Deshawn Hutcherson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Apr 10 2018, 8:40 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Vincent L. Scott Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Justin F. Roebel Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Deshawn Hutcherson, April 10, 2018 Appellant-Defendant, Court of Appeals Case No. 29A02-1708-CR-1970 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable Steven R. Nation, Appellee-Plaintiff. Judge Trial Court Cause No. 29D01-0909-FB-95

Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1970 | April 10, 2018 Page 1 of 6

Case Summary [1] Appellant-Defendant Deshawn Hutcherson appeals the revocation of his

placement in community corrections. In doing so, Hutcherson contends he was

deprived of the opportunity to present mitigating evidence to show that

revocation of his placement was not warranted. Because the record reveals that

the trial court conducted a hearing during which Hutcherson was given the

opportunity to present such evidence, we affirm.

Facts and Procedural History [2] On July 7, 2010, Hutcherson pled guilty under Cause Number 29D01-0909-FB-

95 (“Cause No. FB-95”) to Class B felony burglary. Hutcherson was also found

to be a habitual offender. He was sentenced to an aggregate term of sixteen

years with fourteen years executed in the Department of Correction (“DOC”)

and two years served in community corrections. Hutcherson began serving the

community corrections portion of his sentence on or about February 4, 2016. [3] On March 15, 2016, Hutcherson was alleged to have violated the terms of his

placement in community corrections (his “placement”) by committing a

criminal act which resulted in him being charged with Class B misdemeanor

possession of a synthetic drug. The trial court subsequently found that

Hutcherson had violated the terms of his placement. As a result of this

violation, Hutcherson was deprived of 180 days of good-time credit.

Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1970 | April 10, 2018 Page 2 of 6 [4] In June of 2016, the terms of Hutcherson’s placement permitted him to leave

the facility for approved employment. On June 9, 2016, Hutcherson was

approved to leave the facility for work at 4:15 p.m. He was scheduled to return

the facility by 1:15 a.m. the next morning. Hutcherson, however, failed to

return as scheduled. Subsequent attempts to contact Hutcherson were

unsuccessful. He was eventually located by police on July 19, 2016. [5] Following Hutcherson’s failure to return to the community corrections facility,

he was again alleged to have violated the terms of his placement. He was also

charged under Cause Number 29D01-1606-F6-4508 (“Cause No. F6-4508”)

with Level 6 felony failure to return to lawful detention. Hutcherson admitted

to the violation in Cause No. FB-95 on January 12, 2017. The trial court found

“that the Defendant has violated the terms and conditions of Community

Corrections as set forth in his admission. We’ll go ahead and at this point take

disposition under advisement and we will proceed on that on the same day as

sentencing under [Cause No. F6-4508].” Tr. Vol. II, pp. 34–35. [6] Hutcherson initially pled guilty under Cause No. F6-4508. His guilty plea was

subsequently set aside, however, due to a disagreement regarding credit time.

In setting aside Hutcherson’s guilty plea under Cause No. F6-4508, the trial

court stated the following:

So at this point the Defendant is asking for the trial concerning these matters, so the Court will at this point then vacate the plea negotiations and will proceed to set that matter for trial. And then we’ll set disposition upon [Cause No. FB-95] upon determination of guilt or innocence in [Cause No. F6-4508].

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Tr. Vol. II, pp. 48–49. Hutcherson was found guilty under Cause No. F6-4508

following trial. [7] Hutcherson appeared before the trial court on June 29, 2017, for a joint

sentencing and disposition hearing in Cause Nos. F6-4508 and FB-95. The trial

court incorporated the record of “the proceedings under [Cause No. F6-4508]”

and found that Hutcherson “has violated the terms and conditions of his

commitment to Community Corrections.” Tr. Vol. II, p. 118. During this

hearing, defense counsel was given the opportunity to present evidence to the

trial court, but did not do so. At the conclusion of the hearing, the trial court

revoked Hutcherson’s placement and ordered that the remainder of his

suspended sentence be served in the DOC. This appeal follows.

Discussion and Decision [8] Hutcherson argues on appeal that the trial court erroneously failed to conduct a

hearing on the revocation of his placement during which he would have had the

opportunity to present mitigating evidence to show that revocation of his

placement was not warranted. The record, however, indicates otherwise. [9] “The standard of review of an appeal from the revocation of a community

corrections placement mirrors that for revocation of probation.” McQueen v.

State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007).

Although probationers are not entitled to the full array of constitutional rights afforded defendants at trial, the Due Process Clause of the Fourteenth Amendment does impose procedural

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and substantive limits on the revocation of the conditional liberty created by probation. The minimum requirements of due process that inure to a probationer at a revocation hearing include: (a) written notice of the claimed violations of probation; (b) disclosure of the evidence against him; (c) an opportunity to be heard and present evidence; (d) the right to confront and cross- examine adverse witnesses; and (e) a neutral and detached hearing body.

Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008) (internal citations, quotation,

and brackets omitted). [10] Revocation is a two-step process. Id. “First, the court must make a factual

determination that a violation of a condition of probation actually occurred.”

Id. “If a violation is proven, then the trial court must determine if the violation

warrants revocation of the probation.” Id. When an individual admits to the

violations, an evidentiary hearing is unnecessary. Id. “Instead, the court can

proceed to the second step of the inquiry and determine whether the violation

warrants revocation.” Id. “However, even a probationer who admits the

allegations against him must still be given an opportunity to offer mitigating

evidence suggesting that the violation does not warrant revocation.” Id. [11] In this case, Hutcherson admitted to the violation of the terms of his placement.

The trial court accepted his admission. It also found that the evidence

presented in the trial for the related Cause No. F6-4508 proved that he violated

the terms of his placement by failing to return to the placement facility. The

trial court gave Hutcherson the opportunity to present mitigating evidence

during the joint sentencing and disposition hearing in Cause Nos. F6-4508 and

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FB-95. It is not the fault of the trial court that defense counsel apparently chose

not to present any such evidence. Hutcherson’s claim that the trial court did

not provide him with the opportunity to present mitigating evidence is without

merit. [12] The judgment of the trial court is affirmed.

Baker, J., and Kirsch, J., concur.

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