Cortez Laquez McDonald v. State of Indiana (mem. dec.) ( 2016 )


Menu:
  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                             Feb 29 2016, 9:28 am
    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
    David W. Stone, IV                                       Gregory F. Zoeller
    Anderson, Indiana                                        Attorney General of Indiana
    Eric P. Babbs
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Cortez Laquez McDonald,                                  February 29, 2016
    Appellant-Defendant,                                     Court of Appeals Case No.
    48A04-1507-CR-881
    v.                                               Appeal from the Madison Circuit
    Court
    State of Indiana,                                        The Honorable Angela Warner
    Appellee-Plaintiff                                       Sims, Judge
    Trial Court Cause No.
    48C01-1207-FD-1227
    Crone, Judge.
    Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016   Page 1 of 7
    Case Summary
    [1]   Cortez Laquez McDonald appeals the trial court’s revocation of his community
    corrections placement at the Continuum of Sanctions (“COS”). McDonald
    contends that there was insufficient evidence to support the trial court’s finding
    that he violated the terms of his community corrections program and that the
    trial court abused its discretion in revoking his community corrections
    placement. Finding the evidence sufficient and no abuse of discretion, we
    affirm.
    Facts and Procedural History
    [2]   In April 2013, McDonald pled guilty to class A misdemeanor possession of
    marijuana. The trial court sentenced McDonald to twelve months in the COS
    day reporting program, to be served consecutive to his sentence in a different
    case. Placement in the COS program required McDonald to adhere to the
    following conditions: complete the HIRE program, pay certain fees, submit to
    urine drug screens, and obey all laws of the United States and Indiana Tr. at 41,
    43.
    [3]   In December 2014, McDonald began living with his girlfriend Laney
    Hendricks. In March 2015, McDonald became upset because Hendricks was
    not home when he returned around one in the morning. The couple began
    arguing over the phone and through text messages. When Hendricks arrived
    home about thirty minutes later, the argument became physical. McDonald
    slapped Hendricks with his open hand, grabbed her shirt, and pushed her
    Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016   Page 2 of 7
    around the apartment several times, causing scratches on her chest. Id. at 19-
    22. When Hendricks wanted to leave the apartment, McDonald took her
    phone and keys and stood in front of the door, prohibiting her from leaving.
    Several hours later, McDonald gave Hendricks her things and she left. Later,
    Hendricks went to the Anderson Police Department and gave a statement
    alleging that McDonald threatened her with bodily harm while armed with a
    gun. Officer Joe Garrett took Hendricks’s report and stated that there were
    visible scratches on her neck and chest area. Id. at 37. In April 2015,
    McDonald was arrested and charged with criminal confinement, intimidation,
    pointing a firearm, and domestic battery.
    [4]   In April 2015, the COS director filed a notice of termination alleging that
    McDonald had violated the terms of the COS program by failing to complete
    the HIRE program, failing to pay $53 in fees, failing three drug screens by
    testing positive for marijuana, and committing the aforementioned new
    criminal offenses. The trial court held evidentiary hearings on May 26 and
    June 29, 2015. At the first hearing, McDonald appeared with counsel and
    admitted that he had failed to complete the HIRE program, was not current
    with his fees, and had used marijuana once during the relevant time. Id. at 5-6.
    At the second hearing, Hendricks admitted that a firearm had not been involved
    in the incident and that she had lied to get McDonald a harsher punishment.
    Id. at 24-25. McDonald’s attorney conceded that McDonald had violated the
    terms of his community corrections program as to the HIRE program, fees, and
    Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016   Page 3 of 7
    drug screens, and stated that the only violation at issue was the new criminal
    offenses. Id. at 43.
    [5]   In light of the testimony given during the evidentiary hearings, the trial court
    found that McDonald had violated the terms of his community corrections
    placement by failing to complete the HIRE program, failing to pay fees, testing
    positive for marijuana three times, and committing criminal confinement and
    domestic battery against Hendricks. The trial court revoked McDonald’s COS
    placement and ordered him to serve 359 days in the county jail. This appeal
    ensued.
    Discussion and Decision
    Section 1 – Sufficient evidence supports the trial court’s
    finding that McDonald violated the terms of his community
    corrections program.
    [6]   McDonald contends that the evidence is insufficient to support the trial court’s
    finding that he violated the terms of his community corrections program. Both
    probation and community corrections programs serve as alternatives to
    commitment to the Department of Correction, and both are made at the sole
    discretion of the trial court. Treece v. State, 
    10 N.E.3d 52
    , 56 (Ind. Ct. App.
    2014), trans. denied. A revocation of community corrections placement hearing
    is civil in nature, and the State need only prove the alleged violations by a
    preponderance of the evidence. 
    Id.
     We consider only the evidence most
    favorable to the trial court’s judgment and do not reweigh the evidence or judge
    the credibility of the witnesses. Woods v. State, 
    892 N.E.2d 637
    , 639 (Ind. 2008).
    Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016   Page 4 of 7
    [7]   McDonald argues that the trial court’s findings regarding the HIRE program,
    fees, and drug screens are not supported by his admission. Further, he argues
    that the court’s reliance on Hendricks’s testimony is improper and therefore the
    State did not prove by a preponderance of the evidence that he violated the
    terms of his community corrections program. We disagree.
    [8]   As indicated above, McDonald’s counsel admitted that McDonald violated the
    terms of his COS program by failing to complete the HIRE program, failing to
    pay his program fees, and failing three urine drug screens; the only violation at
    issue was the commission of the new criminal offenses. “A clear and
    unequivocal admission of fact by an attorney is a judicial admission which is
    binding on the client.” Parker v. State, 
    676 N.E.2d 1083
    , 1086 (Ind. Ct. App.
    1997). Consequently, McDonald may not challenge the admitted violations on
    appeal. 1
    [9]   McDonald argues that the trial court’s reliance on Hendricks’s testimony for his
    offenses of criminal confinement and domestic battery is improper because she
    lied about whether a gun was involved in the incident and therefore cannot be
    deemed credible. This is merely a request for us to reweigh the evidence and
    1
    Notwithstanding, McDonald’s argument lacks merit. He contends that he was unable to complete the
    HIRE program because he was incarcerated; we fail to see how being jailed for new criminal offenses is a
    valid excuse for not complying with a community corrections requirement. Next, he argues that the State
    had the burden to prove that he could pay his fees, caselaw tells us otherwise. “[I]t is the defendant
    probationer’s burden … to show facts related to an inability to pay.” Runyon v. State, 
    939 N.E.2d 613
    , 617
    (Ind. 2010). Finally, McDonald asserts that he used marijuana once and not three times, as the trial court
    found. An admission to a single violation is sufficient to revoke community corrections placement. Treece, 10
    N.E.3d at 60.
    Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016           Page 5 of 7
    judge Hendricks’s credibility, which we will not do. Woods, 892 N.E.2d at 639.
    The trial court did not find that McDonald pointed a firearm at Hendricks, and
    Officer Garrett testified that Hendricks had visible scratches on her neck and
    chest. 2 We conclude that the State established by a preponderance of the
    evidence that McDonald violated the terms of his COS program as found by the
    trial court.
    Section 2 - The trial court did not abuse its discretion in
    revoking McDonald’s community corrections placement.
    [10]   McDonald also contends that the trial court abused its discretion in revoking
    his community corrections placement. A defendant is not entitled to serve a
    sentence in either probation or a community corrections program. Treece, 10
    N.E.3d at 56. 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. First, the court must make a factual determination that a
    violation of a condition actually occurred. Vernon v. State, 
    903 N.E.2d 533
    , 537
    (Ind. Ct. App. 2009), trans. denied. If a violation is proven, then the trial court
    must determine if the violation warrants a revocation. 
    Id.
     Violation of a single
    condition of placement is sufficient to revoke placement. Treece, 10 N.E.3d at
    60.
    2
    Consequently, we reject McDonald’s invitation to apply the incredible dubiosity doctrine.
    Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016         Page 6 of 7
    [11]   A trial court’s sentencing decision to revoke a defendant’s placement in
    community corrections is reviewed for an abuse of discretion. An abuse of
    discretion occurs only where the trial court’s decision is clearly against the logic
    and effect of the facts and circumstances before the court. State v. Hunter, 
    898 N.E.2d 455
    , 458 (Ind. Ct. App. 2008). Indiana Code Section 35-38-2.6-5 (2014)
    states that if a person violates the terms of the placement, the court may, after a
    hearing, do any of the following: change the terms of the placement, continue
    the placement, or revoke the placement and commit the person to the
    Department of Correction for the remainder of the person’s sentence.
    [12]   McDonald’s argument that the trial court abused its discretion in revoking his
    community corrections placement is premised upon his claim that one or more
    of the trial court’s findings of violations were improper, which we have already
    decided against him. Moreover, his admission to violating three conditions of
    the community corrections program is alone sufficient to warrant revocation.
    Therefore, we find no abuse of discretion and affirm the trial court’s revocation
    of his community corrections placement.
    [13]   Affirmed.
    Vaidik, C.J., and Bailey, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 48A04-1507-CR-881 | February 29, 2016   Page 7 of 7
    

Document Info

Docket Number: 48A04-1507-CR-881

Filed Date: 2/29/2016

Precedential Status: Precedential

Modified Date: 2/29/2016