Thomas A. Wallace v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 28, 2018
• Docket: 18A-CR-359
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 28 2018, 10:16 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Derick W. Steele Curtis T. Hill, Jr. Deputy Public Defender Attorney General of Indiana Kokomo, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas A. Wallace, November 28, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-359 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Appellee-Plaintiff. Menges, Jr., Judge Trial Court Cause No. 34D01-1606-F4-604

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-359 | November 28, 2018 Page 1 of 5 Statement of the Case [1] Thomas A. Wallace appeals the trial court’s revocation of his placement on in-

home detention. Wallace raises a single issue for our review, namely, whether

the trial court abused its discretion when it revoked his placement.

[2] We affirm.

Facts and Procedural History [3] In September of 2016, Wallace pleaded guilty to possession of a narcotic drug,

as a Level 5 felony, and unlawful possession of a syringe, a Level 6 felony. The

trial court accepted Wallace’s plea agreement and, pursuant to that agreement,

ordered him to serve a five-year aggregate sentence, with two years of in-home

detention and three years suspended to probation.

[4] In January of 2017, the State filed a notice of noncompliance with the terms of

in-home detention on the ground that Wallace had failed to properly report and

communicate with appropriate officials, but the State later withdrew its notice

upon Wallace’s compliance. In March, the State filed a second notice of

noncompliance due to failed drug tests, Wallace’s failure to communicate, and

his failure to seek employment. Wallace admitted to the State’s allegations, and

the court ordered him to return to his placement on in-home detention.

[5] In November, the State filed its third notice of noncompliance on the ground

that Wallace had failed six drug tests, had failed to take an additional test, had

not attended required weekly meetings and other required classes, and had, on

Court of Appeals of Indiana | Memorandum Decision 18A-CR-359 | November 28, 2018 Page 2 of 5 multiple occasions, visited locations that had not been approved by appropriate

staff. Although Wallace had initially reached an agreement with the State to

resolve the third notice, the trial court rejected the putative agreement. At an

ensuing hearing, Wallace admitted to the State’s allegations. The court then

revoked Wallace’s placement and ordered him to serve the remainder of his

previously suspended sentence in the Department of Correction. This appeal

ensued.

Discussion and Decision [6] Wallace challenges the trial court’s revocation of his in-home detention. As we

have explained, a defendant “is not entitled to serve a sentence in either

probation or a community corrections program.” Monroe v. State, 899 N.E.2d

688, 691 (Ind. Ct. App. 2009). “Rather, placement in either is a matter of grace

and a conditional liberty that is a favor, not a right.” Id. (quotation marks

omitted). And a revocation hearing is civil in nature; as such, the State “need

only prove the alleged violations by a preponderance of the evidence.” Id. On

appeal, we will consider all the evidence most favorable to supporting the

judgment of the trial court without reweighing that evidence or judging the

credibility of the witnesses. Id. If there is substantial evidence of probative

value to support the trial court’s conclusion that a defendant has violated any

terms of his placement, we will affirm its decision to revoke that placement. Id.

[7] On appeal, Wallace asserts that the trial court abused its discretion when it

revoked his placement on in-home detention. In particular, he asserts that he

Court of Appeals of Indiana | Memorandum Decision 18A-CR-359 | November 28, 2018 Page 3 of 5 was “attempting to be productive and has maintained employment”; that

“rehabilitation is not served by simply throwing [him] aside when the process is

difficult”; and that “the main goals and concerns of sentencing should not be

ignored merely for the ease and efficiency of the court.” Appellant’s Br. at 7.

[8] Wallace also asserts that the primary goal of sentencing is rehabilitation and

that the same considerations should apply in a probation revocation

proceeding. That is not the correct standard to apply in reviewing a sentence

imposed following the revocation of probation. As we have already noted,

probation is a matter of grace and not a matter of right.

[9] Further, Wallace’s arguments are simply a request for this Court to reweigh the

evidence, which we will not do. The evidence most favorable to the trial court’s

judgment shows that Wallace had repeatedly violated the conditions of his

placement, and that he had first done so almost immediately after his placement

began. He had twice failed to comply with the conditions of his placement only

to have the trial court allow him to remain in his placement notwithstanding his

noncompliance.

[10] Those repeated opportunities aside, Wallace continued to violate the conditions

of his placement by failing numerous drug tests and visiting unapproved

locations. In light of Wallace’s failure to take advantage of the multiple

opportunities for his rehabilitation, as shown by his failure to comply with the

conditions of his placement outside of the Department of Correction, we cannot

say that the trial court abused its discretion. It was only after the State’s third

Court of Appeals of Indiana | Memorandum Decision 18A-CR-359 | November 28, 2018 Page 4 of 5 notice of noncompliance the court revoked Wallace’s placement and ordered

him to serve the balance of his previously suspended term in the Department of

Correction. Accordingly, we affirm the trial court’s judgment.

[11] Affirmed.

Pyle, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-359 | November 28, 2018 Page 5 of 5