Justin S. Johnson v. State of Indiana , 62 N.E.3d 1224 ( 2016 )

FILED
Oct 31 2016, 9:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Laura Paul Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justin S. Johnson, October 31, 2016
Appellant-Defendant, Court of Appeals Case No.
28A05-1602-CR-309
v. Appeal from the Greene Superior
Court
State of Indiana, The Honorable Dena Martin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
28D01-1409-F3-2
Brown, Judge.
[1] Justin S. Johnson appeals the trial court’s order revoking his community
corrections placement and ordering him to serve the remainder of his executed
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sentence in prison. Johnson raises one issue which we revise and restate as
whether the trial court abused its discretion in revoking his placement in
community corrections. We reverse and remand.
Facts and Procedural History
[2] On December 1, 2014, Johnson and the State executed a plea agreement which
provided that Johnson would plead guilty to neglect of a dependent resulting in
serious bodily injury as a level 3 felony and that sentencing would be left to the
discretion of the trial court.
[3] On January 9, 2015, the court held a guilty plea and sentencing hearing. The
court accepted the plea agreement and Johnson’s guilty plea and, at Johnson’s
request, admitted the reports of two health care professionals which were
completed in 2010 under another cause in connection with a previous charge
against Johnson for forgery. One of the reports noted that Johnson confirmed
that he wrote another person’s name on a check for $1,000,000 and attempted
to cash the check to obtain money to work on his house. The report stated in
part that Johnson “was adequately oriented but appears to have marked
learning, cognitive, and memory deficits,” that Johnson “reported that he has
been admitted for psychiatric hospitalizations on at least 3-4 occasions due to
manic like symptoms,” he has been diagnosed with borderline intellectual
functioning, he “is likely to meet criteria for Mild Mental Retardation if he were
formally tested,” “he has a history of lifelong learning difficulties,” and that he
“has had consistent problems with obtaining and maintaining employment,
housing and managing financial needs.” Defendant’s Exhibit B. The report
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also stated that “[p]erhaps a good capture of [Johnson’s] limited comprehension
of his forgery is in his statement regarding his thinking at the time he attempted
to cash the check, ‘I sort of knew it was wrong but didn’t really think people
would mind.’” Id.
[4] The court also noted that it had received a presentence investigation report
(“PSI”) and an Alternative Sentencing Evaluation. The Alternative Sentencing
Evaluation filed by a case manager with Greene County Community
Corrections stated that, because Johnson had previously been on probation, the
case manager had contacted Johnson’s probation officer “to see how capable
[Johnson] was at understanding and following rules,” and the probation officer
“reported that [Johnson] successfully completed his probation with no
problems.” Appellant’s Appendix, Volume II (Confidential), at 112. The PSI
indicated that Johnson was charged in July 2010 with forgery as a class C
felony and theft as a class D felony, that the forgery count was dismissed, that
in February 2011 the court ordered Johnson to serve two years on probation
and found that he was eligible for a reduction to a misdemeanor upon the
successful completion of probation, and that in February 2013 his conviction
was modified to theft as a class A misdemeanor. The recitation of Johnson’s
criminal history in the PSI shows that he had not previously been ordered to
serve time in the Department of Correction (“DOC”). According to the PSI, he
had been living in a trailer on his father’s property for about one month at the
time of his arrest, had Medicaid prior to his incarceration, has been on social
security disability since he was seven years old, had been employed at Steak N’
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Shake for about eleven months in 2011 and 2012, his overall risk assessment
score places him in the low risk to reoffend category, and his debt was
approximately $6,000 for medical, cable, and contract phone bills. The PSI
also stated that a mitigating factor was that imprisonment would result in
undue hardship to the person or the dependents of the person.
[5] Following argument by Johnson’s counsel, the trial court stated “[y]es it is a
mitigating circumstance your challenges, mental challenges that you are
facing,” that “the probation officer wanted the Court to find that the
imprisonment of the person would result in undue hardship to the person,
which I believe that, as your attorney indicated I believe placing you in the
[DOC] is not going to be beneficial to you,” and that “however you have to
understand sir even with your limited ability that there are rules that you have
to follow, rules not only to protect society from financial losses that is what we
were talking about last time when you wrote the million dollar check.”
Transcript at 18-19. The court also stated “your little baby got hurt this time,”
“I can’t take the chance that is going to happen,” and “the fact that this was
your child that you had the care and custody of, the fact that we had contact
before not too long ago with the million dollar check that you wrote, you were
put on probation, yes you did wonderful, but you are back, you have to
understand that you have to follow the rules . . . .” Id. at 19.
[6] The court sentenced Johnson to eleven years with seven years executed, which
was to be served on home detention through community corrections, and four
years suspended to probation. The court ordered that Johnson have no contact
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with the victim as a condition of probation. The home detention rules and
conditions, which contained thirty-five numbered paragraphs, stated in part that
home detention is defined as “the interior living area of the temporary or
permanent residence of an offender,” or “if the offender’s residence is a multi-
family dwelling, the unit in which the offender resides, and not the a) halls or
common areas outside the unit where the offender resides; or b) other units
occupied or unoccupied in the multi-family dwelling.” State’s Exhibit 1.
[7] On December 14, 2015, Greene County Community Corrections filed a Notice
alleging that, as of that day, Johnson was behind in fees in the amount of $668.
The Notice alleged that, on or about October 7, 2015, Johnson was given
permission to travel to Bloomington to visit the social security office and that
instead he went to the Shalom Center; that on or about November 10, 2015, a
field officer noticed Johnson outside his apartment on the porch; that on or
about December 1, 2015, Johnson went to a bank at 5:17 a.m. and later that
day refused to pay fees owed for GPS monitoring and paid $260 of $465 for the
month of December; that on or about December 12, 2015, Johnson had leave
and returns documented by his equipment and the monitoring company
reported the GPS beacon was moved that day; and that on or about December
13, 2015, the beacon was moved and there were several leaves and returns.
[8] On January 11, 2016, the court held a modification hearing at which the State
presented evidence that Johnson lived in a high-rise, multi-family dwelling, and
the testimony of a case manager that, while Johnson received a verbal
authorization to be outside of his dwelling on October 7, 2015, the instruction
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was to report to the social security office in Bloomington and that he instead
went to the Shalom Center in Bloomington, and when later confronted by the
case manager he denied having gone anywhere but the social security office.
The case manager testified that on December 1, 2015, Johnson left his home at
about 5:17 a.m. and traveled to a bank without permission and, on cross-
examination, that there was a previously-arranged plan for Johnson to travel to
the bank at 8:00 a.m. The case manager further testified that the GPS
monitoring equipment reported that it was moved for short periods of time
within Johnson’s building on December 12 and 13, 2015, and that Johnson
denied moving the beacon. The case manager stated that “the unusual portion”
of the circumstance on December 12, 2015, was that Johnson “did not live [sic]
his inclusion zone, but it did indicate that he was moving about within the
building with the beacon which is also against policy.”1 Transcript at 47. The
case manager indicated that on December 13th information was received that
Johnson’s “beacon was moving and that he was outside of his or potentially
outside of his dwelling but still within his inclusion zone, he having spoken
with him about that denied having left his home or the inclusion zone, but the
monitoring company did indicate that they noted that he was outside of his
inclusion zone either above or below the unit that he was occupying.” Id. The
case manager stated that Johnson was originally sentenced to home detention
1
The case manager testified that Johnson lived in a multi-level, multi-family dwelling, that the monitoring
company defined “a sphere” so “he can move up and down as well as laterally within that sphere,” and that
Johnson is not to be outside his apartment, “[b]ut because of the way the monitoring company’s equipment
functions there is a sphere called an inclusion zone that he is to remain within.” Transcript at 35.
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but had agreed to move to the work release center until he qualified for support
through the Bloomfield Housing Authority and that he “seemed to function
quite well at the work release center while he was there.” Id. at 48.
[9] A community corrections field officer testified that, on approximately
November 10th, he traveled to the high-rise where Johnson lived, pulled into
the parking lot, observed Johnson sitting at a bench located outside underneath
the canopy and just adjacent to the front door with another man, informed
Johnson he was not to be outside, and walked him back to his apartment. The
officer also testified that he met with Johnson several times over a period of a
few months, that he recognized that Johnson had problems understanding
things, and that he took his time to explain to Johnson that he could not be
outside of the four walls of his apartment unless he was scheduled to leave.
When asked if Johnson indicated whether he understood he was not supposed
to be at the bench, the officer testified that Johnson indicated that he just
wanted to go downstairs. At Johnson’s request, the court admitted into
evidence the two reports prepared by the health care professionals in 2010. The
State recommended that Johnson be transferred to the DOC for the remainder
of his sentence, and Johnson’s counsel requested the court to place him at the
work release facility and argued he has the funds to participate in the program.
[10] The court asked whether Johnson, after returning from the bank, paid for his
home detention, and the case manager answered that Johnson had the money
in his pocket to pay for the month and chose not to do so. When asked “[s]o
was [Johnson] having the funds to remain on the program was that an issue,”
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the case manager testified “it is or it was an issue yes.” Id. at 64. Johnson’s
counsel asked the case manager if he was reluctant to pay all of the fees because
he also needed to pay his rent, and the case manager stated that he “did indicate
that was part of his issue that day” but that there was a discussion about his
monetary obligations when he moved to home detention and he “felt
comfortable with his monetary obligation that he had established with us and
the high-rise.” Id. at 65. The case manager testified that Johnson receives $720
per month, that his rent was $240 per month, and that as a GPS client he was
charged fifteen dollars per day. When asked “[d]idn’t leave a lot for food did
it,” the case manager testified “he represented that he was able to receive
assistance from area churches and that he was willing to request assistance from
local food banks in addition to applying for food stamps to be able to
supplement his circumstances, we discussed all of these things on a number of
occasions . . . .” Id. at 66. The case manager also indicated that, if Johnson
were to be placed into the work release facility, he would be charged $110 per
week.
[11] The trial court stated that it was going to show that Johnson’s sentence would
be modified to seven years executed in the DOC and that he would receive
credit for time served in home detention, work release, and the Greene County
Jail, which was 640 days total with good time credit.
Discussion
[12] The issue is whether the trial court abused its discretion in revoking Johnson’s
placement in community corrections and ordering him to serve the remainder
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of his executed sentence in the DOC. 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) (“The similarities between
the two programs have led to common treatment in appellate review of a trial
court’s decision to revoke either . . . .”). 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.
[13] Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640
(Ind. 2008); Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014) (setting forth
the two-step process in addressing the revocation of placement in community
corrections), trans. denied. First, the court must make a factual determination
that a violation of a condition of probation actually occurred. Woods, 892
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N.E.2d at 640. If a violation is proven, then the trial court must determine if
the violation warrants revocation of the probation. Id. “However, even 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. In addition, “failure to pay a probation user fee where
the probationer has no ability to pay certainly cannot result in a probation
revocation.” Id. at 641.
[14] “We review a trial court’s sentencing decision in a probation revocation
proceeding for an abuse of discretion.” Puckett v. State, 956 N.E.2d 1182, 1186
(Ind. Ct. App. 2011) (citing Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct.
App. 2006)). An abuse of discretion occurs if the trial court’s decision is against
the logic and effect of the facts and circumstances before the court. Id. A
defendant cannot collaterally attack the propriety of an original sentence in the
context of a probation revocation proceeding. Id. However, a defendant is
entitled to challenge the sentence a trial court decides to impose after revoking
probation. Id. (citing Abernathy, 852 N.E.2d at 1020 (citing Stephens v. State, 818
N.E.2d 936, 939 (Ind. 2004) (“A defendant is entitled to dispute on appeal the
terms of a sentence ordered to be served in a probation revocation proceeding
that differ from those terms originally imposed.”))). A trial court’s discretion in
determining an appropriate sentence for a probation violation is not boundless.
See id. at 1188.
[15] Johnson argues that the nature of his violations were minor, that he did not
commit any new offenses or violate the no contact order, and that, “[w]hen he
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was out of place, he was either very close to his small apartment, but still within
his apartment building, leaving at the wrong time but going to the right place,
or near where he was supposed to go.” Appellant’s Brief at 11. He further
argues that the court had alternatives to sending him to the DOC and that it is
undisputed that he had been successful in the work release program, had no
disciplinary problems, and was able to pay his bills while on work release. He
also argues that his community corrections fees were fifteen dollars per day or
$450 in a thirty-day month, his rent was $240 per month leaving only thirty
dollars per month for food, he would have been on the program for ten months
at the time the notice to the court was filed which meant that he fell behind on
average of only sixty-seven dollars per month, and that, given his financial
constraints of $720 in social security disability benefits, his failure to keep
current with his community corrections fees was due to an inability, not a
refusal, to pay and that the shortage was not so egregious as to warrant
placement in the DOC even with the other violations. Johnson also argues his
financial burden would have been eased in work release given that he would
not have to pay rent and the court imposed the most extreme sanction and
bypassed other, likely more effective sanctions.
[16] The State responds that Johnson violated the condition that he was to remain in
the interior living area of the apartment unit in which he resided on at least five
occasions, he was $668 in arrears at the time of the notice to the court, and that
he had indicated to a case manager that he had the money to pay his monthly
fee but chose not to pay. The State further asserts that the violations were not
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an isolated event but occurred over several weeks and that Johnson simply
refused to abide by the rules placed upon him.
[17] Johnson does not argue that he did not violate the term of his placement that he
not leave his apartment. Rather, he challenges the sentence or sanction of
serving the entire remaining portion of his executed sentence in prison.
According to the PSI, he previously received a sentence for theft as a class D
felony of two years suspended to probation with eligibility for reduction to a
misdemeanor upon successful completion of probation, and that two years later
his conviction was modified to a class A misdemeanor. His probation officer
indicated that he successfully completed his probation with no problems, and
the trial court noted that Johnson “did wonderful” on probation and that it
believed that placing him in the DOC would not be beneficial for him.
Transcript at 19. At the modification hearing, the case manager testified that
Johnson originally moved to the work release center until he qualified for
support through the Bloomfield Housing Authority and that he “seemed to
function quite well at the work release center while he was there.” Id. at 48.
The record demonstrates Johnson’s successful placement on work release in the
past.
[18] With respect to the nature of the violations, we note that the first violation
involved Johnson visiting the Shalom Center in Bloomington although he had
been given authorization to visit the social security office in Bloomington, the
second violation involved Johnson sitting on a bench adjacent to the front door
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of his apartment building speaking with another man, that Johnson was given
permission to travel to a bank at 8:00 a.m. on December 1, 2015, but left home
to travel to the bank at 5:17 a.m., and that the other two violations involved
Johnson moving the GPS monitoring equipment for short periods within the
apartment building. We agree with Johnson that, when he was “out of place,
he was either very close to his small apartment, but still within his apartment
building, leaving at the wrong time but going to the right place, or near where
he was supposed to go.” Appellant’s Brief at 11. We also believe that well-
documented mental limitations or illness as presented in this case, and which
are clearly shown in the record, are relevant and deserve careful consideration
as a mitigator by any reviewing trial judge.
[19] As for Johnson’s resources and fees, the record shows that he receives social
security benefits of $720 per month, paid $240 in rent per month, was required
to pay home detention fees of fifteen dollars per day, and was required to pay
for his food and personal items with the remaining funds. The case manager
stated that Johnson had represented he was able to receive assistance from area
churches. The Notice indicated that, after Johnson returned from the bank on
December 1, 2015, he paid $260 of his fees of $465 for the month of December,
and the case manager agreed that Johnson was reluctant to pay all of the fees
because he also needed to pay his rent. To the extent the court’s decision to
revoke Johnson’s placement was based in part on his failure to make full
payment of his fees of fifteen dollars per day, the record does not establish that
Johnson had the ability to make full payment of the fees. Also, the case
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manager indicated that, if Johnson were placed into the work release facility, he
would be charged $110 per week. Johnson has had prior success in a work
release facility, he could more easily afford the work release placement fees if he
did not have a rent payment, and placement in a work release facility is less
severe than placement in the DOC, particularly given Johnson’s level of
intellectual functioning.
[20] The evidence supports the trial court’s determination that Johnson violated the
term of his community corrections placement that he not leave his apartment
and its decision to revoke the placement. However, under the circumstances
reflected in the record, including the level of Johnson’s functioning and his
resources, his previous successful placement on work release, the nature of the
violation, and the severity of the court’s sentence, we conclude that the trial
court abused its discretion in finding that Johnson’s violation warranted serving
the entirety of the remaining portion of his executed sentence in the DOC. See
Puckett, 956 N.E.2d at 1188 (noting that the offender admitted to violating the
terms of his probation and that the trial court’s discussion did not reveal
anything particularly egregious about the offender’s violation of failing to
register as a sex offender and concluding that the trial court abused its
discretion in ordering the offender to serve the entirety of his previously-
suspended sentence); see also Sullivan v. State, 56 N.E.3d 1157, 1162 (Ind. Ct.
App. 2016) (noting the offender did not dispute that he did not report as
required by his community corrections placement and concluding in part, based
on the nature of the violation and the sanction, that the trial court abused its
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discretion in ordering the offender to serve the entire remaining portion of his
executed sentence in prison) (citing Ripps v. State, 968 N.E.2d 323, 325-326
(Ind. Ct. App. 2012) (noting the offender admitted to violating the terms of his
probation and concluding in part that the trial court abused its discretion in
ordering the offender to serve the remainder of his suspended sentence in prison
in light of the offender’s medical condition and the technical nature of the
violation)). Accordingly, we remand to the trial court with instructions to enter
an order that Johnson be placed on work release for the remaining portion of
his executed sentence.2
Conclusion
[21] For the foregoing reasons, we reverse and remand for an order that Johnson be
placed on work release for the remaining portion of his executed sentence.
[22] Reversed and remanded.
Robb, J., and Mathias, J., concur.
2
We note that Johnson has been incarcerated in the DOC since January 11, 2016. In addition to the credit
previously awarded as noted in the court’s January 2016 abstract of judgment, Johnson is entitled to credit
for time served, and any applicable good time credit, attributable to his incarceration in the DOC after the
court’s January 11, 2016 modification.
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