MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 29 2016, 9:28 am 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 ATTORNEYS FOR APPELLEE David W. Stone, IV Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Cortez Laquez McDonald, February 29, 2016 Appellant-Defendant, Court of Appeals Case No. 48A04-1507-CR-881 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Angela Warner Appellee-Plaintiff Sims, Judge Trial Court Cause No. 48C01-1207-FD-1227
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016 Page 1 of 7 Case Summary [1] Cortez Laquez McDonald appeals the trial court’s revocation of his community
corrections placement at the Continuum of Sanctions (“COS”). McDonald
contends that there was insufficient evidence to support the trial court’s finding
that he violated the terms of his community corrections program and that the
trial court abused its discretion in revoking his community corrections
placement. Finding the evidence sufficient and no abuse of discretion, we
affirm.
Facts and Procedural History [2] In April 2013, McDonald pled guilty to class A misdemeanor possession of
marijuana. The trial court sentenced McDonald to twelve months in the COS
day reporting program, to be served consecutive to his sentence in a different
case. Placement in the COS program required McDonald to adhere to the
following conditions: complete the HIRE program, pay certain fees, submit to
urine drug screens, and obey all laws of the United States and Indiana Tr. at 41,
43.
[3] In December 2014, McDonald began living with his girlfriend Laney
Hendricks. In March 2015, McDonald became upset because Hendricks was
not home when he returned around one in the morning. The couple began
arguing over the phone and through text messages. When Hendricks arrived
home about thirty minutes later, the argument became physical. McDonald
slapped Hendricks with his open hand, grabbed her shirt, and pushed her
Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016 Page 2 of 7 around the apartment several times, causing scratches on her chest. Id. at 19-
22. When Hendricks wanted to leave the apartment, McDonald took her
phone and keys and stood in front of the door, prohibiting her from leaving.
Several hours later, McDonald gave Hendricks her things and she left. Later,
Hendricks went to the Anderson Police Department and gave a statement
alleging that McDonald threatened her with bodily harm while armed with a
gun. Officer Joe Garrett took Hendricks’s report and stated that there were
visible scratches on her neck and chest area. Id. at 37. In April 2015,
McDonald was arrested and charged with criminal confinement, intimidation,
pointing a firearm, and domestic battery.
[4] In April 2015, the COS director filed a notice of termination alleging that
McDonald had violated the terms of the COS program by failing to complete
the HIRE program, failing to pay $53 in fees, failing three drug screens by
testing positive for marijuana, and committing the aforementioned new
criminal offenses. The trial court held evidentiary hearings on May 26 and
June 29, 2015. At the first hearing, McDonald appeared with counsel and
admitted that he had failed to complete the HIRE program, was not current
with his fees, and had used marijuana once during the relevant time. Id. at 5-6.
At the second hearing, Hendricks admitted that a firearm had not been involved
in the incident and that she had lied to get McDonald a harsher punishment.
Id. at 24-25. McDonald’s attorney conceded that McDonald had violated the
terms of his community corrections program as to the HIRE program, fees, and
Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016 Page 3 of 7 drug screens, and stated that the only violation at issue was the new criminal
offenses. Id. at 43.
[5] In light of the testimony given during the evidentiary hearings, the trial court
found that McDonald had violated the terms of his community corrections
placement by failing to complete the HIRE program, failing to pay fees, testing
positive for marijuana three times, and committing criminal confinement and
domestic battery against Hendricks. The trial court revoked McDonald’s COS
placement and ordered him to serve 359 days in the county jail. This appeal
ensued.
Discussion and Decision
Section 1 – Sufficient evidence supports the trial court’s finding that McDonald violated the terms of his community corrections program. [6] McDonald contends that the evidence is insufficient to support the trial court’s
finding that he violated the terms of his community corrections program. Both
probation and community corrections programs serve as alternatives to
commitment to the Department of Correction, and both are made at the sole
discretion of the trial court. Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App.
2014), trans. denied. A revocation of community corrections placement hearing
is civil in nature, and the State need only prove the alleged violations by a
preponderance of the evidence. Id. We consider only the evidence most
favorable to the trial court’s judgment and do not reweigh the evidence or judge
the credibility of the witnesses. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016 Page 4 of 7 [7] McDonald argues that the trial court’s findings regarding the HIRE program,
fees, and drug screens are not supported by his admission. Further, he argues
that the court’s reliance on Hendricks’s testimony is improper and therefore the
State did not prove by a preponderance of the evidence that he violated the
terms of his community corrections program. We disagree.
[8] As indicated above, McDonald’s counsel admitted that McDonald violated the
terms of his COS program by failing to complete the HIRE program, failing to
pay his program fees, and failing three urine drug screens; the only violation at
issue was the commission of the new criminal offenses. “A clear and
unequivocal admission of fact by an attorney is a judicial admission which is
binding on the client.” Parker v. State, 676 N.E.2d 1083, 1086 (Ind. Ct. App.
1997). Consequently, McDonald may not challenge the admitted violations on
appeal. 1
[9] McDonald argues that the trial court’s reliance on Hendricks’s testimony for his
offenses of criminal confinement and domestic battery is improper because she
lied about whether a gun was involved in the incident and therefore cannot be
deemed credible. This is merely a request for us to reweigh the evidence and
1 Notwithstanding, McDonald’s argument lacks merit.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 29 2016, 9:28 am 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 ATTORNEYS FOR APPELLEE David W. Stone, IV Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Cortez Laquez McDonald, February 29, 2016 Appellant-Defendant, Court of Appeals Case No. 48A04-1507-CR-881 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Angela Warner Appellee-Plaintiff Sims, Judge Trial Court Cause No. 48C01-1207-FD-1227
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016 Page 1 of 7 Case Summary [1] Cortez Laquez McDonald appeals the trial court’s revocation of his community
corrections placement at the Continuum of Sanctions (“COS”). McDonald
contends that there was insufficient evidence to support the trial court’s finding
that he violated the terms of his community corrections program and that the
trial court abused its discretion in revoking his community corrections
placement. Finding the evidence sufficient and no abuse of discretion, we
affirm.
Facts and Procedural History [2] In April 2013, McDonald pled guilty to class A misdemeanor possession of
marijuana. The trial court sentenced McDonald to twelve months in the COS
day reporting program, to be served consecutive to his sentence in a different
case. Placement in the COS program required McDonald to adhere to the
following conditions: complete the HIRE program, pay certain fees, submit to
urine drug screens, and obey all laws of the United States and Indiana Tr. at 41,
43.
[3] In December 2014, McDonald began living with his girlfriend Laney
Hendricks. In March 2015, McDonald became upset because Hendricks was
not home when he returned around one in the morning. The couple began
arguing over the phone and through text messages. When Hendricks arrived
home about thirty minutes later, the argument became physical. McDonald
slapped Hendricks with his open hand, grabbed her shirt, and pushed her
Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016 Page 2 of 7 around the apartment several times, causing scratches on her chest. Id. at 19-
22. When Hendricks wanted to leave the apartment, McDonald took her
phone and keys and stood in front of the door, prohibiting her from leaving.
Several hours later, McDonald gave Hendricks her things and she left. Later,
Hendricks went to the Anderson Police Department and gave a statement
alleging that McDonald threatened her with bodily harm while armed with a
gun. Officer Joe Garrett took Hendricks’s report and stated that there were
visible scratches on her neck and chest area. Id. at 37. In April 2015,
McDonald was arrested and charged with criminal confinement, intimidation,
pointing a firearm, and domestic battery.
[4] In April 2015, the COS director filed a notice of termination alleging that
McDonald had violated the terms of the COS program by failing to complete
the HIRE program, failing to pay $53 in fees, failing three drug screens by
testing positive for marijuana, and committing the aforementioned new
criminal offenses. The trial court held evidentiary hearings on May 26 and
June 29, 2015. At the first hearing, McDonald appeared with counsel and
admitted that he had failed to complete the HIRE program, was not current
with his fees, and had used marijuana once during the relevant time. Id. at 5-6.
At the second hearing, Hendricks admitted that a firearm had not been involved
in the incident and that she had lied to get McDonald a harsher punishment.
Id. at 24-25. McDonald’s attorney conceded that McDonald had violated the
terms of his community corrections program as to the HIRE program, fees, and
Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016 Page 3 of 7 drug screens, and stated that the only violation at issue was the new criminal
offenses. Id. at 43.
[5] In light of the testimony given during the evidentiary hearings, the trial court
found that McDonald had violated the terms of his community corrections
placement by failing to complete the HIRE program, failing to pay fees, testing
positive for marijuana three times, and committing criminal confinement and
domestic battery against Hendricks. The trial court revoked McDonald’s COS
placement and ordered him to serve 359 days in the county jail. This appeal
ensued.
Discussion and Decision
Section 1 – Sufficient evidence supports the trial court’s finding that McDonald violated the terms of his community corrections program. [6] McDonald contends that the evidence is insufficient to support the trial court’s
finding that he violated the terms of his community corrections program. Both
probation and community corrections programs serve as alternatives to
commitment to the Department of Correction, and both are made at the sole
discretion of the trial court. Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App.
2014), trans. denied. A revocation of community corrections placement hearing
is civil in nature, and the State need only prove the alleged violations by a
preponderance of the evidence. Id. We consider only the evidence most
favorable to the trial court’s judgment and do not reweigh the evidence or judge
the credibility of the witnesses. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016 Page 4 of 7 [7] McDonald argues that the trial court’s findings regarding the HIRE program,
fees, and drug screens are not supported by his admission. Further, he argues
that the court’s reliance on Hendricks’s testimony is improper and therefore the
State did not prove by a preponderance of the evidence that he violated the
terms of his community corrections program. We disagree.
[8] As indicated above, McDonald’s counsel admitted that McDonald violated the
terms of his COS program by failing to complete the HIRE program, failing to
pay his program fees, and failing three urine drug screens; the only violation at
issue was the commission of the new criminal offenses. “A clear and
unequivocal admission of fact by an attorney is a judicial admission which is
binding on the client.” Parker v. State, 676 N.E.2d 1083, 1086 (Ind. Ct. App.
1997). Consequently, McDonald may not challenge the admitted violations on
appeal. 1
[9] McDonald argues that the trial court’s reliance on Hendricks’s testimony for his
offenses of criminal confinement and domestic battery is improper because she
lied about whether a gun was involved in the incident and therefore cannot be
deemed credible. This is merely a request for us to reweigh the evidence and
1 Notwithstanding, McDonald’s argument lacks merit. He contends that he was unable to complete the HIRE program because he was incarcerated; we fail to see how being jailed for new criminal offenses is a valid excuse for not complying with a community corrections requirement. Next, he argues that the State had the burden to prove that he could pay his fees, caselaw tells us otherwise. “[I]t is the defendant probationer’s burden … to show facts related to an inability to pay.” Runyon v. State, 939 N.E.2d 613, 617 (Ind. 2010). Finally, McDonald asserts that he used marijuana once and not three times, as the trial court found. An admission to a single violation is sufficient to revoke community corrections placement. Treece, 10 N.E.3d at 60.
Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016 Page 5 of 7 judge Hendricks’s credibility, which we will not do. Woods, 892 N.E.2d at 639.
The trial court did not find that McDonald pointed a firearm at Hendricks, and
Officer Garrett testified that Hendricks had visible scratches on her neck and
chest. 2 We conclude that the State established by a preponderance of the
evidence that McDonald violated the terms of his COS program as found by the
trial court.
Section 2 - The trial court did not abuse its discretion in revoking McDonald’s community corrections placement. [10] McDonald also contends that the trial court abused its discretion in revoking
his community corrections placement. A defendant is not entitled to serve a
sentence in either probation or a community corrections program. Treece, 10
N.E.3d at 56. Placement in either is a matter of grace and a conditional liberty
that is a favor, not a right. Id. The standard of review of an appeal from the
revocation of a community corrections placement mirrors that for revocation of
probation. Id. First, the court must make a factual determination that a
violation of a condition actually occurred. Vernon v. State, 903 N.E.2d 533, 537
(Ind. Ct. App. 2009), trans. denied. If a violation is proven, then the trial court
must determine if the violation warrants a revocation. Id. Violation of a single
condition of placement is sufficient to revoke placement. Treece, 10 N.E.3d at
60.
2 Consequently, we reject McDonald’s invitation to apply the incredible dubiosity doctrine.
Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016 Page 6 of 7 [11] A trial court’s sentencing decision to revoke a defendant’s placement in
community corrections is reviewed for an abuse of discretion. 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. State v. Hunter, 898
N.E.2d 455, 458 (Ind. Ct. App. 2008). Indiana Code Section 35-38-2.6-5 (2014)
states that if a person violates the terms of the placement, the court may, after a
hearing, do any of the following: change the terms of the placement, continue
the placement, or revoke the placement and commit the person to the
Department of Correction for the remainder of the person’s sentence.
[12] McDonald’s argument that the trial court abused its discretion in revoking his
community corrections placement is premised upon his claim that one or more
of the trial court’s findings of violations were improper, which we have already
decided against him. Moreover, his admission to violating three conditions of
the community corrections program is alone sufficient to warrant revocation.
Therefore, we find no abuse of discretion and affirm the trial court’s revocation
of his community corrections placement.
[13] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016 Page 7 of 7