Joseph L. Horton, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 28, 2018
• Docket: 18A-CR-1453
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Nov 28 2018, 9:56 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark A. Thoma Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma & Terrill Fort Wayne, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joseph L. Horton, Jr., November 28, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1453 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Samuel R. Keirns, Appellee-Plaintiff. Magistrate Trial Court Cause No. 02D05-1606-F6-673

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1453 | November 28, 2018 Page 1 of 6 Statement of the Case [1] Joseph L. Horton, Jr. appeals the trial court’s revocation of his placement in

community corrections. Horton presents a single issue for our review, which

we restate as the following two issues:

1. Whether the State presented sufficient evidence to support the revocation of his placement.

2. Whether the trial court abused its discretion when it revoked Horton’s placement.

[2] We affirm.

Facts and Procedural History [3] In August of 2016, Horton pleaded guilty to invasion of privacy and

intimidation, each as a Level 6 felony. The court accepted Horton’s guilty plea

and ordered him to serve his sentence on probation. In June of 2017, the State

filed a notice of probation violation, and Horton later admitted to the alleged

violations. The court ordered Horton to serve part of his previously suspended

sentence in community corrections with the remainder of Horton’s sentence

suspended to probation. In September of 2017, the State filed a notice of

placement violation, and Horton later admitted to the violations. The court

then ordered Horton to serve his community-corrections placement at the

Center for Solutions (“the Center”), a halfway house.

[4] Thereafter, Horton met with Oscar Vasquez, the director of the Center, for an

intake meeting on March 29, 2018. Horton applied and was admitted to the Court of Appeals of Indiana | Memorandum Decision 18A-CR-1453 | November 28, 2018 Page 2 of 6 Center. However, following that initial meeting, neither Vasquez nor the

Center’s two house managers saw Horton at the Center again. Accordingly,

Vasquez investigated Horton’s apparent nonattendance at the Center. Vasquez

learned that Horton had “failed to sign in for a weekend pass and [had] also

failed to notify the staff of his intentions” with respect to being present at the

Center. Tr. at 11-12. After Horton’s admission into the Center, “neither of the

two house managers [could] recall meeting him or seeing him about the

[C]enter.” Id. at 12. Another resident who knew Horton “had not seen

[Horton] beyond the date of admission.” Id. And while investigating Horton’s

assigned living space, “no evidence of his belongings were found. No clothing,

no toilet articles or other personal possessions.” Id. Consequently, Vasquez

was “convinced [Horton had] left the [C]enter without notifying the staff

and . . . did not return.” Id. Later, Vasquez “received a phone call from a

female requesting readmission for [Horton],” which request Vasquez denied.

Id.

[5] The State filed a notice of placement violation based on Horton’s

noncompliance with his placement at the Center. At an ensuing hearing,

Vasquez testified for the State. Horton testified in his own defense and stated

that he was at the facility every day but he had few possessions and, because of

his work schedule, he was in late and out early and, thus, no one apparently

saw him. The trial court revoked Horton’s placement at the Center and ordered

him to serve one year and 183 days in the Department of Correction. This

appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1453 | November 28, 2018 Page 3 of 6 Discussion and Decision Standard of Review

[6] Horton challenges the trial court’s revocation of his placement at the Center.

As we have explained, a defendant “is not entitled to serve a sentence in either

probation or a community corrections program.” Monroe v. State, 899 N.E.2d

688, 691 (Ind. Ct. App. 2009). “Rather, placement in either is a matter of grace

and a conditional liberty that is a favor, not a right.” Id. (quotation marks

omitted). And a revocation hearing is civil in nature; as such, the State “need

only prove the alleged violations by a preponderance of the evidence.” Id. On

appeal, 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 the witnesses. Id. 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.

Issue One: Sufficiency

[7] Horton first asserts that the State failed to present sufficient evidence to support

the revocation of his placement at the Center. In particular, Horton contends

that Vasquez’s testimony that Horton had absconded from the Center is

consistent with Horton’s less nefarious explanation that he was working hours

that kept people at the Center from seeing him and that he had few possessions.

Thus, Horton continues, the State failed to present sufficient evidence to

support the revocation of his placement.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1453 | November 28, 2018 Page 4 of 6 [8] But Horton’s argument on appeal is simply a request for this Court to credit his

testimony, which is not consistent with our standard of review. Vasquez

testified that no one, including other residents, ever saw Horton at the Center at

any point after Horton’s first day there. Vasquez further testified that there was

no other evidence that Horton had ever been there, such as personal belongings,

toiletries, or Horton signing in or out for weekends. And Vasquez also testified,

without objection, that a female had called on Horton’s behalf, after the State

had filed its notice of placement violation, seeking to have Horton readmitted to

the Center. Looking only to the evidence most favorable to the trial court’s

judgment, as we must, we conclude that the State presented sufficient evidence

to support the revocation of Horton’s placement.

Issue Two: Revocation

[9] Horton also asserts that, the sufficiency of the evidence notwithstanding, the

trial court abused its discretion when it revoked his placement at the Center. In

particular, Horton asserts that he was “working and contributing to society”;

that he had “tested negative at his last drug screen”; and that he had “plans on

staying out of trouble by re-enrolling in school and working.” Appellant’s Br. at

18.

[10] However, Horton’s argument is, again, merely a request for this Court to

reweigh the evidence, which we will not do. The evidence most favorable to

the trial court’s judgment shows that Horton’s probation and placement had

already been twice revoked in the instant cause, which revocations led to his

placement at the Center. Yet, despite those multiple opportunities to comply Court of Appeals of Indiana | Memorandum Decision 18A-CR-1453 | November 28, 2018 Page 5 of 6 with probation and placement outside of the Department of Correction, Horton

continued not to abide by the requirements of such placement. We cannot say

that the trial court abused its discretion when, following the State’s third notice

of a placement violation in this cause number, the court revoked Horton’s

placement. We affirm.

[11] Affirmed.

Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1453 | November 28, 2018 Page 6 of 6