MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 14 2017, 10:06 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John T. Wilson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph A. Brock, September 14, 2017 Appellant-Defendant, Court of Appeals Case No. 33A01-1705-CR-1198 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Edward Appellee-Plaintiff. Dunsmore, Judge Pro Tempore Trial Court Cause Nos. 33C03-1610-F6-360 33C03-1701-CM-71
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1198 | September 14, 2017 Page 1 of 6 Case Summary [1] On October 14, 2015, under cause number 33C03-1610-F6-360 (“F6-360”), the
State charged Appellant-Defendant Joseph A. Brock with Level 6 felony theft.
On November 7, 2016, Brock entered into a plea agreement where he pled
guilty as charged with an agreed upon sentence of two years to be served as a
direct commitment to community corrections on in-home detention. On
November 14, 2016, the trial court imposed the agreed-upon sentence.
[2] On January 13, 2017, Brock was charged under cause number 33C03-1701-
CM-71 (“CM-71”) with Class A misdemeanor possession of marijuana. On
January 26, 2017, the State filed a petition to revoke in F6-360 alleging that
Brock violated the terms of his community corrections commitment by
committing the new offense in CM-71. On March 6, 2017, Brock pled guilty as
charged in CM-71, and admitted to the community corrections violation in F6-
360.
[3] On May 1, 2017, the court revoked Brock’s community corrections placement
and ordered him to serve the balance of his sentence in county jail. The court
also imposed a 198-day sentence in CM-71 with credit for 198 days. Brock
appeals, contending that the trial court abused its discretion revoking his
community corrections placement. Concluding that the trial court did not
abuse its discretion, we affirm.
Facts and Procedural History
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1198 | September 14, 2017 Page 2 of 6 [4] On October 13, 2016, Brock took two bags of groceries and credit cards from
his ex-wife Sherry Brock (“Sherry”) without her permission. Sherry called the
police. By the time the police arrived at Brock’s residence, Brock was taking
the food out of his residence and placing it on the front porch stating, “Here is
your food back Sherry.” App. Vol. II p. 18. Brock had already given the two
credit cards back to Sherry before the police officers arrived. Brock admitted to
the police during an interview that he took the food without permission.
[5] On October 14, 2016, the State charged Brock with Level 6 felony theft in cause
number F6-360. On November 7, 2016, Brock entered into a plea agreement
where he pled guilty as charged in exchange for a sentence of two years to be
served as a direct commitment to community corrections on in-home detention.
On November 14, 2016, the trial court imposed a sentence in accordance with
the plea agreement.
[6] On January 3, 2017, the Henry County Community Corrections administered a
RAPID urine screen test on Brock. Brock tested positive for
methamphetamines, buprenorphine, marijuana, and cocaine. test results were
later confirmed by Redwood Toxicology Laboratories.
[7] A known employee from Henry County Community Corrections provided a tip
to police based on the results of Brock’s urine test. This tip resulted in the
police executing a search warrant at Brock’s residence on January 11, 2017.
During the course of the search, officers discovered a Marlboro cigarette box in
the living room that contained a plastic bag of marijuana. Brock subsequently
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1198 | September 14, 2017 Page 3 of 6 admitted that the marijuana was his. On January 13, 2017, Brock was charged
under cause CM-71 with Class A misdemeanor possession of marijuana.
[8] On January 26, 2017, the State filed a petition to revoke in cause F6-360
alleging Brock violated the terms of his community corrections commitment by
committing the new offense charged in cause CM-71. On March 6, 2017,
Brock pled guilty to possession of marijuana as a Class A misdemeanor in cause
CM-71, and he admitted to the community corrections violation in cause F6-
360. App. Vol. II pp. 6, 11-12, 46. The trial court took the plea under
advisement and Brock was referred to the House of Hope to address substance
abuse issues pending sentencing. App. Vol. II pp. 47, 49. On March 8, 2017,
Brock was transported to the House of Hope, and was unsuccessfully
discharged less than two weeks later on March 19, 2017.
[9] On May 1, 2017, a sentencing hearing was held. During the hearing, Brock
testified that his plan once released from custody was to go back to work at
Grede Foundry. Brock, however, admitted that he had not talked with a
company representative for several months and he had no authoritative letter
stating that he would be rehired upon his release. Bock also testified that prior
to his violation he helped take care of his nine-year old child. Further, Brock
testified that he owed $1900 in restitution that he had just started to pay. The
trial court revoked Brock’s community corrections placement and ordered
Brock to serve the balance of his sentence—548 days—in the county jail. The
court also imposed a 198-day sentence in cause CM-71 with credit for 198 days.
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1198 | September 14, 2017 Page 4 of 6 Discussion and Decision [10] Brock contends that the trial court abused its discretion in revoking his
community corrections placement because his evidence of an alternative to
incarceration should have been considered.
For purposes of appellate review, 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. The similarities between the two dictate this approach. 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. A defendant is not entitled to serve a sentence in either probation or a community corrections program. Rather, placement in either is a “matter of grace” and a “conditional liberty that is a favor, not a right.”
Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999) (internal citations and footnotes
omitted).
Our standard of review of an appeal from the revocation of a community corrections placement mirrors that for revocation of probation. A probation hearing is civil in nature and the State need only prove the alleged violations by a preponderance of the evidence. We will consider all the evidence most favorable to supporting the judgment of the trial court without reweighing that evidence or judging the credibility of witnesses.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 14 2017, 10:06 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John T. Wilson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph A. Brock, September 14, 2017 Appellant-Defendant, Court of Appeals Case No. 33A01-1705-CR-1198 v. Appeal from the Henry Circuit Court State of Indiana, The Honorable Edward Appellee-Plaintiff. Dunsmore, Judge Pro Tempore Trial Court Cause Nos. 33C03-1610-F6-360 33C03-1701-CM-71
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1198 | September 14, 2017 Page 1 of 6 Case Summary [1] On October 14, 2015, under cause number 33C03-1610-F6-360 (“F6-360”), the
State charged Appellant-Defendant Joseph A. Brock with Level 6 felony theft.
On November 7, 2016, Brock entered into a plea agreement where he pled
guilty as charged with an agreed upon sentence of two years to be served as a
direct commitment to community corrections on in-home detention. On
November 14, 2016, the trial court imposed the agreed-upon sentence.
[2] On January 13, 2017, Brock was charged under cause number 33C03-1701-
CM-71 (“CM-71”) with Class A misdemeanor possession of marijuana. On
January 26, 2017, the State filed a petition to revoke in F6-360 alleging that
Brock violated the terms of his community corrections commitment by
committing the new offense in CM-71. On March 6, 2017, Brock pled guilty as
charged in CM-71, and admitted to the community corrections violation in F6-
360.
[3] On May 1, 2017, the court revoked Brock’s community corrections placement
and ordered him to serve the balance of his sentence in county jail. The court
also imposed a 198-day sentence in CM-71 with credit for 198 days. Brock
appeals, contending that the trial court abused its discretion revoking his
community corrections placement. Concluding that the trial court did not
abuse its discretion, we affirm.
Facts and Procedural History
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1198 | September 14, 2017 Page 2 of 6 [4] On October 13, 2016, Brock took two bags of groceries and credit cards from
his ex-wife Sherry Brock (“Sherry”) without her permission. Sherry called the
police. By the time the police arrived at Brock’s residence, Brock was taking
the food out of his residence and placing it on the front porch stating, “Here is
your food back Sherry.” App. Vol. II p. 18. Brock had already given the two
credit cards back to Sherry before the police officers arrived. Brock admitted to
the police during an interview that he took the food without permission.
[5] On October 14, 2016, the State charged Brock with Level 6 felony theft in cause
number F6-360. On November 7, 2016, Brock entered into a plea agreement
where he pled guilty as charged in exchange for a sentence of two years to be
served as a direct commitment to community corrections on in-home detention.
On November 14, 2016, the trial court imposed a sentence in accordance with
the plea agreement.
[6] On January 3, 2017, the Henry County Community Corrections administered a
RAPID urine screen test on Brock. Brock tested positive for
methamphetamines, buprenorphine, marijuana, and cocaine. test results were
later confirmed by Redwood Toxicology Laboratories.
[7] A known employee from Henry County Community Corrections provided a tip
to police based on the results of Brock’s urine test. This tip resulted in the
police executing a search warrant at Brock’s residence on January 11, 2017.
During the course of the search, officers discovered a Marlboro cigarette box in
the living room that contained a plastic bag of marijuana. Brock subsequently
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1198 | September 14, 2017 Page 3 of 6 admitted that the marijuana was his. On January 13, 2017, Brock was charged
under cause CM-71 with Class A misdemeanor possession of marijuana.
[8] On January 26, 2017, the State filed a petition to revoke in cause F6-360
alleging Brock violated the terms of his community corrections commitment by
committing the new offense charged in cause CM-71. On March 6, 2017,
Brock pled guilty to possession of marijuana as a Class A misdemeanor in cause
CM-71, and he admitted to the community corrections violation in cause F6-
360. App. Vol. II pp. 6, 11-12, 46. The trial court took the plea under
advisement and Brock was referred to the House of Hope to address substance
abuse issues pending sentencing. App. Vol. II pp. 47, 49. On March 8, 2017,
Brock was transported to the House of Hope, and was unsuccessfully
discharged less than two weeks later on March 19, 2017.
[9] On May 1, 2017, a sentencing hearing was held. During the hearing, Brock
testified that his plan once released from custody was to go back to work at
Grede Foundry. Brock, however, admitted that he had not talked with a
company representative for several months and he had no authoritative letter
stating that he would be rehired upon his release. Bock also testified that prior
to his violation he helped take care of his nine-year old child. Further, Brock
testified that he owed $1900 in restitution that he had just started to pay. The
trial court revoked Brock’s community corrections placement and ordered
Brock to serve the balance of his sentence—548 days—in the county jail. The
court also imposed a 198-day sentence in cause CM-71 with credit for 198 days.
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1198 | September 14, 2017 Page 4 of 6 Discussion and Decision [10] Brock contends that the trial court abused its discretion in revoking his
community corrections placement because his evidence of an alternative to
incarceration should have been considered.
For purposes of appellate review, 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. The similarities between the two dictate this approach. 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. A defendant is not entitled to serve a sentence in either probation or a community corrections program. Rather, placement in either is a “matter of grace” and a “conditional liberty that is a favor, not a right.”
Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999) (internal citations and footnotes
omitted).
Our standard of review of an appeal from the revocation of a community corrections placement mirrors that for revocation of probation. A probation hearing is civil in nature and the State need only prove the alleged violations by a preponderance of the evidence. We will consider all the evidence most favorable to supporting the judgment of the trial court without reweighing that evidence or judging the credibility of witnesses. If there is substantial evidence of probative value to support the trial court’s conclusion that a defendant has violated any terms of probation, we will affirm its decision to revoke probation.
Id. at 551.
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1198 | September 14, 2017 Page 5 of 6 [11] It is undisputed that Brock violated his in-home detention placement by testing
positive for methamphetamine, buprenorphine, marijuana, and cocaine, and by
being in possession of marijuana. Moreover, after Brock admitted to the
violations and pled guilty to possession of marijuana, he was given the
opportunity to attend the House of Hope program prior to sentencing. Brock,
however, left the program and was unsuccessfully discharged from House of
Hope in less than two weeks. Brock points to his past employment and child as
evidence that he should be released to Community Corrections to no avail. The
trial court was free to disregard Brock’s arguments for release, and apparently
did. Given his possession of marijuana, his positive urine screen for numerous
controlled substances, and his inability to complete the House of Hope
program, Brock has failed to demonstrate that the trial court abused its
discretion in imposing a jail sentence.
[12] The judgment of the trial court is affirmed.
May, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 33A01-1705-CR-1198 | September 14, 2017 Page 6 of 6