Daniel Killin v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 29, 2016
• Docket: 49A04-1507-CR-759
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 29 2016, 9:34 am

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 Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daniel Killin, January 29, 2016 Appellant-Defendant, Court of Appeals Case No. 49A04-1507-CR-759 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Ronnie Huerta, Appellee-Plaintiff. Commissioner Trial Court Cause No. 49G19-1503-CM-10179

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-759| January 29, 2016 Page 1 of 4 Statement of the Case [1] Daniel Killin appeals the trial court’s order for Killin to serve the balance of his

sentence in the Marion County Jail after the court revoked Killin’s placement

on work release. Killin raises a single issue for our review, namely, whether the

trial court abused its discretion when it ordered him to serve the balance of his

sentence in jail. We affirm.

Facts and Procedural History [2] On March 26, 2015, Killin pleaded guilty to operating a vehicle while

intoxicated, as a Class A misdemeanor, and to possession of paraphernalia, as a

Class A misdemeanor. The trial court sentenced Killin to an aggregate term of

one year in Marion County Community Corrections on work release.

[3] On March 31, Killin’s first full day of work release from the Duvall Residential

Center (“Duvall”), Killin received an approved medical leave pass to visit

Eskenazi Hospital. Pursuant to that pass, Killin was required to return to

Duvall by 8:00 p.m. that day. But Killin did not return for sixty-seven days.

Community Corrections filed a notice of violation and, at a subsequent hearing

on June 4, Killin admitted to the violation. Despite Killin’s extensive absence,

the court allowed him to continue on work release from Duvall but warned him

that, “if you come back again, there’s nowhere else to go but the Department of

Correction.” Tr. at 11.

[4] On June 10, Killin received another short-term medical pass from Duvall.

Again, Killin failed to return in accordance with the requirements of that pass.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-759| January 29, 2016 Page 2 of 4 Community Corrections filed a second notice of violation on June 11, and

Killin was arrested on June 13. At the ensuing hearing on the notice of

violation, Killin admitted to the violation. The court then revoked Killin’s

placement on work release and ordered him to serve the balance of his sentence

in the Marion County Jail. This appeal ensued.

Discussion and Decision [5] Killin appeals the trial court’s order that he serve the balance of his sentence in

the Marion County Jail. We review the trial court’s decision to revoke

placement in a community corrections program for an abuse of discretion,

which occurs only when the decision is clearly against the logic and effect of the

facts and circumstances before the trial court. Prewitt v. State, 878 N.E.2d 184,

188 (Ind. 2007). We will consider only the evidence most favorable to the

judgment of the trial court, and we will not reweigh the evidence on appeal or

judge the credibility of witnesses. Smith v. State, 963 N.E.2d 1110, 1112 (Ind.

2012). If there is substantial evidence of probative value to support the trial

court’s conclusion that a defendant has violated any terms of his placement, we

will affirm its decision to revoke that placement. Id.

[6] Here, there is no dispute that Killin violated the terms of his placement on work

release when he twice failed to reappear at Duvall prior to the expiration of his

approved medical passes. Rather, the only issue on appeal is whether, as Killin

states in his brief, “the trial court . . . g[a]ve enough weight to [Killin’s]

mitigating circumstances” when it ordered him to serve the balance of his

sentence in the Marion County Jail. Appellant’s Br. at 8. In particular, Killin Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-759| January 29, 2016 Page 3 of 4 asserts that his first failure to return was justified by extreme pain due to a prior

car accident, and his second failure to return was justified by a family

emergency in which his grandson had fallen off of a swing set and was injured.

[7] Killin made these arguments to the trial court. And, after Killin’s first

violation, the court gave Killin a second chance at work release, despite Killin

having been absent without permission from Duvall for more than two months.

However, within a few days after the court had warned him against committing

another violation, Killin nonetheless again violated the conditions of his release

when he was absent from Duvall for another two days, and Killin’s absence did

not end because he returned or otherwise submitted himself to the court or

other authority but only because he was arrested. In sum, Killin’s arguments

on appeal are merely requests for this court to reweigh the evidence, which we

will not do. We cannot say that the trial court abused its discretion when it

ordered Killin to serve the balance of his sentence in the Marion County Jail.

[8] Affirmed.

Riley, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1507-CR-759| January 29, 2016 Page 4 of 4