Markquan Lee v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 29 2018, 10:40 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Markquan Lee, May 29, 2018 Appellant-Defendant, Court of Appeals Case No. 48A02-1712-CR-2988 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark Dudley, Jr., Appellee-Plaintiff Judge Trial Court Cause No. 48C06-1702-F5-445

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Case Summary [1] The trial court revoked Markquan Lee’s community-corrections placement for

committing a new crime about one month after his placement and ordered him

to serve the remainder of his executed sentence in the Department of

Correction. Lee argues that the court erred in finding that he violated a

condition of his community-corrections placement and in ordering him to serve

the remainder of his executed sentence in the DOC. Finding no error in either

respect, we affirm.

Facts and Procedural History [2] In July 2017, nineteen-year-old Lee pled guilty to Level 5 felony assisting a

criminal. Appellant’s App. Vol. II p. 65.1 On August 28, 2017, the trial court

sentenced him to five years, with three years executed and two years suspended

to probation. According to the trial court’s sentencing order, Lee was “given

the privilege of serving his executed time on Continuum of Sanctions program,”

which is a community-corrections program administered by the Madison

County Community Justice Center. Id. at 68. Lee’s probation conditions

included not violating any laws and successfully completing Continuum of

Sanctions. Id. at 69, 70.

1 The guilty plea covered offenses in two other cause numbers as well, but those cause numbers are not part of this appeal.

Court of Appeals of Indiana | Memorandum Decision 48A02-1712-CR-2988 | May 29, 2018 Page 2 of 9 [3] On September 28, one month after Lee was sentenced, an Anderson police

officer took a report from a man who said that his scooter was taken by three

black males at Rick’s Food Mart at 22nd Street and Martin Luther King Jr.

Boulevard. The victim described the males as being in their late teens to early

twenties and approximately 5’8” to 5’10” with thin builds. According to the

victim, when he exited the gas station and confronted the male who was sitting

on his scooter (the victim described this particular male as having an “afro,” Tr.

Vol. II p. 8), all three males pulled knives on him and told him that it was “the

west side” and they would “fu** him up.” Id. According to the victim, he then

“backed off,” put his hands up, and retreated into the gas station. Id. The

victim gave the officer the vehicle identification number (VIN) for his scooter,

and the officer entered the scooter’s VIN as “stolen” into IDACS, a law-

enforcement database. [4] About a week later, on October 6, Officer Brian Gehrke stopped Lee on a

scooter at the same Rick’s Food Mart. The scooter, which is required to have a

license plate, did not have a license plate, and the red taillight cover was

missing. Officer Gehrke asked Lee if he had any paperwork for the scooter, and

Lee responded that he had “just bought it” from a white male for $100;

however, Lee couldn’t provide the seller’s name or address. Id. at 14. Lee also

couldn’t provide a bill of sale or title for the scooter. Officer Gehrke ran the

scooter’s VIN through IDACS, and it came back as stolen. Officer Gehrke

asked Lee what he was doing at Rick’s Food Mart, and Lee said he was on

work release and “heading to work at HDP,” which is on the south side of

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Anderson. Id. at 16. Officer Gehrke didn’t think this story made sense, because

Rick’s Food Mart was not on the way from the work-release center to HDP. [5] On October 11, the Continuum of Sanctions program coordinator filed a

petition alleging that Lee violated the program’s rules as follows: (1) he

committed the new criminal offense of Level 6 felony auto theft and (2) he had

a fee arrearage of $542.94. Appellant’s App. Vol. II p. 72. Two days later, the

probation department filed a notice alleging that Lee violated his probation as

follows: (1) he committed the new criminal offense of Level 6 felony auto theft

and (2) he failed to successfully complete Continuum of Sanctions. An initial

hearing was held on both petitions.2 [6] Following an evidentiary hearing on both petitions, see id. at 11 (CCS entry), the

trial court found that the State proved by a preponderance of the evidence that

Lee had committed a new criminal offense:

I have to look at all the evidence as a whole, it’s a lower standard of proof. I get to draw reasonable inferences from the evidence as presented and as a whole I have weak identification of you by the victim. Granted, that’s weak. What I have in conjunction with that though is that you . . . possess[ed] the actual moped that the victim owned and gave the VIN number to the first officer that testified. Your explanation for it to be blunt doesn’t hold water. If you say you bought it from somebody you certainly identify who that was. If you’re unable to identify who that was you can identify where it was. And additionally you

2 The State also charged Lee with Level 6 felony auto theft and Class A misdemeanor theft under Cause No. 48C06-1710-F6-2535, but these charges are still pending.

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could have paperwork that would establish that you actually bought it from someone else. You had none of that, no paperwork, no title, no description, no address, no name. [A]nd so I get to draw reasonable inferences from the whole set of facts and the reasonable inference that I am allowed to draw and I am drawing on a preponderance of the evidence standard is that you were one of the three (3), that you took the moped of the victim and you possessed it on October 6th, 2017 when Officer Gehrke approached you and you knew at that point it was stolen, by you. So I’m not asking you to agree with it but I have to give in the record my rationale for finding why the State met its burden of proof.

Tr. Vol. II pp. 25-26. As for Lee’s sentence, the court noted that Lee committed

auto theft shortly after being sentenced and that this was the fourth crime he

had committed “all within a calendar year.” Id. at 34. The court found that

this “doesn’t warrant just moving you up . . . a notch on any Continuum of

Sanctions list, it warrants . . . revocation to the [DOC].” Id. Accordingly, the

court terminated Lee’s participation in Continuum of Sanctions and ordered

him to serve the remainder of his three-year executed sentence in the DOC.

Appellant’s App. Vol. II pp. 13, 94. The court also ordered that Lee “shall

return to Probation, with all original terms to remain in full force and effect.”

Id. at 13. [7] Lee now appeals.

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Discussion and Decision [8] Lee contends that the trial court erred in finding that he violated a condition of

his community-corrections placement and in ordering him to serve the

remainder of the three-year executed portion of his sentence in the DOC.3 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), reh’g denied. Placement in

either is a matter of 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). [9] Our standard of review of an appeal from the revocation of a community-

corrections placement mirrors that for revocation of probation. Cox, 706

N.E.2d at 551. A revocation hearing is civil in nature, and the State need only

prove an alleged violation by a preponderance of the evidence. Id. We will

3 The parties frame the issue in terms of the trial court’s revocation of Lee’s probation. However, it appears that the trial court did not revoke Lee’s probation but rather revoked his direct community-corrections placement. The trial court ordered that Lee “shall return to Probation, with all original terms to remain in full force and effect” and did not order him to serve any of the two years that it originally suspended to probation. Appellant’s App. Vol. II p. 13. Rather, the court ordered Lee to serve the remainder of the three- year executed portion of his sentence in the DOC. See id. (“[T]he following sanction is imposed: 1) Three (3) years is now ordered executed at the Indiana Department of Correction. Credit time (plus good time) of . . . .”). In any event, the commission of a new offense constituted a violation of both community corrections and probation, and our standard of review is the same for both revocations.

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consider all the evidence supporting the judgment of the trial court without

reweighing that evidence or judging the credibility of the witnesses. Id. If there

is substantial evidence of probative value to support the trial court’s conclusion

that a defendant has violated any terms of his community-corrections

placement, we will affirm the court’s decision to revoke. Id. [10] Lee first argues that the trial court erred in finding that he violated the

Continuum of Sanctions program’s rules by committing auto theft because

“[t]here was no evidence beyond the [scooter] itself linking it to the defendant.”

Appellant’s Br. p. 9. To the contrary, the trial court carefully delineated the

evidence that it found showed that Lee was one of the three males who took the

victim’s scooter on September 28 and was not merely in possession of it on

October 6. That is, the court highlighted that Lee matched the victim’s

description, even though it wasn’t a great match; Lee was in possession of the

stolen scooter one week later; and Lee’s explanation for possessing the stolen

scooter “[didn’t] hold water” as Lee couldn’t provide any details of his alleged

purchase of the scooter—“no paperwork, no title, no description, no address,

no name.”4 This evidence readily supports the court’s conclusion that Lee

violated the program’s rules by committing auto theft. As for Lee’s other

4 The trial court specifically found that Lee was one of the three males who took the scooter from the victim. See Tr. Vol. II pp. 25-26 (“[A]nd so I get to draw reasonable inferences from the whole set of facts and the reasonable inference that I am allowed to draw and I am drawing on a preponderance of the evidence standard is that you were one of the three (3), that you took the moped of the victim . . . .”). This fact alone distinguishes this case from Shelby v. State, 875 N.E.2d 381 (Ind. Ct. App. 2007), trans. denied, upon which Lee relies on appeal.

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arguments, such as that “paperwork for the purchase” of a scooter is “likely

alien to members of the lower strata of society,” Appellant’s Br. p. 9, they are

merely an invitation for us to reweigh the evidence, which we will not do. [11] Lee next argues that the trial court erred in ordering him to serve the remainder

of the three-year executed portion of his sentence in the DOC. He

acknowledges that he has an extensive juvenile and adult criminal history. See

Appellant’s App. Vol. II pp. 40-54 (PSI). However, he argues that it is

“unrealistic to believe that many defendants with backgrounds like [his] would

successfully complete [community service] without any missteps.” Appellant’s

Br. p. 12. Accordingly, Lee argues that the court should have returned him to

his placement or ordered home detention. But Lee made this very argument to

the court, see Tr. Vol. II pp. 27-28, and the court declined either option given

how soon Lee violated the terms of his community-corrections placement after

he was sentenced and how many convictions he had accumulated that year

alone. We find no abuse of the court’s discretion in ordering Lee to serve the

remainder of the three-year executed portion of his sentence in the DOC. [12] However, we remand the case to the trial court with instructions to amend the

Abstract of Judgment. The Abstract of Judgment specifies that Lee’s sentence

is three years executed with no probation time and that Lee is not to be

returned to the court for probation after serving the executed portion of his

sentence. Appellant’s App. Vol. II pp. 94-95. However, the trial court did not

order Lee to serve any of the two years that it originally suspended to

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probation, and the court’s sentencing order states that Lee “shall return to

Probation, with all original terms to remain in full force and effect.” Id. at 13. [13] Affirmed and remanded.

Barnes, J., and Pyle, J., concur.

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