FILED
Apr 18 2018, 9:28 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Christopher Sturgeon Curtis T. Hill, Jr.
Clark County Public Defender’s Office Attorney General of Indiana
Jeffersonville, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Flowers, April 18, 2018
Appellant-Defendant, Court of Appeals Case No.
10A01-1703-CR-586
v. Appeal from the Clark Circuit
Court
State of Indiana, The Honorable Andrew Adams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
10C01-1006-FB-108
Brown, Judge.
Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018 Page 1 of 15
[1] Michael Flowers appeals the trial court’s revocation of his placement in a
community corrections program. Flowers raises one issue which we revise and
restate as whether the doctrine of res judicata precludes the trial court’s
revocation of his placement. We reverse and remand.
Facts and Procedural History
[2] On September 27, 2012, Flowers entered a plea agreement in which he agreed
to plead guilty to aggravated battery as a class B felony and the State agreed to
dismiss the remaining counts against him. The plea agreement provided that
Flowers would be sentenced to sixteen years executed at the Department of
Correction and that the State had no objection to Flowers serving the “last six
(6) year term (three (3) years actual) in the Clark County Work Release
Program.”1 Appellant’s Appendix Volume II at 140. The court’s sentencing
order states that it accepted Flowers’s plea and “sentences [him] to the Indiana
Department of Correction for a sixteen (16) year-executed term of
imprisonment.” Id. at 156. The order also states: “The State has no objection
to [Flowers] serving the last six (6) year term (three (3) years actual) in the Clark
County Work Release Program if approved by the Court.” Id.
1
Both parties cite to a copy of the plea agreement found in the presentence investigation report. The table of
contents in the Appellant’s Appendix lists “Statement of Plea Agreement; September 27, 2012” as appearing
on pages 114-121. Appellant’s Appendix Volume I at 4. Unlike the plea agreement found in the presentence
investigation report, the plea agreement beginning on page 114 includes the handwritten phrase “IF
APPROVED BY THE COURT” following the statement: “The State has no objection to the Defendant
serving the last six (6) year term (three (3) years actual) in the Clark County Work Release Program.”
Appellant’s Appendix Volume II at 117.
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[3] On December 7, 2016, the State filed a Petition to Revoke Placement in
Community Corrections Work Release alleging that Flowers failed to follow
the rules of the Clark County Community Corrections Program by: “[p]ositive
drug screen for Methamphetamine on 11/22/2016. Mr. Flowers admitted to
the use of Methamphetamine and signed an admission form stating that he used
said substance on 12/7/2016”; having “multiple late returns to the work release
facility ranging from 5 minutes to over an hour”; and being in arrears in
program fees in the amount of $7,210.50. Id. at 161.
[4] On January 18, 2017, the court held a hearing on the petition to revoke
placement. Flowers admitted to the violations. Valerie, Flowers’s case
manager, indicated she believed Flowers’s behavior would prevent him from
qualifying to re-enter community corrections. She testified that Flowers “could
not comply with the terms and conditions of Work Release.” Transcript
Volume II at 18. The prosecutor recommended that Flowers serve the
remainder of his sentence in the Department of Correction. Flowers’s counsel
recommended that the court modify the sentence and order Flowers to serve the
balance of his sentence on home incarceration. The court found that Flowers
violated the terms and conditions of work release, granted the change of
placement, and stated that “the executed portion, balance of the executing
portion of the sentence be served as a direct placement in the Clark County
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Community Corrections and is given credit for forty-two (42) actual days good
time credit.”2 Id. at 28.
[5] On January 24, 2017, Flowers’s counsel filed a Notice of Withdrawal of Public
Defender. On January 26, 2017, the court held a hearing3 at which it stated, “I
think that you entered, placed you back on the, to Community Corrections,”
and “[f]or some reason, Judge, I was out, Judge South has not been back to sign
an order. I went ahead and signed it.” Id. at 29. The court informed Flowers
“this is a zero tolerance policy,” and Flowers stated that he understood. Id.
The court also told Flowers that it was sending him to the community
corrections program.4
[6] In a letter dated January 31, 2017, Clark County Community Corrections
Director Lindon Dodd wrote to the trial court informing it that the Clark
County Community Corrections “feels that . . . Flowers no longer qualifies to
be in this program” and that “[t]here are numerous violations and other actions
that I feel justified denying him to return to Community Corrections.”
2
A chronological case summary (“CCS”) entry dated January 18, 2017, states: “Court orders Defendant be
placed in the Clark County Community Corrections Program for the remainder of executed sentence, with
credit for 42 actual days. Senior Judge Nicholas South presiding.” Appellant’s Appendix Volume II at 10.
The record does not contain a separate order dated January 18, 2017.
3
The CCS states that Flowers was represented by counsel.
4
A CCS entry states in part: “Defendant to be released to Community Corrections.” Appellant’s Appendix
Volume II at 11. The record does not contain a copy of a separate order.
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Appellant’s Appendix Volume II at 226. Director Dodd requested that Flowers
not be returned to the program.
[7] On February 2, 2017, Flowers filed a letter with the court which stated in part:
On 1-30-17 I had Jerry from “Jerry’s Place” to speak with
[Director Dodd] of the Clark County [Community] Corrections
and was told [Director Dodd] was going to go against the court
order and not allow [me] to return or be placed in the Clark
County [Community] Corrections on house arrest because he has
personal reasons for Director [Dodd] not to let me out of jail.
I Michael Flowers am asking the Clark County Circuit Court to
be brought before this court again for a[] possible alternative
placement of probation over that [Community] Corrections.
An[d] to be brought before the Clark County Circuit Court an[d]
be told why [Director Dodd] of the Clark County [Community]
Corrections can refuse a court order that was signed on 1-26-17
because of personal reasons.
And if I can be released until this matter is brought before your
court I am being illegally detained in the Clark County Jail after
my placement hearing.
Id. at 228-229.
[8] On February 15, 2017, the court held a revocation hearing. At the beginning of
the hearing, Flowers’s counsel objected to the proceedings and asked the court
to execute the prior orders made by the court on January 18th. The court noted
the objection, provided the background of the case, and noted that the court
was informed on February 1, 2017, that Flowers “did not qualify or that they
were not accepting Mr. Flowers back into the Community Corrections
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Program.” Transcript Volume I at 4. The court stated: “We will note your
objection to the previously ordered – order of the Court by Senior Judge
Nicholas South on January 18th, 2017 and we will note that any court order by
a senior judge can be reviewed by the presiding judge, as well as modified or
altered by the presiding judge.” Id. The court also stated:
The problem we have here is Community Corrections isn’t
willing to accept Mr. Flowers. I can’t order them to accept him,
it’s their program. Similar to the Department of Corrections, I
don’t have the authority to tell the Department of Corrections
what to do. If they’re not willing to accept Mr. Flowers, then I
don’t have anything but to allow him to serve the remainder of
his sentence.
Id. at 4-5.
[9] Flowers’s counsel then moved to withdraw the admission that was made on
January 18th, and the court granted the motion. Galadriel Ballard testified that
Flowers violated the terms and conditions for not using any drugs or substances
not prescribed by a doctor. He also testified that the late returns resulted in
unaccounted time which was a violation of the work release process and that
Flowers did not pay program fees in excess of $7,000. Ballard testified that he
listed the dates for the late returns of about seventeen in total spanning a little
over a year. He also testified that it was the position of the Clark County
Community Corrections that it would not welcome Flowers back to community
corrections. Director Dodd testified that he thought Flowers was a danger to
the community and to himself.
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[10] Flowers’s counsel made an offer of proof stating that he thought the testimony
would show that Flowers was a suspect or a person of interest in a murder
investigation of two people that involved a cell phone that was allegedly
identified to “this individual” and that Flowers would “deny any involvement
in any of that sort of thing.” Id. at 19. The court noted the offer of proof.
[11] The prosecutor requested the court to find that Flowers violated the terms of the
work release program and that he serve the remainder of his sentence.
Flowers’s counsel asked the court to find that the punishment that had been
imposed on Flowers to that point was adequate “for those violations, if
accepted as true, and to direct the Community Corrections to accept him as
Judge South had and to disregard, as the Court indicated, the underlying real
reasons as to why we’re here.” Id. at 20.
[12] The court found that Flowers violated the terms of the community corrections
program and granted the request of the community corrections program to
revoke Flowers’s placement in the program.
Discussion
[13] The issue is whether the doctrine of res judicata precludes the trial court’s
revocation of Flowers’s placement in the community corrections program.
Flowers asserts that the February 15, 2017 hearing on the State’s petition to
revoke placement in community corrections was barred by res judicata. The
State argues that the doctrine of res judicata did not bar the revocation of
Flowers’s placement in community corrections. It asserts that Flowers’s status
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or his placement with community corrections was heard over the course of
three separate hearings and that evidence at the third hearing was not presented
at the earlier two hearings. The State also asserts that the doctrine of res judicata
does not apply to a proceeding like this one, which is not treated as an
adversarial criminal proceeding.
[14] The Indiana Supreme Court has held that “[r]es judicata is a legal doctrine
intended ‘to prevent repetitious litigation of disputes that are essentially the
same, by holding a prior final judgment binding against both the original parties
and their privies.’” Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 993 (Ind.
2014) (quoting Becker v. State, 992 N.E.2d 697, 700 (Ind. 2013)). “It applies
‘where there has been a final adjudication on the merits of the same issue
between the same parties.’” Id. (quoting Gayheart v. Newnam Foundry Co., Inc.,
271 Ind. 422, 426, 393 N.E.2d 163, 167 (1979)).
[15] Generally, Ind. Code § 11-12-1-1 defines a community corrections program as:
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
criminal or delinquency process, services to persons sentenced to
imprisonment, or services to victims of crime or delinquency, and
is operated under a community corrections plan of a county and
funded at least in part by the state subsidy provided in IC 11-12-
2.
Ind. Code § 35-38-2.6-2 defines a community corrections program as “a
program consisting of residential and work release, electronic monitoring, day
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treatment, or day reporting that is: (1) operated under a community corrections
plan of a county and funded at least in part by the state subsidy provided under
IC 11-12-2; or (2) operated by or under contract with a court or county.” Ind.
Code § 35-38-2.6-4.2(a) provides that “[a] community corrections program shall
establish written criteria and procedures for determining if an offender or
alleged offender is eligible for direct placement supervision under this chapter.”
Ind. Code § 35-38-2.6-4.2(b) provides that “[t]he criteria and procedures
established under subsection (a) must establish a record keeping system that
allows the department or community corrections program to quickly determine
if an offender or alleged offender is in violation of the terms of a direct
placement order issued under this chapter.” We also observe that Ind. Code §
33-23-2-4 provides: “All courts retain power and control over their judgments
for ninety (90) days after rendering the judgments in the same manner and
under the same conditions as they retained power and control during the term
of court in which the judgments were rendered.”
[16] We have previously held:
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. The
similarities between the two dictate this approach. Both
probation and community corrections programs serve as
alternatives to commitment to the [Department of Correction]
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
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a matter of grace and a conditional liberty that is a favor, not a
right.
Withers v. State, 15 N.E.3d 660, 663-664 (Ind. Ct. App. 2014) (quoting Monroe v.
State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009) (citations and quotation marks
omitted)).
[17] To the extent Flowers asserts that there was nothing new at the February 15th
hearing, we disagree. Following the trial court’s order in January that Flowers
be placed in the community corrections program, the director of the community
corrections program informed the court that he felt justified denying Flowers’s
return to community corrections and requested that Flowers not be returned to
the program. Further, Flowers sent a letter to the court essentially requesting a
hearing. Under these circumstances and in light of Ind. Code § 33-23-2-4, we
cannot say that the doctrine of res judicata warrants reversal.5
[18] Nonetheless, we believe the trial court’s analysis was flawed in two respects
warranting remand for reconsideration and entry of a new order. First, we note
that the trial court stated at the February 15, 2017 hearing that “any court order
by a senior judge can be reviewed by the presiding judge, as well as modified or
5
To the extent Flowers cites Shumate v. State, 718 N.E.2d 1133 (Ind. Ct. App. 1999), we do not find that case
instructive. In Shumate, we addressed whether a decision by this Court reversing the revocation of probation
constituted a final judgment on the merits that precluded relitigation. 718 N.E.2d at 1135. We held that the
reversal of the trial court’s judgment revoking Shumate’s probation was a judgment on the merits and
satisfied the “judgment on the merits” element of res judicata. Id. at 1136. Here, we are not confronted with
a prior appellate decision reversing a revocation of a placement in community corrections. Thus, we find
Shumate distinguishable.
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altered by the presiding judge.” Transcript Volume I at 4. This statement
equates the role and authority of a senior judge with that of a commissioner or a
magistrate, which finds no support in the law. Ind. Code § 33-23-3-3 sets forth
the powers and duties of senior judges and plainly states that a senior judge
who is appointed to serve in a county may, with the consent of the circuit court
judge (which, presumably, occurred in this case, as Judge South was permitted
to preside over the first revocation hearing) “sit as the judge of the consenting
judge’s court in any matter as if the senior judge were the elected judge or
appointed judge of the court.” In other words, a court order entered by a senior
judge must be treated precisely the same as any order entered by any presiding
judge. The trial court was, in fact, entitled to revisit Judge South’s order, but
not because of his status as a senior judge. Instead, the trial court was permitted
to do so by virtue of Ind. Code § 33-23-2-4, which, as previously noted,
provides that all courts “retain power and control over their judgments for
ninety (90) days after rendering the judgments in the same manner and under
the same conditions as they retained power and control during the term of court
in which the judgments were rendered.”
[19] Second, the trial court believed that its proverbial hands were tied by the refusal
of Community Corrections to accept Flowers as a client: “The problem we have
here is Community Corrections isn’t willing to accept Mr. Flowers. I can’t
order them to accept him, it’s their program.” Transcript Volume 1 at 4-5. This
analysis is flawed. Ind. Code § 35-38-2.6-5 is the primary statutory source of
authority given to Community Corrections programs. That statute authorizes
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the Community Corrections Director to choose between the following courses
of action if a client violates the terms of the placement:
(1) Change the terms of the placement.
(2) Continue the placement.
(3) Reassign a person assigned to a specific community
corrections program to a different community corrections
program.
(4) Request that the court revoke the placement and commit the
person to the county jail or department of correction for the
remainder of the person’s sentence.
The community corrections director shall notify the court if the
director changes the terms of the placement, continues the
placement, or reassigns the person to a different program.
Ind. Code § 35-38-2.6-5 (emphasis added). The statute reveals that the
Community Corrections program is not authorized to make the decision to
revoke; instead, it must make that request of the court, which then has the
authority to grant or deny the request. The final sentence of the statute, which
omits a possibility of a Community Corrections program conducting a sua
sponte revocation, emphasizes the fact that the program has no right to do so.
[20] The trial court was incorrect to believe that it was required to accept the
Community Corrections program’s decision to revoke Flowers’s placement.
Instead, the trial court should have treated that decision as a request for the
court to revoke Flowers’s placement, which it would have been free to grant or
deny. See Morgan v. State, 87 N.E.3d 506, 510 (Ind. Ct. App. 2017) (“With the
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statute at issue, the community corrections director is given the ability to
manage the community corrections program but not to revoke placement or
resentence participants. Although the community corrections director can
recommend revocation of placement, it remains the trial court’s duty to
determine whether revocation will be ordered.”), trans. denied. We also note
that even if the trial court chose to grant the request that Flowers not be
readmitted to Community Corrections, it was not bound to remand Flowers to
the Department of Correction as the court could have considered other
alternatives as well.
[21] It may very well be that the trial court will ultimately arrive at the same
determination. Nevertheless, we remand so that the trial court can reconsider
its decision by making a proper analysis and then enter a new order.
Conclusion
[22] For the foregoing reasons, we reverse and remand.
[23] Reversed and remanded.
Baker, J., concurs.
Riley, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Michael Flowers, Court of Appeals Case No.
10A01-1703-CR-586
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff
Riley, Judge, dissenting.
[24] I find the majority’s analysis concerning the trial court’s statements about the
authority of both senior judges and Community Corrections is wholly irrelevant
to the issue before this court on appeal. Therefore, I dissent. Simply, Indiana
Code section 33-23-2-4 authorized the trial court to modify the January 18,
2017 order granting placement in Community Corrections within ninety days.
During that timeframe, based upon the recommendation of Community
Corrections that Michael Flowers was not qualified for the program, the trial
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court properly ordered his revocation in accordance with Indiana Code section
35-38-2.6-5(4). Accordingly, I would affirm the trial court.
Court of Appeals of Indiana | Opinion 10A01-1703-CR-586 | April 18, 2018 Page 15 of 15
Michael Flowers v. State of Indiana
Combined Opinion