Jermell Dionte Moore v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Sep 14 2017, 10:00 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean C. Mullins Curtis T. Hill, Jr.
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jermell Dionte Moore, September 14, 2017
Appellant-Respondent, Court of Appeals Case No.
45A03-1704-CR-879
v. Appeal from the Lake Superior
Court
The Honorable Diane Ross Boswell,
State of Indiana, Judge
Appellee-Petitioner. Trial Court Cause No.
45G03-1507-F2-11
Bradford, Judge.
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Case Summary
[1] Following Appellant-Respondent Jermell Moore’s guilty plea to Level 5 felony
robbery, the trial court sentenced him to two years in community corrections
and one year on probation. Shortly after beginning his community corrections
placement, Moore absconded. In August of 2016, the State petitioned to revoke
Moore’s community corrections placement for absconding. At some point,
Lake County community corrections denied Moore credit time because he left
the placement; Moore waived his right to a hearing in the matter and did not
pursue his administrative remedies.
[2] In March of 2017, the trial court held a hearing on the State’s petition to revoke
Moore’s community corrections placement. At the hearing, Moore did not
dispute the violation. However, when Moore’s counsel asked Moore if he
wanted to explain himself to the trial court, the trial court responded, “No, I
don’t -- I really don’t want to hear it.… I really don’t.” The trial court found
that Moore had violated the terms of his community corrections placement,
revoked the placement, and ordered him to serve his three-year sentence in the
Department of Correction (“DOC”). Moore contends that he was denied due
process in his credit-time proceeding with Lake County community corrections
and the trial court denied his right to allocution. Because we agree that the trial
court denied Moore his right to allocution, we reverse and remand with
instructions.
Facts and Procedural History
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[3] On February 9, 2016, Moore pled guilty to Level 5 felony robbery pursuant to a
written plea agreement. (Confid. App. Vol. II at 27-34; Tr. GP Vol. II at 1-17).
The trial court sentenced Moore on April 1, 2016, to three years, with two years
in community corrections and one year on probation. (Confid. App. Vol. II at
37-38, 41-42; Tr. Sent. Vol. II at 32). On August 15, 2016, the State filed a
petition to expel Moore from the Lake County Community Corrections
Kimbrough Work Program; the trial court held an initial hearing on November
30, 2016, and appointed counsel. (Confid. App. Vol. II at 43, 45-46).
[4] At the March 23, 2017, revocation hearing, the parties discussed a previous
administrative proceeding involving community corrections concerning the
denial of credit time due to Moore’s leaving the work program. (Tr. 3/23/17
Vol. II at 6-7, 12-15). In the administrative proceeding, Moore had signed a
form that waived his right to have a hearing on the question of credit time. (Tr.
3-23-17 Vol. II at 15). Moore did not appeal from the decision of community
corrections to revoke his earned credit time. (Tr. 3/23/17 Vol. II at 12).
[5] After defense counsel admitted that Moore had absconded from the community
corrections program for three months, the following conversation occurred:
THE COURT: And was he unable to return?
[MOORE’S COUNSEL]: Of course he was.
THE COURT: Did he get injured? Was he sick? Was he --
[MOORE’S COUNSEL]: He’s a -- he was definitely able
to return, Judge.
THE COURT: He was just out partying. He was out. He
thought he was free.
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[MOORE’S COUNSEL]: I don’t -- he wasn’t -- he wasn’t
partying, but the explanation he gave me wasn’t good enough, so
--
THE COURT: Well, whatever he was doing. Okay.
[MOORE’S COUNSEL]: -- I wouldn’t even give it to the
Court.
THE COURT: Okay.
[MOORE’S COUNSEL]: So I -- it wasn’t that he, you
know, he got a child and whatever. It’s nothing that --
THE COURT: Okay. Okay.
[MOORE’S COUNSEL]: So he understands --
THE COURT: It’s nothing that’s going to change
anything.
[MOORE’S COUNSEL]: I don’t think so, Judge.
THE COURT: Okay.
[MOORE’S COUNSEL]: If you want to give -- do you
want to explain --
THE COURT: No, I don’t -- I really don’t want to hear it.
THE DEFENDANT: I mean, I understand. I
understand.
THE COURT: I really don’t.
[MOORE’S COUNSEL]: Okay.
March 23, 2017, Tr. pp. 17–18.
[6] The trial court found that Moore had voluntarily left community corrections
and did not return until he was arrested. (Tr. 3/23/17 Vol. II at 17-18). The
trial court found that Moore had violated the terms of his community
corrections placement, revoked his placement, and ordered him to serve his
three-year sentence in the DOC. (Confid. App. Vol. II at 50-51; Tr. 3/23/17
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Vol. II at 20-22). Moore contends that the trial court abused its discretion in (1)
allowing him to waive his right to a hearing in the credit-time proceeding
without benefit of counsel and (2) revoking his community corrections
placement without allowing a statement of allocution.
Discussion and Decision
[7] For purposes of appellate review, we treat a hearing on a petition to revoke a
placement in a community corrections program the same as we do a hearing on
a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999).
The similarities between the two dictate this approach. Id. Both probation and
community corrections programs serve as alternatives to commitment to the
DOC and both are made at the sole discretion of the trial court. Id. A
defendant is not entitled to serve a sentence in either probation or a community
corrections program. Id. Rather, placement in either is a “matter of grace” and
a “conditional liberty that is a favor, not a right.” Id. (quoting Million v. State,
646 N.E.2d 998, 1002 (Ind. Ct. App. 1995) (internal quotation omitted)).
Our standard of review of an appeal from the revocation of a
community corrections placement mirrors that for revocation of
probation. A probation hearing is civil in nature and the State
need only prove the alleged violations by a preponderance of the
evidence. 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 witnesses. If there is
substantial evidence of probative value to support the trial court’s
conclusion that a defendant has violated any terms of probation,
we will affirm its decision to revoke probation.
Id. at 551 (citations omitted).
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I. Waiver of Hearing
[8] Moore claims that his due process rights were violated because he was allegedly
denied the right to counsel before waiving a hearing regarding the allegation
that he had violated the terms of his community corrections placement. Our
review of the record indicates no such deprivation. The transcript is clear that
the hearing in question concerned only the decision of community corrections to
deprive Moore of credit time. “A person who has been reassigned to a lower
credit time class or has been deprived of earned educational credit or good time
credit may appeal the decision to the commissioner of the department of
correction or the sheriff.” Ind. Code § 35-50-6-5.5. It is undisputed that Moore
did not appeal the denial of his credit time, and the law is clear that “where
[community corrections] mistakenly fails to give an offender earned credit time,
the offender must exhaust administrative remedies before seeking relief from a
court.” Neff v. State, 888 N.E.2d 1249, 1252 (Ind. 2008). Even assuming,
arguendo, that we could address the procedure by which community corrections
denied Moore credit time in this proceeding (which we doubt), Moore has
failed to exhaust his administrative remedies and has therefore waived any
challenges to that procedure for judicial review. Whatever may have happened
between Moore and Lake County community corrections, Moore has failed to
establish any denial of due process rights in this proceeding.
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II. Allocution
[9] Moore contends that the trial court abused its discretion in revoking his
community corrections placement without allowing for a statement of
allocution.
In Indiana, the purpose of the right of allocution is to give the
trial court the opportunity to consider the facts and circumstances
relevant to the sentencing of the defendant in the case before it.
Dillon v. State, 492 N.E.2d 661 (Ind. 1986); Page v. State, 424
N.E.2d 1021 (Ind. 1981); Shanholt v. State, 448 N.E.2d 308, 320
(Ind. Ct. App. 1983). “This goal [is] accomplished [where the
defendant is] given the opportunity to explain [his] view of the
facts and circumstances….” Id. As at common law, “the
purpose of the judge’s question, or allocution, was not to seek
mitigating evidence or a plea for leniency, but rather to give the
defendant a formal opportunity to show one of the strictly
defined legal grounds for avoidance or delay of the sentence.”
Minton v. State, 400 N.E.2d 1177, 1180 (Ind. Ct. App. 1980).
Ross v. State, 676 N.E.2d 339, 343 (Ind. 1996).
[10] In Vicory v. State, 802 N.E.2d 426, 429 (Ind. 2004), the Indiana Supreme Court
held that a defendant in a probation revocation proceeding has the right to
allocution before the trial court decides the case. It is true that the scope of the
right to allocution is not as broad in a probation revocation proceeding as it is
when sentence is first imposed; the Vicory Court held that the right to allocution
in a probation revocation proceeding exists only to the extent that a defendant
specifically requests to make a statement. See id. at 429 (“But when the
situation presents itself in which the defendant specifically requests the court to
make a statement, as it did here, the request should be granted.”). As
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mentioned, we review community corrections revocations the same as
probation revocations, so Vicory applies in this case as it would in a probation
revocation. See Cox, 706 N.E.2d at 549.
[11] Although Moore did not actually say the words, “I would like to make a
statement,” we nonetheless conclude that the trial court’s actions were
essentially a preemptive refusal to allow him to do so, in clear violation of the
spirit of Vicory, if not the letter. When Moore’s counsel asked Moore if he
wished to explain himself, the trial court responded by saying, “No, I don’t -- I
really don’t want to hear it.… I really don’t.” Tr. p. 18. We see little
difference between this statement and an explicit denial of an allocution
request, as the trial court was essentially telling Moore not to even bother to
ask. In the end, the result is the same; Moore was not allowed to give his view
on the facts and circumstances of his case. We therefore conclude that Moore’s
right to allocution has been violated. We reverse the trial court’s revocation of
Moore’s community corrections placement and remand for a new hearing.
Conclusion
We conclude that Moore failed to establish a denial of due process rights in this
proceeding. We agree with Moore, however, that the trial court improperly
denied him his right to allocution. We therefore reverse and remand for a new
hearing on whether Moore violated the terms of his community corrections
placement, at which Moore will be given the opportunity for allocution, should
he desire to exercise that right.
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The judgment of the trial court is reversed and we remand with instructions.
May, J, and Barnes, J., concur.
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