Paul Hoffert, Jr. v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 25 2013, 9:40 am
regarded as precedent or cited before any
court except for the purpose of CLERK
establishing the defense of res judicata, of the supreme court,
court of appeals and
tax court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM S. FRANKEL, IV GREGORY F. ZOELLER
Wilkinson, Goeller, Modesitt, Wilkinson Attorney General of Indiana
and Drummy, LLP
Terre Haute, Indiana KELLY A. MIKLOS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
PAUL HOFFERT, JR., )
)
Appellant-Defendant, )
)
vs. ) No. 84A05-1205-CR-273
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable David R. Bolk, Judge
Cause No. 84D03-1107-FC-2209
Cause No. 84D03-1111-FD-3492
Cause No. 84D03-1111-FD-3578
Cause No. 84D03-1111-FD-3596
January 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Paul Hoffert, Jr. appeals the revocation of his placement in a work-release program
and the order to serve a portion of the balance of his sentence in the Department of
Correction.
We affirm.
The relevant facts are that under four separate cause numbers, Hoffert pleaded guilty
to burglary, a class C felony, public intoxication as a class B misdemeanor, and five class D
felonies, including two counts of theft, attempted receipt of stolen property, auto theft, and
receipt of stolen property. On January 5, 2012, Hoffert was sentenced to an aggregate
sentence of nine years for these convictions. The trial court ordered him to serve three years
executed as a direct commitment to the Vigo County Work Release Program and suspended
the remaining sentence to formal probation.
On April 18, 2012, the State filed a “Petition to Revoke Direct Placement in the Work
Release Program and/or to Revoke Probation.” Appellant’s Appendix at 8. The petition
alleged that Hoffert violated the conditions of his work-release program in the following
ways: (1) He tested positive for cannabis on January 25, 2012, the day he commenced the
Vigo County Work Release program; (2) on January 27, he was found with a hand-rolled
cigarette in the Vigo County Community Correction (VCCC) dorm bathroom; (3) as of April
18, he was $379.00 in arrears on his work-release fees; and (4) as of April 18, he had failed
to obtain gainful employment. On April 25, 2012, the State filed an amended petition further
alleging that Hoffert tested positive for benzodiazepines and cannabis on April 3. Following
a May 1, 2012 hearing on the State’s amended petition to revoke, the court found that Hoffert
2
had violated the conditions of the work-release program. As a result, the court ordered that
the three years previously ordered to be served on work release, plus one year of the
previously suspended sentence, were instead to be served at the Indiana Department of
Correction (DOC).
Community corrections programs, like probation, serve as alternatives to commitment
to the DOC, and both are made at the sole discretion of the trial court. McQueen v. State, 862
N.E.2d 1237 (Ind. Ct. App. 2007). Placement on probation or in a community corrections
program 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). We review challenges to the revocation
of placement in a community corrections program using the standard of review we use when
reviewing a revocation of probation. See Monroe v. State, 899 N.E.2d 688 (Ind. Ct. App.
2009). A revocation hearing is civil in nature, and the State need prove an alleged violation
only by a preponderance of the evidence. Id. When reviewing a decision to revoke, we will
not reweigh the evidence nor judge the credibility of witnesses, and will consider only the
evidence most favorable to the trial court’s decision. Id. We will affirm the trial court if
there is substantial evidence of probative value supporting revocation. Id.Hoffert does not challenge the court’s finding that he violated the conditions of his
community-corrections placement. Rather, he contends that those violations did not warrant
revocation. For instance, he describes the January 25 positive cannabis test as “a baseline
test on the day he entered the work release program[.]” Appellant’s Brief at 3. This implies
that his eligibility or fitness for community corrections placement is not affected by actions
3
that pre-date commencement in the program. This is simply not the case. See Million v.
State, 646 N.E.2d at 1002 (“no … language in the community corrections statute [] limits the
trial court’s discretion to revoke placement only when a violation occurs during the period of
placement. Thus, … the trial court [may] revoke a defendant’s placement in the community
corrections program before he enters [that] phase of his sentence”). Moreover, the April 18
amended petition to revoke alleged that Hoffert tested positive for illegal substances more
than two months after the initial test. As for his possession of a cigarette in the VCCC dorm,
it is of no significance that, as Hoffert notes, “the cigarette he possessed contained only
tobacco.” Appellant’s Brief at 3. Hoffert does not deny that possessing even a tobacco
cigarette was still a violation of the VCCC facility’s rules. Hoffert also admits he did not
obtain employment before the amended petition to revoke was filed, but contends this did not
warrant revocation because “he was in the program only 87 days before the petition to revoke
was filed”. Id. “Only 87 days” can also be described as “almost three months.” In the
context of a diligent search for employment, three months is not an inconsequential length of
time.
Any of the foregoing violations would be sufficient to support revocation. See
Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005) (“[p]roof of a single violation of
the conditions of probation is sufficient to support the decision to revoke probation”), trans.
denied. Thus, we need not address Hoffert’s claim regarding the nonpayment of fees. The
trial court did not abuse its discretion in revoking Hoffert’s placement in a community
corrections program.
4
Judgment affirmed.
NAJAM, J., and BRADFORD, J., concur.
5