GREEN v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Bret Green appeals the trial court's order revoking his community corrections placement and ordering that he serve the remainder of his sentence in the Department of Correction (“DOC”). Green argues that the trial court abused its discretion by failing to consider certain mitigating factors in reaching this determination. We disagree and, accordingly, affirm.

Issue

[2] Green raises one issue on appeal, which we restate as whether the trial court abused its discretion by failing to consider certain mitigating factors in revoking Green's community corrections placement.

Facts

[3] On January 6, 2021, Green reached a plea agreement regarding three cases. In Cause No. 23C01-1811-F6-531 (“Cause No. 531”), Green admitted to violating the terms of his probation by committing new offenses in Cause No. 23C01-2011-F6-422 (“Cause No. 422”) and Cause No. 23C01-2011-F6-440 (“Cause No. 440”). In Cause No. 422, Green admitted to committing possession of methamphetamine, a Level 6 felony. In Cause No. 440, Green admitted to committing operating a vehicle with an ACE of .08 or more (“OWI”), a Level 6 felony; possession of methamphetamine, a Level 6 felony; and to being an habitual vehicular substance offender.

[4] On February 1, 2021, the trial court accepted the plea agreement and sentenced Green according to the terms thereof:

[5] On June 25, 2021, and August 25, 2021, the State filed petitions to revoke Green's community corrections placements because Green was dismissed from the Home with Hope program for violating the program's rules. On July 26, 2021, the State filed a petition to revoke Green's community corrections placements on the grounds that Green tested positive for methamphetamine.

[6] Green admitted to violating the conditions of his community corrections placements by failing to complete the Home with Hope program. On August 30, 2021, the trial court transferred jurisdiction of the cases from the Fountain Circuit Court to the Bi-County Accountability Court, which is the problem-solving drug court for Fountain and Warren counties. Green, however, repeatedly tested positive for illegal drugs and was dismissed from the program.

[7] On September 5, 2023, law enforcement officers conducted a routine search of Green's residence. Green, his girlfriend, and several young children were present. The officers discovered marijuana in Green's and his girlfriend's bedroom, a child's bedroom, and inside a vehicle parked in the driveway. Green was later charged with and pleaded guilty to possession of marijuana, a Class B misdemeanor, in Cause No. 23C01-2311-CM-510, which constituted a violation of his community corrections placements in Cause Nos. 531, 422, and 440.

[8] The trial court held a hearing on the violation for all three cases on June 5, 2024.² Green did not contest that marijuana was found in his residence during the routine search. Green testified that he was employed and assisted his girlfriend in caring for their children. He had periods of sobriety in the past and had most recently been sober for nine months. His criminal history included two placements on probation, four placements on community corrections, and eight petitions to revoke his placements.

[9] The trial court determined that Green violated the conditions of his community corrections placements in all three cases and issued the following order:

[10] Green now appeals.

Discussion and Decision

[11] Green argues that the trial court abused its discretion in sanctioning Green for his community corrections violation because the trial court “failed to consider mitigating factors clearly supported by the record.” Appellant's Br. p. 8. We conclude that the trial court did not abuse its discretion.

[12] “Indiana's community corrections program serves the purpose of providing an alternative to imprisonment in a state facility.” Shepard v. State, 84 N.E.3d 1171, 1173 (Ind. 2017) (citing Ind. Code § 11-12-2-1). “The program consists of ‘residential and work release, electronic monitoring, day treatment, or day reporting’ that are operated at the county level.” Id. (quoting Ind. Code § 35-38-2.6-2). If the defendant violates the terms of his or her community corrections placement, then the trial court may revoke the placement. Livingston v. State, 113 N.E.3d 611, 614 (Ind. 2018) (citing Ind. Code § 35-38-2.6-5).

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). 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. Placement on probation or in a community corrections program is a matter of grace and not a right. Id.; see State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015) ․ Our standard of review of an appeal from the revocation of a community corrections placement mirrors that for revocation of probation. Cox, 706 N.E.2d at 551. 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, and if there is substantial evidence of probative value to support the court's conclusion that a defendant has violated any terms of probation, we will affirm its decision to revoke probation. Id.

Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App. 2016).

[13] Green argues that the trial court abused its discretion because it failed to consider, as “mitigating factors,” the fact that Green was employed, had a support system, was working on achieving sobriety, and had done well the previous two months in community corrections. Appellant's Br. p. 10. Green cites sentencing cases holding that the trial court must consider mitigating factors that are clearly supported in the record when determining a criminal sentence. See id. at 9 (citing Lewis v. State, 31 N.E.3d 539, 542 (Ind. Ct. App. 2015)).

[14] But Green is appealing the trial court's order revoking his community corrections placement, not a criminal sentence. A trial court is not required to balance mitigating and aggravating factors in these circumstances. See Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014) (holding that trial court did not abuse its discretion by declining to consider defendant's employment and other “achievements” in revoking defendant's community corrections placement), trans. denied.

[15] Nor are we persuaded that the trial court abused its discretion by revoking Green's community corrections placement. Green's criminal history includes numerous drug and substance related offenses and eight petitions to revoke his probation and community corrections placements. He failed to complete the Home with Hope program, and he tested positive for methamphetamine several times while his cases were supervised by the Bi-County Accountability Court. Green violated his community corrections placements in the instant case by possessing marijuana in a home while young children were present. The trial court did not abuse its discretion by revoking Green's community corrections placement.

Conclusion

[16] The trial court did not abuse its discretion by revoking Green's community corrections placement. Accordingly, we affirm.

[17] Affirmed.

FOOTNOTES

1.   Home with Hope is a facility in Lafayette, Indiana, that provides rehabilitation services for adults addicted to alcohol and drugs.

2.   The hearing also included a sentencing hearing in Cause No. 23C01-2311-CM-510.

3.   We take judicial notice of the sentencing order filed in Cause No. 422, which was not included in the record provided to us.

Tavitas, Judge.

May, J., and DeBoer, J., concur.