Jabara Kinchen v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 29 2019, 9:17 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
Daniel Hageman Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jabara Kinchen, April 29, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2532
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff. Judge
The Honorable Stanley Kroh,
Magistrate
Trial Court Cause No.
49G03-1702-F4-5507
Altice, Judge.
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[1] After Jabara Kinchen violated the rules of his work release program, the trial
court revoked his placement and ordered Kinchen to serve the remainder of his
previously-suspended four-year sentence at the Indiana Department of
Correction (DOC). Kinchen appeals and asserts that the trial court abused its
discretion when it determined that his violations warranted revocation of his
community corrections placement.
[2] We affirm.
Facts & Procedural History
[3] On February 8, 2017, City of Lawrence police responded to a residential
burglary in progress. On February 10, 2017, the State charged Kinchen with
Level 4 felony burglary, Level 6 felony theft, and Level 6 felony theft of a
firearm. On May 10, 2017, Kinchen, age eighteen, entered into a plea
agreement with the State pleading guilty to Level 4 felony burglary in exchange
for an agreed sentence and dismissal of the remaining charges. The plea
agreement called for a sentence of seven years, with four years executed and
three years suspended, and two years of probation. The four years of executed
time was to be served through Marion County Community Corrections
(MCCC). On June 2, 2017, the trial court approved the plea agreement and
sentenced Kinchen accordingly, and Kinchen was committed to MCCC.
Pursuant to MCCC’s recommendation, Kinchen began serving his four-year
executed sentence on home detention with GPS.
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[4] On November 22, 2017, MCCC filed a Notice of Community Corrections
Violation, alleging nine violations of conditions of MCCC. On December 8,
2017, Kinchen admitted to violating conditions of community corrections by
testing positive for THC, leaving his residence without authorization, failing to
comply with MCCC rules and regulations, failing to maintain contact with
MCCC, and failing to comply with his monetary obligations. The parties
entered into an agreed entry on the violation, and the trial court ordered
Kinchen to serve 100 days in jail after which he would return to community
corrections monitoring.
[5] On March 26, 2018, MCCC filed a Notice of Community Corrections
Violation, alleging that MCCC received an alert of “device communication
loss” such that Kinchen’s GPS was not providing his location, such that his
whereabouts were unknown, he failed to maintain contact with MCCC, and
failed to comply with his monetary obligations. Appellant’s Appendix Vol. II at
105. At an April 20, 2018 hearing, the violation was withdrawn and Kinchen
was returned to MCCC.
[6] On April 24, 2018, MCCC filed a Notice of Community Corrections Violation,
alleging that on April 21 MCCC received an alert that Kinchen’s GPS device
was not sending a proper signal but was in motion, “possibly due to the device
being compromised,” and his whereabouts were unknown for about five hours.
Id. at 115. The notice also alleged that on April 22 Kinchen left home without
authorization for about four hours and also failed to comply with monetary
obligations. At a June 8, 2018 hearing, Kinchen admitted to violating MCCC
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rules and regulations, and, pursuant to an agreed entry, the trial court modified
his placement to work release.
[7] On August 3, 2018, MCCC filed a Notice of Community Corrections
Violation, alleging that on July 29 and 31 Kinchen failed to comply with the
rules and regulations of Duvall Residential Center (Duvall) regarding
conditions of temporary leave and failed to comply with his monetary
obligations. At the September 21, 2018 contested hearing, case manager Bruce
Henry testified that at Duvall he supervises residents, including Kinchen, and
that as a case manager his duties included holding meetings, sending residents
for drug testing, making programming referrals, and addressing issues of
misconduct. He stated that all residents are required to watch a video and go
through an initial orientation in which the facility’s rules are explained to the
residents and the residents sign an acknowledgement of the rules. Henry
testified that residents are not free to leave the facility unless certain conditions
are met, and even when those conditions are met, leaving the facility requires
prior notice and approval from the case manager. Residents were permitted to
travel to and from approved locations by bus, walk, or obtaining a ride from
someone, but if the latter, the driver has to be approved in advance by the case
manager and has to submit proof of a driver’s license and proof of insurance.
Henry explained that residents check in and check out through a control center,
and the center notes the times and dates, allowing the case managers to monitor
absences.
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[8] Henry stated that he discussed the rules of the facility with Kinchen “multiple
times,” including the rules for temporary leave in order to go to work.
Transcript Vol. 2 at 9. Henry testified that he told Kinchen that “when on an
approved pass” he could only go to the approved location and needed to return
on time. Id. at 10. Henry testified that Kinchen was approved to leave the
facility on July 29, 2017 from 10:00 a.m. to 8:00 p.m. to go to work at Goodwill
from 12:00 p.m. to 6:00 p.m. Kinchen was permitted to travel to work by bus.
Kinchen returned to Duvall at 9:16 p.m. Henry testified that Kinchen was
similarly approved to leave Duvall on July 31 from 12:45 p.m. to 10:00 p.m. to
go to work at Goodwill by bus. Kinchen returned at 11:55 p.m. Henry did not
give Kinchen permission to stop at any other locations on either July 29 or 31.
[9] Duvall employee Patty Montgomery testified that she contacted Goodwill
regarding Kinchen’s work shifts on July 29 and 31 and was advised that he left
work at 6:00 p.m. on July 29 and 9:00 p.m. on July 31. Tia Stanford, a Duvall
shift supervisor, testified that, on the evening of July 31, she stopped at the
Steak & Lemonade restaurant to get dinner before work, and she saw Kinchen
walk into the restaurant. She observed him arrive in a car, exit it, and walk
inside with a woman. Stanford recalled that she smelled the odor of marijuana
when Kinchen and the woman walked up to the counter where she was
standing. Stanford returned to Duvall and shared with coworkers that she had
seen him at the restaurant, and she testified that upon Kinchen’s return to
Duvall the other shift supervisor with her agreed “that yeah, he did smell like
the aroma of marijuana.” Id. at 31.
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[10] Kinchen testified that, to travel to his job at Goodwill, he had to take two
busses and walk a mile, and that because of this commute, Henry approved
employment passes allotting two hours to travel to work and two hours to
return. Kinchen acknowledged that on July 29 he did not return to Duvall on
time, stating that he missed a bus. He also acknowledged that he returned late
to Duvall on July 31. Kinchen denied both that he was in a vehicle and that he
was at the Steak & Lemonade restaurant on July 31, 2018.
[11] The trial court found that Kinchen had violated MCCC conditions regarding
his temporary leave passes for work, revoked his placement on community
corrections, and ordered that he serve the remainder of his four-year executed
sentence at the DOC. In doing so, the trial court told Kinchen, “If this was the
first violation, the Court very likely would be returning you to Community
Corrections,” but this was a fourth violation and Kinchen had accrued a
“pattern of violations.” Id. at 49. Kinchen now appeals.
Discussion & Decision
[12] Placement on probation or in a community corrections program is a matter of
grace and not a right. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999); Treece v.
State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014), trans. denied. Probation revocation
is a two-step process. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). First,
the court must make a factual determination that a violation of a condition of
probation actually occurred. Id. Second, if a violation is proven, then the trial
court must determine if the violation warrants revocation of the probation. Id.
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[13] If a defendant violates the terms of his placement in community corrections, the
court may: (1) change the terms of the placement; (2) continue the placement;
(3) revoke the placement and commit the person to the DOC for the remainder
of the person’s sentence. Ind. Code §35-38-2.6-5; Toomey v. State, 887 N.E.2d
122, 124 (Ind. Ct. App. 2008). We review a trial court’s sentencing decision in
a probation revocation proceeding for an abuse of discretion. Sanders v. State,
825 N.E.2d 952, 957 (Ind. Ct. App. 2005), trans. denied. We consider only the
evidence most favorable to the judgment and do not reweigh the evidence or
judge the credibility of the witnesses. Id. at 954-55.
[14] In arguing that that the trial court abused its discretion in revoking his
placement in community corrections, Kinchen highlights that “while serving his
sentence on community corrections, Kinchen had not been charged with a new
criminal offense” and urges that sending him to the DOC “did not serve the
purpose of reformation mandated by Article 1 § 18 of our Indiana Constitution”
because revocation caused him to lose his Goodwill job and, per Indiana’s risk
assessment system, unemployment increases likelihood of reoffending.
Appellant’s Brief at 6, 8. We are unpersuaded by his arguments, and find no
abuse of discretion in the trial court’s decision to revoke MCCC placement and
order Kinchen to serve the remainder of his sentence at the DOC.
[15] Here, as the State observes, the current violations need not be considered “as if
they existed in a vacuum.” Appellee’s Brief at 12. Indeed, this was the fourth
Notice of Violation that MCCC had filed since Kinchen’s placement in June
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2017. 1 By the time of the filing of the current violations, Kinchen had already
admitted to and accumulated a number of other violations. Other than one
100-day term in jail, Kinchen had been given the grace of continued placement
in MCCC. The trial court did not abuse its discretion when it revoked his
placement and ordered him to serve the remainder of his executed sentence at
the DOC.
[16] Judgment affirmed.
Kirsch, J. and Vaidik, C.J., concur.
1
We recognize that for each of the four times that MCCC filed a Notice of Community Corrections
Violation, the State filed a corresponding Notice of Probation Violation.
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