Asher B. Hill v. State of Indiana (NFP)

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FILED Pursuant to Ind.Appellate Rule 65(D), 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. Oct 22 2010, 9:36 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: ELLEN M. O CONNOR Marion County Public Defender Agency Indianapolis, Indiana GREGORY F. ZOELLER Attorney General of Indiana JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA ASHER HILL, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) No. 49A02-1002-CR-132 APPEAL FROM THE MARION SUPERIOR COURT The Honorable Patricia J. Gifford, Judge Cause Nos. 49G03-0909-FB-077204 and 49G03-0909-FB-077206 October 22, 2010 MEMORANDUM DECISION NOT FOR PUBLICATION MATHIAS, Judge Asher Hill ( Hill ) appeals the Marion Superior Court s revocation of his placement in a community corrections work release program, claiming that the State failed to present sufficient evidence to support the revocation of his placement. We affirm. Facts and Procedural History On November 20, 2009, Hill pleaded guilty to two counts of Class B felony burglary. The trial court sentenced Hill to eight years on each count to run concurrently, with four years executed and four years suspended. The executed time was ordered to be served in a community corrections work release program. Hill was subsequently placed at the Duvall Residential Work Release Facility. Less than one month later, on December 16, 2009, Marion County Community Corrections ( MCCC ) filed a notice of community corrections violation regarding Hill. After a hearing on the initial notice was continued, MCCC filed a second notice of community corrections violation on January 14, 2010, alleging, among other things, that Hill had violated a job search pass and failed to pay community corrections fees. At a hearing held on the same date, the State called Allison Shine ( Shine ), Hill s MCCC case manager, as its sole witness. Shine testified that at a previous administrative hearing, Hill admitted to going home to visit his family while released from the Duvall facility on a job search pass. At the conclusion of the hearing, the trial court found that Hill had violated the terms of his community corrections placement by failing to pay community corrections fees and by going home to visit his family while released on a job search pass. The trial 2 court revoked Hill s community corrections placement and ordered him to serve 593 days in the Department of Correction. Hill now appeals. Discussion and Decision Hill argues that the evidence is insufficient to support the revocation of his community corrections placement. Community corrections programs are alternatives to incarceration, and placement is at the sole discretion of the trial court. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999). A defendant is not entitled to serve a sentence in a community corrections program; rather, placement is a matter of grace and a conditional liberty that is a favor, not a right. Id. On appeal, we treat a hearing on a petition to revoke placement in a community corrections program the same as we do a hearing on a petition to revoke probation. Id. That is, a community corrections revocation hearing is civil in nature, and the State need only prove a violation by a preponderance of the evidence. McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007). When the sufficiency of the evidence supporting revocation is challenged, we neither reweigh the evidence nor judge the credibility of witnesses. Cox, 706 N.E.2d at 551. Revocation is appropriate if there is substantial evidence of probative value to support the trial court s conclusion that a violation has occurred. Id. It is well settled that a single violation is sufficient to support revocation. Gosha v. State, 873 N.E.2d 660, 663 (Ind. Ct. App. 2007). Hill first argues that the evidence is insufficient to support the trial court s conclusion that he violated the terms of his community corrections placement by abusing a job search pass because no evidence of MCCC s rules regarding job search passes was 3 introduced at the revocation hearing. While no written copy of MCCC s rules was introduced at trial, Shine testified that Hill violated the rules by failing to provide sufficient verification of his whereabouts and by going home to visit his family while released on a job search pass. Tr. pp. 13, 15. Shine s testimony was sufficient to prove by a preponderance of the evidence that Hill s conduct violated MCCC s job search pass rules.1 Additionally, Hill argues that Shine s testimony that Hill admitted to going home to visit his family while released on a job search pass is inaccurate. Specifically, he claims that he made no such admission and that Shine misunderstood him. Hill s argument is simply an invitation to reweigh the evidence and judge the credibility of witnesses, which we will not do. Shine testified that Hill admitted to violating his job search pass by going home to visit his family, and this testimony was sufficient evidence to support the trial court s finding that Hill violated the terms of his community corrections placement. Because violation of a single condition of a community corrections placement is sufficient to support revocation, we need not address Hill s remaining arguments. The evidence was sufficient to support revocation of Hill s community corrections placement. 1 We also note that this court has held that notice to a defendant of the terms of his placement in a community corrections program is a prerequisite to revocation of the placement. Million v. State, 646 N.E.2d 998, 1000 (Ind. Ct. App. 1995). However, Hill did not argue during the revocation hearing that he had no prior knowledge of the rules he was accused of violating. Rather, he merely argued that the State failed to introduce the rules into evidence, and he defended his actions by claiming that he was not in violation of the rules. To the extent that he argues that he had no notice of MCCC s rules regarding job search passes, Hill s argument is waived. See Patterson v. State, 750 N.E.2d 879, 883 (Ind. Ct. App. 2001). 4 Affirmed. BAKER, C.J., and NAJAM, J., concur. 5

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