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 Feb 28 2020, 11:23 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
Michael R. Fisher Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Khidhr Hardister, February 28, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2146
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese Flowers,
Appellee-Plaintiff. Judge
The Honorable James K. Snyder,
Commissioner
Trial Court Cause No.
49G02-1902-F5-4933
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020 Page 1 of 7
Case Summary
[1] Khidhr Hardister was sentenced to five years, with one year suspended and four
years in community corrections, after pleading guilty to Level 5 felony robbery.
He was initially placed on home detention, but his placement was modified to
work release after he violated the terms of his home-detention placement.
Hardister then violated the conditions of his work-release placement by using
illegal drugs. Following a revocation hearing, the trial court revoked
Hardister’s placement in community corrections and one-year suspended
sentence and ordered him to serve the remainder of his five-year sentence in the
Department of Correction (“DOC”). On appeal, Hardister challenges both the
sufficiency of the evidence to support the revocation of his community-
corrections placement and the trial court’s order that he serve the remainder of
his sentence in the DOC. We affirm.
Facts and Procedural History
[2] On February 7, 2019, Hardister was charged with Level 5 felony robbery, Level
6 felony intimidation, and Level 6 felony residential entry. On May 1, 2019,
Hardister pled guilty to Level 5 felony robbery. In exchange, the State agreed
to dismiss the remaining charges. On May 24, 2019, Hardister was sentenced
to five years with one year suspended and the remaining four years served in
community corrections. He was then placed on home detention.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020 Page 2 of 7
[3] Two days after sentencing, Hardister violated the terms of his home-detention
placement by tampering with and attempting to remove his electronic
monitoring device. On May 28, 2019, a notice of violation was filed. His
placement was subsequently modified from home detention to work release.
Hardister was ordered to be in strict compliance with both community
corrections and probation and was placed in the Duvall Residential Center
(“Duvall”). On June 19, 2019, Hardister signed his conditions of placement,
including the condition that he “shall not consume or possess alcohol or illegal
drugs at any time while serving [his] sentence with Community Corrections,
including while [he is] outside of the facility.” State’s Ex. 1.
[4] Shortly after being placed at Duvall, an incident report was filed after Hardister
was found in possession of “Katy,” a form of synthetic marijuana. Tr. p. 28.
No notice of violation was filed at this time. On July 9, 2019, staff at Duvall
found Hardister lying unconscious in front of their building. After regaining
consciousness, Hardister had to be assisted into the facility because he could not
walk steadily. He also appeared dazed and his pupils were dilated. Hardister
admitted to the staff that “he had taken hits of Katy.” Tr. p. 15.
[5] Notices of violation were filed on July 9, 2019 and July 10, 2019. The July 9,
2019 notice alleged that Hardister “failed to comply with the rules and
regulations of [Duvall] regarding the possession or use of a controlled or illegal
substance, including synthetic and look-a-like substances.” Appellant’s App.
Vol. II p. 101. It also alleged that he failed to maintain contact with
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020 Page 3 of 7
community corrections. The July 10, 2019 notice alleged that Hardister “failed
to comply with” community corrections. Appellant’s App. Vol. II p. 104.
[6] The trial court conducted a revocation hearing on August 15, 2019. At the
conclusion of this hearing, the trial court found that Hardister had committed a
violation, revoked Hardister’s probation and placement in community
corrections, and ordered him to serve the remainder of his five-year sentence in
the DOC.
Discussion and Decision
I. Sufficiency of the Evidence to Support the Revocation
of Hardister’s Community-Corrections Placement
[7] Hardister contends that the evidence is insufficient to support the revocation of
his community-corrections placement.
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
a matter of grace and a conditional liberty that is a favor, not a
right.
****
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020 Page 4 of 7
Our standard of review of an appeal from the revocation of a
community corrections placement mirrors that for revocation of
probation. A probation hearing is civil in nature and 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. If there is
substantial evidence of probative value to support the trial court’s
conclusion that a defendant has violated any terms of probation,
we will affirm its decision to revoke probation.
Cox v. State, 706 N.E.2d 547, 549, 551 (Ind. 1999) (internal quotations,
citations, and footnotes omitted).
[8] Hardister was aware that as a condition of his placement at Duvall, he was
prohibited from possessing or using any illegal drugs. Hardister testified during
the revocation hearing that he had not taken or possessed Katy. The trial court,
however, was not obligated to believe Hardister’s testimony. See Thompson v.
State, 804 N.E.2d 1146, 1149 (Ind. 2004) (“As a general rule, factfinders are not
required to believe a witness’s testimony[.]”).
[9] Contrary to Hardister’s claim that he had not used illegal drugs, the State
presented evidence indicating that he had done so. Specifically, the State
presented evidence that the staff at Duvall found Hardister lying unconscious in
front of their building and, after regaining consciousness, he had to be assisted
into the facility because he could not walk steadily. He also appeared dazed
and his pupils were dilated. Hardister admitted to the staff that “he had taken
hits of Katy.” Tr. p. 15. Katy is “[b]etter known as spice or synthetic
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020 Page 5 of 7
marijuana.” Tr. p. 15. Spice or synthetic marijuana is an illegal drug. See
Indiana Code §§ 35-48-2-4(d)(22), 35-48-1-9.3. Hardister’s condition when he
was found unconscious by the staff at Duvall coupled with his admission that
he took hits of Katy supported the conclusion that Hardister was under the
influence of a controlled substance. The evidence is sufficient to prove that it
was “more likely than not that [Hardister] did in fact use and or possess illegal
substances.” Tr. p. 32. The State’s evidence is sufficient to support the trial
court’s revocation of Hardister’s placement in community corrections.
Hardister’s claim to the contrary amounts to an invitation to reweigh the
evidence, which we will not do. Cox, 706 N.E.2d at 551.
II. Order to Serve Remainder of Sentence in the DOC
[10] Hardister also contends that the trial court abused its discretion in ordering that
he serve the remainder of his five-year sentence in the DOC. The trial court’s
decision as to the sanction imposed following a determination that a defendant
violated the terms of his community-corrections placement “is reviewable using
the abuse of discretion standard.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007). “An abuse of discretion occurs where the decision is clearly against the
logic and effect of the facts and circumstances.” Id. “Indiana Code section 35–
38–2.6–5 provides that if a person placed directly in community corrections
violates the terms of the placement, the trial court may, after a hearing, revoke
the placement and commit the person to the DOC for the remainder of the
sentence.” Christie v. State, 939 N.E.2d 691, 694 (Ind. Ct. App. 2011).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020 Page 6 of 7
[11] Again, after pleading guilty, Hardister was sentenced to five years with one year
suspended and four years in community corrections. Hardister committed a
violation almost immediately after being sentenced. The trial court could have
revoked Hardister’s probation and community-corrections placement following
this first violation but did not. Instead, the trial court gave Hardister another
chance to avoid incarceration by modifying his placement from home detention
to work release. Less than a month later, Hardister was the subject of an
incident report after he was found in possession of Katy. He soon thereafter
committed the violation at issue in this appeal.
[12] By accepting an alternative placement, Hardister agreed to abide by certain
conditions. Hardister, however, failed to abide by those conditions. In
revoking Hardister’s community-corrections placement and ordering that he
serve the remainder of his five-year sentence in the DOC, the trial court noted
that Hardister committed numerous violations within a short time following his
placement in community corrections, including violations committed after he
was given a second chance to remain in community corrections. We cannot
say that the trial court abused its discretion in determining that Hardister was
“no longer a good candidate” for community corrections and ordering him to
serve the remainder of his sentence in the DOC. Tr. p. 35.
[13] The judgment of the trial court is affirmed.
Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2146 | February 28, 2020 Page 7 of 7