MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 30 2020, 10:17 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paul J. Podlejski Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Qashaun Thomas, January 30, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1711 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff. Judge Trial Court Cause No. 48C04-1807-F3-1918
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, Qashaun Thomas (Thomas), appeals the sanction
imposed by the trial court following the revocation of his commitment to work
release.
[2] We affirm.
ISSUE [3] Thomas presents the court with one issue, which we restate as: Whether the
trial court abused its discretion when it ordered Thomas to execute four years of
his sentence with the Indiana Department of Correction (DOC) following the
revocation of his work release commitment.
FACTS AND PROCEDURAL HISTORY [4] On July 26, 2018, and October 30, 2018, the State filed an Information,
charging Thomas with Level 3 felony dealing in a narcotic drug (heroin); Level
4 felony unlawful possession of a firearm by a serious violent felon; Level 5
felony possession of a narcotic drug (heroin), and Class A misdemeanor
carrying a handgun without a license. On July 26, 2018, the State also filed a
notice of its intention to file a habitual offender enhancement against Thomas.
On February 12, 2019, Thomas pleaded guilty to the Level 3 felony dealing in a
narcotic drug charge. On February 13, 2019, Thomas was allowed to begin
work release pending sentencing. The pre-sentence investigation report filed
prior to sentencing revealed that on December 8, 2015, Thomas had been
sentenced to two years in the Michigan Department of Corrections following Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 2 of 8 his guilty plea to delivery/manufacture of marijuana and possession of cocaine
charges. The pre-sentence investigation also revealed that on May 12, 2016,
Thomas had been sentenced to two years in the Michigan Department of
Corrections following his guilty plea to a felony firearm charge.
[5] On March 26, 2019, the trial court conducted Thomas’ sentencing hearing. The
trial court acknowledged Thomas’ good conduct since being granted pre-
sentencing work release, rejected the State’s request for a sentence fully
executed with the DOC, and sentenced Thomas to seven years, four of which
were to be served on work release, with three years suspended to probation.
The trial court advised Thomas that it was putting him on what it called “a
short leash,” meaning that violation of his work release conditions that would
be considered less significant for other offenders would be treated more
seriously for him because of his criminal record. (Transcript Vol. II, p. 20).
The trial court noted that the State had made compelling arguments against a
work release placement but that “sometimes people get chances that they really
don’t deserve because we want to help them to make some changes in their
life.” (Tr. Vol. II, p. 21). As part of his work release commitment, Thomas
received a copy of, and agreed to abide by, the Madison County work release
facility’s policies and rules.
[6] On May 7, 2019, Thomas was informed by his employer, Bridges of Hope, that
he was being laid off. Thomas did not inform his work release case manager,
Rose Horvath (Horvath), that he had been terminated. On May 8, 2019, at
7:44 a.m., Thomas was released for work as usual and did not return to work
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 3 of 8 release until 9:19 p.m. Although Thomas stopped by Bridges of Hope that day
around 8:30 a.m. to return his work shirts and retrieve a document, he was not
at Bridges of Hope the remainder of the day. Thomas did not have permission
to be anywhere but Bridges of Hope on May 8, 2019.
[7] On May 9, 2019, Thomas turned in his weekly pass showing his schedule and
whereabouts. Due to having no confirmation signatures for time spent at Band
of Brothers on May 1, 2019, the Anderson Center on May 7, 2019, and his job
search time on May 9, 2019, Thomas had eight hours of unaccounted-for time
that week. On May 10, 2019, due to Thomas’ accumulation of unaccounted-
for time, Horvath instructed Thomas that he could attend the one-hour Jump
Start program at Man4Man Ministries but that he could not stay at Man4Man
afterwards because she wanted him to be at a location where he was required to
clock in and out, something that was not consistently available at Man4Man.
On May 14, 2019, Thomas was released to attend Jump Start and should have
returned to work release by 9:30 a.m., but he did not return until 5:03 p.m.
When Horvath discussed with Thomas the fact that he had not followed her
order, he acknowledged that he knew that he was not supposed to be away
from the facility.
[8] On May 16, 2019, the State filed a petition to terminate Thomas’ work release
commitment in which it alleged that Thomas had violated the terms of work
release on May 8, 2019, by having twelve hours and forty-nine minutes of
unaccounted-for time; on May 8, 2019, by committing the new offense of
failure to return to lawful detention; on May 9, 2019, for having accumulated
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 4 of 8 eight hours of unaccounted-for time; on May 14, 2019, by failing to obey a
direct order; and by owing $290.44 to work release. On June 25, 2019, the trial
court held an evidentiary hearing on the State’s petition at which Horvath
testified about the allegations and Thomas testified regarding his version of
events. The trial court found that the State had proven by a preponderance of
the evidence that Thomas had violated the terms of his work release as alleged.
[9] The trial court proceeded to hear argument regarding what sanction to impose
following the revocation of Thomas’ work release placement. The trial court
found that, in spite of his criminal record, Thomas had been given an
opportunity to stay in the community through his work release commitment,
Thomas had been given specific rules to follow so that all of his time would be
accounted for, but that Thomas had not followed those rules. The trial court
ordered Thomas to serve the four years with the DOC that had previously been
his commitment to work release.
[10] Thomas now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[11] Thomas challenges the sanction imposed by the trial court following the
revocation of his placement on work release. As part of its sentencing decision,
a trial court may suspend a defendant’s sentence and order him to be placed in
a community corrections program as an alternative to a commitment to the
DOC. Ind.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 30 2020, 10:17 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paul J. Podlejski Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Qashaun Thomas, January 30, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1711 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable David A. Happe, Appellee-Plaintiff. Judge Trial Court Cause No. 48C04-1807-F3-1918
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, Qashaun Thomas (Thomas), appeals the sanction
imposed by the trial court following the revocation of his commitment to work
release.
[2] We affirm.
ISSUE [3] Thomas presents the court with one issue, which we restate as: Whether the
trial court abused its discretion when it ordered Thomas to execute four years of
his sentence with the Indiana Department of Correction (DOC) following the
revocation of his work release commitment.
FACTS AND PROCEDURAL HISTORY [4] On July 26, 2018, and October 30, 2018, the State filed an Information,
charging Thomas with Level 3 felony dealing in a narcotic drug (heroin); Level
4 felony unlawful possession of a firearm by a serious violent felon; Level 5
felony possession of a narcotic drug (heroin), and Class A misdemeanor
carrying a handgun without a license. On July 26, 2018, the State also filed a
notice of its intention to file a habitual offender enhancement against Thomas.
On February 12, 2019, Thomas pleaded guilty to the Level 3 felony dealing in a
narcotic drug charge. On February 13, 2019, Thomas was allowed to begin
work release pending sentencing. The pre-sentence investigation report filed
prior to sentencing revealed that on December 8, 2015, Thomas had been
sentenced to two years in the Michigan Department of Corrections following Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 2 of 8 his guilty plea to delivery/manufacture of marijuana and possession of cocaine
charges. The pre-sentence investigation also revealed that on May 12, 2016,
Thomas had been sentenced to two years in the Michigan Department of
Corrections following his guilty plea to a felony firearm charge.
[5] On March 26, 2019, the trial court conducted Thomas’ sentencing hearing. The
trial court acknowledged Thomas’ good conduct since being granted pre-
sentencing work release, rejected the State’s request for a sentence fully
executed with the DOC, and sentenced Thomas to seven years, four of which
were to be served on work release, with three years suspended to probation.
The trial court advised Thomas that it was putting him on what it called “a
short leash,” meaning that violation of his work release conditions that would
be considered less significant for other offenders would be treated more
seriously for him because of his criminal record. (Transcript Vol. II, p. 20).
The trial court noted that the State had made compelling arguments against a
work release placement but that “sometimes people get chances that they really
don’t deserve because we want to help them to make some changes in their
life.” (Tr. Vol. II, p. 21). As part of his work release commitment, Thomas
received a copy of, and agreed to abide by, the Madison County work release
facility’s policies and rules.
[6] On May 7, 2019, Thomas was informed by his employer, Bridges of Hope, that
he was being laid off. Thomas did not inform his work release case manager,
Rose Horvath (Horvath), that he had been terminated. On May 8, 2019, at
7:44 a.m., Thomas was released for work as usual and did not return to work
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 3 of 8 release until 9:19 p.m. Although Thomas stopped by Bridges of Hope that day
around 8:30 a.m. to return his work shirts and retrieve a document, he was not
at Bridges of Hope the remainder of the day. Thomas did not have permission
to be anywhere but Bridges of Hope on May 8, 2019.
[7] On May 9, 2019, Thomas turned in his weekly pass showing his schedule and
whereabouts. Due to having no confirmation signatures for time spent at Band
of Brothers on May 1, 2019, the Anderson Center on May 7, 2019, and his job
search time on May 9, 2019, Thomas had eight hours of unaccounted-for time
that week. On May 10, 2019, due to Thomas’ accumulation of unaccounted-
for time, Horvath instructed Thomas that he could attend the one-hour Jump
Start program at Man4Man Ministries but that he could not stay at Man4Man
afterwards because she wanted him to be at a location where he was required to
clock in and out, something that was not consistently available at Man4Man.
On May 14, 2019, Thomas was released to attend Jump Start and should have
returned to work release by 9:30 a.m., but he did not return until 5:03 p.m.
When Horvath discussed with Thomas the fact that he had not followed her
order, he acknowledged that he knew that he was not supposed to be away
from the facility.
[8] On May 16, 2019, the State filed a petition to terminate Thomas’ work release
commitment in which it alleged that Thomas had violated the terms of work
release on May 8, 2019, by having twelve hours and forty-nine minutes of
unaccounted-for time; on May 8, 2019, by committing the new offense of
failure to return to lawful detention; on May 9, 2019, for having accumulated
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 4 of 8 eight hours of unaccounted-for time; on May 14, 2019, by failing to obey a
direct order; and by owing $290.44 to work release. On June 25, 2019, the trial
court held an evidentiary hearing on the State’s petition at which Horvath
testified about the allegations and Thomas testified regarding his version of
events. The trial court found that the State had proven by a preponderance of
the evidence that Thomas had violated the terms of his work release as alleged.
[9] The trial court proceeded to hear argument regarding what sanction to impose
following the revocation of Thomas’ work release placement. The trial court
found that, in spite of his criminal record, Thomas had been given an
opportunity to stay in the community through his work release commitment,
Thomas had been given specific rules to follow so that all of his time would be
accounted for, but that Thomas had not followed those rules. The trial court
ordered Thomas to serve the four years with the DOC that had previously been
his commitment to work release.
[10] Thomas now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[11] Thomas challenges the sanction imposed by the trial court following the
revocation of his placement on work release. As part of its sentencing decision,
a trial court may suspend a defendant’s sentence and order him to be placed in
a community corrections program as an alternative to a commitment to the
DOC. Ind. Code § 35-38-2.6-3(a). A defendant is not entitled to serve a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 5 of 8 sentence in a community corrections program. Cox v. State, 706 N.E.2d 547,
549 (Ind. 1999). Such a placement is a matter of grace on the part of the trial
court that is a favor and not a right. Id. If a trial court determines that a
defendant has violated the terms of his community corrections placement, it
may “revoke the placement and commit the person to the . . . [DOC] for the
remainder of the person’s sentence.” See I.C. § 35-38-2.6-5(4). We review a
trial court’s decision on what sanction to impose following revocation for an
abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse
of the trial court’s discretion occurs when its decision is clearly against the logic
and effect of the facts and circumstances before it. Id.
II. Sanction
[12] Upon revoking Thomas’ work release commitment, the trial court ordered
Thomas to execute the four years of his sentence that it had previously ordered
him to serve on work release. The trial court found that Thomas had been
shown leniency at sentencing for the underlying Level 3 felony dealing in a
narcotic drug conviction, that he had been given specific rules and regulations
to follow by the work release facility, but that he had failed to abide by those
rules. Given the seriousness of the underlying conviction, the tremendous
opportunity to avoid the DOC that Thomas had been afforded given his
previous criminal record, the fact that Thomas had only been on work release
for approximately three months before he started violating the terms of his
conditional freedom, and the number of violations he incurred, we do not find
any abuse of discretion on the part of the trial court in ordering Thomas to
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 6 of 8 execute his sentence with the DOC. This is particularly true in light of the trial
court’s advisement at sentencing that Thomas was on a “short leash” and that
violations of work release conditions that would have been treated more
leniently if incurred by another offender would be treated more seriously for
him. (Tr. Vol. II, p. 20).
[13] Thomas argues that the trial court abused its discretion because his violations
were in furtherance of the goals of work release because most of his
unaccounted-for time was spent attending programs and looking for work.
Thomas also argues that this was the first notice of violation filed against him
by the State, the violations were merely technical, and that he had otherwise
performed well on work release. We do not find these arguments to be
persuasive because the whole purpose of work release is to allow offenders to
work while being closely monitored in the community. The trial court was
under no obligation to credit Thomas’ explanations that he was looking for
work and attending programs at the times the State alleged he had
unaccounted-for time. The fact remains that he did not have the latitude to set
his own schedule, no matter what he was doing. Finding no abuse of the trial
court’s discretion, we affirm its order that Thomas execute four years of his
sentence with the DOC. See Prewitt, 878 N.E.2d at 188.
CONCLUSION [14] Based on the foregoing, we conclude that the trial court did not abuse its
discretion when it ordered Thomas to serve four years with the DOC following
the revocation of his work release commitment. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 7 of 8 [15] Affirmed.
[16] Baker, J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1711 | January 30, 2020 Page 8 of 8