Steven B. Pollard v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Jun 24 2015, 6:10 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any 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
Noah T. Williams Gregory F. Zoeller
Monroe Co. Public Defender Attorney General of Indiana
Bloomington, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven B. Pollard, June 24, 2015
Appellant-Defendant, Court of Appeals Case No.
53A04-1411-CR-519
v. Appeal from the Monroe Circuit
Court.
The Honorable Marc R. Kellams,
State of Indiana, Judge.
Appellee-Plaintiff Cause No. 53C02-1207-FC-691
Baker, Judge.
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[1] Steven Pollard appeals the trial court’s order revoking his placement on home
detention and requiring that he serve the balance of his sentence in the
Department of Correction. Finding no error, we affirm.
Facts
[2] On May 9, 2014, Pollard pleaded guilty to class D felony sexual battery after he
had inappropriate sexual contact with a minor child. On June 24, 2014, the
trial court sentenced Pollard to two and one-half years, with eighteen months to
be served on home detention followed by one year of probation. At the
sentencing hearing, the trial court explicitly noted that Pollard “has to remain
eligible [for home detention], of course, and I want it clear to him that if . . .
tomorrow or next week or next month he becomes ineligible, then he may
easily forfeit his right to home detention.” Tr. p. 31. Although Pollard was not
eligible for home detention initially because of the nature of his conviction, the
trial court issued a judicial override on June 25, 2014.
[3] Pollard was living in an apartment with his child, K.P., and her mother. 1 The
lease, which he had signed before pleading guilty, provided that he could not
live in his apartment with a criminal conviction. On July 31, 2014, Pollard was
evicted because of his conviction.
1
The terms of home detention required that Pollard have no contact with minor children. The trial court,
however, carved out an exception such that Pollard was permitted to live with his own child, K.P.
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[4] On July 31, 2014, the State filed a motion to revoke home detention and
execute his sentence. The State alleged that Pollard had failed to maintain a
valid residence, failed to attend mandatory day reporting on four occasions,
failed to follow his home detention schedule on two occasions, and refused to
submit to a urine drug screen on one occasion.
[5] The trial court held hearings on October 20 and October 27, 2014, on the
State’s motion. Concluding that Pollard had failed to maintain a valid
residence, which is a mandatory prerequisite for a home detention placement,
the trial court revoked home detention and ordered that Pollard serve the
balance of his executed term in the Department of Correction (DOC). Pollard
now appeals.
Discussion and Decision
[6] Trial courts have broad discretion to place defendants in community corrections
programs, such as home detention, as alternatives to the DOC. Monroe v. State,
899 N.E.2d 688, 691 (Ind. Ct. App. 2009). A defendant is not entitled to serve
his sentence in a community corrections program; instead, such a placement is
“a ‘matter of grace’ and a ‘conditional liberty that is a favor, not a right.’” Id.
(quoting Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)). If a defendant violates
the terms of his community corrections placement, the trial court may change
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the terms of the placement, continue the placement, or revoke the placement
and commit him to the DOC. Ind. Code § 35-38-2.6-5.2
[7] In this case, it is undisputed that Pollard was required to maintain a valid
residence to be eligible for home detention. It is also undisputed that Pollard
was aware of that fact. Likewise, it is undisputed that Pollard was evicted from
his residence on July 31, 2014. Given these undisputed facts, we find that the
trial court did not abuse its discretion in revoking Pollard’s home detention
placement and ordering that he serve the balance of his sentence in DOC.
[8] Pollard argues that at the time of the October 2014 hearings, he had a potential
residence at which he could serve home detention. Inasmuch as Pollard has
already completed his executed sentence, however, he cannot challenge the trial
court’s decision to place him in the DOC rather than give him a second try at
home detention. See Smith v. State, 971 N.E.2d 86, 89 (Ind. 2012) (finding that a
defendant who had completed his sentence was entitled to make a due process
argument but was not entitled to make a credit time argument because it was
moot). In any event, we note that the trial court deferred to the community
corrections program, which did not recommend that Pollard be permitted to
serve home detention in the new residence. The trial court was entitled to do
so, and we find no error on this basis.
2
This statute has been amended with an effective date of July 1, 2015. Inasmuch as Pollard’s offense was
committed prior to that date, we apply the version of the statute in effect at the time of the offense.
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[9] The judgment of the trial court is affirmed.
Friedlander, J., and Riley, J., concur.
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