sanction
imposed by the trial court constituted an abuse of discretion in light of the
explanation he provided at the hearing. Johnson asserts that “there was
nothing particularly egregious about his alleged failure to return to lawful
detention charge” and notes his ability to secure employment and his
“commitment to remain drug free”. Appellant’s Brief at 10.
[10] Both community corrections programs and probation serve as alternatives to
commitment to the DOC and are made at the sole discretion of the trial court.
Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). Placement in either is a matter of
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grace and a conditional liberty that is a favor, not a right. Id. After a hearing
and upon finding that a violation occurred, the trial court may revoke the
defendant’s placement in community corrections and commit the person to the
DOC for the remainder of his sentence. Christie v. State, 939 N.E.2d 691, 694
(Ind. Ct. App. 2011) (citing Ind. Code § 35-38-2.6-5). The court may also
revoke the defendant’s probation and order all or part of the previously
suspended sentence to be executed. I.C. § 35-38-2-3(h)(3).
[11] We review the trial court’s sentencing decision in a revocation proceeding for
an abuse of discretion. Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App.
2011). An abuse of discretion will be found if the trial court’s decision is
against the logic and effect of the facts and circumstances. Id.[12] The trial court did not abuse its discretion by ordering Johnson to serve his
entire thirty-month sentence, including the previously suspended term, in the
DOC. After being granted considerable grace by the trial court, Johnson
committed a new crime by failing to return to the COS Program on his first day
of placement. He continued to avoid serving his sentence until he was arrested
about six weeks later. During this time, he also failed to appear for a pre-trial
conference in another criminal matter. At the revocation hearing, Johnson then
fabricated a story to explain his actions. The nature of Johnson’s violation
warranted the sanction imposed.
[13] Judgment affirmed.
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Baker, J. and Bailey, J., concur.
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