Jose Cervantes v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this May 16 2019, 7:38 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
K. Aaron Heifner Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jose Cervantes, May 16, 2019
Appellant-Respondent, Court of Appeals Case No.
18A-CR-569
v. Appeal from the Madison Circuit
Court
State of Indiana, The Hon. Thomas Newman, Jr.,
Judge
Appellee-Petitioner.
Trial Court Cause No.
48C04-1606-F4-1295
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-569 | May 16, 2019 Page 1 of 9
Case Summary
[1] Jose Cervantes pled guilty to Level 4 felony burglary and Level 6 felony theft,
and the trial court ordered him to serve three years on work release and three
on home detention. Not even three weeks into Cervantes’s work-release
placement, a correctional officer at the housing facility discovered him sitting in
a cloud of cigarette smoke with ashes at his feet. Hours later, the same officer
smelled burning K2 spice coming from the bathroom and found Cervantes
sitting on a toilet with ashes on his upper torso. Cervantes flushed something
down the toilet when the officer approached. The State petitioned to have
Cervantes’s placement revoked on the basis that he had violated the terms of
work-release, that he had committed the new crime of obstruction of justice,
and also that he was not satisfying his financial obligations. The trial court
found all of the State’s allegations to be true and ordered that Cervantes serve
his entire sentence in the Department of Correction (“DOC”). Cervantes
contends that the State failed to produce sufficient evidence to establish that he
had violated the terms of work-release and that the trial court abused its
discretion in ordering that he serve his entire sentence in the DOC. Because we
disagree, we affirm.
Facts and Procedural History
[2] On December 13, 2017, Cervantes pled guilty to Level 4 felony burglary and
Level 6 felony theft. Cervantes admitted that he had committed his crimes after
consuming Xanax. The trial court imposed a six-year sentence, consisting of
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three years of work release to be followed by three years of home detention.
Under the terms of his placement, Cervantes was required to follow the work-
release rules, including zero-tolerance policies regarding alcohol consumption,
illicit drug consumption, and the smuggling of tobacco or cigarettes into the
housing facility.1 Cervantes began his work-release placement on December 29,
2017.
[3] At 12:15 a.m. on January 18, 2018, Correctional Officer Charles Kirby was
walking through the dormitory in which Cervantes was housed, smelled
tobacco smoke in the bunk area, and witnessed Cervantes surrounded by smoke
with ashes near his feet. Officer Kirby charged Cervantes with a rule violation
for being in an “Area of smoke.” App. Vol. II p. 127. At 2:56 a.m., Officer
Kirby conducted another walkthrough and smelled the odor of burning K2
spice (a controlled substance2) coming from the restroom. When Officer Kirby
entered the restroom, he saw Cervantes on a toilet holding a small object near
his lips with ashes covering his upper torso. After Cervantes saw Officer Kirby,
he immediately placed the object into the toilet and flushed it. A review of
security camera footage taken shortly before Officer Kirby’s second encounter
with Cervantes showed Cervantes licking a “joint like object” in his hand as he
1
Although there is no documentary indication in the record that smuggling tobacco into the housing facility
was forbidden, both parties seem to agree that the possession or use of tobacco in the facility would have
constituted a rule violation.
2
Synthetic cannabinoids are generally referred to as “K2” or “Spice” and are synthetic drugs which are
banned pursuant to Indiana Code section 35-31.5-2-321.
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walked to the restroom from the dormitory area. Tr. p. 19. Officer Kirby
charged Cervantes with a rule violation for obstruction of justice.
[4] Later that day, the State petitioned to revoke Cervantes’s work-release
placement, alleging that he (1) had committed the new crime of obstruction of
justice, (2) had violated the terms of his work-release placement by “being in an
Area of Smoke[,]” and (3) was not current in his payments. Appellant’s App.
Vol. II p. 116. On February 7, 2018, the trial court conducted an evidentiary
hearing, at which, inter alia, Madison County Work Release Case Manager
Konnor McCoy testified that Cervantes was $380.97 behind in his work-release
payments. After the hearing, the trial court found that Cervantes had violated
the terms of community corrections by committing a new offense, being in an
area of smoke, and failing to meet his financial obligations. The trial court
revoked Cervantes’s work-release placement and ordered him to serve his six-
year sentence in the DOC.
Discussion and Decision
[5] We review the revocation of a placement in a community-corrections program
the same as we do the revocation of probation. Cox v. State, 706 N.E.2d 547,
549 (Ind. 1999). Both probation and community-corrections programs serve as
alternatives to incarceration and both are made at the sole discretion of the trial
court. Id. A defendant is not entitled to serve a sentence in either probation or
a community-corrections program. Id. Rather, placement in either is a “matter
of grace” and a “conditional liberty that is a favor, not a right.” Id. (quoting
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Million v. State, 646 N.E.2d 998, 1002 (Ind. Ct. App. 1995) (internal quotation
omitted)).
Our standard of review of an appeal from the revocation of a
community corrections placement mirrors that for revocation of
probation. A probation hearing is civil in nature and 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. If there is
substantial evidence of probative value to support the trial court’s
conclusion that a defendant has violated any terms of probation,
we will affirm its decision to revoke probation.
Cox, 706 N.E.2d at 551 (citations omitted).
I. Sufficiency of the Evidence
[6] Cervantes contends that the State failed to prove that he violated the terms of
his work-release placement. Specifically, Cervantes argues that there is
insufficient evidence to establish that he was in possession of or smoked a
cigarette, that he possessed or disposed of K2 spice, or that he was
unreasonably behind in his work-release payments. While it is well-settled that
“probation may be revoked on evidence of violation of a single condition[,]”
Heaton v. State, 984 N.E.2d 614, 618 (Ind. 2013), we choose to address all of
Cervantes’s claims.
[7] As for the allegation that Cervantes was in an area of smoke, Officer Kirby
testified that he smelled tobacco smoke in the bunk area and saw Cervantes
alone in an area of smoke with ashes near his feet. Officer Kirby also testified
that Cervantes was in the bunk by himself and there was nobody else around
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him. This testimony is sufficient to support an inference that Cervantes was
smoking a cigarette in the dormitory. Cervantes’s argument is an invitation to
reweigh the evidence, which we will not do. See Cox, 706 N.E.2d at 551.
[8] There is also sufficient evidence to establish that Cervantes committed the new
crime of obstruction of justice, which requires evidence that Cervantes “altered,
damaged, or removed any record, document or thing, with the intent to prevent
it from being produced as evidence in any official proceeding or investigation.”
Ind. Code § 35-44.1-2-2(a)(3). Officer Kirby, while conducting a second
walkthrough, smelled burning K2 spice coming from the restroom and found
Cervantes sitting on a toilet holding an object near his lips with ashes covering
his upper torso. Cervantes immediately flushed the object in his hand down the
toilet. Moreover, a review of security camera footage taken shortly before
Kirby’s second encounter with Cervantes showed Cervantes licking a “joint like
object” in his hand as he walked to the restroom. Tr. p. 19. This is more than
enough to prove by a preponderance of the evidence that Cervantes committed
the offense of obstruction of justice by disposing of physical evidence of illicit
drug use. Cervantes points to his testimony that he had nothing in his hand and
was merely performing a “courtesy flush[.]” Tr. p. 30. The trial court was
under no obligation to credit this testimony and did not. As with his previous
argument, Cervantes is requesting that we reweigh the evidence, which we will
not do. See Cox, 706 N.E.2d at 551.
[9] Finally, there is the trial court’s finding that Cervantes failed to meet the
financial obligations associated with his placement in work release. Where the
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State alleges a failure to meet a financial obligation, it must prove that the
defendant recklessly, knowingly, or intentionally failed to pay by a
preponderance of the evidence. Ind. Code § 35-38-2-3(g); Runyon v. State, 939
N.E.2d 613, 616–17 (Ind. 2010). It is the defendant’s burden to prove that he
cannot pay even though he has made “sufficient bona fide efforts to pay so as to
persuade the trial court that further imprisonment should not be ordered.”
Runyon, 939 N.E.2d at 617.
[10] Cervantes does not dispute that he was $380.97 in arrears, nor does he actually
claim that he lacked the ability to pay before the State petitioned to revoke his
work-release placement. Cervantes points only to his testimony that he was in
possession of a check (at least at the time of the evidentiary hearing) that would
have allowed him to satisfy his obligations. While one could, perhaps, infer
from this that Cervantes was claiming that he had been previously unable to
pay, the trial court was under no obligation to credit this testimony, and
apparently did not. In the end, even if we were to assume that Cervantes’s
failure to satisfy his financial obligations is an insufficient basis on which to
revoke his work-release placement, we reiterate that “probation may be revoked
on evidence of violation of a single condition.” Heaton, 984 N.E.2d at 618.
Cervantes has failed to establish that the State produced insufficient evidence to
sustain the trial court’s findings that he violated the terms of his work-release
placement.
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II. DOC Commitment
[11] Cervantes also contends that the trial court abused its discretion in ordering him
to serve his entire six-year sentence in the DOC. Once a trial court finds that a
defendant has violated the terms of his placement, the court must then
determine whether the violation merits revocation of that placement. Woods v.
State, 892 N.E.2d 637, 640 (Ind. 2008). A violation of even one term of a
defendant’s community corrections placement can justify a complete revocation
of his placement. Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014) (citing
Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007)), trans. denied.
Community corrections programs like work release operate as alternatives to a
commitment to the DOC, and placement in these programs is left to the sound
discretion of the trial court. Million, 646 N.E.2d at 1001. “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.” Abernathy v. State, 852 N.E.2d 1016,
1020 (Ind. Ct. App. 2006). On appeal, we consider only the evidence favorable
to the trial court’s judgment and neither reweigh the evidence nor judge the
credibility of the witnesses who testified below. Braxton v. State, 651 N.E.2d
268, 270 (Ind. 1995).
[12] We conclude that Cervantes has failed to establish an abuse of discretion in this
regard. A defendant who receives the benefit of an alternative placement is
bound to abide by a specific set of terms and conditions, which are intended to
ensure that he serves a genuine period of rehabilitation and the community is
protected from harm while he remains at large. Grubb v. State, 734 N.E.2d 589,
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592 (Ind. Ct. App. 2000). Following Cervantes’s guilty plea to Level 4 felony
burglary and Level 6 felony theft (which were apparently committed under the
influence of Xanax), he was given the opportunity to avoid commitment to the
DOC altogether, if, inter alia, he demonstrated that he could go without habit-
forming substances. Yet, not even three weeks into Cervantes’s three-year
placement in work release, he committed two rules violations within just a few
hours by smoking a cigarette and then destroying evidence of a K2 spice joint
that he was smoking. Moreover, Cervantes’s criminal record indicates a
continuing problem with substance abuse, as he has prior convictions for two
counts of marijuana possession; possession of cocaine, methamphetamine, or a
schedule I or II narcotic drug; and two counts of driving while intoxicated.
Given Cervantes’s history and his unwillingness to abide by the terms of work
release for even three weeks, we cannot say that the trial court abused its
discretion in deciding that a more restrictive placement in the DOC was
warranted.
[13] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.
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