MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), May 12 2017, 8:07 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Pettiford, May 12, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1612-CR-2678
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Jeffrey Marchal,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G06-1512-F4-42934
Robb, Judge.
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Case Summary and Issue
[1] Kevin Pettiford appeals the trial court’s revocation of his placement in
community corrections and order that he serve the balance of his six-year
sentence in the Indiana Department of Correction (“DOC”). Concluding the
trial court did not abuse its discretion in doing so, we affirm.
Facts and Procedural History
[2] On February 24, 2016, Pettiford pleaded guilty to two counts of burglary, both
Level 4 felonies, and was sentenced to six years for each count, to be served
concurrently in a community corrections program. Pettiford was placed on
work release. Following a notice of violation and hearing in March, Pettiford
was found in violation of the terms of his placement but was continued on
community corrections with his placement modified to home detention.
Following a second notice of violation and hearing in April, Pettiford was again
found in violation of the terms of his placement but continued on home
detention “with strict compliance.” Appellant’s Appendix, Vol. II at 114.
[3] On October 25, 2016, Marion County Community Corrections filed another
notice of violation alleging Pettiford failed to charge his electronic monitoring
device, resulting in the device shutting down on October 24 at 4:40 p.m.,
leaving him unmonitored and his whereabouts unknown. The notice further
alleged he failed to comply with his monetary obligation to community
corrections. The notice was amended on October 27 to indicate Pettiford’s
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electronic monitoring device resumed monitoring on October 25 at 1:12 a.m.,
but he had nonetheless failed to maintain contact with community corrections
in the interim.
[4] The trial court held a contested violation hearing on November 17, 2016. A
representative of Marion County Community Corrections testified the
electronic monitoring device gives several warnings—in the form of a visual
alarm, vibration, and/or phone calls from the monitoring center—over the
course of several hours before it shuts down due to lack of charge. She testified
the monitoring center attempted on several occasions to contact Pettiford after
his device shut down on October 24 using the phone number they had on
record for him, but he never answered. Pettiford testified he did get the visual
and tactile warnings the device needed to be charged. He plugged the device in
as soon as he got home from work and it appeared to be charging while he was
at home all night watching Monday Night Football. He did not receive any
phone calls from the monitoring center. He testified he bought a new phone a
week or so before and left a message for his case manager giving him the new
number. Pettiford testified that at his regularly-scheduled meeting with his case
manager on October 25,
I just asked him, I asked him if he had received the voice mail of
the new number, and he looked on his computer and he said, the
914 number, and I said yes, that’s correct. He repeated the
number, so I wanted to make sure and confirm that he had in fact
received that number, and he confirmed that he did receive that
voice mail and he had that number in his system.
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Transcript, Volume II at 25-26. When he met with maintenance thereafter,
they issued a new charger for his device. Pettiford’s case manager testified that
he only became aware of Pettiford’s new number on October 25, and he
updated his phone number that day. The case manager had no recollection or
record of Pettiford leaving a voice mail prior to that day.
[5] The trial court found Pettiford in violation of his community corrections
placement:
This is largely one of credibility, and unfortunately, Mr. Pettiford
doesn’t have much credibility with this Court as this is not the
first time he’s been in front of me on a violation. It’s not the
second time he’s been in front of me on a violation. It’s the third
time he’s been in front of me on a violation. And he was placed
back on strict compliance. The more credible evidence is that
Mr. Pettiford did not bother to tell [his case manager] about the
new number until after he met with him on the 25th and he had
seven hours for which he was unaccounted for, and he made no
effort to let Community Corrections know where he was and that
constitutes failure to maintain contact.
So, I’m finding the State has met its burden as to allegations one
[failing to charge his device] and three [failing to maintain
contact]. It has not met its burden as to allegation two [failing to
comply with monetary obligations].
Id. at 29. As for the sanction, the trial court stated:
[A]fter [Pettiford] was violated the first time, his placement was
modified from Work Release to Home Detention which is
something we rarely see. And yet after that, he’s been given
more than one additional opportunity to get through this and he
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can’t. I also note that he was sentenced just in February. And so
here we are less than a year into a six-year sentence which he
agreed upon, and he’s violated three times. I really have no
options here. I’m going to revoke his placement on Community
Corrections. He’s going to serve the balance of his sentence in
the Department of Correction.
Id. at 33. Pettiford now appeals.
Discussion and Decision
I. Standard of Review
[6] The issue raised by Pettiford is whether the trial court abused its discretion in
revoking his placement in community corrections and ordering him to serve the
remainder of his sentence in the DOC. For purposes of our review, the
revocation of a community corrections placement is treated the same as the
revocation of probation. Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App.
2016).
[7] Revocation is a two-step process: first, the trial court must make a factual
determination that a violation of a condition of placement occurred, and if a
violation is proven, the trial court must then determine if the violation warrants
revocation. Id. The trial court’s revocation decision is within its sound
discretion. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). The State
must prove the alleged violations by a preponderance of the evidence, and on
appeal, we consider all the evidence supporting the trial court’s judgment
without reweighing that evidence or judging the credibility of the witnesses.
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Johnson, 62 N.E.3d at 1229. One violation of a condition of placement is
enough to support revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App.
2015). If there is substantial evidence of probative value supporting the trial
court’s conclusion that a defendant has violated any terms of his placement, we
will affirm its decision to revoke the placement. Johnson, 62 N.E.3d at 1229.
[8] As for the sanction upon revoking placement, we review a trial court’s
sentencing decision for an abuse of discretion. Id. A trial court abuses its
discretion when its decision is against the logic and effect of the facts and
circumstances before it. Id. at 1230.
II. Revocation of Placement
[9] Pettiford contends that under the totality of the circumstances, the trial court
abused its discretion in determining that his violations warranted revoking his
placement, citing Ripps, 968 N.E.2d 323.
[10] In Ripps, the defendant pleaded guilty to child molesting and a portion of his
sentence was suspended to probation. One of the conditions of his probation
was that he not live within 1,000 feet of a youth program center. Some years
into his probation, the defendant, now suffering from terminal cancer,
congestive heart failure, and pulmonary disease, moved into an assisted-living
facility and registered his address with the sheriff’s department. His probation
was revoked upon the trial court finding his residence was within 1,000 feet of a
youth program center and he was ordered to serve the nearly three years
remaining of his sentence in prison. On appeal, we considered the “totality of
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the circumstances” presented by the case: the defendant’s age and medical
condition; his attempt to adhere to the terms of his probation by reporting his
new address; the technical nature and ambiguity of the measurement placing
him in violation of the residency restriction; that he was in the process of
moving out of the improper residence when he was arrested; and his having
wrongly served time in prison for a prior revocation based on an offense that
was later vacated as a violation of ex post facto principles. Id. at 328. Under
these circumstances, we held it “was unreasonable for the trial court to
determine [the] violation warranted revoking [the defendant’s] probation.” Id.
[11] Pettiford does not claim he did not violate the terms of his placement. Instead,
he claims the circumstances of his violation do not warrant revocation because
he provided his case manager with his new phone number when he got it,
plugged his device into the charger when prompted and believed it to be
charging while he was home as required on the night in question, and reported
to his case manager as scheduled the morning after he was unmonitored for
several hours. Thus, he contends he, like the defendant in Ripps, “took steps to
adhere” to the conditions of his placement. Brief of Appellant at 8. He also
notes he had a job and was voluntarily attending counseling. We do not believe
the circumstances of this case rise to the level of the circumstances in Ripps that
made revocation unreasonable. Even if, as Pettiford claims, he was unable to
charge his device due to an equipment malfunction, he took no steps to notify
anyone of the malfunction during the seven hours it was not operating, and he
offered no explanation for why the device suddenly began charging in the
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middle of the night. He claims he gave his case manager his new phone
number at least a week prior to this incident, but the case manager had no
recollection and no record of that. The trial court specifically rejected
Pettiford’s version of events, and as that was a credibility call, we are bound to
give the trial court’s determination on that matter credence. See Johnson, 62
N.E.3d at 1229. Moreover, in the eight months between Pettiford’s placement
in community corrections and this incident, Pettiford had already violated the
terms of his placement twice. Accordingly, we conclude the trial court did not
abuse its discretion in revoking Pettiford’s community corrections placement
and ordering that he serve the remainder of his sentence in the DOC.
Conclusion
[12] The trial court did not abuse its discretion in revoking Pettiford’s placement in
community corrections and remanding him to the DOC to serve the remainder
of his sentence. The trial court’s judgment is affirmed.
[13] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
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