Anthony E. Thomas v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
FILED
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res Feb 19 2013, 9:17 am
judicata, collateral estoppel, or the law
of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PETER D. TODD GREGORY F. ZOELLER
Elkhart, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY E. THOMAS, )
)
Appellant-Defendant, )
)
vs. ) No. 20A03-1208-CR-377
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Evan S. Roberts, Judge
Cause No. 20D01-1006-FC-19
February 19, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Anthony Thomas appeals the trial court’s revocation of his placement in a work
release center. We affirm.
Issue
Thomas raises one issue, which we restate as whether the trial court abused its
discretion by revoking his placement in a work release center.
Facts
On June 22, 2010, the State charged Thomas with Class C felony battery resulting
in bodily injury to a pregnant woman, Class D felony domestic battery with a child
present, Class D felony strangulation, Class A misdemeanor domestic battery, and Class
D felony domestic battery with a prior conviction. Thomas pled guilty to Class D felony
domestic battery with a child present, and the trial court sentenced him to three years
suspended to probation to be consecutive to his sentence from another case.
On December 14, 2011, the State filed a petition alleging that Thomas had
violated the terms of his probation by testing positive for marijuana, and Thomas
admitted the violation. On May 31, 2012, the trial court revoked his probation and
ordered him to serve the three-year suspended sentence. However, the trial court
recommended placement in a work release center if Thomas qualified.
On June 14, 2012, the work release center notified the trial court that, on June 8,
2012, Thomas tested positive for marijuana. The work release center could not send him
to work knowing that he had tested positive for an illegal drug. The work release center
placed Thomas on restriction but would consider him for participation when he submitted
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a negative urine screen. The trial court issued a bench warrant for Thomas’s arrest. At a
hearing on the matter, Thomas again admitted to violating the terms of his probation, and
the trial court ordered that Thomas complete the balance of his sentence at the
Department of Correction. Thomas now appeals.
Analysis
Thomas argues that the trial court abused its discretion by revoking his placement
in a work release center. Thomas argues that, instead of placement in the Department of
Correction, the trial court should have continued his placement in the work release center.
Both probation and community corrections programs serve as alternatives to
commitment to the Department of Correction, and both are made at the sole discretion of
the trial court. McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007) (citing
Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)). 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 Cox, 706 N.E.2d at 549). A revocation of community corrections
placement hearing is civil in nature, and the State need only prove the alleged violations
by a preponderance of the evidence. Id. We will consider all the evidence most
favorable to the judgment of the trial court without reweighing that evidence or judging
the credibility of 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 community
corrections, we will affirm its decision to revoke placement. Id.
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According to Thomas, the trial court should have ordered a continuation of the
work release placement because he did not have a prior positive drug test on work
release, he did not have behavioral problems on work release, and the State did not
request removal from the program. However, the trial court was well within its discretion
to revoke Thomas’s placement in the work release program here. Thomas had previously
had his probation revoked for a positive drug test, and the trial court gave Thomas the
chance to serve his suspended sentence on work release. Shortly thereafter, he tested
positive for marijuana again. Given Thomas’s repeated violations, the trial court did not
abuse its discretion when it ordered Thomas to serve the remainder of his suspended
sentence in the Department of Correction rather than in a work release program.
Conclusion
The trial court properly ordered Thomas to serve the remainder of his suspended
sentence in the Department of Correction. We affirm.
Affirmed.
BAKER, J., and RILEY, J., concur.
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