Steven B. Pollard v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 24, 2015
• Docket: 53A04-1411-CR-519
• Status: Published

Opinion

MEMORANDUM DECISION Jun 24 2015, 6:10 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any 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 Noah T. Williams Gregory F. Zoeller Monroe Co. Public Defender Attorney General of Indiana Bloomington, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Steven B. Pollard, June 24, 2015

Appellant-Defendant, Court of Appeals Case No. 53A04-1411-CR-519 v. Appeal from the Monroe Circuit Court. The Honorable Marc R. Kellams, State of Indiana, Judge. Appellee-Plaintiff Cause No. 53C02-1207-FC-691

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 53A04-1411-CR-519 | June 24, 2015 Page 1 of 5 [1] Steven Pollard appeals the trial court’s order revoking his placement on home

detention and requiring that he serve the balance of his sentence in the

Department of Correction. Finding no error, we affirm.

Facts [2] On May 9, 2014, Pollard pleaded guilty to class D felony sexual battery after he

had inappropriate sexual contact with a minor child. On June 24, 2014, the

trial court sentenced Pollard to two and one-half years, with eighteen months to

be served on home detention followed by one year of probation. At the

sentencing hearing, the trial court explicitly noted that Pollard “has to remain

eligible [for home detention], of course, and I want it clear to him that if . . .

tomorrow or next week or next month he becomes ineligible, then he may

easily forfeit his right to home detention.” Tr. p. 31. Although Pollard was not

eligible for home detention initially because of the nature of his conviction, the

trial court issued a judicial override on June 25, 2014.

[3] Pollard was living in an apartment with his child, K.P., and her mother. 1 The

lease, which he had signed before pleading guilty, provided that he could not

live in his apartment with a criminal conviction. On July 31, 2014, Pollard was

evicted because of his conviction.

1 The terms of home detention required that Pollard have no contact with minor children. The trial court, however, carved out an exception such that Pollard was permitted to live with his own child, K.P.

Court of Appeals of Indiana | Memorandum Decision 53A04-1411-CR-519 | June 24, 2015 Page 2 of 5 [4] On July 31, 2014, the State filed a motion to revoke home detention and

execute his sentence. The State alleged that Pollard had failed to maintain a

valid residence, failed to attend mandatory day reporting on four occasions,

failed to follow his home detention schedule on two occasions, and refused to

submit to a urine drug screen on one occasion.

[5] The trial court held hearings on October 20 and October 27, 2014, on the

State’s motion. Concluding that Pollard had failed to maintain a valid

residence, which is a mandatory prerequisite for a home detention placement,

the trial court revoked home detention and ordered that Pollard serve the

balance of his executed term in the Department of Correction (DOC). Pollard

now appeals.

Discussion and Decision [6] Trial courts have broad discretion to place defendants in community corrections

programs, such as home detention, as alternatives to the DOC. Monroe v. State,

899 N.E.2d 688, 691 (Ind. Ct. App. 2009). A defendant is not entitled to serve

his sentence in a community corrections program; instead, such a placement is

“a ‘matter of grace’ and a ‘conditional liberty that is a favor, not a right.’” Id.

(quoting Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)). If a defendant violates

the terms of his community corrections placement, the trial court may change

Court of Appeals of Indiana | Memorandum Decision 53A04-1411-CR-519 | June 24, 2015 Page 3 of 5 the terms of the placement, continue the placement, or revoke the placement

and commit him to the DOC. Ind. Code § 35-38-2.6-5.2

[7] In this case, it is undisputed that Pollard was required to maintain a valid

residence to be eligible for home detention. It is also undisputed that Pollard

was aware of that fact. Likewise, it is undisputed that Pollard was evicted from

his residence on July 31, 2014. Given these undisputed facts, we find that the

trial court did not abuse its discretion in revoking Pollard’s home detention

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

[8] Pollard argues that at the time of the October 2014 hearings, he had a potential

residence at which he could serve home detention. Inasmuch as Pollard has

already completed his executed sentence, however, he cannot challenge the trial

court’s decision to place him in the DOC rather than give him a second try at

home detention. See Smith v. State, 971 N.E.2d 86, 89 (Ind. 2012) (finding that a

defendant who had completed his sentence was entitled to make a due process

argument but was not entitled to make a credit time argument because it was

moot). In any event, we note that the trial court deferred to the community

corrections program, which did not recommend that Pollard be permitted to

serve home detention in the new residence. The trial court was entitled to do

so, and we find no error on this basis.

2 This statute has been amended with an effective date of July 1, 2015. Inasmuch as Pollard’s offense was committed prior to that date, we apply the version of the statute in effect at the time of the offense.

Court of Appeals of Indiana | Memorandum Decision 53A04-1411-CR-519 | June 24, 2015 Page 4 of 5 [9] The judgment of the trial court is affirmed.

Friedlander, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 53A04-1411-CR-519 | June 24, 2015 Page 5 of 5