Lamenski Ewing v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: February 7, 2025
• Docket: 24A-CR-01721
• Status: Published

Opinion

FILED Feb 07 2025, 9:01 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Lamenski Ewing, Appellant-Defendant

v.

State of Indiana, Appellee-Plaintiff

February 7, 2025 Court of Appeals Case No. 24A-CR-1721 Appeal from the Vanderburgh Circuit Court The Honorable Celia Pauli, Magistrate Trial Court Cause No. 82C01-2204-F3-001994

Opinion by Judge DeBoer Judges May and Tavitas concur.

Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 1 of 13 DeBoer, Judge.

Case Summary [1] Lamenski Ewing pled guilty to two crimes, a felony and a misdemeanor, and

was sentenced to a two-year combination of jail time and work release to be

followed by three years of probation. While on work release, Ewing failed to

return to detention after one of his shifts and disappeared for almost seven

months. The State filed a motion to revoke Ewing’s community corrections

placement but did not file a petition to revoke Ewing’s probation sentence.

After a hearing, the trial court revoked Ewing’s community corrections

placement and imposed his entire sentence. Ewing appeals the trial court’s

revocation of his probation sentence claiming that the State failed to provide

him with notice, thereby violating his due process rights. Finding no error, we

affirm.

Facts and Procedural History [2] Pursuant to his guilty plea to Criminal Confinement and Interference with the

Reporting of a Crime, Ewing received an aggregate sentence of five years, a

portion of which was to be served in jail, some on community corrections

through the Vanderburgh County Therapeutic Work Release Program, and

three years of which was to be served on probation.

[3] Ewing placed his initials next to the following paragraph in his plea agreement:

Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 2 of 13 If a portion of the Defendant’s sentence is suspended or executed to a Court-sponsored program, the Defendant understands and has discussed with their legal counsel the Court-sponsored program’s rules and that any violation of those rules will result in revocation of the Defendant’s placement on the Court-sponsored program and execution of the Defendant’s sentence.

Appellant’s App. Vol. 2 at 40 (emphasis added).

[4] While on work release, Ewing agreed to follow its rules and acknowledged that

he understood “failure to return to the Work Release Facility as scheduled or

being in an unauthorized location may subject [him] to criminal prosecution.”

Id. at 90.

[5] Ewing failed to return to detention on August 28, 2023, prompting the State to

file a petition to revoke his placement on work release on August 31, 2023. An

arrest warrant for Ewing was served on March 24, 2024. The trial court advised

Ewing of his charges, including Failure to Return to Lawful Detention as a

Level 6 felony. 1 On May 9, 2024, Ewing pled guilty to failure to return to

lawful detention. During this hearing, Ewing was advised:

COURT: If these crimes were committed while you were on probation, parole or serving a prison or serving any sentence, then the sentences for these crimes cannot begin until the others

1 Ewing’s other new charges, including Stalking, Intimidation, Harassment, and False Informing, are not part of this appeal, but stem from actions that allegedly occurred while Ewing had absconded from work release. The Stalking, Intimidation, and Harassment charges were later dropped in exchange for Ewing’s guilty plea to False Informing for which he received a one-year sentence suspended to probation. Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 3 of 13 have ended. These are called consecutive sentences. Do you understand that term?

EWING: Yes.

COURT: Do you understand that a violation during any portion of your sentence on that probation may result in your entire sentence being revoked and ordered executed at the Department of Correction?

Transcript Vol. 2 at 19-20.

[6] On June 20, 2024, the trial court sentenced Ewing to one year executed in the

Indiana Department of Corrections (“DOC”) for his plea of guilty for his

charge of failing to return to lawful detention. During this hearing, the trial

court also addressed the State’s petition to revoke Ewing’s work release in his

original case. Although Ewing admitted to violating the terms of work release,

Ewing’s attorney objected to revocation of Ewing’s suspended sentence stating,

“I don’t think a petition to revoke his suspended sentence is before the Court

and I think to revoke and order that into execution without having a petition

filed would violate his due process rights.” Id. at 37. The trial court disagreed,

finding, “the caselaw is clear. A person can be revoked [from] a probated

sentence before even beginning that portion of the sentence.” Id. at 38. The

trial court also explained it did not find it “logical” to put Ewing on probation

when he failed to return to work release, a more restrictive setting. Id. Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 4 of 13 Discussion and Decision [7] There is no dispute that the State filed a petition to revoke Ewing’s community

corrections placement, but it did not file a separate petition to revoke Ewing’s

probation that he had yet to serve. Ewing argues that in this context the trial

court did not have the statutory authority to revoke his suspended sentence and

doing so violated Ewing’s right to due process under the Fourteenth

Amendment. We disagree.

[8] “Placement in community corrections is at the sole discretion of the trial court .

. . placement there is a ‘matter of grace’ and a ‘conditional liberty that is a favor,

not a right.’” Toomey v. State, 887 N.E.2d 122, 124 (Ind. Ct. App. 2008)

(quoting Million v. State, 646 N.E.2d 998, 1001 (Ind. Ct. App. 1995)). This

standard of grace applies to probation as well. Heaton v. State, 984 N.E.2d 614,

616 (Ind. 2013). Once a court has exercised its grace by ordering probation, a

trial court has considerable leeway in deciding how to proceed. Prewitt v. State,

878 N.E.2d 184, 188 (Ind. 2007). As such, trial courts have discretion in

determining probation conditions and revoking probation if conditions are

violated. Heaton, 984 N.E.2d at 616. This discretion is reviewed for abuse.

Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012). An abuse of discretion

occurs “where the decision is clearly against the logic and effect of the facts and

circumstances.” Id.

Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 5 of 13 1. Due Process [9] Ewing argues that because the State did not provide him with written notice

that it was seeking to revoke his probation sentence as well as his community

corrections placement, the trial court violated his due process rights by revoking

his suspended sentence. For the purpose of appellate review, hearings on

petitions to revoke placement in community corrections and hearings on

petitions to revoke probation are treated the same. Cox v. State, 850 N.E.2d 485,

491 (Ind. Ct. App. 2006). “Although probationers are not entitled to the full

array of constitutional rights afforded defendants at trial, ‘the Due Process

Clause of the Fourteenth Amendment does impose procedural and substantive

limits on the revocation of the conditional liberty created by probation.’” Debro

v. State, 821 N.E.2d 367, 374 (Ind. 2005) (quoting Cox v. State, 706 N.E.2d 547,

549 (Ind. 1999), reh’g denied). The Indiana Supreme Court said:

There are certain due process rights, of course, which inure to a probationer at a revocation hearing. These include written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine adverse witnesses, and a neutral and detached hearing body. Indiana Code § 35–38–2–3(d) also ensures the probationer the right to confrontation, cross- examination, and representation by counsel.

Isaac v. State, 605 N.E.2d 144, 148 (Ind. 1992) (citations omitted), cert. denied,

508 U.S. 922 (1993). The Indiana Supreme Court also extended these rights to

defendants in proceedings to enforce deferred sentences or withheld judgments.

Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 6 of 13 Debro, 821 N.E.2d at 375. Thus, due process mandates that the written notice

to Ewing disclose the grounds supporting revocation. Washington v. State, 758

N.E.2d 1014, 1017 (Ind. Ct. App. 2001).

[10] The State’s petition to revoke community corrections placement, filed several

months before the revocation hearing, specifically states, “the defendant has

failed to make contact and/or return to [work release] and is now considered

AWOL.” 2 Appellant’s App. Vol. 2 at 74. The petition notes Ewing’s absence

constituted a direct violation of the following program rule:

I understand that failure to return to the Work Release Facility as scheduled or being in an unauthorized location may subject me to criminal prosecution.

Id.

[11] Ewing admitted violating this provision when he pled guilty to his charge of

Failure to Return to Lawful Detention as a Level 6 felony stemming from his

work release violation. We are not persuaded by his argument that his due

process rights were violated because he did not know that the State sought

revocation of his suspended sentence. Ewing agreed, in writing, as part of his

plea agreement, that any violation of work release’s rules “will result” in

2 Absent Without Leave Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 7 of 13 execution of his sentence. Id. at 40. He was then put on notice of the allegation

that he violated these rules via the State’s petition.

[12] Our Court addressed the due process implications on a similar set of facts in

Patterson v. State, 750 N.E.2d 879, 881 (Ind. Ct. App. 2001), where Patterson

had been serving a portion of his sentence on work release, to be followed by a

suspended portion of his sentence on probation, until the State filed a petition to

revoke his work release placement. After finding that Patterson violated the

terms of his placement, the trial court ordered Patterson’s work release and

forthcoming probation term to be revoked and executed in the DOC. Id. at 882.

Despite Patterson’s argument that his due process rights had been violated

because he had not been provided notice that his probation could be revoked for

violating work release rules, our Court found it “clear” that a violation of work

release rules could lead to a revocation of placement and commitment “to the

[DOC] for the remainder of the person’s sentence.” Id. at 885; see also I.C. § 35-

38-2.6-5(b).

[13] The State argues that notice of revocation of Ewing’s community corrections

placement also served as notice that his probation could be revoked. See

McCauley v. State, 22 N.E.3d 743, 748 (Ind. Ct. App. 2014), reh’g denied, trans.

denied. In McCauley, our Court found that McCauley’s due process rights were

not violated when the trial court revoked the executed and suspended portions

of his sentence, despite McCauley’s claim that he did not receive notice he

could be revoked from both. Ewing attempts to distinguish his case from

Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 8 of 13 McCauley by pointing out that the State’s notice of violation in McCauley,

“specifically asked the trial court to revoke both home detention and probation .

. .” whereas the State’s petition in this case only addressed revoking his

community corrections placement. Id. However, like McCauley, Ewing was

made aware that his entire sentence could be imposed when the trial court

advised him of such at the May 9, 2024 hearing and through the signed plea

agreement. Unlike McCauley, Ewing’s violation of the terms of his

participation in community corrections involved the commission of a new

felony, which triggered the trial court’s statutory authority to terminate

probation under a second statute. See I.C. § 35-38-2-1(b) (“[i]f the person

commits an additional crime, the court may revoke the probation.”). Taking

this a step further with regard to notice, “it is not necessary to advise a

defendant to avoid committing an additional crime as a condition of probation

because such a condition is automatically included by operation of law without

specific provision to that effect.” Childers v. State, 656 N.E.2d 514, 517 (Ind. Ct.

App. 1995). As a result, the trial court did not violate Ewing’s due process by

revoking the suspended portion of his sentence.

2. Revocation of Suspended Sentence [14] Ewing also claims a trial court has authority to modify a sentence only after the

State files a timely petition to revoke his probation and to modify his sentence.

Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 9 of 13 This prerequisite, Ewing argues, was not satisfied by the State simply filing a

motion to revoke his community corrections placement. 3

[15] As we previously stated, “[a] reviewing court treats a petition to revoke

placement in a community corrections program the same as a petition to revoke

probation.” Bass v. State, 974 N.E.2d 482, 488 (Ind. Ct. App. 2012). In this

case with these facts, Ewing received all of the due process protections to which

he was entitled for both the community corrections revocation and the

probation revocation with the State’s filing of its petition to revoke community

corrections placement. In Ashba v. State, 570 N.E.2d 937 (Ind. Ct. App. 1991),

Ashba received a two-year executed sentence followed by four years on

probation. Ashba was paroled from his executed sentence before the end of the

two-year sentence. While on parole during the executed portion of his

sentence, Ashba was arrested, charged with a misdemeanor, and his probation

3 Ewing relies on Indiana Code § 35-38-2-3(a) which provides:

The court may revoke a person’s probation if: (1) the person has violated a condition of probation during the probationary period; and (2) the petition to revoke probation is filed during the probationary period or before the earlier of the following: (A) One (1) year after the termination of probation. (B) Forty-five (45) days after the state receives notice of the violation. Ewing provides no caselaw where our Court interpreted the statute in this manner. Instead, our Court has recognized this statute as a statute of limitation, imposing a deadline by which to revoke probation. Sharp v. State, 807 N.E.2d 765, 767 (Ind. Ct. App. 2004).

Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 10 of 13 was revoked. Id. at 938. In finding that the trial court properly revoked

Ashba’s probation, even though he had not begun serving the probation portion

of his sentence, our Court held, “[w]hile at liberty on parole, should a defendant

engage in unlawful activity, he thereby violates a condition of probation . . . [a]t

that point, the sentencing court has the authority to revoke probation that was

previously given.” Id. at 940. “[O]nce Ashba engaged in unlawful activity, he

violated the terms of his probation. Those terms attached to his suspended

sentence from the moment the sentence was imposed.” Id. Ashba’s sentence

was composed of a suspended sentence with an executed portion, similar to

Ewing’s.

[16] When a defendant violates the terms of their community corrections placement,

as Ewing did, Indiana Code § 35-38-2.6-5(a)(4) gives a trial court authority to

order a defendant incarcerated for the remainder of his or her sentence,

“regardless of the term of probation included in the original sentencing order[.]”

McCauley, 22 N.E.3d at 747. We conclude that the trial court had the authority

to revoke the suspended portion of Ewing’s sentence.

[17] Having established Ewing was adequately notified of the pending revocation of

his sentence, and the trial court had authority to actually revoke said sentence,

we find the trial court did not abuse its discretion by imposing Ewing’s entire

sentence. In McCauley, for example, in addition to finding no due process

violation, our Court found the trial court had discretion to revoke the probation

term of McCauley’s sentence for the same conduct that caused his community

Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 11 of 13 corrections to be revoked. In doing so, our Court reasoned, “McCauley’s

failure to comply with the strict requirements of home detention indicates that

he would be highly unlikely to succeed under the less-restrictive requirements of

informal probation. Instead, he would be at risk to continue his misconduct

and endanger himself and others.” Id. at 748. Ewing disappeared from work

release for months and picked up new criminal charges along the way. We see

no reason why the trial court abused its discretion in revoking Ewing’s

probation when he showed a complete disregard for the conditions of

placement in a more restrictive environment.

Conclusion [18] The trial court’s revocation of Ewing’s suspended sentence was within its

statutory authority and did not violate Ewing’s due process rights. Therefore,

the trial court did not abuse its discretion by imposing the suspended portion of

Ewing’s sentence.

[19] Affirmed.

May, J., and Tavitas, J., concur.

ATTORNEY FOR APPELLANT Matthew Jon McGovern Fishers, Indiana

Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 12 of 13 ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana

Caroline Gail Templeton Supervising Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 24A-CR-1721 | February 7, 2025 Page 13 of 13