Court of Appeals of Indiana | Memorandum Decision 20A

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### 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.

A TTORNEY FOR A PPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana
Tina L. Mann Deputy Attorney General Indianapolis, Indiana



### IN THE 

# COURT OF APPEALS OF INDIANA

Bradley L. Stout, Jr. , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. August 27, 2020 Court of Appeals Ca se No. 20A

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- 954 Appeal from the Vigo Superior Court The Honorable John T. Roach, Judge Trial Court Cause No. 84D01

- 1305

- FC

- 1574

Najam , Judge
.Court of Appeals of Indiana | Memorandum Decision 20A

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- 954 | August 27, 2020 Page 2 of 7 

### Statement of the Case

[1] Bradley L. Stout, Jr. appeals his sentence following the trial court’s revocation of his placement in a work release program . Stout presents a single issue for our review, namely, whether the trial court abused its discretion when it ordered him to serve the balance of his previously suspended sentence in the Vigo County Jail.

[2] We affirm. 

### Facts and Procedural History

[3] On May 8, 2013, Stout was placed in a work release program as a pretrial placement for a prior offense. However, Stout fled from that plac ement o n May 27

. Accordingly, the State charged him with escape, as a Class C felony

. Thereafter, Stout entered into a plea agreement in which he agreed to plead guilty to failure to return to lawful detention, as a Class D felony

. On August 12, t he cou rt accepted Stout’s guilty plea and sentenced him to three years suspended to probation

. 1

[4] Just over one month later, on September 20, the State filed a notice of probation violation in which it alleged that Stout had failed a drug test. The State later amended that notice to include allegations that Stout had failed another drug

1 In the same plea agreement, Stout pleaded guilty to conversion, as a Class A misdemeanor, for the prior offense. The court sentenced Stout to one year suspended to probation for that offense, which sentence wa s to run consecutive to his sentence for fai lure to return to lawful detention.Court of Appeals of Indiana | Memorandum Decision 20A

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- 954 | August 27, 2020 Page 3 of 7 test , failed to enroll in a drug program, failed to submit to drug screen s, and committed invasion of privacy . Stout admitted to the allegations, and the court returned him to p robation. On November 10, 2014, the State filed another notice of probation violation and alleged that Stout had tested positive for illegal drugs on several occasions, failed to report to work, and failed to engage in a drug program. Stout again admitte d to the violations, and the court ordered him to participate in a jail linkage program. Stout successfully completed that program, and the co urt returned him to probation.

[5] Thereafter, o n March 14, 2016, the State filed another noti ce of probation violation. In that notice, the State alleged that Stout had violated the terms of his probation when he committed theft and possessio n of a controlled substance

. In a plea agreement, Stout admitted t hat he had violated the terms of his probatio n . The court returned Stout to probation.

[6] Then, in 2017, the State alleged that Stout had again violated the terms of his probation when he missed thirteen drug screens, failed drug tests, and failed to report to probation. On November 20, Stout failed to appear for a hearing. As a result, the trial court issued an arrest warrant, which remained active for two
years until it was served on September 26, 2019 . The court then held a fact

finding hearing on the State’s petition on October 28. Following th e hearing, the court found that Stout had violated the terms of his probation and ordered him to serve the remainder of his sentence on work release.Court of Appeals of Indiana | Memorandum Decision 20A

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- 954 | August 27, 2020 Page 4 of 7 [7] O n March 12, 2020, the State filed a petition to revoke Stout’s placement on work release. In that petition, the State alleged that Stout had committed thirteen violations . Specifically, the State alleged that Stout had : tested positive for drugs on three occasions ; been in unauthorized areas; possessed a lighter on multiple oc casions ; been disrespectful to a correction s officer; failed to participate in a mandatory cleaning; possessed a cigarette; possess ed a “green leafy synthetic lookalike substance”; and failed to submit to a drug test

. Appellant’s App. Vol. II at 108.

[8] Following a hearing, the court found that Stout had violated the terms of his placement . The court then stated that it did not “have a lot of choices here. I don’t have work release available

. . . . I don’t have in

- home detention available. I don’t have DOC available. You are doing an executed sentence. There’s no probation on this. I’m not going to return you to probation.” Tr. at 52. Accordingly, the court ordered Stout to serve the balance of his previously suspended sentence in the Vigo County Jail. This appeal ensued.


### Discussion and Decision

[9] Stout appeals the trial court’s order that he serve the balance of his previously suspended sentence. We begin by noting that placemen t in community corrections is a “matter of grace” and a “conditional liberty that is a favor, not a right.” Toomey v. State , 887 N.E.2d 122, 124 (Ind. Ct. App. 2008). Further, “[b]oth probation and community corrections programs serve as alternatives to commitment in the DOC and bot h are made at the sole discretion of the trial
court.” Holmes v. State , 923 N.E.2d 479, 482 (Ind. Ct. App. 2010).Court of Appeals of Indiana | Memorandum Decision 20A

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- 954 | August 27, 2020 Page 5 of 7 [10] This Court treats a petition to revoke placement in a community corrections program the same as a petition to revoke probation. See Cox v. State , 706 N.E.2d 547, 549 (Ind. 1999). Upon finding that a defendant has violated a condition of his placement , the trial court may “ revoke the placement and commit the person to the county jail or department of correction for the remainder of the perso n’s sentence.” Ind. Code § 35

- 38.2.6

- 5( a)(4) (2020). We review the trial court’s sentencing decision following the revocation of probation for an abuse of discretion. Cox v. State , 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). An abuse of discretion occurs “only where the trial court’s decision is clearly against the logic and effect of the facts and circumstances” before the court. Robinson v. State , 91 N.E.3d 574, 577 (Ind. 2018) (per curiam).

[11] On appeal, Stout does not dispute that he repeatedly violat ed the conditions of his probation and work release program. Instead , he asserts that the trial court abused its discretion when it ordered him to serve the balance of his previously suspended sentence because his placement was only revoked due to “ severa l technical violations,” and because he was not taking his “ mental health medication ” at the time he entered the work release program. Appellant’s App.
at 9. He further assert s that the mother of his children had become unemployed “as a result of the shuttering of businesses during the pandemic” and that he needed to work to support their children

. Id

. at 9

- 10. In essence, h e maintain s that , “[g]iven the nonviolent and minor nature” of his original offense and subsequent violations, “and considering the risk inmates face [] from theCourt of Appeals of Indiana | Memorandum Decision 20A

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- 954 | August 27, 2020 Page 6 of 7 coronavirus while incarcerated,” the court should have placed him back on probation. Id . at 10.

[12] But the trial court’s judgment is supported by substant ial evidence and was within the court’s discretion. From the time the court placed Stout on probation, he repeatedly violated the terms of his placement . Indeed, the State filed numerous notices of probation violation s between September 20, 2013 , which w as just over one month after he was initially placed on probat ion , and
201 6 for allegations that included failed drug tests, missed drug tests, failure to engage in a drug treatment program, and the commission of new crimes. But each time, the court showed lenienc y and returned him to probation.

[13] Then, in 2017, the State filed another notice of probation violation after Stout missed drug screens , failed d rug screens, and failed to report to probation. Stout failed to appear for a hearing, and the court issued an arrest warrant, which remained active for two years

. Once Stout finally appeared before the
court, t he court again found that he had violated th e terms of his probation and placed him in a work release program

. L ess than six months later, Stout committed thirteen more acts that each constituted a violation of his placement

. In other words, since the case began in 2013, the trial court repeated ly show ed Stout lenienc y and gave him opportunities to avoid incarceration , but Stout continued to violate the terms of his placement.

[14] We acknowledge that the coronavirus has caused a global pandemic and has resulted in millions of people , including the mother of Stout’s children, losingCourt of Appeals of Indiana | Memorandum Decision 20A

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- 954 | August 27, 2020 Page 7 of 7 their jobs

. However, that does not change the fact that Stout had numerous opportunities to avoid incarceration and remain working to support his family

. I nstead, Stout chose to repeatedly violate the term s of his placement. T he court’s order that he serve the balance of his previously suspended sentence is supported by the record and wa s well within the trial court’s discretion. We affirm the court’s judgment.

[15] Affirmed.

Bradford, C.J., and Mathias, J., concur

.