ATTORNEY FOR APPELLANT: COREY L. SCOTT Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

CALVIN HORTON, ) ) Appellant

- Defendant, ) ) vs. ) No. 49A05

- 1207

- CR

- 371 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila Carlisle, Judge

Cause No. 49G03

- 1107

- FD

- 49139

M arch 6, 2013 MEMORANDUM DECISION

– NOT FOR PUBLICATION MATHIAS, Judge

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.2 Calvin Horton (“Horton”) was sentenced to two years in the Marion County Community Corrections Work Release Program and two years on home detention after he pleaded guilty to Class C felony forgery . After finding that he had violated the conditions of placement at Duvall Residential Center, t he trial court revoked his placement in community corrections and ordered the remainder of his sentence to be
served at the Indiana Department of Correction. Horton ap peals and argues that the State failed to present sufficient evidence to support revocation of his community corrections placement.
We affirm. Facts and Procedural History
The facts most favorable to the trial court’s decision are as follow s
. On September 27, 2011 , Horton pleaded guilty to one count of Class C felony forgery and was sentenced to four years executed with the first two years through the Mari on County Community Correction s Work Release program and the remaining two years through Marion County Community Corrections Home Detention. Horton was subsequently placed a t the Duvall Residential Center ( “ DRC ” ) as part of the work release program. On January 19, 2012, Horton started working for S&S Complete Services ( “ S&S ” ) at 9201 West Washington Street under the work release program. Around the end of March 2012, Horton contacted Montgomery to inform her that he may be getting new employment. She told him that before he started his new employment he would need to give her the phone number and contact person of where he was going to work. Tr. p. 6.3 She also told him he could not start work at his new employment until she verified it. Tr. p. 6.
On March 20, 2012, S&S informed Horton that they no longer had work for him,

a nd they let him go. The following day , Horton began working fo r Shrum Manufacturing Homes ( “ Shrum ” ) , but he did not verify this employer with community corrections before beginning work

. Tr. p p . 13, 45. Shrum is owned by Larry Fi tzger a l d ( “ Fitzgerald ” ). When Horton started working for Shrum, he was working at the same West Washington Street job site and doing the same demolition work as he did for S&S

. However, Horton testified that later he worked at different job sit e s
. On May 14, 2012 , Horton contacted Montgomery and informed her he was no longer working for S&S bu t instead was working for Shrum . Montgomery then called to verify this employment but was informed by Fitzgerald that Horton had stopped working there on April 13 , 2012

. On May 16, 2012, the State filed a Notice of Commu nity Corrections Violati on and stated three allegations: (1) that Horton violated the Community Corrections Duvall
residenti al center rules and regulations, (2) that Horton violated the conditions of multiple employment passes from April 13, 2012 through May 11, 2012, and (3) that Horton failed to comply with his monetary obligation.
A bifurcated h earing was held on M ay 31, 2012 and June 28, 2012. At the conclusion of the hearing on June 28, 2012, t he trial court found that the State had proven allegations (1) and (2) and that Horton violated conditions 14, 15, and 24 of the Marion County Community Corrections Duvall Residential Contract ( “ Conditions of
Placement ” ). The trial court then revoked Hort on ’ s placement in community corrections4 and ordered the remainder of his sentence to be served at the Indiana Department of
Correction. Horton now appeals. Additional facts will be provided as necessary.
Discussion and Decision
The State did not file an appellee ’ s brief in this case. When an appellee fails to submit a brief, we apply a less stringent standard of review and may reverse if the appellant established prima facie error. Castillo

- Aguilar v. State , 962 N.E.2d 667, 6 69 (Ind. Ct. App. 2012), trans. denied

. “ Prima facie error is ‘ error at first sight, on first appearance, or on the face o f it. ’” Id . (quoting Parker v. State , 822 N.E.2d 285, 286 (Ind.
Ct. App. 2005) )

. We apply this rule not to benefit Horton , “ but to relieve us of the burden of controverting his arguments. ” See id

. “ We are not relieved, however, of our obligation to properly decide the law as applied to the facts of the case. ” Id

. Horton argues that the evidence was insufficient to support revocation of his
communit y corrections placement

. Community corrections placement is at the sole discretion of the trial judge, and “ [a] defendant is not entitled to serve a sentence in

. . . a community corrections program

. ” McQueen v. State , 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007) . On appeal, “ 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, 549 (Ind. 1999) (citing Brooks v. State , 692
N .E.2d 951, 953 (Ind. Ct. App. 1998) )

. That is, a community corrections revocation hearing is civil in nature, and the State need only “ prove the alleged violations by a preponderance of the evidence. ” McQueen , 862 N.E.2d at 1242.5 When sufficiency of the evidence support ing revocation is challenged, “ [w] e will consider all the evidence most favorable to the judgment of the trial court without reweighing that evidence or judging the credibility of witnesses. ” Id

. We will affirm revocation, “ i f there is substantial evidence of probative value to support the trial court ’ s conclusion that a defendant has violated any terms of community c orrections[.]” Id

. (internal citations omitted). Violation of a single condition of placement is sufficient to revoke placement in community corrections. See Gosha v. State , 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). Under the Marion County Community Corrections Duvall Residential Center
Contract ( “ Conditions of Placement ” ) that Horton signed and agreed to abide by on O ctober 31, 2011, condition s 14

- 15 , 24 provide : 14. You may only work for employer s and a t job sites approved in advance by you r [Community Supervision Manager ( “ CSM ” )] . Any work done for an unapproved employer, or any work done for an approved employer, but at an unapproved location is a violation of this rule. 15. Unless approved in advance by your CSM, you shall only work for an employer at a single and verifiable location. YOU MAY NOT LEAVE THE EMPLOYER ’ S LOCATION FOR ANY REASON WITHOUT ADVANCE APPROVAL. If a job requires you to travel to multiple locations such as in construction, lawn care, maintenance, etc. you will not be permitted to travel to those locatio ns unless appropriate DRC staff has approved the location of the job

- site and the time s you will be there in advance. 24. You are to return directly to the DRC as soon as the purpose of your pass is complete. This applies when works shifts are cancelled or end early. This also applies when a location you were authorized to visit is closed or a person you were to meet with is unable to see you.6 Ex . Vol., State ’ s Ex. 1 (emphasis in original). Thus, these Conditions of Placement place d responsibility on Horton to receive approval in advance for changes in employers and job locations and to return to DRC when the purpose of the work pass was complete.
I. Unapproved Employer
Horton argues that the evidence is insufficient to prove that he violated the Condition of Placement by failing to inform community corrections of his change of employers. When Horton contacted Montgomery in March and indicated he might be getting new employment, Montgomery reiterated to Horton that he could no t start new employment until after she verified the new employment. Yet, without receiving approval from community corrections , Horton stopped working at S&S on March 20,
2012 and started working for Shrum the following day

. Montgomery and Allison Shine ( “ Shine ” ) , who is also employed by Marion County Community Corrections, testified
that Horton never received approval to work at Shrum. Thus, he violated condition 14 , which requires that an employer be approved in advance and states that work done for a n

“ unapproved employer . . . is a violation of this rule. ” Horton argues that his testimony at the hearing indicated that he informed Montgomery of the change in employer the day he was let go from S&S ; however, Montgomery testified that Horton did not inform her of his change in employer until May 14, 2012 and that Shrum was never approved as an employer for Horton

. 1 Tr. p. 13

.

1 We also note on April 12, 2012, Horton filled out a form when meeting with his case manager and indicated t hat he was still employed by S&S

. See Ex. Vol., State’s Ex. 2. This is further evidence that Horton had not informed community corrections of his change of employer well beyond the date he had been let go by S&S and started working for Shrum.7 Horton ’ s argument is simply an invitation to reweigh the evidence and judge the credibility of witness, which we will not do on appeal

. Horton also argues that community corrections was implicitly put on notice
because he submitted checks from Shrum to DRC . Even assuming these checks were submitted, under condition 14, Horton had the obligation to have Shrum approved in
advance as an employer in order for him t o begin working there. For all these reasons,

w e find there was sufficient evidence from which the trial court could have concluded by a preponderance of the evidence that Horton violated the terms of his placement in community corrections by failing to obtain approval in advance to change his employment from S&S to Shrum

. II. Work Pass Violation
Alt hough Horton ’ s violation of a single condition of placement is enough to revoke probation, t he State also pr esented additional evidence at the hearing that Horton
violat ed the Conditions of Placement by leaving or remaining out on work passes when he was not working

. Even if Shrum had been approved as an employer, both Fitzgerald and Montgomery testified that after April 13, 2012 2 Horton stopp ed working for Shrum

. However, Horton continue d to leave “ Duvall Residential every single day from April 13, 2012, to May 13, 2012 ” for a minimum of 12 hours at a time under the presumption he was reporting to work. Tr. p. 44

. Thus, the re was sufficient evidence in the record for

2 Montgomery testified that Fitzgerald had informed her Horton’s employment ended on A pril 13, 2012; however, at the hearing , Fitzgerald testified that Horton’s employment ended on April 2, 2012. Despite the inconsistency in dates, both agree that after April 13, 2012, Horton was no longer employe d by Shrum.8 the trial court to conclude that Horton also violated his placement in community corrections by failing to return to DRC when the purpose of his work pass was complete.
Horton argues that he was still employed by Shrum from April 13 to M ay 13, 2012 and that Fitzgerald ’ s testimony , in which he denied that Horton continued to work for
him during this time , was false and was motivated by Fitzgerald ’ s financial difficulties

. As w ith his claim concerning his change of employment without advance approval , this is

an invitation to reweigh the evidence and judge the credibility of the witnesses on appeal, which we will not do on appeal.
III. Unapproved Job Location s Lastly , Horton ’ s own testimony indicated that he also violated the condition s of his placement by working at unapproved job locations . Under the conditions of his placement , Horton was not allowed to leave the employer ’ s single and verifiable location without advanced ap pr oval. While Horton testified that initially when he was working at Shrum he was working at the same West Washington Street job site as when employed with S&S, he also testified that he worked for Shrum at an off

- site job over off I

- 70 and a painting and tiling job on the “ south side of town

. ” Tr. p p . 55

- 56. Thus, there was
sufficient evidence from which the trial court could conclude that Horton also violated
these conditions of his placement in community corrections by working at unapproved
locations

. Conclusion Placement in a community corrections program “ is a ‘ matter of grace ’ and a

‘ conditional liberty that is a favor, not a right. ’” McQueen , 862 N.E.2d at 1242 (quoting9 Cox , 706 N.E.2d at 549)

. Here, Horton abused the grace that was afforded to him. We find there was sufficient evidence for the trial court to conclude by a preponderance of
the evidence that Horton failed to seek advance approval when h e started working for a new employer , for working at d ifferent , unapproved job locations and that he left on work passes when he was no longer employed by an approved employer. The State proved multiple violations of Horton’s placement conditions , and because a violation of a single
condition of a community corrections placement is su fficient to support revo cation, we need not addre ss Horton ’ s remaining argument s
. T he evidence was sufficient to support
revocation of Horton ’ s c ommunity corrections placement.
Affirmed.
K I R S C H , J

. , a n d C R O N E , J

. , c o n c u r
.