MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Apr 10 2018, 8:40 am
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Vincent L. Scott Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Deshawn Hutcherson, April 10, 2018
Appellant-Defendant, Court of Appeals Case No.
29A02-1708-CR-1970
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Steven R. Nation,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D01-0909-FB-95
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 29A02-1708-CR-1970 | April 10, 2018 Page 1 of 6
Case Summary
[1] Appellant-Defendant Deshawn Hutcherson appeals the revocation of his
placement in community corrections. In doing so, Hutcherson contends he was
deprived of the opportunity to present mitigating evidence to show that
revocation of his placement was not warranted. Because the record reveals that
the trial court conducted a hearing during which Hutcherson was given the
opportunity to present such evidence, we affirm.
Facts and Procedural History
[2] On July 7, 2010, Hutcherson pled guilty under Cause Number 29D01-0909-FB-
95 (“Cause No. FB-95”) to Class B felony burglary. Hutcherson was also found
to be a habitual offender. He was sentenced to an aggregate term of sixteen
years with fourteen years executed in the Department of Correction (“DOC”)
and two years served in community corrections. Hutcherson began serving the
community corrections portion of his sentence on or about February 4, 2016.
[3] On March 15, 2016, Hutcherson was alleged to have violated the terms of his
placement in community corrections (his “placement”) by committing a
criminal act which resulted in him being charged with Class B misdemeanor
possession of a synthetic drug. The trial court subsequently found that
Hutcherson had violated the terms of his placement. As a result of this
violation, Hutcherson was deprived of 180 days of good-time credit.
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[4] In June of 2016, the terms of Hutcherson’s placement permitted him to leave
the facility for approved employment. On June 9, 2016, Hutcherson was
approved to leave the facility for work at 4:15 p.m. He was scheduled to return
the facility by 1:15 a.m. the next morning. Hutcherson, however, failed to
return as scheduled. Subsequent attempts to contact Hutcherson were
unsuccessful. He was eventually located by police on July 19, 2016.
[5] Following Hutcherson’s failure to return to the community corrections facility,
he was again alleged to have violated the terms of his placement. He was also
charged under Cause Number 29D01-1606-F6-4508 (“Cause No. F6-4508”)
with Level 6 felony failure to return to lawful detention. Hutcherson admitted
to the violation in Cause No. FB-95 on January 12, 2017. The trial court found
“that the Defendant has violated the terms and conditions of Community
Corrections as set forth in his admission. We’ll go ahead and at this point take
disposition under advisement and we will proceed on that on the same day as
sentencing under [Cause No. F6-4508].” Tr. Vol. II, pp. 34–35.
[6] Hutcherson initially pled guilty under Cause No. F6-4508. His guilty plea was
subsequently set aside, however, due to a disagreement regarding credit time.
In setting aside Hutcherson’s guilty plea under Cause No. F6-4508, the trial
court stated the following:
So at this point the Defendant is asking for the trial concerning
these matters, so the Court will at this point then vacate the plea
negotiations and will proceed to set that matter for trial. And
then we’ll set disposition upon [Cause No. FB-95] upon
determination of guilt or innocence in [Cause No. F6-4508].
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Tr. Vol. II, pp. 48–49. Hutcherson was found guilty under Cause No. F6-4508
following trial.
[7] Hutcherson appeared before the trial court on June 29, 2017, for a joint
sentencing and disposition hearing in Cause Nos. F6-4508 and FB-95. The trial
court incorporated the record of “the proceedings under [Cause No. F6-4508]”
and found that Hutcherson “has violated the terms and conditions of his
commitment to Community Corrections.” Tr. Vol. II, p. 118. During this
hearing, defense counsel was given the opportunity to present evidence to the
trial court, but did not do so. At the conclusion of the hearing, the trial court
revoked Hutcherson’s placement and ordered that the remainder of his
suspended sentence be served in the DOC. This appeal follows.
Discussion and Decision
[8] Hutcherson argues on appeal that the trial court erroneously failed to conduct a
hearing on the revocation of his placement during which he would have had the
opportunity to present mitigating evidence to show that revocation of his
placement was not warranted. The record, however, indicates otherwise.
[9] “The standard of review of an appeal from the revocation of a community
corrections placement mirrors that for revocation of probation.” McQueen v.
State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007).
Although probationers are not entitled to the full array of
constitutional rights afforded defendants at trial, the Due Process
Clause of the Fourteenth Amendment does impose procedural
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and substantive limits on the revocation of the conditional liberty
created by probation. The minimum requirements of due process
that inure to a probationer at a revocation hearing include: (a)
written notice of the claimed violations of probation; (b)
disclosure of the evidence against him; (c) an opportunity to be
heard and present evidence; (d) the right to confront and cross-
examine adverse witnesses; and (e) a neutral and detached
hearing body.
Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008) (internal citations, quotation,
and brackets omitted).
[10] Revocation is a two-step process. Id. “First, the court must make a factual
determination that a violation of a condition of probation actually occurred.”
Id. “If a violation is proven, then the trial court must determine if the violation
warrants revocation of the probation.” Id. When an individual admits to the
violations, an evidentiary hearing is unnecessary. Id. “Instead, the court can
proceed to the second step of the inquiry and determine whether the violation
warrants revocation.” Id. “However, even a probationer who admits the
allegations against him must still be given an opportunity to offer mitigating
evidence suggesting that the violation does not warrant revocation.” Id.
[11] In this case, Hutcherson admitted to the violation of the terms of his placement.
The trial court accepted his admission. It also found that the evidence
presented in the trial for the related Cause No. F6-4508 proved that he violated
the terms of his placement by failing to return to the placement facility. The
trial court gave Hutcherson the opportunity to present mitigating evidence
during the joint sentencing and disposition hearing in Cause Nos. F6-4508 and
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FB-95. It is not the fault of the trial court that defense counsel apparently chose
not to present any such evidence. Hutcherson’s claim that the trial court did
not provide him with the opportunity to present mitigating evidence is without
merit.
[12] The judgment of the trial court is affirmed.
Baker, J., and Kirsch, J., concur.
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