Robert Burnett v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 18, 2019
• Docket: 19A-CR-130
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 18 2019, 8:48 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 Anthony C. Lawrence Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Burnett, July 18, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-130 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Mark Dudley, Appellee-Plaintiff. Judge Trial Court Cause No. 48C06-1807-F5-1798

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019 Page 1 of 6 STATEMENT OF THE CASE

[1] Appellant-Defendant, Robert Burnett (Burnett), appeals the trial court’s

revocation of his home detention and the imposition of his previously-

suspended sentence.

[2] We affirm.

ISSUE [3] Burnett presents this court with one issue on appeal, which we restate as:

Whether the trial court abused its discretion by ordering Burnett to serve his

entire previously-suspended sentence after he violated the terms of his home

detention.

FACTS AND PROCEDURAL HISTORY

[4] On October 17, 2018, Burnett pleaded guilty to Count I, burglary, a Level 5

felony, and Count II, theft, a Level 6 felony. The trial court subsequently

sentenced Burnett to two years in the Department of Correction (DOC) for the

Level 5 felony and to ten months in the Madison County Detention Center for

the Level 6 felony. Burnett’s sentences were to run concurrently, and the trial

court gave Burnett the “privilege of serving” his two-year sentence on home

detention “subject to the terms and conditions of [] said program.” (Appellant’s

App. Vol. II, p. 14).

[5] On October 29, 2018, the Madison County Probation Office (Probation Office)

filed an amended notice of probation violation, alleging that Burnett had

Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019 Page 2 of 6 “[f]ailed to appear for Home Detention hook-up on October 19, 2018.”

(Appellant’s App. Vol. II, p. 16).

[6] Prior to being convicted for the burglary and theft offenses, Burnett lived with

Tim Roof (Roof). Following Burnett’s conviction, Roof did not let Burnett

move back in. On November 17, 2018, Roof returned from a hunting trip. At

around 2:00 a.m., Roof was awakened by a loud banging on his front door. It

sounded “like somebody was trying to break in” (Transcript p. 10). Roof

grabbed a gun and walked to the hallway. As his front door opened, Roof

yelled, “stop[,] I got a gun I’ll shoot.” (Tr. p. 11). The door closed, and its

knob fell to the floor. Burnett then yelled, “Tim, Tim it’s me. I’m cold.” (Tr.

p. 11). Roof “didn’t know what to do” because Burnett was “not in the best of

shape,” so he allowed Burnett to sleep on his couch. (Tr. pp. 13-14). Roof

proceeded to gather his other guns that were in the living room and he took

them to his bedroom because Burnett had “just broke[n]” into his home, and he

“didn’t know what [Burnett’s] intentions were.” (Tr. p. 11). Roof stayed up all

night with his rifle. Roof’s brother, whom Roof had sent a text message, called

the police later that morning. When the police arrived, Roof “was very

shaken,” “upset,” and “scared,” and there was a rock in the trashcan outside

with the same debris as the broken door handle. (Tr. pp. 25, 27, 30). On the

same day, the State filed an Information, charging Burnett with Level 6 felony

residential entry and Class B misdemeanor criminal mischief.

[7] On November 21, 2018, the Probation Office filed an amended notice of

probation violation, alleging that on November 18, 2018, Burnett had

Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019 Page 3 of 6 accumulated two new offenses—i.e., Level 6 felony residential entry and Class

B misdemeanor criminal mischief.

[8] On December 19, 2018, at a hearing on the notice of home detention violation,

Burnett admitted to at least one of the violations—that he had failed to report to

the Probation Office for his home detention hook-up appointment. The State

also presented evidence surrounding Burnett’s residential entry and criminal

mischief offenses. At the conclusion of the hearing, the trial court revoked

Burnett’s home detention and ordered Burnett to serve the balance of his

previously-suspended sentence in the DOC.

[9] Burnett now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [10] Burnett appeals the trial court’s order revoking his placement on home

detention and the imposition of the balance of his previously-suspended

sentence.

[11] Both probation and community corrections programs serve as alternatives to

commitment to the DOC and both are made at the sole discretion of the trial

court. Treece v. State, 10 N.E.3d 52, 57 (Ind. Ct. App. 2014). A defendant is not

entitled to serve a sentence in either a 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. Id. The standard of review of an appeal from

the revocation of a community corrections placement mirrors that for

revocation of probation. Id. That is, a revocation of community corrections Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019 Page 4 of 6 placement hearing is civil in nature, and the State need only prove the alleged

violations by a preponderance of the evidence. Id.

[12] At the revocation hearing, Burnett admitted that he had failed to appear for his

hook-up appointment with the Probation Office. In addition, the State also

presented evidence that Burnett had committed additional offenses while on

probation—i.e., residential entry and criminal mischief.

[13] Burnett argues that the facts surrounding the residential entry and criminal

mischief offenses indicate that he did not commit these new offenses. Burnette

claims that he had previously lived with Roof, and although Roof claimed he

was scared by his entry, “Roof permitted Burnett to remain in the residence,

spend the night, sleep on his couch and let him eat his food. Additionally,

[Roof] did not call the police on him.” (Appellant’s Br. p. 8).

[14] Contrary to his assertions, Roof unequivocally testified that Burnett broke his

door handle and entered his house without his permission. The State

corroborated Roof’s testimony with the testimony of the responding officer,

who saw a rock in the trashcan outside of the door with the same debris as the

broken door handle. From this evidence, the trial court reasonably concluded

by a preponderance of the evidence that Burnett committed residential entry

and criminal mischief. Burnett’s argument is merely a request for this court to

reweigh the evidence, which it will not do. See Woods v. State, 892 N.E.2d 637,

639 (Ind. 2008). Moreover, Burnett’s admission that he failed to appear for the

hook-up appointment with the Probation Office was sufficient for the trial court

Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019 Page 5 of 6 to revoke his home detention. See Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct.

App. 2005) (holding that a “single violation of the conditions of probation is

sufficient to support the [trial court's] decision to revoke probation.”), trans.

denied.

[15] Here, the State met its burden of proving by a preponderance of the evidence

that Burnett had violated the terms of his home detention; therefore, we hold

that the trial court did not abuse its discretion by revoking Burnett’s home

CONCLUSION [16] In sum, we conclude that the trial court did not abuse its discretion by revoking

Burnett’s placement on home detention. Accordingly, we affirm the trial court

order that Burnett serve the balance of his previously suspended sentence.

[17] Affirmed.

[18] Bailey, J. and Pyle, J. concur

Court of Appeals of Indiana | Memorandum Decision 19A-CR-130 | July 18, 2019 Page 6 of 6