Kevin Pettiford v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 12, 2017
• Docket: 49A02-1612-CR-2678
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 12 2017, 8:07 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court 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 Ruth Johnson Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kevin Pettiford, May 12, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1612-CR-2678 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Jeffrey Marchal, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G06-1512-F4-42934

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017 Page 1 of 8 Case Summary and Issue [1] Kevin Pettiford appeals the trial court’s revocation of his placement in

community corrections and order that he serve the balance of his six-year

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

trial court did not abuse its discretion in doing so, we affirm.

Facts and Procedural History [2] On February 24, 2016, Pettiford pleaded guilty to two counts of burglary, both

Level 4 felonies, and was sentenced to six years for each count, to be served

concurrently in a community corrections program. Pettiford was placed on

work release. Following a notice of violation and hearing in March, Pettiford

was found in violation of the terms of his placement but was continued on

community corrections with his placement modified to home detention.

Following a second notice of violation and hearing in April, Pettiford was again

found in violation of the terms of his placement but continued on home

detention “with strict compliance.” Appellant’s Appendix, Vol. II at 114.

[3] On October 25, 2016, Marion County Community Corrections filed another

notice of violation alleging Pettiford failed to charge his electronic monitoring

device, resulting in the device shutting down on October 24 at 4:40 p.m.,

leaving him unmonitored and his whereabouts unknown. The notice further

alleged he failed to comply with his monetary obligation to community

corrections. The notice was amended on October 27 to indicate Pettiford’s

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017 Page 2 of 8 electronic monitoring device resumed monitoring on October 25 at 1:12 a.m.,

but he had nonetheless failed to maintain contact with community corrections

in the interim.

[4] The trial court held a contested violation hearing on November 17, 2016. A

representative of Marion County Community Corrections testified the

electronic monitoring device gives several warnings—in the form of a visual

alarm, vibration, and/or phone calls from the monitoring center—over the

course of several hours before it shuts down due to lack of charge. She testified

the monitoring center attempted on several occasions to contact Pettiford after

his device shut down on October 24 using the phone number they had on

record for him, but he never answered. Pettiford testified he did get the visual

and tactile warnings the device needed to be charged. He plugged the device in

as soon as he got home from work and it appeared to be charging while he was

at home all night watching Monday Night Football. He did not receive any

phone calls from the monitoring center. He testified he bought a new phone a

week or so before and left a message for his case manager giving him the new

number. Pettiford testified that at his regularly-scheduled meeting with his case

manager on October 25,

I just asked him, I asked him if he had received the voice mail of the new number, and he looked on his computer and he said, the 914 number, and I said yes, that’s correct. He repeated the number, so I wanted to make sure and confirm that he had in fact received that number, and he confirmed that he did receive that voice mail and he had that number in his system.

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017 Page 3 of 8 Transcript, Volume II at 25-26. When he met with maintenance thereafter,

they issued a new charger for his device. Pettiford’s case manager testified that

he only became aware of Pettiford’s new number on October 25, and he

updated his phone number that day. The case manager had no recollection or

record of Pettiford leaving a voice mail prior to that day.

[5] The trial court found Pettiford in violation of his community corrections

placement:

This is largely one of credibility, and unfortunately, Mr. Pettiford doesn’t have much credibility with this Court as this is not the first time he’s been in front of me on a violation. It’s not the second time he’s been in front of me on a violation. It’s the third time he’s been in front of me on a violation. And he was placed back on strict compliance. The more credible evidence is that Mr. Pettiford did not bother to tell [his case manager] about the new number until after he met with him on the 25th and he had seven hours for which he was unaccounted for, and he made no effort to let Community Corrections know where he was and that constitutes failure to maintain contact.

So, I’m finding the State has met its burden as to allegations one [failing to charge his device] and three [failing to maintain contact]. It has not met its burden as to allegation two [failing to comply with monetary obligations].

Id. at 29. As for the sanction, the trial court stated:

[A]fter [Pettiford] was violated the first time, his placement was modified from Work Release to Home Detention which is something we rarely see. And yet after that, he’s been given more than one additional opportunity to get through this and he

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017 Page 4 of 8 can’t. I also note that he was sentenced just in February. And so here we are less than a year into a six-year sentence which he agreed upon, and he’s violated three times. I really have no options here. I’m going to revoke his placement on Community Corrections. He’s going to serve the balance of his sentence in the Department of Correction.

Id. at 33. Pettiford now appeals.

Discussion and Decision I. Standard of Review [6] The issue raised by Pettiford is whether the trial court abused its discretion in

revoking his placement in community corrections and ordering him to serve the

remainder of his sentence in the DOC. For purposes of our review, the

revocation of a community corrections placement is treated the same as the

revocation of probation. Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App.

2016).

[7] Revocation is a two-step process: first, the trial court must make a factual

determination that a violation of a condition of placement occurred, and if a

violation is proven, the trial court must then determine if the violation warrants

revocation. Id. The trial court’s revocation decision is within its sound

discretion. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). The State

must prove the alleged violations by a preponderance of the evidence, and on

appeal, we consider all the evidence supporting the trial court’s judgment

without reweighing that evidence or judging the credibility of the witnesses.

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017 Page 5 of 8 Johnson, 62 N.E.3d at 1229. One violation of a condition of placement is

enough to support revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App.

2015). If there is substantial evidence of probative value supporting the trial

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

will affirm its decision to revoke the placement. Johnson, 62 N.E.3d at 1229.

[8] As for the sanction upon revoking placement, we review a trial court’s

sentencing decision for an abuse of discretion. Id. A trial court abuses its

discretion when its decision is against the logic and effect of the facts and

circumstances before it. Id. at 1230.

II. Revocation of Placement [9] Pettiford contends that under the totality of the circumstances, the trial court

abused its discretion in determining that his violations warranted revoking his

placement, citing Ripps, 968 N.E.2d 323.

[10] In Ripps, the defendant pleaded guilty to child molesting and a portion of his

sentence was suspended to probation. One of the conditions of his probation

was that he not live within 1,000 feet of a youth program center. Some years

into his probation, the defendant, now suffering from terminal cancer,

congestive heart failure, and pulmonary disease, moved into an assisted-living

facility and registered his address with the sheriff’s department. His probation

was revoked upon the trial court finding his residence was within 1,000 feet of a

youth program center and he was ordered to serve the nearly three years

remaining of his sentence in prison. On appeal, we considered the “totality of

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017 Page 6 of 8 the circumstances” presented by the case: the defendant’s age and medical

condition; his attempt to adhere to the terms of his probation by reporting his

new address; the technical nature and ambiguity of the measurement placing

him in violation of the residency restriction; that he was in the process of

moving out of the improper residence when he was arrested; and his having

wrongly served time in prison for a prior revocation based on an offense that

was later vacated as a violation of ex post facto principles. Id. at 328. Under

these circumstances, we held it “was unreasonable for the trial court to

determine [the] violation warranted revoking [the defendant’s] probation.” Id.

[11] Pettiford does not claim he did not violate the terms of his placement. Instead,

he claims the circumstances of his violation do not warrant revocation because

he provided his case manager with his new phone number when he got it,

plugged his device into the charger when prompted and believed it to be

charging while he was home as required on the night in question, and reported

to his case manager as scheduled the morning after he was unmonitored for

several hours. Thus, he contends he, like the defendant in Ripps, “took steps to

adhere” to the conditions of his placement. Brief of Appellant at 8. He also

notes he had a job and was voluntarily attending counseling. We do not believe

the circumstances of this case rise to the level of the circumstances in Ripps that

made revocation unreasonable. Even if, as Pettiford claims, he was unable to

charge his device due to an equipment malfunction, he took no steps to notify

anyone of the malfunction during the seven hours it was not operating, and he

offered no explanation for why the device suddenly began charging in the

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017 Page 7 of 8 middle of the night. He claims he gave his case manager his new phone

number at least a week prior to this incident, but the case manager had no

recollection and no record of that. The trial court specifically rejected

Pettiford’s version of events, and as that was a credibility call, we are bound to

give the trial court’s determination on that matter credence. See Johnson, 62

N.E.3d at 1229. Moreover, in the eight months between Pettiford’s placement

in community corrections and this incident, Pettiford had already violated the

terms of his placement twice. Accordingly, we conclude the trial court did not

abuse its discretion in revoking Pettiford’s community corrections placement

and ordering that he serve the remainder of his sentence in the DOC.

Conclusion [12] The trial court did not abuse its discretion in revoking Pettiford’s placement in

community corrections and remanding him to the DOC to serve the remainder

of his sentence. The trial court’s judgment is affirmed.

[13] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2678 | May 12, 2017 Page 8 of 8