Fernando C Arellano v. State of Indiana

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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case. IN THE Court of Appeals of Indiana Fernando C. Arellano, Appellant-Defendant v. FILED Apr 26 2024, 9:50 am CLERK Indiana Supreme Court Court of Appeals and Tax Court State of Indiana, Appellee-Plaintiff April 26, 2024 Court of Appeals Case No. 23A-CR-2895 Appeal from the Jasper Superior Court The Honorable Russell D. Bailey, Judge Trial Court Cause No. 37D01-1702-F6-158 Memorandum Decision by Judge Tavitas Judges Mathias and Weissmann concur. Court of Appeals of Indiana | Memorandum Decision 23A-CR-2895 | April 26, 2024 Page 1 of 6 Tavitas, Judge. Case Summary [1] Fernando Arellano admitted to violating the conditions of his community corrections placement, and as a sanction, the trial court revoked Arellano’s placement and ordered that he serve the remainder of his sentence in the Department of Correction (“DOC”). Arellano appeals and argues that the trial court abused its discretion in reaching this sanction by failing to consider certain mitigating circumstances. We are not persuaded by this argument, and accordingly, we affirm. Issue [2] Arellano raises one issue, which we restate as whether the trial court abused its discretion in sanctioning Arellano as a result of his community corrections violation. Facts [3] In 2017, Arellano pleaded guilty to fraud, a Level 6 felony, and in exchange, the State dismissed the remaining charges as well as charges in a separate case. The trial court sentenced Arellano to two years with placement in Jasper County Community Corrections, if he qualified, but otherwise in the DOC. [4] Arellano began his sentence on work release with Jasper County Community Corrections on April 10, 2023. On July 25, 2023, the State filed a motion for change of placement and alleged that Arellano violated the conditions of his Court of Appeals of Indiana | Memorandum Decision 23A-CR-2895 | April 26, 2024 Page 2 of 6 placement by testing positive for methamphetamine and amphetamine in a “random mouth swab drug screen” administered on July 7, 2023. Appellant’s App. Vol. II p. 75. [5] The trial court held a hearing on the State’s motion on September 11, 2023, where Arellano admitted to the violation. Arellano further testified that he had employment “available” to him and that he had no outstanding fees. Tr. Vol. II p. 6. He requested that the trial court continue his community corrections placement. The trial court, however, ordered that Arellano serve the remainder of his sentence in the DOC. 1 [6] On September 19, 2023, Arellano filed a pro se motion to reconsider his sanction arguing that employment was “still available” for him, and he wanted to provide for his family. Appellant’s App Vol. II p. 84. The trial court held a hearing on Arellano’s motion on November 8, 2023, and denied the motion. Arellano now appeals. 1 At the hearing, the State offered into evidence an exhibit, which contained allegations that, in addition to the charged violation allegation, Arellano also violated the conditions of his community corrections placement by: (1) failing to complete a “chore”; (2) arriving late to the work release facility and “l[ying]” to staff by claiming that he was “stuck in a traffic accident” when he was actually visiting the hospital, where he was not authorized to be; and (3) failing to pay fees. Ex. Vol. III p. 9. The exhibit indicated that Jasper County Community Corrections had sanctioned Arellano with two hours of community service for failing to complete the chore and that, after a hearing before the Jasper County Community Corrections Conduct Adjustment Board, Arellano was sanctioned with forty-eight hours of community service for the violation related to the arriving late and lying to staff. The State accepted Arellano’s contention that he had no outstanding fees. The State’s exhibit was admitted without objection. The trial court, however, stated that it did not base its sanction on the violations alleged in the State’s exhibit because Arellano had already been sanctioned for those violations. Court of Appeals of Indiana | Memorandum Decision 23A-CR-2895 | April 26, 2024 Page 3 of 6 Discussion and Decision [7] Arellano argues that the trial court abused its discretion by revoking his community corrections placement and ordering that he serve the remainder of his sentence in the DOC as a sanction for his community corrections violation. Arellano has not carried his burden of persuasion. [8] “The standard of review for revocation of a community corrections placement is the same standard as for a probation revocation.” Bennett v. State, 119 N.E.3d 1057, 1058 (Ind. 2019) (citing Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)). This is because “[b]oth 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.” Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App. 2016) (citing Cox, 706 N.E.2d at 549). Accordingly, placement in a community corrections program “is a matter of grace and not a right.” Id. (citing Cox, 706 N.E.2d at 549). [9] We review a trial court’s sanction for the violation of a community corrections placement under the abuse of discretion standard. Pucket v. State, 183 N.E.3d 335, 339 (Ind. Ct. App. 2022) (citing Johnson, 62 N.E.3d at 1230), trans. denied. An abuse of discretion occurs when the trial court’s decision is against the logic and effect of the facts and circumstances before the court. Id. (citing Johnson, 62 N.E.3d at 1230). We neither reweigh the evidence nor judge the credibility of witnesses. Id. (citing Johnson, 62 N.E.3d at 1230). Court of Appeals of Indiana | Memorandum Decision 23A-CR-2895 | April 26, 2024 Page 4 of 6 [10] Here, Arellano admitted to violating the conditions of his community corrections placement by testing positive for methamphetamine and amphetamine. Additionally, Arellano has an extensive criminal history, including multiple felony convictions. See Utley v. State, 167 N.E.3d 777, 784 (Ind. Ct. App. 2021) (affirming probation revocation based, in part, on probationer’s “extensive criminal history”), trans. denied. Arellano contends that the trial court failed to consider as mitigating circumstances that: (1) Arellano had employment available to him; (2) Arellano had family support; (3) Arellano could afford to pay community corrections program fees; and (4) the failed drug screen was “an isolated incident.” Appellant’s Br. p. 11. A trial court, however, is not required to consider mitigating circumstances when determining the sanction for a community corrections violation. See, e.g., Porter v. State, 117 N.E.3d 673, 675 (Ind. Ct. App. 2018). Accordingly, the trial court did not abuse its discretion. Conclusion [11] The trial court did not abuse its discretion by revoking Arellano’s community corrections placement and ordering that he serve the remainder of his sentence in the DOC. Accordingly, we affirm. [12] Affirmed. Mathias, J., and Weissmann, J., concur. Court of Appeals of Indiana | Memorandum Decision 23A-CR-2895 | April 26, 2024 Page 5 of 6 ATTORNEY FOR APPELLANT Avery A. Walker The Law Office of Riley and Ahler, P.C. Rensselaer, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana Court of Appeals of Indiana | Memorandum Decision 23A-CR-2895 | April 26, 2024 Page 6 of 6

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