Joseph L. Horton, Jr. v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Nov 28 2018, 9:56 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Thoma Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph L. Horton, Jr., November 28, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1453
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Samuel R. Keirns,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
02D05-1606-F6-673
Najam, Judge.
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Statement of the Case
[1] Joseph L. Horton, Jr. appeals the trial court’s revocation of his placement in
community corrections. Horton presents a single issue for our review, which
we restate as the following two issues:
1. Whether the State presented sufficient evidence to support
the revocation of his placement.
2. Whether the trial court abused its discretion when it
revoked Horton’s placement.
[2] We affirm.
Facts and Procedural History
[3] In August of 2016, Horton pleaded guilty to invasion of privacy and
intimidation, each as a Level 6 felony. The court accepted Horton’s guilty plea
and ordered him to serve his sentence on probation. In June of 2017, the State
filed a notice of probation violation, and Horton later admitted to the alleged
violations. The court ordered Horton to serve part of his previously suspended
sentence in community corrections with the remainder of Horton’s sentence
suspended to probation. In September of 2017, the State filed a notice of
placement violation, and Horton later admitted to the violations. The court
then ordered Horton to serve his community-corrections placement at the
Center for Solutions (“the Center”), a halfway house.
[4] Thereafter, Horton met with Oscar Vasquez, the director of the Center, for an
intake meeting on March 29, 2018. Horton applied and was admitted to the
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Center. However, following that initial meeting, neither Vasquez nor the
Center’s two house managers saw Horton at the Center again. Accordingly,
Vasquez investigated Horton’s apparent nonattendance at the Center. Vasquez
learned that Horton had “failed to sign in for a weekend pass and [had] also
failed to notify the staff of his intentions” with respect to being present at the
Center. Tr. at 11-12. After Horton’s admission into the Center, “neither of the
two house managers [could] recall meeting him or seeing him about the
[C]enter.” Id. at 12. Another resident who knew Horton “had not seen
[Horton] beyond the date of admission.” Id. And while investigating Horton’s
assigned living space, “no evidence of his belongings were found. No clothing,
no toilet articles or other personal possessions.” Id. Consequently, Vasquez
was “convinced [Horton had] left the [C]enter without notifying the staff
and . . . did not return.” Id. Later, Vasquez “received a phone call from a
female requesting readmission for [Horton],” which request Vasquez denied.
Id.
[5] The State filed a notice of placement violation based on Horton’s
noncompliance with his placement at the Center. At an ensuing hearing,
Vasquez testified for the State. Horton testified in his own defense and stated
that he was at the facility every day but he had few possessions and, because of
his work schedule, he was in late and out early and, thus, no one apparently
saw him. The trial court revoked Horton’s placement at the Center and ordered
him to serve one year and 183 days in the Department of Correction. This
appeal ensued.
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Discussion and Decision
Standard of Review
[6] Horton challenges the trial court’s revocation of his placement at the Center.
As we have explained, 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, placement in either is a matter of grace
and a conditional liberty that is a favor, not a right.” Id. (quotation marks
omitted). And a revocation hearing is civil in nature; as such, the State “need
only prove the alleged violations by a preponderance of the evidence.” Id. On
appeal, 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 the witnesses. Id. If there is substantial evidence of probative
value to support the trial court’s conclusion that a defendant has violated any
terms of his placement, we will affirm its decision to revoke that placement. Id.
Issue One: Sufficiency
[7] Horton first asserts that the State failed to present sufficient evidence to support
the revocation of his placement at the Center. In particular, Horton contends
that Vasquez’s testimony that Horton had absconded from the Center is
consistent with Horton’s less nefarious explanation that he was working hours
that kept people at the Center from seeing him and that he had few possessions.
Thus, Horton continues, the State failed to present sufficient evidence to
support the revocation of his placement.
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[8] But Horton’s argument on appeal is simply a request for this Court to credit his
testimony, which is not consistent with our standard of review. Vasquez
testified that no one, including other residents, ever saw Horton at the Center at
any point after Horton’s first day there. Vasquez further testified that there was
no other evidence that Horton had ever been there, such as personal belongings,
toiletries, or Horton signing in or out for weekends. And Vasquez also testified,
without objection, that a female had called on Horton’s behalf, after the State
had filed its notice of placement violation, seeking to have Horton readmitted to
the Center. Looking only to the evidence most favorable to the trial court’s
judgment, as we must, we conclude that the State presented sufficient evidence
to support the revocation of Horton’s placement.
Issue Two: Revocation
[9] Horton also asserts that, the sufficiency of the evidence notwithstanding, the
trial court abused its discretion when it revoked his placement at the Center. In
particular, Horton asserts that he was “working and contributing to society”;
that he had “tested negative at his last drug screen”; and that he had “plans on
staying out of trouble by re-enrolling in school and working.” Appellant’s Br. at
18.
[10] However, Horton’s argument is, again, merely a request for this Court to
reweigh the evidence, which we will not do. The evidence most favorable to
the trial court’s judgment shows that Horton’s probation and placement had
already been twice revoked in the instant cause, which revocations led to his
placement at the Center. Yet, despite those multiple opportunities to comply
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with probation and placement outside of the Department of Correction, Horton
continued not to abide by the requirements of such placement. We cannot say
that the trial court abused its discretion when, following the State’s third notice
of a placement violation in this cause number, the court revoked Horton’s
placement. We affirm.
[11] Affirmed.
Crone, J., and Pyle, J., concur.
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