Robert C.W. Getchell v. State of Indiana ( 2015 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Jan 12 2015, 9:36 am
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:
CARA SCHAEFER WIENEKE GREGORY F. ZOELLER
Special Asst. to the State Public Defender Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT C.W. GETCHELL, )
)
Appellant-Defendant, )
)
vs. ) No. 42A01-1407-CR-281
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE KNOX COUNTY SUPERIOR COURT 1
The Honorable W. Timothy Crowley, Judge
Cause No. 42D01-1208-FB-060
January 12, 2015
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Robert C.W. Getchell appeals from the trial court’s revocation of his placement in
a community corrections program and the court’s order that he serve the balance of a six-
year sentence previously suspended to community corrections in the Department of
Correction. The sole issue presented on appeal is whether the trial court abused its
discretion in this regard.
We affirm.
On August 23, 2012, the State charged Getchell with dealing in
methamphetamine, a class B felony; possession of chemical reagents or precursors with
intent to manufacture a controlled substance, a class D felony; possession of
methamphetamine, a class D felony; resisting law enforcement, a class D felony; and
maintaining a common nuisance, a class D felony. On December 6, 2012, pursuant to a
plea agreement with the State, Getchell pleaded guilty to class B felony dealing in
methamphetamine as charged in this cause (FB-60) and to class C felony possession of
methamphetamine in an unrelated cause (FC-35). The plea agreement provided for
consecutive sentences with the sentence under FC-35 to be four years with two years to
be served in the Wabash Valley Regional Community Corrections Work Release
Program (Work Release Program) and two years suspended to probation followed by ten
years with six years to be served in the Work Release Program and four years suspended
to probation under FB-60. In exchange for his guilty plea, the State agreed to dismiss the
remaining charges in FB-60 and FC-35 as well as all of the charges in third cause. The
trial court accepted the plea agreement and Getchell was sentenced in accordance
therewith on January 4, 2013.
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Sometime prior to December 26, 2013, Getchell had been accused of being “out of
bounds” or not in compliance with the rules of the Work Release Program. Transcript at
20. A hearing before the Conduct Adjustment Board (CAB) had been scheduled to
determine whether, in fact, Getchell had committed a violation of the rules of the Work
Release Program and whether any sanction was warranted. On December 26, 2013, a
correctional officer with the Work Release Program presented Getchell with and asked
him to sign a CAB packet, which gave him notice of the upcoming hearing before the
CAB. Getchell became “very angry” and refused to sign the packet. Transcript at 11.
Getchell then demanded to know the status of his passes, and the correctional officer
informed him that he would not receive any passes until after his meeting before the
CAB. Upon learning that he would not be receiving any passes, Getchell became very
angry and he threatened to burn down the work release coordinator’s house and car.
When the correctional officer told Getchell that he was going to write him up for making
those threats, Getchell began calling the officer names. The correctional officer testified
that Getchell tried to goad him into fighting him. When the correctional officer pointed
out that this would only lead to new charges against him, Getchell elected to go back to
the dorm. Back in the dorm, Getchell continued being disruptive and “very disorderly,”
yelling obscenities and threatening staff. Id. at 15.
On January 8, 2014, the State filed a notice of probation violation in FB-601 based
on Getchell’s remarks threatening bodily harm to the staff of the Work Release Program
1
On August 28, 2013, Getchell completed that portion of his sentence to be served in the Work Release Program
resulting from his guilty plea in FC-35. The following day Getchell began serving that portion of his sentence to be
served in the Work Release Program under FB-60. Hence, the notice of probation violation was filed under FB-60.
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and his threats to burn the house and car of the work release coordinator. The court held
a hearing on the notice of probation violation on June 4, 2014. During the hearing,
Getchell denied making any threatening remarks, but he did admit to being disrespectful
toward a staff member of the Work Release Program in violation of the center’s rules. At
the conclusion of the hearing, the trial court revoked Getchell’s placement in the Work
Release Program and ordered the remaining portion of his probation placement therein to
be executed in the Department of Correction. Getchell now appeals.
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.
Holmes v. State, 923 N.E.2d 479 (Ind. Ct. App. 2010); Cox v. State, 706 N.E.2d 547 (Ind.
1999). Probation and community corrections programs serve as alternatives to
commitment to the Department of Correction, and placements in such programs are made
at the sole discretion of the trial court. Holmes v. State, 923 N.E.2d 479. A defendant is
not entitled to serve a sentence in either probation or a community corrections program;
rather placement is a matter of grace and a conditional liberty that is a favor, not a right.
Id.Our standard of review of an appeal from the revocation of
a community corrections placement mirrors that for revocation of probation. Id. A
probation hearing is civil in nature, and the State need only prove the alleged violations
by a preponderance of the evidence. Id. We consider the evidence most favorable to the
judgment of the trial court and do not reweigh that evidence or judge the credibility of the
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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 probation
or community corrections, we affirm its decision to revoke. Id.On appeal, Getchell acknowledges that his behavior was inappropriate and
violated the rules of the Work Release Program. Getchell argues, however, that the trial
court’s order that he serve in the Department of Correction the balance of his previously
suspended sentence that was to be served in community corrections was “unduly harsh.”
Appellant’s Brief at 4. We disagree.
The evidence presented at the revocation hearing showed that Getchell threatened
to burn down the house and car of the work release coordinator because he was upset that
his passes had been revoked. A corrections officer testified that Getchell used
profanities, called him names, and tried to goad him into fighting. Under these
circumstances, it seems evident that Getchell cannot be placed back in the Work Release
Program. Getchell does not suggest what lesser alternatives were available to the court,
and that is not to say that a lesser alternative to incarceration would be appropriate under
these circumstances. Having reviewed the record, we cannot say that the trial court
abused its discretion in revoking Getchell’s placement in the Work Release Program and
in ordering that the balance of the six years of his sentence therein to be executed in the
Department of Correction.
Judgment affirmed.
KIRSCH, J., and CRONE, J., concur.
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