Daniel Killin v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 29 2016, 9:34 am
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
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Killin, January 29, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1507-CR-759
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Ronnie Huerta,
Appellee-Plaintiff. Commissioner
Trial Court Cause No.
49G19-1503-CM-10179
Najam, Judge.
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Statement of the Case
[1] Daniel Killin appeals the trial court’s order for Killin to serve the balance of his
sentence in the Marion County Jail after the court revoked Killin’s placement
on work release. Killin raises a single issue for our review, namely, whether the
trial court abused its discretion when it ordered him to serve the balance of his
sentence in jail. We affirm.
Facts and Procedural History
[2] On March 26, 2015, Killin pleaded guilty to operating a vehicle while
intoxicated, as a Class A misdemeanor, and to possession of paraphernalia, as a
Class A misdemeanor. The trial court sentenced Killin to an aggregate term of
one year in Marion County Community Corrections on work release.
[3] On March 31, Killin’s first full day of work release from the Duvall Residential
Center (“Duvall”), Killin received an approved medical leave pass to visit
Eskenazi Hospital. Pursuant to that pass, Killin was required to return to
Duvall by 8:00 p.m. that day. But Killin did not return for sixty-seven days.
Community Corrections filed a notice of violation and, at a subsequent hearing
on June 4, Killin admitted to the violation. Despite Killin’s extensive absence,
the court allowed him to continue on work release from Duvall but warned him
that, “if you come back again, there’s nowhere else to go but the Department of
Correction.” Tr. at 11.
[4] On June 10, Killin received another short-term medical pass from Duvall.
Again, Killin failed to return in accordance with the requirements of that pass.
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Community Corrections filed a second notice of violation on June 11, and
Killin was arrested on June 13. At the ensuing hearing on the notice of
violation, Killin admitted to the violation. The court then revoked Killin’s
placement on work release and ordered him to serve the balance of his sentence
in the Marion County Jail. This appeal ensued.
Discussion and Decision
[5] Killin appeals the trial court’s order that he serve the balance of his sentence in
the Marion County Jail. We review the trial court’s decision to revoke
placement in a community corrections program for an abuse of discretion,
which occurs only when the decision is clearly against the logic and effect of the
facts and circumstances before the trial court. Prewitt v. State, 878 N.E.2d 184,
188 (Ind. 2007). We will consider only the evidence most favorable to the
judgment of the trial court, and we will not reweigh the evidence on appeal or
judge the credibility of witnesses. Smith v. State, 963 N.E.2d 1110, 1112 (Ind.
2012). 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.
[6] Here, there is no dispute that Killin violated the terms of his placement on work
release when he twice failed to reappear at Duvall prior to the expiration of his
approved medical passes. Rather, the only issue on appeal is whether, as Killin
states in his brief, “the trial court . . . g[a]ve enough weight to [Killin’s]
mitigating circumstances” when it ordered him to serve the balance of his
sentence in the Marion County Jail. Appellant’s Br. at 8. In particular, Killin
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asserts that his first failure to return was justified by extreme pain due to a prior
car accident, and his second failure to return was justified by a family
emergency in which his grandson had fallen off of a swing set and was injured.
[7] Killin made these arguments to the trial court. And, after Killin’s first
violation, the court gave Killin a second chance at work release, despite Killin
having been absent without permission from Duvall for more than two months.
However, within a few days after the court had warned him against committing
another violation, Killin nonetheless again violated the conditions of his release
when he was absent from Duvall for another two days, and Killin’s absence did
not end because he returned or otherwise submitted himself to the court or
other authority but only because he was arrested. In sum, Killin’s arguments
on appeal are merely requests for this court to reweigh the evidence, which we
will not do. We cannot say that the trial court abused its discretion when it
ordered Killin to serve the balance of his sentence in the Marion County Jail.
[8] Affirmed.
Riley, J., and May, J., concur.
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