Floyd William Treece v. State of IndianaFloyd William Treece v. State of Indiana
Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
OPINION
CRONE, Judge.
Case Summary
Floyd William Treece was convicted of possession of methamphetamine and possession of an illegal drug lab and admitted to being a habitual offender. He was sentenced to an aggregate term of fourteen years, which included a term of commitment to the Department of Correction (“DOC“), followed by time in a community corrections program, and the remainder suspended to probation. Before the scheduled release date from his DOC commitment, he requested and was granted assignment to a community transition program (“CTP“) for the last 120 days of his DOC commitment. He was assigned to the CTP at Tippecanoe County Community Corrections (“TCCC“).
During his time in the CTP, Treece discovered another person sitting in his chair and kicked him in the face, which was a violation of TCCC‘s rule against assault and battery. He admitted to the violation, and TCCC removed him from its CTP. When Treece was released from the DOC, he reported to TCCC for the community corrections portion of his sentence. TCCC informed him that he had been rejected from participation in any of its programs as a result of his violent rule violation. The State filed a motion requesting that Treece be committed to the DOC and that his placement in community corrections be revoked, which the trial court granted.
Treece appeals the revocation of his community corrections placement. He argues that the trial court abused its discretion in revoking his community corrections placement because (1) the TCCC did not have the authority to reject his placement in community corrections for a rule violation he committed while assigned to the CTP because the CTP is a DOC program and the DOC is not statutorily authorized to reject an inmate‘s placement in community corrections as a disciplinary action; and (2) the trial court failed to consider the progress he made toward rehabilitation during his DOC commitment. We conclude that the CTP is a TCCC program and that the statutes governing the DOC‘s disciplinary actions do not apply to TCCC. Therefore, TCCC had the authority to reject Treece from his placement in community corrections for a violation he committed while in the CTP. We also conclude that the trial court was not required to consider his progress toward rehabilitation when determining whether his rule violation warranted revocation of his community corrections placement. We conclude that he committed an act of violence, and therefore the trial court did not abuse its discretion in revoking his community corrections placement. Therefore, we affirm. We also remand for the trial court to clarify its sentencing order.
Facts and Procedural History
Treece pled guilty to class D felony possession of methamphetamine and class C felony possession of an illegal drug lab and admitted to being a habitual substance of-
Treece was incarcerated at the Westville Correctional Facility. By letter dated February 1, 2013, he informed the trial court that his release date was July 25, 2013, and requested assignment to a CTP for the last 120 days of his commitment to the DOC. After the trial court received a recommendation from the TCCC CTP recommendation panel that Treece be assigned to the CTP, the court granted Treece‘s request and ordered the DOC to assign him to the CTP. Id. at 28. Treece was transported to TCCC to serve in its CTP until July 25, 2013, at which time he was to begin serving the two-year portion of his sentence with TCCC pursuant to the sentencing order.
On June 22, 2013, Treece was serving in the CTP at TCCC when he returned to the TCCC day room and found that someone was sitting in a seat that he had formerly occupied. Tr. at 10. A still from the video recording of the room in which the incident occurred shows over sixty seats, almost all of which were unoccupied. Appellant‘s App. at 33. Instead of taking one of the other seats, Treece kicked the person in the face. A TCCC hearing officer conducted a hearing, at which Treece admitted to kicking the inmate in the face. The hearing officer concluded that Treece violated TCCC Rule 212 regarding assault and battery. Id. at 32. As a consequence of his rule violation, TCCC removed him from its CTP. On July 9, 2013, the trial court received notice from TCCC that it was rejecting Treece from the community corrections portion of his sentence due to fighting while he was in its CTP. Id. at 29. TCCC explained that it had a “zero tolerance for participants that fight” and that if “a participant fights while on [TCCC] they will never be accepted for placement again.” Id.
On July 25, 2013, Treece was released from commitment to the DOC. He reported to TCCC to serve his two years in community corrections pursuant to the sentencing order, at which time he was informed that TCCC was rejecting his placement in its program. On July 26, 2013, the State filed a motion to commit Treece to the DOC, asking the court to revoke his community corrections placement and remand him to the custody of the DOC for the two years that he was supposed to serve in community corrections. At the hearing on the State‘s motion, Treece argued that TCCC did not have the authority to reject him from its program because at the time of his rule violation he was still in the CTP, which, he argued, was a DOC program. The trial court concluded that TCCC could reject Treece based upon his rule violation while assigned to its CTP and granted the State‘s motion. Treece appeals.
Discussion and Decision
Standard of Review
Treece presents two arguments that the trial court abused its discretion in
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. A defendant is not entitled to serve a sentence in either probation or a community corrections program. Rather, placement in either is a matter of grace and a conditional liberty that is a favor, not a right.
The standard of review of an appeal from the revocation of a community corrections placement mirrors that for revocation of probation. That is, a revocation of community corrections placement hearing is civil in nature, and the State need only prove the alleged violations by a preponderance of the evidence. McQueen v. State, 862 N.E.2d 1237, 1242 (Ind.Ct.App.2007) (citations and quotation marks omitted).
Probation revocation is a two-step process. First, the court must make a factual determination that a violation of a condition of probation actually has occurred. If a violation is proven, then the trial court must determine if the violation warrants revocation of the probation. Indiana has codified the due process requirements at
Section 1—TCCC‘s Authority to Reject Treece
Treece‘s first argument is that the trial court erred in concluding that TCCC had the authority to reject him from the community corrections portion of his sentence based on a rule violation he committed while still committed to the DOC. The State does not directly address TCCC‘s authority to reject an inmate but argues that the trial court‘s discretion to revoke an offender‘s placement in a community corrections program may be exercised before the offender‘s placement commences, citing Ashba v. State 570 N.E.2d 937 (Ind.Ct.App.1991), cert. denied (1992) and Million v. State, 646 N.E.2d 998 (Ind.Ct.App.1995).
In Ashba, this Court held that the trial court could properly revoke Ashba‘s probation before his probationary period began for an offense that he committed while he was on parole from the DOC. 570 N.E.2d at 940. The court explained that the terms of Ashba‘s probation attached to his suspended sentence from the moment that the sentence was imposed. Id.; see also Baker v. State, 894 N.E.2d 594, 596-98 (Ind.Ct.App.2008) (holding that probation may be revoked for commission of crime while serving executed portion of sentence). In Million, this Court held that the trial court did not abuse its discretion in revoking Million‘s placement in a community corrections program before that placement began for conduct that occurred while he was in work release for a prior conviction. 646 N.E.2d at 1002; see also Toomey v. State, 887 N.E.2d 122, 124-25 (Ind.Ct.App.2008) (holding that trial court did not lack authority to revoke home detention upon defendant‘s violation of conditions of work release).
Treece acknowledges Ashba and Million but argues that they are inapposite because neither case involved a CTP. He argues that TCCC had no authority to reject him because (1) a CTP is a DOC program, (2) permissible DOC disciplinary actions are provided for by statute, and (3) such disciplinary actions do not include rejection from a community corrections program.
To the extent that our analysis of Treece‘s argument relies on statutory interpretation, we observe that
[b]ecause it presents a question of law, we review a matter of statutory interpretation using a de novo standard. When interpreting a statute, our goal is to determine and give effect to the legislature‘s intent in promulgating it. Thus, we begin by examining the language of the statute, presuming that the words were selected to express their common and ordinary meanings. Where the statute is unambiguous, we accord each word and phrase its plain, ordinary, and usual meaning, without having to resort to rules of construction to decipher meanings.
Leedy v. State, 998 N.E.2d 307, 309-10 (Ind.Ct.App.2013) (citations omitted), trans. denied (2014).
Treece‘s argument begins with the assertion that a “CTP is a DOC program.” Appellant‘s Br. at 6. In support, he cites
Treece‘s assertion that a CTP is a DOC program completely ignores the numerous statutory provisions that indicate that a CTP is operated by a community corrections program. CTP is defined by
“Community transition program” means assignment of a person committed to the [DOC] to:
(1) a community corrections program; or
(2) in a county or combination of counties that do not have a community corrections program, a program of supervision by the probation department of a court;
for a period after a person‘s community transition program commencement date until the person completes the person‘s fixed term of imprisonment, less the credit time the person has earned with respect to the term.
(Emphasis added.)
Community corrections program means a community based program that provides preventive services, services to offenders, services to persons charged with a crime or an act of delinquency, services to persons diverted from the
- The prevention of crime or delinquency.
- Persons sentenced to imprisonment in a county or local penal facility other than a state owned or operated facility.
- Committed offenders.
- Persons ordered to participate in community corrections programs as a condition of probation.
While assigned to a CTP, “a person must comply with the rules concerning the conduct of persons in the [CTP] ... that are adopted by the community corrections advisory board establishing the program” and “any conditions established by the sentencing court for the person.”
The [CTP], following a hearing and upon a finding of probable cause that the offender has failed to comply with a rule or condition under section 11 of this chapter, may:
(1) request a court to issue a warrant ordering the department to immediately:
(A) return the offender to the [DOC]; or
(B) reassign the offender to a program or facility administered by the [DOC]; or
(2) take disciplinary action against an offender who violates rules of conduct. Disciplinary action under this subdivision may include the loss of earned credit time under IC 35-50-6-5.
Here, when Treece was assigned to a CTP he was assigned to TCCC, which operated the CTP. Treece violated TCCC rules. TCCC took the action of removing Treece from its CTP, as it is authorized to do. See id. TCCC also has a policy to reject any person who commits an act of violence while participating in one of its programs from any further participation in its programs. It is of no moment that Treece was still committed to the DOC when he violated TCCC rules. Treece‘s commitment to the DOC does not render TCCC powerless from enforcing its rules and policies.
Treece argues that the CTP is subject to the disciplinary rules promulgated under
A CTP‘s authority to discipline offenders when they are assigned to a CTP is granted in
Section 2—Trial Court‘s Failure to Consider Treece‘s Progress
Treece also argues that even if TCCC had the authority to reject him from community corrections for his CTP rule violation, the trial court abused its discretion in revoking his placement by failing to account for his achievements while committed to the DOC. Specifically, he argues that he completed his GED and the Clean Lifestyle is Freedom Forever (CLIFF) program, had obtained fulltime employment, and was “seemingly being rehabilitated.” Appellant‘s Br. at 10. Initially, we observe that trial courts are not required to balance “aggravating or mitigating circumstances when imposing sentence in a probation revocation proceeding.” Mitchell v. State, 619 N.E.2d 961, 964 (Ind.Ct.App.1993), overruled in part by Patterson v. State, 659 N.E.2d 220, 223
Section 3—Remand for Sentencing Clarification
Treece received an aggregate sentence of fourteen years. The sentencing order states that Treece “shall execute eight (8) years at the [DOC] to include two (2) years with [TCCC] at a level to be determined by Community Corrections” and “that four (4) years of the sentences of imprisonment should be, and the same hereby are, suspended and [Treece] placed on supervised probation for four (4) years.” Appellant‘s App. at 15. Do we interpret this order to mean eight years at the DOC plus two years with TCCC plus four years suspended for a total sentence of fourteen years?4 Based on Treece‘s release date from the DOC of July 25, 2013, and the State‘s calculation of his time served,5 it appears that the DOC interpreted the sentencing order to mean that the eight years executed consists of six years at the DOC and two years with TCCC. If that is the case, Treece‘s sentence will be only twelve years, not fourteen. The sentencing order‘s paragraph pertaining to the cost of Treece‘s incarceration stated that “[his] sentence calls for an executed term of imprisonment of ten years.” Id. at 17. The chronological case summary reads, “[Treece] sentenced to 14 years to execute 10 years.” Id. at 7. “[I]t is our duty to ‘correct sentencing errors, sua sponte, if necessary.‘” Jones v. State, 775 N.E.2d 322, 331 (Ind.Ct.App.2002) (quoting Dickson v. State, 624 N.E.2d 472, 474 (Ind.Ct.App.1993)). Accordingly, we remand to the trial court to clarify Treece‘s sentence.
Affirmed and remanded.
BAKER, J., and BARNES, J., concur.