Anthony D. Dunn v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Aug 18 2014, 9:27 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD E.C. LEICHT GREGORY F. ZOELLER
Kokomo, Indiana Attorney General of Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY D. DUNN, )
)
Appellant-Defendant, )
)
vs. ) No. 34A02-1402-CR-99
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT
The Honorable William C. Menges, Jr., Judge
Cause No. 34D01-0903-FB-307
August 18, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Anthony D. Dunn (“Dunn”) appeals an order revoking his community corrections
placement and committing him to the Indiana Department of Correction (“the DOC”) for the
remainder of his sentence for Dealing in Cocaine.1 We affirm the revocation and remand for
correction of mathematical error in the calculation of credit time.
Issues
Dunn presents two issues for review:
I. Whether the State proved his violation of a term of his community
corrections placement by a preponderance of the evidence; and
II. Whether the trial court erred when imposing a sanction for the
violation.
Facts and Procedural History
On April 21, 2010, Dunn pled guilty to Dealing in Cocaine. He was sentenced to ten
years imprisonment, with eight years suspended to probation.
Over time, the State filed several petitions to revoke Dunn’s probation. On September
20, 2012, he was found to be in violation of the terms of his probation; he was ordered to
serve 220 days of his previously-suspended sentence. On March 14, 2013, Dunn was again
found to be in violation of the terms of his probation. He received credit for 144 days of
incarceration and was ordered to serve 874 days of his previously-suspended sentence. He
was permitted to do so on in-home detention.
1
Ind. Code § 35-48-4-1.
2
On May 14, 2013, the State filed a notice of non-compliance with the community
correction home detention division and Dunn was arrested. He was released on bond on
August 21, 2013.
On August 22, 2013, Dunn appeared at the community correction home detention
office and insisted that a coordinator remove his home-detention bracelet.2 Because the
coordinator responsible for affixing bracelets was out, Dunn was instructed to return the next
day. He did not do so. On August 30, 2013, the State filed a petition to revoke Dunn’s
suspended sentence. On January 23, 2014, the trial court conducted a hearing and Dunn was
again found to be in violation of the home-detention terms, this time for failure to return to
the community corrections home detention office as directed.
Dunn was ordered to serve 2,598 days, the purported balance of his previously-
suspended sentence. This appeal ensued.
Discussion and Decision
Sufficiency of the Evidence to Support Revocation
A probation revocation hearing is not equivalent to an adversarial criminal
proceeding. Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999). However, the Due Process
Clause applies to probation revocation proceedings, and the due process rights of a
probationer include: “written notice of the claimed violations, disclosure of the evidence
against him, an opportunity to be heard and present evidence, the right to confront and cross-
2
Apparently, the bracelet was to be immediately replaced with a new one. Community corrections employee
Leah Camp testified: “I was told he still had his bracelet on but we start all their paperwork over to refigure
their out date.” (Tr. 10.)
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examine witnesses, and a neutral and detached hearing body[.]” Id. at 549. Because
probation revocation procedures “are to be flexible, strict rules of evidence do not apply.” Id.A reviewing court treats a petition to revoke a placement in a community corrections
program the same as a petition to revoke probation. Id. Community corrections is “a
program consisting of residential and work release, electronic monitoring, day treatment, or
day reporting[.]” Ind. Code § 35-38-2.6-2. A defendant is not entitled to serve a sentence in
either probation or a community corrections program. Monroe v. State, 899 N.E.2d 688, 691
(Ind. Ct. App. 2009). Rather, such placement is a “matter of grace” and a “conditional liberty
that is a favor, not a right.” Million v. State, 646 N.E.2d 998, 1002 (Ind. Ct. App. 1995).
Probation may be revoked for violation of a probation condition. Runyon v. State,
939 N.E.2d 613, 616 (Ind. 2010). The State must prove the violation by a preponderance of
the evidence. Id. If a defendant violates the terms of his placement in community
corrections, the court may, after a hearing:
(1) Change the terms of the placement.
(2) Continue the placement.
(3) Revoke the placement and commit the person to the department of
correction for the remainder of the person’s sentence.
Ind. Code § 35-38-2.6-5.
Dunn contends that the State failed to prove he had violated “any actual written rule
that he had read or signed.” Appellant’s Brief at 5. The State responds that Dunn was made
aware of his obligation to comply with directives of the community corrections division
personnel when the trial court issued its order of March 14, 2013, providing in pertinent part:
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The balance of the defendant’s imposed sentence shall be served on In-Home
Detention through Community Corrections. . . . As a specific condition of
Probation, the Defendant is ordered to follow any and all recommendations
made by the Probation Department or Community Corrections including, but
not limited to, treatment and education.
(App. 11.)
Dunn participated in placement in community corrections, a condition of which was
that he submit to program directives. To support the allegation of a violation, the State
presented testimony from Howard County Community Corrections home detention
coordinator Leah Camp (“Camp”). Camp testified that she was “responsible for putting the
bracelets on” when Dunn was “on in-home detention.” (Tr. 6.) According to Camp, Dunn
was released from jail on August 21, 2013 and was “to be put back on in-home detention.”
(Tr. 7.) Dunn appeared at the community corrections office on August 22, 2013 and
“demanded his bracelet be taken off.” (Tr. 9-10) Because Camp was out of the office, Dunn
was directed to return on the following day for electronic monitoring services. He failed to
do so. As such, the State established that Dunn violated a term of his probation and
placement – he did not submit to the supervision of community corrections. Pursuant to
Indiana Code Section 35-38-2.6-5(3), the trial court had the option of revoking Dunn’s
placement and committing him to the DOC to serve a portion of his sentence. The probation
revocation decision is supported by sufficient evidence.
Sanction
Dunn alternately contends that his “sentence is inappropriate” or that the “sentence
imposed on January 23, 2014 is illegal.” Appellant’s Brief at 1, 5. More particularly, he
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argues that the order that he serve 2,598 days of his previously-suspended sentence
incorporates an erroneous mathematical calculation and, further, the trial court erred in
specifying that the term was to be served consecutive to another term of imprisonment.
In the context of probation revocation, our supreme court has determined that the
Indiana Appellate Rule 7(B) standard for revision of inappropriate sentences “is not the
correct standard to apply when reviewing a trial court’s actions” because the action “is not a
criminal sentence as contemplated by the rule.” Jones v. State, 885 N.E.2d 1286, 1290 (Ind.
2008). Like probation, a community corrections program serves as an alternative to
commitment to the DOC, at the sole discretion of the trial court. Monroe v. State, 899
N.E.2d 688, 691 (Ind. Ct. App. 2009). As in the probation context, a community corrections
revocation hearing is civil in nature. Decker v. State, 704 N.E.2d 1101, 1104 (Ind. Ct. App.
1999). Community corrections revocation proceedings are “based upon violations of
community corrections rules rather than upon the commission of a crime[.]” McQueen v.
State, 862 N.E.2d 1237, 1244 (Ind. Ct. App. 2007). Accordingly, the revocation of a
community corrections placement is not equivalent to the imposition of a criminal sentence.
Appellate Rule 7(B), governing the review of criminal sentences, is not applicable to
community corrections revocation decisions.
Because the trial court was not imposing a criminal sentence, the trial court was not
required to consider Indiana Code Section 35-50-1-2(d), providing for the imposition of
consecutive sentences in some circumstances. The reference to serving the reinstated term
“consecutively to any pending cases or any sentence he may be serving,” App. 29, is an
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apparent response to defense counsel’s advisement in open court that Dunn was then facing a
murder charge, and is mere surplusage.
However, we agree with Dunn that the reinstated term is something other than 2,598
days. Dunn had a suspended sentence of eight years (365 days X 8 = 2,920). He was given
credit, pursuant to the trial court’s order of September 20, 2012, for 220 days. He was given
credit, pursuant to the trial court’s order of March 14, 2013, for 144 days. 2,920 less 364
equals 2,556 days. However, it also appears from comments of the trial court that Dunn was
entitled to credit “from May 14th, 2013 through August 21st, 2013, which the court finds to be
99 actual days or 100 days calculated by the Department of Correction or 200 days, day-for-
day credit, and again from October 6th, 2013, through yesterday, January 22nd, 2014, which
the court finds to be 108 actual days or 109 days, day-for-day credit, 218 days[.]” (Tr. 18.)
Accordingly, we remand for recalculation of credit time and revision of the order on
petition to revoke.
Conclusion
The decision to revoke Dunn’s placement in community corrections and order
reinstatement of his previously-suspended sentence is supported by sufficient evidence. We
remand for correction of a mathematical error.
Affirmed and remanded.
NAJAM, J., and PYLE, J., concur.
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