Alan Weir v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
FILED
Jul 24 2012, 8:40 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL R. FISHER GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ALAN WEIR, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1201-CR-22
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant W. Hawkins, Judge
Cause No. 49G05-1103-FC-15238
July 24, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
Alan Weir pled guilty to Class C felony escape and was sentenced to two years on
community corrections home detention as an alternative to the Indiana Department of
Correction and two years suspended but with no probation. When Weir later violated the
terms of his community corrections placement, the trial court sentenced him to the
balance of his home-detention sentence and his previously suspended two-year sentence
in the DOC. Weir now appeals, arguing that the trial court did not have the authority to
sentence him to his previously suspended two-year sentence in the DOC. We conclude
that the trial court had such authority and therefore affirm.
Facts and Procedural History
In March 2011, the State charged Weir with Class C felony escape and two counts
of Class A misdemeanor resisting law enforcement for fleeing from the police while
waiting to be taken into custody. Weir was on probation for Class C felony child
molesting under Cause No. 49G05-0909-FC-81199 (Cause No. 81199) at the time.
In June 2011, Weir pled guilty to Class C felony escape. According to the plea
agreement, the State agreed to dismiss the two counts of resisting law enforcement as
well as the pending probation violation in Cause No. 81199. The parties agreed to the
following sentence, “Four (4) years, with two (2) years executed and (2) years
suspended.” Appellant’s App. p. 56 (capitalization omitted). Placement and remaining
terms were left to the trial court’s discretion. Id. In addition, Weir was to complete all
terms and conditions imposed under his probation in Cause No. 81199 as a condition of
his sentence for escape. Id.
2
At Weir’s June 14, 2011, guilty-plea and sentencing hearing, the trial court
accepted the plea agreement and sentenced Weir to four years with two years served
through the Marion County Community Corrections home-detention program and two
years suspended. Tr. p. 19. As a condition of Weir’s community corrections placement,
the trial court ordered Weir to complete the original terms of his sex-offender treatment
in Cause No. 81199. Id. The prosecutor made a point to inform Weir that “this is his
chance and this is his break and that if there are any violations of these conditions or
terms I will follow this case to its conclusion and make sure he spends the remainder of
the time in the Department of Correction.” Id. at 20. The trial court agreed:
So do you understand that, Mr. Weir? I will say it is fairly rare for us to not
give full backup for someone who commits escape while on probation, so I
hope that you consider that going forward, because if you do violate the
terms of your probation – Community Corrections and probation, then the
next stop is the Department of Correction. You understand?
Id. at 20-21. Weir said he understood. Id. at 21. Although the trial court alluded to
probation, both Weir and the State agree on appeal that the trial court never placed Weir
on probation; rather, the trial court sentenced Weir to two years of community corrections
home detention as an alternative to the DOC and two years suspended. See Appellant’s
App. p. 17 (June 14 CCS entry), 17-18 (June 16 CCS entry), 62-63 (Order of
Commitment to Community Corrections), 66 (Sentencing Order).1
1
Weir argues that the trial court erroneously made changes to his sentence after his sentencing
hearing. However, we agree with Weir that he was never placed on probation. In addition, in light of our
conclusion that the trial court had the authority to sentence Weir to his previously suspended sentence of
two years in the DOC even though he was not on probation, we do not need to address these concerns.
3
On November 3, 2011, Marion County Community Corrections filed a Notice of
Community Corrections Violation alleging that Weir’s equipment was compromised and
as a result he was not being monitored. The Notice provided:
Notice is hereby given the client that, should the court find you have
violated the terms of your sentence, Community Corrections may
recommend that your sentence be modified, or that it be revoked and the
originally suspended sentence be imposed by the court.
Id. at 74 (capitalization omitted).
A hearing was held on December 21, 2011. At the time, Weir had been
unmonitored for thirty-five days. Weir explained that his equipment stopped working
and he took it off; however, he never went to the Community Corrections office to have it
repaired or replaced. The trial court found that Weir violated the terms of his community
corrections placement and sent him “to the Department of Correction for four years,
credit for 147 days.” Tr. p. 30. The trial court gave Weir “the remainder of his sentence
and his backup time” even though he was not on probation. Id. The court explained,
His acts violate the suspended sentence, even though it doesn’t violate the
probation. Otherwise there’d be no point to give a suspended sentence. So
I’m giving him four years and if you think that’s a mistake, I’d invite you to
file a motion to correct errors so we can have that argument.
Id.
Although Weir never filed a motion to correct error, he now appeals raising this
very issue.
Discussion and Decision
Weir “does not contest the [trial] court’s authority to order that the balance of his
two-year home detention be served at the Indiana Department of Correction.”
4
Appellant’s Br. p. 5. Instead, he contends that the trial court erred in ordering his two-
year suspended sentence be served at the DOC. He argues that because (1) the trial court
did not put him on probation at his sentencing hearing and (2) there were no probation
terms for him to violate, the trial court did not have the authority to order him to serve his
previously suspended two-year sentence at the DOC.
For purposes of appellate review, we treat the revocation of placement in a
community corrections program the same as we do the revocation of probation. Brown v.
State, 947 N.E.2d 486, 489 (Ind. Ct. App. 2011), trans. denied. Placement in a
community corrections program is an alternative to commitment at the DOC and made at
the sole discretion of the trial court. Id. A defendant is not entitled to serve his sentence
in a community corrections program but, as with probation, placement in the program is a
“matter of grace” and a “conditional liberty that is a favor, not a right.” Id.
Indiana Code chapter 35-38-2.6 governs this issue.2 Indiana Code section 35-38-
2.6-3(a) provides that a trial court may, at the time of sentencing, suspend the sentence
and order a person to be placed in a community corrections program as an alternative to
commitment at the DOC. In addition, the court may impose reasonable terms on the
placement. Ind. Code § 35-38-2.6-3(a). If the court places a person in a community
corrections program under chapter 2.6, the court shall suspend the sentence for a fixed
period to end not later than the date the suspended sentence expires. Ind. Code § 35-38-
2.6-4. In addition,
2
This chapter applies to the sentencing of Weir because he was on probation for Class C felony
child molesting when he committed Class C felony escape and therefore part of his sentence was not
eligible to be suspended. See Ind. Code § 35-38-2.6-1(a)(1).
5
If a person who is placed under this chapter violates the terms of the
placement, the court may, after a hearing, do any of the following:
(1) Change the terms of the placement.
(2) Continue the placement.
(3) Revoke the placement and commit the person to the department
of correction for the remainder of the person’s sentence.
Ind. Code § 35-38-2.6-5.
Here, in compliance with the plea agreement, the trial court sentenced Weir to four
years with two years executed and two years suspended as follows: two years in a
community corrections program as an alternative to the DOC and two years suspended
with no probation. When Weir later violated the terms of his community corrections
placement, the two-year suspended portion of his sentence was still outstanding.
Accordingly, the trial court sentenced Weir to the balance of his home-detention sentence
and his previously suspended two-year sentence in the DOC, not just the balance of his
home-detention sentence in the DOC. We, however, find that Section 35-38-2.6-5 gives
the trial court the authority to do exactly this. That is, if a person violates the terms of his
community corrections placement, the court may, after a hearing, “Revoke the placement
and commit the person to the department of correction for the remainder of the person’s
sentence.” (emphasis added).
Although Weir argues that “it is unreasonable to construe this provision to permit
anything more than the ordering of the service at the Department of Correction of the
remaining portion of the community correction sentence,” Appellant’s Reply Br. p. 4,
there is simply nothing in Section 35-38-2.6-5 that limits the trial court’s authority to
commit the person to the DOC for only the remainder of his community corrections
6
sentence. Rather, once a person violates the terms of his community corrections
placement, the entire suspended sentence may be served in the DOC. See Patterson v.
State, 750 N.E.2d 879 (Ind. Ct. App. 2001). Because Weir violated the terms of his
community corrections placement, the trial court could also order him to serve his
previously suspended two-year sentence in the DOC; it does not matter that Weir was not
placed on probation for this portion of his sentence. Otherwise, as the trial court aptly
observed, there would be no point in giving a defendant a suspended sentence. There is
no abuse of discretion.
Affirmed.
CRONE, J., and BRADFORD, J. concur.
7