Kenneth Aikman 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 Jan 03 2019, 8:48 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ann M. Sutton Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kenneth Aikman, January 3, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1653 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff Judge Trial Court Cause No. 49G04-1704-F5-13287

Altice, Judge.

Case Summary Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019 Page 1 of 7 [1] Following a contested hearing, the trial court revoked Kenneth Aikman’s

placement in community corrections and his probation, and it ordered Aikman

to execute his six-year sentence in the Indiana Department of Correction (the

DOC). On appeal, Aikman argues that the trial court should not have held a

contested hearing and that Aikman should have been given the benefit of his

admission to the violation, receiving only five years in the DOC. [2] We affirm.

Discussion & Decision [3] In February 2018, Aikman pled guilty to three counts of Level 5 felony battery

resulting in bodily injury to a public safety official. On February 20, 2018, the

trial court sentenced Aikman to concurrent sentences of six years with two

years suspended to probation. His four-year executed term was to be served in

community corrections. Accordingly, Aikman was placed at the Duvall

Residential Center (Duvall). [4] On Saturday, May 5, 2018, William Beck, a community corrections officer,

observed Aikman exchange something with another resident at Duvall. Beck

came down from the catwalk and recovered a “brown wet substance rolled in

paper” from Aikman’s pocket. Transcript at 38. Believing that the substance

was tobacco, Beck simply took it from Aikman. Aikman’s behavior was

“normal” at the time. Id. at 39.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019 Page 2 of 7 [5] Later that same day, around 3:15 p.m., Duvall’s dayshift supervisor Michael

McGrath received a notification that “someone might be under the influence.”

Id. at 35. On his way through the center, McGrath encountered Aikman, who

was unable to keep his balance and “screaming saying he was on fire.” Id.

Aikman was taken by ambulance to the hospital. [6] Aikman returned from the hospital at approximately 9:30 that evening and

spoke with Duvall’s manager Shannon Bowling at the doorstep. Aikman told

her that he had “overdosed on some stuff that he got from the Hispanics in A

dorm.” Id. at 31. Aikman then went into the facility and was searched by the

nightshift supervisor, who found a brown substance wrapped in white paper in

Aikman’s pocket. Bowling asked Aikman what the substance was, and he

responded, “the stuff that I was smoking earlier that sent me to the hospital.”

Id. Aikman indicated that he forgot it was in his pocket. The substance was

believed to be fentanyl.1 [7] On May 9, 2018, the State filed a notice of community corrections violation

with the trial court. The notice alleged that Aikman had violated Duvall’s rules

regarding the possession or use of a controlled substance and the possession of

dangerous/deadly contraband. Additionally, the State filed a notice of

probation violation the following week.

1 Two employees that came in direct contact with the substance were taken to the hospital due to illness, and the facility was evacuated of all residents. The fire department, police, and board of health all responded to the scene. The facility was cleaned with bleach to make sure it was safe for the return of the residents.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019 Page 3 of 7 [8] On May 18, 2018, the trial court held a hearing regarding the alleged violations.

Aikman, who was represented by counsel, indicated that he wanted to admit

the violations but with an explanation. His subsequent “admission” ended up

being that he picked up an unknown substance from the floor for the sole

purpose of turning it over to a guard but then he became ill and forgot that it

was in his pocket. Based on Aikman’s version of events, the trial court

determined, with the agreement of Aikman’s counsel, that a contested hearing

would need to be held. [9] On the morning of the contested hearing on June 22, 2018, the trial court

inquired as to whether Aikman wanted to admit the violations. The court

informed Aikman regarding the preponderance-of-the-evidence standard and

warned that if the State brings in all its evidence, “it may be difficult for you to

maintain a good argument.” Id. at 11. The court advised him to talk with his

attorney about “anything else that might be available” because otherwise he

could get “full backup” time. Id. at 11-12. Aikman then gave a long account of

his version of events, sticking with his original story but admitting that he knew

what he picked up was some type of drug. The trial court responded that

Aikman’s statement constituted an admission to knowingly possessing the drug.

When the trial court indicated that he was facing six years of backup time,

Aikman seemed surprised. The court told Aikman to talk with his attorney.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019 Page 4 of 7 [10] When the hearing resumed, the parties began to address the appropriate

sanction. The court indicated that Aikman could not return to Duvall.2 As the

court went through Aikman’s criminal record, his counsel stated that Aikman

still wanted a contested hearing. The court swore in the witnesses and began

the contested hearing. The State called its first witness, but Aikman interrupted

and began asking questions about the possible sanction. A colloquy ensued

between Aikman, counsel, and the court regarding the time remaining on the

sentence. The court determined that 876 days remained on the executed

portion of the sentence and then two years of probation, which could be

revoked. Aikman responded that he would like to think about it because “that’s

a long time…for, you know, trying to help the people keep that stuff out of their

facility.” Id. at 23. Aikman’s counsel then verified that the court was amenable

to revoking only one of the two years of probation (along with the executed

sentence) if Aikman admitted the violations. The court and counsel clarified

that this would mean about thirty months of actual time served in the DOC.

Aikman asked if he “could have leniency” and the court responded that this

was lenient. Id. at 28. He then agreed to admit the violations but in the next

breath asked if he could think about this for a month. The court responded,

“Oh, for the love of Pete, no.… You either want the agreement or you don’t

want the agreement and I’m going to listen to the evidence and – and I’ll make

2 The court noted that Aikman had been improperly placed there in the beginning due to a prior sex offense.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019 Page 5 of 7

up my own mind then on what to do.” Id. at 29. Aikman responded, “Yeah”,

and the court proceeded with a contested hearing. Id. [11] The State presented several witnesses, and Aikman testified in his own defense,

maintaining his version of events that conflicted with the State’s evidence.

Additionally, on cross-examination, Aikman acknowledged that he had been

sanctioned twice before at Duvall for possession or use of a controlled

substance. At the conclusion of the hearing, the trial court found Aikman in

violation, revoked his placement in community corrections and his probation,

and ordered execution of the six-year sentence at the DOC.

Discussion & Decision [12] On appeal, Aikman argues that he should have received the benefit of his

admission, and the contested hearing should not have occurred. In other

words, he contends that the trial court should have imposed the five-year

sentence agreed by the parties because he admitted to the violations. [13] It is well established that probation is a matter of grace left to trial court

discretion, not a right to which a criminal defendant is entitled. 3 Prewitt v. State,

878 N.E.2d 184, 188 (Ind. 2007). Once a trial court has exercised its grace by

ordering probation rather than incarceration, the trial court has considerable

3 The same is true with respect to placement in a community corrections program. See Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009) (“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.”).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019 Page 6 of 7

leeway in deciding how to proceed. Id. Accordingly, a trial court’s sentencing

decisions for probation violations are reviewable for an abuse of discretion and

reversible only where the decision is clearly against the logic and effect of the

facts and circumstances. Id. [14] Aikman’s sole argument is that he tried to admit the violations without the need

of a contested hearing. The record, however, establishes the illusory nature of

Aikman’s admission and that he vacillated between wanting and not wanting a

contested hearing. We agree with Aikman’s assertion on appeal that “it really

made no sense for him to proceed to the contested hearing.” Appellant’s Brief at

10. But Aikman had ample opportunity to forgo a contested hearing and accept

the five-year offer on the table. Aikman balked one too many times and ended

up with a contested hearing at which the State presented damning evidence

against him and rebutted his self-serving story. Based on the evidence

presented, the trial court ordered Aikman to serve his six-year sentence in

prison. The trial court acted within its discretion, and Aikman has only himself

to blame for not receiving the lesser term. [15] Judgment affirmed.

Najam, J. and Pyle, J., concur.

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