Damon L. Rice 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 Jun 01 2020, 8:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Brandon E. Murphy J.T. Whitehead Cannon Bruns & Murphy LLC Deputy Attorney General Muncie, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Damon L. Rice, June 1, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2748 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Thomas A. Appellee-Plaintiff. Cannon, Jr., Judge Trial Court Cause No. 18C05-1708-F5-115

Shepard, Senior Judge. [1] Damon Rice appeals the trial court’s revocation of his home detention

placement and imposition of his entire previously suspended sentence. We

affirm.

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Facts and Procedural History [2] In August 2017, the State charged Rice with aiding, inducing, or causing 1 dealing in methamphetamine, a Level 5 felony. In a plea agreement that

resolved both this charge and charges in four other causes, Rice pleaded to the

Level 5 felony. On July 9, 2019, the court sentenced him to three years,

suspended to a direct commitment to electronic home detention, and ordered

him to arrange for monitoring within thirty days and to report daily to

community corrections in the meantime. [3] Shortly thereafter on August 22, the State petitioned to revoke Rice’s home

detention placement for his alleged failure to comply with its terms. After a

hearing, the court revoked Rice’s placement and imposed his entire previously

suspended sentence.

Issues [4] Rice presents two issues on appeal:

I. Whether the State presented sufficient evidence to support the revocation of Rice’s placement in home detention; and

II. Whether the court abused its discretion by imposing the entirety of Rice’s suspended sentence.

1 Ind. Code §§ 35-41-2-4 (1977), 35-48-4-1.1 (2017).

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Discussion and Decision I. Sufficiency of the Evidence [5] Rice challenges the sufficiency of the evidence supporting revocation of his

placement, contending that the State’s evidence showed mere technical

violations. 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 (Ind. 1999). The State need

prove an alleged violation only by a preponderance, and we will consider the

evidence supporting the judgment without reweighing it or judging the

credibility of the witnesses. Monroe v. State, 899 N.E.2d 688 (Ind. Ct. App.

2009). If there is substantial evidence of probative value to support the

judgment, we will affirm the court’s decision to revoke. Id. [6] The State alleged that Rice violated his home detention by (1) failing to report

daily, (2) failing to be placed on home detention, and (3) being charged with

new offenses. At the fact-finding hearing, the supervisor of home detention

testified in support of the State’s allegations. Rice, himself, admitted that he

had not reported daily while awaiting placement, was never placed on home

detention, and was charged with three new offenses. The court determined that

Rice had violated the terms of his home detention as set forth in the first two of

the State’s three allegations, making no reference to the third. [7] Contrary to Rice’s assertions, his failure to perform over and over again the

very things the court required him to do to keep himself out of prison is not a

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technical violation. Cf. Johnson v. State, 62 N.E.3d 1224 (Ind. Ct. App. 2016) (in

attempting to comply with rules of his probation, probationer committed minor,

technical violations by leaving confines of apartment but not leaving apartment

building and leaving several hours early for authorized errand). The State’s

evidence of Rice’s violations was sufficient to support the court’s revocation.

II. Sentence [8] Next, Rice asserts the court abused its discretion when, in revoking his home

detention, it ordered him to serve the entirety of his suspended three-year

sentence. [9] Like probation, Rice’s home detention placement, is a matter of grace, not a

right to which he is entitled. See Sanders v. State, 825 N.E.2d 952 (Ind. Ct. App.

2005), trans. denied. Once a trial court has exercised its grace by ordering home

detention, the judge should have considerable leeway in deciding how to

proceed. See Prewitt v. State, 878 N.E.2d 184 (Ind. 2007). Accordingly, a trial

court’s sentencing decisions for home detention violations are reviewed for

abuse of discretion. See Wilkerson v. State, 918 N.E.2d 458 (Ind. Ct. App. 2009).

An abuse of discretion occurs when the decision is clearly against the logic and

effect of the facts and circumstances. Prewitt, 878 N.E.2d 184. [10] The court extended considerable leniency to Rice by allowing him to be placed

on home detention in the first place. The plea agreement that resolved this

charge also resolved four other causes that involved felony identity deception

and possession of methamphetamine, and misdemeanor possession of

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marijuana and possession of paraphernalia; misdemeanor possession of

paraphernalia and resisting law enforcement, and felony possession of meth;

felony resisting and possession of meth, and misdemeanor reckless driving; and

felony criminal recklessness and pointing a firearm. In two of these causes,

Rice had violated terms of his pretrial home detention and committed new

offenses while out on bond. [11] When sentencing Rice to the balance of his previously suspended sentence, the

court stated, “your actions don’t give me reason to [ ] believe or be convinced

that you are ever going to follow any rules that [ ] don’t suit your own agenda.”

Tr. Vol II, p. 26. Indeed, Rice has demonstrated his need for a more stringent

penalty by his unwillingness to accept limits on his behavior in lieu of

imprisonment. We cannot say the court’s decision that Rice serve his entire

previously suspended sentence is clearly against the logic and effect of the facts

and circumstances of this case.

Conclusion [12] We conclude the State presented sufficient evidence to support the revocation

of Rice’s placement in home detention, and the court did not abuse its

discretion by imposing the entirety of Rice’s suspended sentence. [13] Affirmed.

Najam, J., and Riley, J., concur.

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