Court of Appeals of Indiana | Memorandum Decision 19A-CR-1831 | June 4, 2020 Page 1 of 8

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

David W. Stone IV

Anderson, Indiana

ATTORNEY FOR APPELLEE

Tina L. Mann

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Russell Edward Allender,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

June 4, 2020

Court of Appeals Case No.

19A-CR-1831

Appeal from the Madison Circuit 

Court

The Honorable Mark K. Dudley, 

Judge

Trial Court Cause Nos.

48C06-1809-F6-2322

48C06-1808-F2-2160

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1831 | June 4, 2020 Page 2 of 8

Case Summary and Issue

[1] Russell Allender appeals the trial court’s revocation of his suspended sentence 

and participation in Madison County’s Community Corrections Continuum of 

Sanctions (“COS”) program, raising one issue for our review: whether the trial 

court abused its discretion in ordering him to serve the balance of his sentences 

in the Indiana Department of Correction (“DOC”). Concluding the trial 

court’s sanction was not an abuse of its discretion, we affirm.

Facts and Procedural History

[2] In March 2019, Allender pleaded guilty to resisting law enforcement and failure 

to return to lawful detention, both Level 6 felonies.1 The failure to return to 

lawful detention charge arose when Allender was serving a sentence in 

community corrections and failed to return to the work release program after 

having been granted temporary leave for an appointment. While absent from 

work release, Allender was arrested, giving rise to the resisting law enforcement 

charge. The plea agreement left the sentence “[o]pen to the Court with a cap of 

three (3) years on the aggregate executed portion of the sentence.” Appendix of 

Appellant, Volume II at 44. On April 5, Allender was sentenced to two years

1 The charges were filed in two separate cause numbers. Cause 48C06-1808-F2-2160 (“Cause 2160”), filed 

August 24, 2018, charged Allender with dealing in methamphetamine, a Level 2 felony, resisting law 

enforcement, a Level 6 felony, and driving while suspended, a Class A misdemeanor. The dealing and 

driving while suspended charges were dismissed as part of the plea agreement. Cause 48C06-1809-F6-2322 

(“Cause 2322”), filed September 12, 2108, charged Allender with failure to return to lawful detention. The 

plea agreement also disposed of a charge in Cause 48C06-1805-F6-1454, which does not seem to be at issue 

in this case.
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for his conviction of failure to return to lawful detention and ordered to execute 

his sentence through the COS program beginning on work release. Id. at 80. 

With respect to his conviction of resisting law enforcement, Allender was 

sentenced to two years and ordered to execute one year of his sentence through 

the COS program beginning on work release, with one year suspended to 

probation. The sentences were ordered to be served consecutively. Allender 

was placed in the work release facility on April 22, 2019 to begin his COS 

sentence.

[3] On May 13, the COS program filed a Notice of Adult Day 

Reporting/Continuum of Sanctions Termination in both cause numbers

alleging two rule violations:

a) On 05/07/2019, . . . Allender committed the new criminal 

offense of Possession of a Synthetic or Lookalike Substance, a C 

Misdemeanor.

b) On 05/10/2019, . . . Allender committed an Adult Day 

Reporting/Continuum of Sanctions/Work Release violation of 

failing to meet financial obligations. Mr. Allender has $359.83 in 

arrears owed to the Work Release Program.

Id. at 158. On May 17, the notice was amended to add an additional allegation:

c) On 05/06/2019, . . . Allender submitted a random urine drug 

screen that was sent to Witham Laboratories for confirmation 

and returned positive for Synthetic Cannabinoids.
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Id. at 159. And on June 20, the notice was amended a second time to add an 

additional allegation:

d) On 06/16/2019, . . . Allender committed the Continuum of 

Sanctions/Work Release violation of Assault on a Work Release 

participant.

Id. at 162.2

[4] At the revocation hearing, Allender admitted to the violations alleged in 

subsections a, b, and c, but denied the allegations in subsection d because he did 

not remember attacking another work release participant or possessing a 

lookalike substance on June 16 because he “was on the K2 spice” on that day. 

Transcript, Volume II at 41. After hearing evidence on allegation d, the trial 

court found that he had committed the violation alleged therein. During the 

sanctions portion of the hearing, Allender testified:

I’m tired of putting my family through this. I’m tired of putting 

myself through this. I . . . need help and . . . I’ve always tried to 

make excuses to you know hey I need to get better for my kids, I 

need to get better for this person. Now . . . going through this 

program . . . I found out the real problem and that I needed [to 

get] better for myself and that way you know everything follows, 

2 Concurrently, the probation department filed a Notice of Violation of Suspended Sentence in Cause 2160 

on May 15 alleging that Allender had taken “substantial steps toward the commission of . . . Possession of 

Synthetic or Look-A-Like Substance” on May 7, id. at 120, and amended the notice on June 17 to allege that 

Allender had taken “steps toward the commission of . . . Battery with Bodily Injury; and Possession of 

Synthetic Look-A-Like Substance” on June 16, id. at 127. In addition, on May 10, the COS program gave 

notice to the trial court that Allender was serving a twenty-eight (fourteen actual) day sanction in the 

Madison County Correctional Complex for being so intoxicated at a treatment program meeting on May 10

that he was returned to the work release facility by police. Id. at 119.
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falls in place. . . . I continued to . . . make excuse[s] to use and I 

don’t want it no more. Whatever happens today . . . I just want 

help. That’s all I’m asking.

Id. at 49-50. Essentially, Allender asked the trial court to consider referral to 

Mental Health or Drug Court, “[w]hatever will give me help.” Id. at 50. The 

trial court found that Allender had violated the conditions of his COS and 

suspended sentence and ordered him to serve the remaining portion of his 

sentences in the DOC.

Discussion and Decision

[5] Allender’s sole argument is that the trial court abused its discretion in ordering 

him to execute his full sentence in the DOC because he “has finally recognized 

that he has a substance abuse problem [and h]is request for placement in either

the local mental health court or drug court could give him the assistance he 

needs to end his substance abuse and the crimes that result from such abuse.” 

Brief of Appellant at 6. He contends that if he fails that program, then he could 

be sent to the DOC.

[6] Both community corrections programs and probation serve as alternatives to 

commitment to the DOC and are ordered at the sole discretion of the trial 

court. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). Placement in either 

program is a matter of grace and a conditional liberty that is a favor, not a right. 

Id. “Once a trial court has exercised its grace by ordering probation rather than 

incarceration, the judge should have considerable leeway in deciding how to 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1831 | June 4, 2020 Page 6 of 8

proceed.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Therefore, we 

review a decision to revoke placement in a community corrections program in 

the same way we review a decision to revoke probation. Cox, 706 N.E.2d at 

549. After a hearing and upon finding that a violation occurred, the trial court 

may revoke the defendant’s placement in community corrections and order all 

or part of the previously suspended sentence to be executed. Ind. Code § 35-38-

2-3(h)(3). We review the sanction the trial court imposes in a revocation 

proceeding for an abuse of discretion. Puckett v. State, 956 N.E.2d 1182, 1186 

(Ind. Ct. App. 2011). An abuse of discretion will only be found if the trial 

court’s decision is against the logic and effect of the facts and circumstances 

before it. Id. 

[7] Here, within one month of being given the grace of serving his sentence in the 

COS program (and within two weeks of actually beginning the program), 

Allender began violating the terms of that program by continuing to use illicit 

substances and attacking another work release participant as a result. Before 

announcing a sanction at the revocation hearing, the trial court noted that 

Allender had been before the court “more than a couple times.” Tr., Vol. II at 

52. The trial court further noted that at Allender’s sentencing hearing in April, 

Allender acknowledged “this is his last chance . . . [a]nd I agreed[.]” Id. 

Concluding “this isn’t another chance[,]” and based on Allender’s admissions 

and the court’s findings as to the alleged violations, the trial court revoked the 

community corrections placement in both cause numbers and ordered him to 

serve his executed sentences in the DOC. Id. 
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[8] The trial court had previously shown Allender leniency by committing him to 

community corrections before these two cases arose. Even after Allender 

squandered that initial opportunity by being charged in these two cases, and 

even after he received a beneficial plea agreement that dismissed a Level 2 

felony charge in favor of these two Level 6 felony convictions, the trial court 

extended Allender additional grace. Yet Allender remained recalcitrant. See

Tr., Vol. II at 52 (the trial court noting, “[Y]ou’ve been given more than a 

couple opportunities . . . to succeed in the community and you haven’t.”). The 

pre-sentence investigation report for these cases shows that as an adult, 

Allender has been arrested thirty-three times, has been convicted of eleven 

misdemeanors and six felonies (including the current offenses), and “has been 

on probation, parole, and community corrections multiple times, and has 

violated both community corrections and probation several times.” App. of 

Appellant, Volume II at 58.

[9] We appreciate that Allender has struggled with substance abuse issues, and we 

hope he is genuine when he says he is tired of that life. Moreover, we hope that 

he will take advantage of any and all treatment programs available in the DOC. 

Nonetheless, he continued using drugs during his brief time in the COS 

program and we agree with the State that Allender’s behavior “represents a 

clear disregard for the rules and opportunity of a community corrections 

sentence.” Appellee's Brief at 11. The trial court’s orders that Allender serve 

the balance of his previously suspended sentences in the DOC are supported by 
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the record and it was well within the trial court's discretion to decline to offer 

him further grace in the form of commitment to a problem solving court.

Conclusion

[10] The judgment of the trial court revoking Allender’s placement in community 

corrections and ordering him to serve the balance of his sentence in the DOC is 

affirmed.

[11] Affirmed.

May, J., and Vaidik, J., concur.