Court of Appeals of Indiana | Memorandum Decision 18A-CR-1653 | January 3, 2019 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Ann M. Sutton

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika Prekopa Talbot

Supervising Deputy Attorney

General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Kenneth Aikman,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

January 3, 2019

Court of Appeals Case No.

18A-CR-1653

Appeal from the Marion Superior 

Court

The Honorable Lisa F. Borges, 

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 2 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. 
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[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 4 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. 
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[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 6 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 7 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.