Darnell Loven Johnson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 16 2017, 9:33 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Anthony C. Lawrence Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Darnell Levon Johnson, August 16, 2017 Appellant-Defendant, Court of Appeals Case No. 48A05-1703-CR-592 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff Judge Trial Court Cause No. 48C04-1608-F6-1583

Altice, Judge.

Case Summary Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-592 | August 16, 2017 Page 1 of 6 [1] Darnell L. Johnson appeals the revocation of both his community corrections

placement and his probation. He contends the trial court abused its discretion

by ordering him to serve his full sentence in the Department of Correction (the

DOC).

[2] We affirm.

Facts & Procedural History [3] On September 29, 2016, Johnson pled guilty to Level 6 felony possession of a

narcotic drug, Level 6 felony unlawful possession of syringe, Level 6 felony

possession of methamphetamine, Class A misdemeanor possession of a

controlled substance, and Class A misdemeanor resisting law enforcement. On

November 21, 2016, the trial court sentenced Johnson to fully concurrent

sentences, resulting in an aggregate term of thirty months. The court ordered

twelve months suspended to probation and the remaining eighteen months to

be served in community corrections, specifically in the Continuum of Sanctions

Program through the Community Justice Center (the COS Program). [4] After completing his intake for the COS Program, Johnson had to wait for

available bed space at the work release facility until December 15, 2016. On

that date, he was transported from the Madison County Detention Center to the

work release facility to begin serving his time in the COS Program. At the

facility, he was given a two-hour pass to obtain his personal belongings.

Johnson understood that he was required to return within two hours. Johnson

did not return to the facility. As a result, a petition to terminate Johnson’s

Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-592 | August 16, 2017 Page 2 of 6

participation in the COS Program was filed on December 21, 2016. The trial

court terminated Johnson’s participation in the COS Program pending further

hearing and issued a warrant for Johnson’s arrest on December 28, 2016. [5] Thereafter, on January 9, 2017, Johnson failed to appear for a pre-trial

conference in another criminal case out of Madison County. This resulted in

the issuance of another warrant for his arrest. Johnson was subsequently

arrested in another county on January 27, 2017, and transferred to the Madison

County Detention Center two days later. [6] On February 1, 2017, the State filed a notice of violation of suspended sentence.

The State alleged two violations: (1) Johnson committed a new criminal offense

– Level 6 felony failure to return to lawful detention, which charge was filed on

January 19, 2017 – and (2) Johnson failed to successfully complete the executed

portion of his sentence through the COS Program. [7] On February 13, 2017, the trial court held an evidentiary hearing on both the

petition to terminate participation in the COS Program and the notice of

probation violation. At the hearing, Johnson did not deny that he failed to

timely return to the work release facility. He claimed, however, that he did

eventually return in the middle of the night and was told by staff to leave. He

left the facility and did not return. At the hearing, Johnson claimed that his

violation was due to “a misunderstanding between [him] and staff as to what

you were supposed to do”. Transcript at 32.

Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-592 | August 16, 2017 Page 3 of 6 [8] The trial court did not buy Johnson’s account, stating at the conclusion of the

hearing:

[W]hen you come to court today, instead of…taking responsibility, you came up with what the Court finds I don’t think it’s a stretch to say it’s kind of a preposterous story about what happened. It really was just not believable. So, you came in and said things that just weren’t true in order to cover up your conduct, and because of that, I just don’t find that community correction is a reasonable way to resolve this matter. I just don’t think it’s going to be successful for you.

Id. at 34. Accordingly, the trial court terminated Johnson’s participation in the

COS Program and revoked the suspended portion of his sentence. Johnson was

ordered to serve the balance of his sentence in the DOC.

Discussion & Decision [9] On appeal, Johnson acknowledges that he violated probation, as well as the

terms of his placement in the COS Program. He argues only that the sanction

imposed by the trial court constituted an abuse of discretion in light of the

explanation he provided at the hearing. Johnson asserts that “there was

nothing particularly egregious about his alleged failure to return to lawful

detention charge” and notes his ability to secure employment and his

“commitment to remain drug free”. Appellant’s Brief at 10. [10] Both community corrections programs and probation serve as alternatives to

commitment to the DOC and are made at the sole discretion of the trial court.

Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). Placement in either is a matter of

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grace and a conditional liberty that is a favor, not a right. Id. After a hearing

and upon finding that a violation occurred, the trial court may revoke the

defendant’s placement in community corrections and commit the person to the

DOC for the remainder of his sentence. Christie v. State, 939 N.E.2d 691, 694

(Ind. Ct. App. 2011) (citing Ind. Code § 35-38-2.6-5). The court may also

revoke the defendant’s probation and order all or part of the previously

suspended sentence to be executed. I.C. § 35-38-2-3(h)(3). [11] We review the trial court’s sentencing decision in a revocation proceeding for

an abuse of discretion. Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App.

2011). An abuse of discretion will be found if the trial court’s decision is

against the logic and effect of the facts and circumstances. Id. [12] The trial court did not abuse its discretion by ordering Johnson to serve his

entire thirty-month sentence, including the previously suspended term, in the

DOC. After being granted considerable grace by the trial court, Johnson

committed a new crime by failing to return to the COS Program on his first day

of placement. He continued to avoid serving his sentence until he was arrested

about six weeks later. During this time, he also failed to appear for a pre-trial

conference in another criminal matter. At the revocation hearing, Johnson then

fabricated a story to explain his actions. The nature of Johnson’s violation

warranted the sanction imposed. [13] Judgment affirmed.

Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-592 | August 16, 2017 Page 5 of 6 Baker, J. and Bailey, J., concur. Court of Appeals of Indiana | Memorandum Decision 48A05-1703-CR-592 | August 16, 2017 Page 6 of 6