Floyd William Treece v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID T.A. MATTINGLY GREGORY F. ZOELLER
Mattingly Legal, LLC Attorney General of Indiana
Lafayette, Indiana
BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana
May 29 2014, 10:42 am
IN THE
COURT OF APPEALS OF INDIANA
FLOYD WILLIAM TREECE, )
)
Appellant-Defendant, )
)
vs. ) No. 79A05-1309-CR-458
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Randy J. Williams, Judge
Cause No. 79D01-1007-FB-15
May 29, 2014
OPINION- FOR PUBLICATION
CRONE, Judge
Case Summary
Floyd William Treece was convicted of possession of methamphetamine and
possession of an illegal drug lab and admitted to being a habitual offender. He was
sentenced to an aggregate term of fourteen years, which included a term of commitment to
the Department of Correction (“DOC”), followed by time in a community corrections
program, and the remainder suspended to probation. Before the scheduled release date from
his DOC commitment, he requested and was granted assignment to a community transition
program (“CTP”) for the last 120 days of his DOC commitment. He was assigned to the CTP
at Tippecanoe County Community Corrections (“TCCC”).
During his time in the CTP, Treece discovered another person sitting in his chair and
kicked him in the face, which was a violation of TCCC’s rule against assault and battery. He
admitted to the violation, and TCCC removed him from its CTP. When Treece was released
from the DOC, he reported to TCCC for the community corrections portion of his sentence.
TCCC informed him that he had been rejected from participation in any of its programs as a
result of his violent rule violation. The State filed a motion requesting that Treece be
committed to the DOC and that his placement in community corrections be revoked, which
the trial court granted.
Treece appeals the revocation of his community corrections placement. He argues
that the trial court abused its discretion in revoking his community corrections placement
because (1) the TCCC did not have the authority to reject his placement in community
corrections for a rule violation he committed while assigned to the CTP because the CTP is a
2
DOC program and the DOC is not statutorily authorized to reject an inmate’s placement in
community corrections as a disciplinary action; and (2) the trial court failed to consider the
progress he made toward rehabilitation during his DOC commitment. We conclude that the
CTP is a TCCC program and that the statutes governing the DOC’s disciplinary actions do
not apply to TCCC. Therefore, TCCC had the authority to reject Treece from his placement
in community corrections for a violation he committed while in the CTP. We also conclude
that the trial court was not required to consider his progress toward rehabilitation when
determining whether his rule violation warranted revocation of his community corrections
placement. We conclude that he committed an act of violence, and therefore the trial court
did not abuse its discretion in revoking his community corrections placement. Therefore, we
affirm. We also remand for the trial court to clarify its sentencing order.
Facts and Procedural History
Treece pled guilty to class D felony possession of methamphetamine and class C
felony possession of an illegal drug lab and admitted to being a habitual substance offender.
The trial court sentenced Treece to consecutive terms of three years for possession of
methamphetamine, six years for possession of an illegal drug lab, and five years for being a
habitual substance offender, for an aggregate term of fourteen years. The trial court ordered
Treece to “execute eight (8) years at the [DOC] to include two (2) years with [TCCC] at a
level to be determined by Community Corrections.” Appellant’s App. at 15. The sentencing
order also stated that “[Treece’s] sentence calls for an executed term of imprisonment of ten
years.” Id. at 17. The trial court ordered that four years be suspended and that Treece be
3
placed on supervised probation for four years. In addition, the sentencing order provided,
“[Treece] shall obey all Community Corrections Rules. If he is rejected from Community
Corrections, that time will be spent in the Department of Correction.” Id. at 16.
Treece was incarcerated at the Westville Correctional Facility. By letter dated
February 1, 2013, he informed the trial court that his release date was July 25, 2013, and
requested assignment to a CTP for the last 120 days of his commitment to the DOC. After
the trial court received a recommendation from the TCCC CTP recommendation panel that
Treece be assigned to the CTP, the court granted Treece’s request and ordered the DOC to
assign him to the CTP. Id. at 28. Treece was transported to TCCC to serve in its CTP until
July 25, 2013, at which time he was to begin serving the two-year portion of his sentence
with TCCC pursuant to the sentencing order.
On June 22, 2013, Treece was serving in the CTP at TCCC when he returned to the
TCCC day room and found that someone was sitting in a seat that he had formerly occupied.
Tr. at 10. A still from the video recording of the room in which the incident occurred shows
over sixty seats, almost all of which were unoccupied. Appellant’s App. at 33. Instead of
taking one of the other seats, Treece kicked the person in the face. A TCCC hearing officer
conducted a hearing, at which Treece admitted to kicking the inmate in the face. The hearing
officer concluded that Treece violated TCCC Rule 212 regarding assault and battery. Id. at
32. As a consequence of his rule violation, TCCC removed him from its CTP.
On July 9, 2013, the trial court received notice from TCCC that it was rejecting Treece
from the community corrections portion of his sentence due to fighting while he was in its
4
CTP. Id. at 29. TCCC explained that it had a “zero tolerance for participants that fight” and
that if “a participant fights while on [TCCC] they will never be accepted for placement
again.” Id.
On July 25, 2013, Treece was released from commitment to the DOC. He reported to
TCCC to serve his two years in community corrections pursuant to the sentencing order, at
which time he was informed that TCCC was rejecting his placement in its program. On July
26, 2013, the State filed a motion to commit Treece to the DOC, asking the court to revoke
his community corrections placement and remand him to the custody of the DOC for the two
years that he was supposed to serve in community corrections. At the hearing on the State’s
motion, Treece argued that TCCC did not have the authority to reject him from its program
because at the time of his rule violation he was still in the CTP, which, he argued, was a
DOC program. The trial court concluded that TCCC could reject Treece based upon his rule
violation while assigned to its CTP and granted the State’s motion. Treece appeals.
Discussion and Decision
Standard of Review
Treece presents two arguments that the trial court abused its discretion in revoking his
community corrections placement. Before addressing his arguments on the merits, we
observe,
Both probation and community corrections programs serve as alternatives to
commitment to the DOC, and both are made at the sole discretion of the trial
court. A defendant is not entitled to serve a sentence in either probation or a
community corrections program. Rather, placement in either is a matter of
grace and a conditional liberty that is a favor, not a right.
5
The standard of review of an appeal from the revocation of a
community corrections placement mirrors that for revocation of probation.
That is, 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.
McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007) (citations and quotation
marks omitted).
Probation revocation is a two-step process. First, the court must make a
factual determination that a violation of a condition of probation actually has
occurred. If a violation is proven, then the trial court must determine if the
violation warrants revocation of the probation. Indiana has codified the due
process requirements at Ind. Code § 35-38-2-3 by requiring that an evidentiary
hearing be held on the revocation and providing for confrontation and cross-
examination of witnesses and representation by counsel. When a probationer
admits to the violations, the procedural due process safeguards and an
evidentiary hearing are not necessary. Instead, the court can proceed to the
second step of the inquiry and determine whether the violation warrants
revocation. In making the determination of whether the violation warrants
revocation, the probationer must be given an opportunity to present evidence
that explains and mitigates [his] violation.
Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005) (citations omitted), trans. denied.
Section 1 – TCCC’s Authority to Reject Treece
Treece’s first argument is that the trial court erred in concluding that TCCC had the
authority to reject him from the community corrections portion of his sentence based on a
rule violation he committed while still committed to the DOC. The State does not directly
address TCCC’s authority to reject an inmate but argues that the trial court’s discretion to
revoke an offender’s placement in a community corrections program may be exercised before
the offender’s placement commences, citing Ashba v. State 570 N.E.2d 937 (Ind. Ct. App.
1991), cert. denied (1992) and Million v. State, 646 N.E.2d 998 (Ind. Ct. App. 1995).
6
In Ashba, this Court held that the trial court could properly revoke Ashba’s probation
before his probationary period began for an offense that he committed while he was on parole
from the DOC. 570 N.E.2d at 940. The court explained that the terms of Ashba’s probation
attached to his suspended sentence from the moment that the sentence was imposed. Id.; see
also Baker v. State, 894 N.E.2d 594, 596-98 (Ind. Ct. App. 2008) (holding that probation may
be revoked for commission of crime while serving executed portion of sentence). In Million,
this Court held that the trial court did not abuse its discretion in revoking Million’s placement
in a community corrections program before that placement began for conduct that occurred
while he was in work release for a prior conviction. 646 N.E.2d at 1002; see also Toomey v.
State, 887 N.E.2d 122, 124-25 (Ind. Ct. App. 2008) (holding that trial court did not lack
authority to revoke home detention upon defendant’s violation of conditions of work release).
Treece acknowledges Ashba and Million but argues that they are inapposite because
neither case involved a CTP. He argues that TCCC had no authority to reject him because
(1) a CTP is a DOC program, (2) permissible DOC disciplinary actions are provided for by
statute, and (3) such disciplinary actions do not include rejection from a community
corrections program.
To the extent that our analysis of Treece’s argument relies on statutory interpretation,
we observe that
[b]ecause it presents a question of law, we review a matter of statutory
interpretation using a de novo standard. When interpreting a statute, our goal
is to determine and give effect to the legislature’s intent in promulgating it.
Thus, we begin by examining the language of the statute, presuming that the
words were selected to express their common and ordinary meanings. Where
the statute is unambiguous, we accord each word and phrase its plain, ordinary,
7
and usual meaning, without having to resort to rules of construction to
decipher meanings.
Leedy v. State, 998 N.E.2d 307, 309-10 (Ind. Ct. App. 2013) (citations omitted), trans. denied
(2014).
Treece’s argument begins with the assertion that a “CTP is a DOC program.”
Appellant’s Br. at 6. In support, he cites Indiana Code Chapter 11-10-11.5, which governs
the assignment of offenders to CTPs.1 Indiana Code Section 11-10-11.5-1 states in relevant
part, “This chapter applies to a person: (1) who is committed to the [DOC] under IC 35-50
for one (1) or more felonies.” Section 11-10-11.5-1 merely states that the provisions in that
chapter for assignment to a CTP apply to persons who are committed to the DOC. The fact
that a CTP is for an offender committed to the DOC does not mean that a CTP is a DOC
program.
Treece’s assertion that a CTP is a DOC program completely ignores the numerous
statutory provisions that indicate that a CTP is operated by a community corrections program.
CTP is defined by Indiana Code Section 11-8-1-5.5 as follows:
“Community transition program” means assignment of a person committed to
the [DOC] to:
(1) a community corrections program; or
(2) in a county or combination of counties that do not have a
community corrections program, a program of supervision by the
probation department of a court;
1
For example, Indiana Code Chapter 11-10-11.5 provides for the commencement and duration of the
CTP (Sections 5, 6, and 9), the DOC’s duties such as notification of a defendant’s eligibility to the trial court
and the prosecutor (Sections 2 and 4), transportation of the offender (Sections 7 and 8), and the collection and
distribution of the offender’s earnings while in the CTP (Section 12).
8
for a period after a person’s community transition program commencement
date until the person completes the person’s fixed term of imprisonment, less
the credit time the person has earned with respect to the term.
(Emphasis added.)
Community corrections program means
a community based program that provides preventive services, services to
offenders, services to persons charged with a crime or an act of delinquency,
services to persons diverted from the criminal or delinquency process, services
to persons sentenced to imprisonment, or services to victims of crime or
delinquency, and is operated under a community corrections plan of a county
and funded at least in part by the state subsidy provided in IC 11-12-2.
Ind. Code §11-12-1-1 (emphasis added). Counties are required to establish CTPs as part of
their community corrections programs. Ind. Code § 11-12-10-1. Also, a county may
establish a community corrections advisory board to operate its community corrections
programs, which may be operated for any of the following:
(1) The prevention of crime or delinquency.
(2) Persons sentenced to imprisonment in a county or local penal facility other
than a state owned or operated facility.
(3) Committed offenders.
(4) Persons ordered to participate in community corrections programs as a
condition of probation.
Ind. Code § 11-12-1-2 (emphasis added). Further, a CTP may include any of the services
provided by a community corrections program: “A community transition program for a
county must provide services that improve an offender’s chances of making a successful
transition from commitment to employment and participation in the community without the
9
commission of further crimes. The program may include any of the services described in IC
11-12-1-2.5[2].” Ind. Code § 11-12-10-2.
While assigned to a CTP, “a person must comply with the rules concerning the
conduct of persons in the [CTP] … that are adopted by the community corrections advisory
board establishing the program” and “any conditions established by the sentencing court for
the person.” Ind. Code § 11-10-11.5-11(a) (emphasis added). If a person violates a CTP rule
or any condition established by the sentencing court, the CTP is authorized to take the
following actions:
The [CTP], following a hearing and upon a finding of probable cause that the
offender has failed to comply with a rule or condition under section 11 of this
chapter, may:
(1) request a court to issue a warrant ordering the department to
immediately:
(A) return the offender to the [DOC]; or
(B) reassign the offender to a program or facility administered
by the [DOC]; or
(2) take disciplinary action against an offender who violates rules of
conduct. Disciplinary action under this subdivision may include the
loss of earned credit time under IC 35-50-6-5.
2
Indiana Code Section 11-12-1-2.5 lists services that community corrections programs may include:
residential or work release programs; house arrest, home detention, and electronic monitoring programs;
community restitution or service programs; victim-offender reconciliation programs; jail services programs; jail
work crews; community work crews; juvenile detention alternative programs; day reporting programs; faith
based programs; and other community corrections programs approved by the DOC. This section has been
amended, effective July 1, 2014, to read, “The community corrections programs described in section 2 of this
chapter shall use evidence based services, programs, and practices that reduce the risk for recidivism among
person who participate in the community corrections programs.” Pub. Law 158-2014. However, Indiana Code
Section 11-12-10-2 has not been amended and continues to permit CTPs to include any of the services
permitted by community corrections programs.
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Ind. Code § 11-10-11.5-11.5(b). This statutory framework shows that a CTP is not a DOC
program but a community corrections program provided for persons committed to the DOC.
Further, community corrections programs set their own rules and policies to which an
offender is subject.
Here, when Treece was assigned to a CTP he was assigned to TCCC, which operated
the CTP. Treece violated TCCC rules. TCCC took the action of removing Treece from its
CTP, as it is authorized to do. See id. TCCC also has a policy to reject any person who
commits an act of violence while participating in one of its programs from any further
participation in its programs. It is of no moment that Treece was still committed to the DOC
when he violated TCCC rules. Treece’s commitment to the DOC does not render TCCC
powerless from enforcing its rules and policies.
Treece argues that the CTP is subject to the disciplinary rules promulgated under
Indiana Code Chapter 11-11-5 based on Section 11-11-5-1(a), which provides, “This chapter
applies to persons: (1) placed in a community corrections program; or assigned to a [CTP].”
Although Chapter 11-11-5 applies to offenders who are assigned to a CTP, we disagree with
Treece that the disciplinary rules in Sections 11-11-5-3 and -4 limit the authority of CTPs to
impose their own disciplinary measures on persons in their programs who violate their rules.
Section 11-11-5-3 lists permissible disciplinary actions and states, “The [DOC] may impose
any of the following as disciplinary action.” (Emphasis added.) Likewise, Section 11-11-5-4
lists impermissible disciplinary actions and provides, “The [DOC] may not impose the
following as disciplinary action.” (Emphasis added.) We observe that “[i]t is just as
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important to recognize what the statute does not say as it is to recognize what it does say.”
Dugan v. State, 793 N.E.2d 1034, 1036 (Ind. 2003). We conclude that Sections 11-11-5-3
and -4 specifically limit the actions that the DOC may take against offenders while they are
placed in a community corrections program or assigned to a CTP. Sections 11-11-5-3 and -4
control the DOC’s disciplinary actions with regard to offenders in a CTP, but they do not
control or limit a CTP’s disciplinary actions with regard to offenders in CTP.
A CTP’s authority to discipline offenders when they are assigned to a CTP is granted
in Indiana Code Section 11-10-11.5-11.5(b), which provides that a CTP may remove an
offender from its program upon a rule violation or take “disciplinary action” against the
offender. It does not say that a CTP may take disciplinary action under Indiana Code Section
11-11-5-3. If the legislature wanted CTPs to take only the disciplinary actions listed in
Section 11-11-5-3, it could have cited to that section. We conclude that the TCCC had the
authority to reject Treece from its community corrections programs after he violated its rules
while assigned to its CTP.
Section 2 – Trial Court’s Failure to Consider Treece’s Progress
Treece also argues that even if TCCC had the authority to reject him from community
corrections for his CTP rule violation, the trial court abused its discretion in revoking his
placement by failing to account for his achievements while committed to the DOC.
Specifically, he argues that he completed his GED and the Clean Lifestyle is Freedom
Forever (CLIFF) program, had obtained fulltime employment, and was “seemingly being
rehabilitated.” Appellant’s Br. at 10. Initially, we observe that trial courts are not required to
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balance “aggravating or mitigating circumstances when imposing sentence in a probation
revocation proceeding.” Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993),
overruled in part by Patterson v. State, 669 N.E.2d 220, 223 n.2 (Ind. Ct. App. 1995)
(holding that in a probation revocation proceeding, probationer’s mental health should be
considered).3 In addition, violation of a single condition of placement is sufficient to revoke
placement. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). Here, Treece did not
merely break a rule, he engaged in an act of violence after minimal provocation. Someone
was sitting in a seat that he had previously sat in, and rather than taking one of the many
other unoccupied seats, he kicked the person in the face. We conclude that the trial court did
not abuse its discretion in revoking Treece’s placement in community corrections.
Section 3 – Remand for Sentencing Clarification
Treece received an aggregate sentence of fourteen years. The sentencing order states
that Treece “shall execute eight (8) years at the [DOC] to include two (2) years with [TCCC]
at a level to be determined by Community Corrections” and “that four (4) years of the
sentences of imprisonment should be, and the same hereby are, suspended and [Treece]
placed on supervised probation for four (4) years.” Appellant’s App. at 15. Do we interpret
this order to mean eight years at the DOC plus two years with TCCC plus four years
3
This is not to be confused with the probationer right to “an opportunity to present evidence that
explains and mitigates [his] violation.” See Sanders, 825 N.E.2d at 955.
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suspended for a total sentence of fourteen years?4 Based on Treece’s release date from the
DOC of July 25, 2013, and the State’s calculation of his time served,5 it appears that the DOC
interpreted the sentencing order to mean that the eight years executed consists of six years at
the DOC and two years with TCCC. If that is the case, Treece’s sentence will be only twelve
years, not fourteen. The sentencing order’s paragraph pertaining to the cost of Treece’s
incarceration stated that “[his] sentence calls for an executed term of imprisonment of ten
years.” Id. at 17. The chronological case summary reads, “[Treece] sentenced to 14 years to
execute 10 years.” Id. at 7. “[I]t is our duty to ‘correct sentencing errors, sua sponte, if
necessary.’” Jones v. State, 775 N.E.2d 322, 331 (Ind. Ct. App. 2002) (quoting Dickson v.
State, 624 N.E.2d 472, 474 (Ind. Ct. App. 1993)). Accordingly, we remand to the trial court
to clarify Treece’s sentence.
Affirmed and remanded.
BAKER, J., and BARNES, J., concur.
4
Indiana Code Section 35-38-2.6-3 indicates that if the trial court decides to place a defendant in a
community corrections program as an alternative to commitment to the DOC, the trial court should suspend the
defendant’s sentence. We also observe that the trial court may order participation in community corrections
programs as a condition of probation. Ind. Code § 11-12-1-2.
5
“[Treece] was released from the DOC portion of his executed sentence on July 25, 2013 – eight
hundred and five (805) days after sentencing. Assuming [Treece] earned and retained all good time credit
available to him in this case, he has completed two thousand one hundred and ninety (2,190) days – or six
years – of his eight-year executed sentence.” Appellant’s App. at 30 (emphasis added).
14