Demario Dajuan Barnes v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 24 2020, 10:10 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
Kristin A. Mulholland Curtis T. Hill, Jr.
Appellate Public Defender Attorney General
Crown Point, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Demario Dajuan Barnes, January 24, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1720
v. Appeal from the
Lake Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Salvador Vasquez, Judge
The Honorable
Natalie Bokota, Magistrate
Trial Court Cause No.
45G01-1609-F4-31
Vaidik, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1720 | January 24, 2020 Page 1 of 9
Case Summary
[1] Demario Dajuan Barnes admitted violating his community-corrections
placement for not immediately returning to community corrections after
clocking out of work, and the trial court ordered him to serve the remainder of
his three-year sentence in the Department of Correction. He now appeals,
arguing that he was not given the opportunity to offer mitigating evidence that
his violation did not warrant revocation of his community-corrections
placement and that the trial court abused its discretion in ordering him to serve
the remainder of his sentence in the DOC. We affirm.
Facts and Procedural History
[2] In January 2017, Barnes pled guilty to Level 4 felony burglary and was
sentenced to three years in prison (to be served consecutive to his sentences in
two other cause numbers). In June 2018, Barnes, pro se, filed a motion to
modify his sentence. The trial court granted Barnes’s motion and ordered him
“to serve the remainder of his sentence in the Lake County Community
Transition Court” (“CTC”).1 Appellant’s App. Vol. II p. 85. Barnes started
1
The Lake County Courts’ website describes CTC as follows:
The Lake County Community Transition Court (CTC) is a program designed to assist
individuals transition from the Indiana Department of Correction (IDOC) back to their
community while still being supervised. The Community Transition Court transfers the
individuals’ placement to Lake County Community Corrections eight (8) to twelve (12) months
prior to their Earliest Possible Release Date (EPRD) from the IDOC. The process is intended to
assist these individuals reengage in the community by offering more support than they would
otherwise receive upon release from the IDOC.
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CTC on July 16, 2018, and was placed in the Kimbrough Work Program. Id. at
115.
[3] Approximately three months after starting the Kimbrough Work Program, on
October 10, 2018, Lake County Community Corrections filed a “petition to
expel” Barnes from the program, alleging that he violated several rules. Id. at
92. Barnes was arrested and held without bond in the Lake County Jail. A
hearing on the petition to expel was eventually held in January 2019. On
January 15, the trial court denied the petition and ordered that Barnes “be
returned to CTC.” Id. at 113.
[4] A little over a month later, on February 24, Barnes was in a car with his
girlfriend after clocking out of work and did not immediately return to
community corrections, in violation of the Kimbrough Work Program’s rules.
The next day, February 25, Lake County Community Corrections asked the
trial court to remand Barnes to the Lake County Jail “[d]ue to a program
violation.” Id. at 114. Barnes was arrested and held without bond. On March
5, Lake County Community Corrections filed a “petition to expel” Barnes from
community corrections, claiming that he violated two rules of the Kimbrough
Work Program. Id. at 115. Specifically, Barnes was alleged to have violated
Rule 6 for having time that was unaccounted for on “numerous occasions” and
Rule 52 for failing to pay fees. See id. (“When reviewing client’s paystubs and
Lake County Courts, Lake Cty. Cmty. Transition Court, https://www.lakecountyin.org/portal/group/lc-
courts/page/lctc (last visited Jan. 13, 2020).
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time out of the building it was determined that he has had time that was
unaccounted for on numerous occasions. Client’s whereabout during these
times are unknown.”).
[5] A hearing was held before a magistrate on June 25. At the hearing, defense
counsel made a proffer that she had hired an investigator, who spoke with
Barnes’s employer and determined that “all but one” of the “numerous
occasions” were actually accounted for, as the employer verified that Barnes
had “work[ed] over” on those occasions. June 25, 2019 Tr. pp. 20, 23. The
State did not dispute this proffer of evidence. Barnes admitted the February 24
incident, which the magistrate accepted. See id. at 22.2
[6] Defense counsel then asked the magistrate to “allow[] [Barnes] to go back to”
CTC. Id. at 24. Barnes explained that he did not return to community
corrections on February 24 because his girlfriend was his ride and she had just
found out she was pregnant and was suicidal. Barnes admitted that what he did
“wasn’t the smart thing to do”; however, he said that “life came at [him] at an
unexpected moment” and that it was “really almost like a life or death
situation” for his girlfriend. Id. at 26. Barnes asked the magistrate for “another
chance” at CTC. Id. at 27. The magistrate ordered Barnes to serve the
2
Defense counsel told the trial court that Barnes was also going to admit to failing to pay fees, but this was
never addressed at the hearing.
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remainder of his three-year sentence in the DOC3 but said that she was going to
take Barnes’s request to go back to CTC “under advisement” so that she could
“discuss[]” it with the presiding judge, Judge Vasquez. Id. at 25. The
magistrate “set a date for ruling . . . on or before” July 2. Id. at 28. Later that
same day, June 25, the following order was entered:
Upon consultation with the presiding judge, the request to
participate in [CTC] is denied. The defendant is to be
transported to the Department of Correction for execution of the
sentence imposed.
Appellant’s App. Vol. II p. 132.
[7] Thereafter, Barnes filed a motion to set sentencing hearing, arguing that a
sentencing hearing had been scheduled for July 2, but he was “not brought to
Court” for that hearing. Id. at 133. Accordingly, he claimed that he was
“denied his right to be present at Sentencing, his right to make a statement at
sentencing & his right to present evidence for Sentencing.” Id. The magistrate
denied the motion, explaining that she did not set a sentencing hearing for July
2 but rather a date for ruling and that the sentencing hearing had already been
held on June 25, at which time Barnes made a statement.4 Id. at 135.
3
According to the abstract of judgment, as of June 25, 2019, Barnes had 497 days of credit time to apply
against his three-year sentence. Appellant’s App. Vol. II p. 150.
4
On appeal, Barnes appears to repeat his claim that the magistrate scheduled a sentencing hearing for July 2
but never held it. As just explained above, the magistrate set a date for ruling, not a sentencing hearing.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1720 | January 24, 2020 Page 5 of 9
[8] Barnes now appeals.
Discussion and Decision
[9] Barnes appeals the revocation of his community-corrections placement. For
purposes of appellate review, we treat a hearing on a petition to revoke a
placement in a community-corrections program the same as a hearing on a
petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g
denied. Both probation and community-corrections programs serve as
alternatives to commitment to the Department of Correction and are made at
the sole discretion of the trial court. Id. 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. (quotations omitted).
[10] Barnes first contends that his due-process rights were violated because he did
not have the opportunity to offer mitigating evidence that his violation did not
warrant revocation of his community-corrections placement and that he should
be returned to CTC. Probation revocation, and hence community-corrections
revocation, is a two-step process. First, the court must make a factual
determination that a violation of a condition of probation or community
corrections actually occurred. See Woods v. State, 892 N.E.2d 637, 640 (Ind.
2008). If a violation is proven, then the trial court must determine if the
violation warrants revocation of probation or community corrections. See id.
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[11] When a probationer or community-corrections participant admits to the
violation, the court can proceed to the second step of the inquiry and determine
whether the violation warrants revocation. See id. However, a probationer or
community-corrections participant who admits the allegations against him must
still be given an opportunity to offer mitigating evidence suggesting that the
violation does not warrant revocation. See id.
[12] Barnes argues that he “was not afforded the opportunity to fully address the
question of his request for readmission to” CTC. Appellant’s Br. p. 12. But
Barnes was afforded this opportunity. At the June 25 hearing, both defense
counsel and Barnes asked the magistrate to send him back to CTC despite his
rule violation. Defense counsel argued that Barnes had already paid the price
for his rule violation because he had been in the Lake County Jail for several
months already. See June 25, 2019 Tr. p. 24. And Barnes testified about the
circumstances surrounding his rule violation, claiming that it was a “life or
death situation.” See id. at 25-26. As for Barnes’s related argument that he
“should have been permitted a hearing before the presiding judge to make his
case for readmission,” Appellant’s Br. pp. 12-13, he cites no authority that a
hearing before the presiding judge is required when a magistrate consults with
that judge in making a decision. There was no due-process violation here.
[13] Barnes next contends that the trial court “abused its discretion when it revoked
his placement in community corrections and ordered him to serve the
remainder of” his three-year sentence in the DOC. Id. at 9. He argues that his
single rule violation “was not a sufficient basis upon which to remove [him]
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from the transition court and to impose the full remainder of his sentence to be
served in prison.” Id. Instead, he claims that the court “should have permitted
some portion of the sentence to be served in a placement which would permit
some transitional assistance.” Id. at 11.
[14] A trial court’s sentencing decision for a community-corrections violation is
reviewable using the abuse-of-discretion standard. See Prewitt v. State, 878
N.E.2d 184, 188 (Ind. 2007). In addition, violation of a single condition of a
community-corrections placement is sufficient to revoke that placement.
See Jenkins v. State, 956 N.E.2d 146, 149 (Ind. Ct. App. 2011), trans. denied.
Here, a little over one month after being returned to CTC after spending several
months in jail, Barnes violated the Kimbrough Work Program’s rules by not
immediately returning to community corrections after clocking out of work. He
explained that he did not immediately return because he was faced with the
imminent threat of his girlfriend’s suicide. The magistrate, however, was not
persuaded:
So when you commit a crime and you’re incarcerated, you give
up the opportunity to be present with family for a variety of
moments. A family member is dying, you can’t be there. A child
is being born, you can’t be there. Someone is going to commit
suicide, you need to call 911, you can’t be there.
*****
You have no right . . . to decide that you’re not going to go back
to the center. You’re serving a sentence, just like if you were in
prison. It’s technically an escape is what it is. You could have
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been charged with another felony for not getting back there on
time. And so in a way, you’re really receiving a benefit by just
being made to serve out this sentence.
June 25, 2019 Tr. pp. 26, 27. When Barnes told the magistrate that he felt he
deserved “another chance,” the magistrate responded:
Well, why would the Court feel confident that if something else
came up down the line you wouldn’t think that you have the
right to make that decision to not fulfill your sentence again?
Id. at 27. Given that Barnes was given the benefit of participating in CTC and
then violated the rules for—as he puts it—“no reason” a little over one month
after being returned to CTC, id. at 26, we affirm the trial court’s revocation of
his community-corrections placement and its order that he serve the remainder
of his sentence in the DOC.
[15] Affirmed.
Najam, J., and Tavitas, J., concur.
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