Jermell Dionte Moore v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Sep 14 2017, 10:00 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean C. Mullins Curtis T. Hill, Jr. Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jermell Dionte Moore, September 14, 2017

Appellant-Respondent, Court of Appeals Case No. 45A03-1704-CR-879

v. Appeal from the Lake Superior Court The Honorable Diane Ross Boswell, State of Indiana, Judge Appellee-Petitioner. Trial Court Cause No. 45G03-1507-F2-11

Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 45A03-1704-CR-879 | September 14, 2017 Page 1 of 9

Case Summary [1] Following Appellant-Respondent Jermell Moore’s guilty plea to Level 5 felony

robbery, the trial court sentenced him to two years in community corrections

and one year on probation. Shortly after beginning his community corrections

placement, Moore absconded. In August of 2016, the State petitioned to revoke

Moore’s community corrections placement for absconding. At some point,

Lake County community corrections denied Moore credit time because he left

the placement; Moore waived his right to a hearing in the matter and did not

pursue his administrative remedies. [2] In March of 2017, the trial court held a hearing on the State’s petition to revoke

Moore’s community corrections placement. At the hearing, Moore did not

dispute the violation. However, when Moore’s counsel asked Moore if he

wanted to explain himself to the trial court, the trial court responded, “No, I

don’t -- I really don’t want to hear it.… I really don’t.” The trial court found

that Moore had violated the terms of his community corrections placement,

revoked the placement, and ordered him to serve his three-year sentence in the

Department of Correction (“DOC”). Moore contends that he was denied due

process in his credit-time proceeding with Lake County community corrections

and the trial court denied his right to allocution. Because we agree that the trial

court denied Moore his right to allocution, we reverse and remand with

instructions.

Facts and Procedural History Court of Appeals of Indiana | Memorandum Decision 45A03-1704-CR-879 | September 14, 2017 Page 2 of 9

[3] On February 9, 2016, Moore pled guilty to Level 5 felony robbery pursuant to a

written plea agreement. (Confid. App. Vol. II at 27-34; Tr. GP Vol. II at 1-17).

The trial court sentenced Moore on April 1, 2016, to three years, with two years

in community corrections and one year on probation. (Confid. App. Vol. II at

37-38, 41-42; Tr. Sent. Vol. II at 32). On August 15, 2016, the State filed a

petition to expel Moore from the Lake County Community Corrections

Kimbrough Work Program; the trial court held an initial hearing on November

30, 2016, and appointed counsel. (Confid. App. Vol. II at 43, 45-46). [4] At the March 23, 2017, revocation hearing, the parties discussed a previous

administrative proceeding involving community corrections concerning the

denial of credit time due to Moore’s leaving the work program. (Tr. 3/23/17

Vol. II at 6-7, 12-15). In the administrative proceeding, Moore had signed a

form that waived his right to have a hearing on the question of credit time. (Tr.

3-23-17 Vol. II at 15). Moore did not appeal from the decision of community

corrections to revoke his earned credit time. (Tr. 3/23/17 Vol. II at 12). [5] After defense counsel admitted that Moore had absconded from the community

corrections program for three months, the following conversation occurred:

THE COURT: And was he unable to return? [MOORE’S COUNSEL]: Of course he was. THE COURT: Did he get injured? Was he sick? Was he -- [MOORE’S COUNSEL]: He’s a -- he was definitely able to return, Judge. THE COURT: He was just out partying. He was out. He thought he was free. Court of Appeals of Indiana | Memorandum Decision 45A03-1704-CR-879 | September 14, 2017 Page 3 of 9

[MOORE’S COUNSEL]: I don’t -- he wasn’t -- he wasn’t partying, but the explanation he gave me wasn’t good enough, so -- THE COURT: Well, whatever he was doing. Okay. [MOORE’S COUNSEL]: -- I wouldn’t even give it to the Court. THE COURT: Okay. [MOORE’S COUNSEL]: So I -- it wasn’t that he, you know, he got a child and whatever. It’s nothing that -- THE COURT: Okay. Okay. [MOORE’S COUNSEL]: So he understands -- THE COURT: It’s nothing that’s going to change anything. [MOORE’S COUNSEL]: I don’t think so, Judge. THE COURT: Okay. [MOORE’S COUNSEL]: If you want to give -- do you want to explain -- THE COURT: No, I don’t -- I really don’t want to hear it. THE DEFENDANT: I mean, I understand. I understand. THE COURT: I really don’t. [MOORE’S COUNSEL]: Okay. March 23, 2017, Tr. pp. 17–18.

[6] The trial court found that Moore had voluntarily left community corrections

and did not return until he was arrested. (Tr. 3/23/17 Vol. II at 17-18). The

trial court found that Moore had violated the terms of his community

corrections placement, revoked his placement, and ordered him to serve his

three-year sentence in the DOC. (Confid. App. Vol. II at 50-51; Tr. 3/23/17

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Vol. II at 20-22). Moore contends that the trial court abused its discretion in (1)

allowing him to waive his right to a hearing in the credit-time proceeding

without benefit of counsel and (2) revoking his community corrections

placement without allowing a statement of allocution.

Discussion and Decision [7] For purposes of appellate review, we treat a hearing on a petition to revoke a

placement in a community corrections program the same as we do a hearing on

a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999).

The similarities between the two dictate this approach. Id. 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. 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. (quoting Million v. State,

646 N.E.2d 998, 1002 (Ind. Ct. App. 1995) (internal quotation omitted)).

Our standard of review of an appeal from the revocation of a community corrections placement mirrors that for revocation of probation. A probation hearing is civil in nature and the State need only prove the alleged violations by a preponderance of the evidence. We will consider all the evidence most favorable to supporting the judgment of the trial court without reweighing that evidence or judging the credibility of witnesses. If there is substantial evidence of probative value to support the trial court’s conclusion that a defendant has violated any terms of probation, we will affirm its decision to revoke probation. Id. at 551 (citations omitted).

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I. Waiver of Hearing [8] Moore claims that his due process rights were violated because he was allegedly

denied the right to counsel before waiving a hearing regarding the allegation

that he had violated the terms of his community corrections placement. Our

review of the record indicates no such deprivation. The transcript is clear that

the hearing in question concerned only the decision of community corrections to

deprive Moore of credit time. “A person who has been reassigned to a lower

credit time class or has been deprived of earned educational credit or good time

credit may appeal the decision to the commissioner of the department of

correction or the sheriff.” Ind. Code § 35-50-6-5.5. It is undisputed that Moore

did not appeal the denial of his credit time, and the law is clear that “where

[community corrections] mistakenly fails to give an offender earned credit time,

the offender must exhaust administrative remedies before seeking relief from a

court.” Neff v. State, 888 N.E.2d 1249, 1252 (Ind. 2008). Even assuming,

arguendo, that we could address the procedure by which community corrections

denied Moore credit time in this proceeding (which we doubt), Moore has

failed to exhaust his administrative remedies and has therefore waived any

challenges to that procedure for judicial review. Whatever may have happened

between Moore and Lake County community corrections, Moore has failed to

establish any denial of due process rights in this proceeding.

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II. Allocution [9] Moore contends that the trial court abused its discretion in revoking his

community corrections placement without allowing for a statement of

allocution.

In Indiana, the purpose of the right of allocution is to give the trial court the opportunity to consider the facts and circumstances relevant to the sentencing of the defendant in the case before it. Dillon v. State, 492 N.E.2d 661 (Ind. 1986); Page v. State, 424 N.E.2d 1021 (Ind. 1981); Shanholt v. State, 448 N.E.2d 308, 320 (Ind. Ct. App. 1983). “This goal [is] accomplished [where the defendant is] given the opportunity to explain [his] view of the facts and circumstances….” Id. As at common law, “the purpose of the judge’s question, or allocution, was not to seek mitigating evidence or a plea for leniency, but rather to give the defendant a formal opportunity to show one of the strictly defined legal grounds for avoidance or delay of the sentence.” Minton v. State, 400 N.E.2d 1177, 1180 (Ind. Ct. App. 1980). Ross v. State, 676 N.E.2d 339, 343 (Ind. 1996).

[10] In Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004), the Indiana Supreme Court

held that a defendant in a probation revocation proceeding has the right to

allocution before the trial court decides the case. It is true that the scope of the

right to allocution is not as broad in a probation revocation proceeding as it is

when sentence is first imposed; the Vicory Court held that the right to allocution

in a probation revocation proceeding exists only to the extent that a defendant

specifically requests to make a statement. See id. at 429 (“But when the

situation presents itself in which the defendant specifically requests the court to

make a statement, as it did here, the request should be granted.”). As

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mentioned, we review community corrections revocations the same as

probation revocations, so Vicory applies in this case as it would in a probation

revocation. See Cox, 706 N.E.2d at 549. [11] Although Moore did not actually say the words, “I would like to make a

statement,” we nonetheless conclude that the trial court’s actions were

essentially a preemptive refusal to allow him to do so, in clear violation of the

spirit of Vicory, if not the letter. When Moore’s counsel asked Moore if he

wished to explain himself, the trial court responded by saying, “No, I don’t -- I

really don’t want to hear it.… I really don’t.” Tr. p. 18. We see little

difference between this statement and an explicit denial of an allocution

request, as the trial court was essentially telling Moore not to even bother to

ask. In the end, the result is the same; Moore was not allowed to give his view

on the facts and circumstances of his case. We therefore conclude that Moore’s

right to allocution has been violated. We reverse the trial court’s revocation of

Moore’s community corrections placement and remand for a new hearing.

Conclusion We conclude that Moore failed to establish a denial of due process rights in this

proceeding. We agree with Moore, however, that the trial court improperly

denied him his right to allocution. We therefore reverse and remand for a new

hearing on whether Moore violated the terms of his community corrections

placement, at which Moore will be given the opportunity for allocution, should

he desire to exercise that right.

Court of Appeals of Indiana | Memorandum Decision 45A03-1704-CR-879 | September 14, 2017 Page 8 of 9 The judgment of the trial court is reversed and we remand with instructions. May, J, and Barnes, J., concur. Court of Appeals of Indiana | Memorandum Decision 45A03-1704-CR-879 | September 14, 2017 Page 9 of 9