Justin S. Johnson v. State of Indiana

FILED
Oct 31 2016, 9:33 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Laura Paul Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana

Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Justin S. Johnson, October 31, 2016
Appellant-Defendant, Court of Appeals Case No.
28A05-1602-CR-309
v. Appeal from the Greene Superior
Court
State of Indiana, The Honorable Dena Martin,
Appellee-Plaintiff. Judge
Trial Court Cause No.
28D01-1409-F3-2

Brown, Judge.

[1] Justin S. Johnson appeals the trial court’s order revoking his community

corrections placement and ordering him to serve the remainder of his executed

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 sentence in prison. Johnson raises one issue which we revise and restate as

whether the trial court abused its discretion in revoking his placement in

community corrections. We reverse and remand.

Facts and Procedural History

[2] On December 1, 2014, Johnson and the State executed a plea agreement which

provided that Johnson would plead guilty to neglect of a dependent resulting in

serious bodily injury as a level 3 felony and that sentencing would be left to the

discretion of the trial court.

[3] On January 9, 2015, the court held a guilty plea and sentencing hearing. The

court accepted the plea agreement and Johnson’s guilty plea and, at Johnson’s

request, admitted the reports of two health care professionals which were

completed in 2010 under another cause in connection with a previous charge

against Johnson for forgery. One of the reports noted that Johnson confirmed

that he wrote another person’s name on a check for $1,000,000 and attempted

to cash the check to obtain money to work on his house. The report stated in

part that Johnson “was adequately oriented but appears to have marked

learning, cognitive, and memory deficits,” that Johnson “reported that he has

been admitted for psychiatric hospitalizations on at least 3-4 occasions due to

manic like symptoms,” he has been diagnosed with borderline intellectual

functioning, he “is likely to meet criteria for Mild Mental Retardation if he were

formally tested,” “he has a history of lifelong learning difficulties,” and that he

“has had consistent problems with obtaining and maintaining employment,

housing and managing financial needs.” Defendant’s Exhibit B. The report

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 also stated that “[p]erhaps a good capture of [Johnson’s] limited comprehension

of his forgery is in his statement regarding his thinking at the time he attempted

to cash the check, ‘I sort of knew it was wrong but didn’t really think people

would mind.’” Id.

[4] The court also noted that it had received a presentence investigation report

(“PSI”) and an Alternative Sentencing Evaluation. The Alternative Sentencing

Evaluation filed by a case manager with Greene County Community

Corrections stated that, because Johnson had previously been on probation, the

case manager had contacted Johnson’s probation officer “to see how capable

[Johnson] was at understanding and following rules,” and the probation officer

“reported that [Johnson] successfully completed his probation with no

problems.” Appellant’s Appendix, Volume II (Confidential), at 112. The PSI

indicated that Johnson was charged in July 2010 with forgery as a class C

felony and theft as a class D felony, that the forgery count was dismissed, that

in February 2011 the court ordered Johnson to serve two years on probation

and found that he was eligible for a reduction to a misdemeanor upon the

successful completion of probation, and that in February 2013 his conviction

was modified to theft as a class A misdemeanor. The recitation of Johnson’s

criminal history in the PSI shows that he had not previously been ordered to

serve time in the Department of Correction (“DOC”). According to the PSI, he

had been living in a trailer on his father’s property for about one month at the

time of his arrest, had Medicaid prior to his incarceration, has been on social

security disability since he was seven years old, had been employed at Steak N’

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 Shake for about eleven months in 2011 and 2012, his overall risk assessment

score places him in the low risk to reoffend category, and his debt was

approximately $6,000 for medical, cable, and contract phone bills. The PSI

also stated that a mitigating factor was that imprisonment would result in

undue hardship to the person or the dependents of the person.

[5] Following argument by Johnson’s counsel, the trial court stated “[y]es it is a

mitigating circumstance your challenges, mental challenges that you are

facing,” that “the probation officer wanted the Court to find that the

imprisonment of the person would result in undue hardship to the person,

which I believe that, as your attorney indicated I believe placing you in the

[DOC] is not going to be beneficial to you,” and that “however you have to

understand sir even with your limited ability that there are rules that you have

to follow, rules not only to protect society from financial losses that is what we

were talking about last time when you wrote the million dollar check.”

Transcript at 18-19. The court also stated “your little baby got hurt this time,”

“I can’t take the chance that is going to happen,” and “the fact that this was

your child that you had the care and custody of, the fact that we had contact

before not too long ago with the million dollar check that you wrote, you were

put on probation, yes you did wonderful, but you are back, you have to

understand that you have to follow the rules . . . .” Id. at 19.

[6] The court sentenced Johnson to eleven years with seven years executed, which

was to be served on home detention through community corrections, and four

years suspended to probation. The court ordered that Johnson have no contact

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 with the victim as a condition of probation. The home detention rules and

conditions, which contained thirty-five numbered paragraphs, stated in part that

home detention is defined as “the interior living area of the temporary or

permanent residence of an offender,” or “if the offender’s residence is a multi-

family dwelling, the unit in which the offender resides, and not the a) halls or

common areas outside the unit where the offender resides; or b) other units

occupied or unoccupied in the multi-family dwelling.” State’s Exhibit 1.

[7] On December 14, 2015, Greene County Community Corrections filed a Notice

alleging that, as of that day, Johnson was behind in fees in the amount of $668.

The Notice alleged that, on or about October 7, 2015, Johnson was given

permission to travel to Bloomington to visit the social security office and that

instead he went to the Shalom Center; that on or about November 10, 2015, a

field officer noticed Johnson outside his apartment on the porch; that on or

about December 1, 2015, Johnson went to a bank at 5:17 a.m. and later that

day refused to pay fees owed for GPS monitoring and paid $260 of $465 for the

month of December; that on or about December 12, 2015, Johnson had leave

and returns documented by his equipment and the monitoring company

reported the GPS beacon was moved that day; and that on or about December

13, 2015, the beacon was moved and there were several leaves and returns.

[8] On January 11, 2016, the court held a modification hearing at which the State

presented evidence that Johnson lived in a high-rise, multi-family dwelling, and

the testimony of a case manager that, while Johnson received a verbal

authorization to be outside of his dwelling on October 7, 2015, the instruction

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was to report to the social security office in Bloomington and that he instead

went to the Shalom Center in Bloomington, and when later confronted by the

case manager he denied having gone anywhere but the social security office.

The case manager testified that on December 1, 2015, Johnson left his home at

about 5:17 a.m. and traveled to a bank without permission and, on cross-

examination, that there was a previously-arranged plan for Johnson to travel to

the bank at 8:00 a.m. The case manager further testified that the GPS

monitoring equipment reported that it was moved for short periods of time

within Johnson’s building on December 12 and 13, 2015, and that Johnson

denied moving the beacon. The case manager stated that “the unusual portion”

of the circumstance on December 12, 2015, was that Johnson “did not live [sic]

his inclusion zone, but it did indicate that he was moving about within the

building with the beacon which is also against policy.”1 Transcript at 47. The

case manager indicated that on December 13th information was received that

Johnson’s “beacon was moving and that he was outside of his or potentially

outside of his dwelling but still within his inclusion zone, he having spoken

with him about that denied having left his home or the inclusion zone, but the

monitoring company did indicate that they noted that he was outside of his

inclusion zone either above or below the unit that he was occupying.” Id. The

case manager stated that Johnson was originally sentenced to home detention

1
The case manager testified that Johnson lived in a multi-level, multi-family dwelling, that the monitoring
company defined “a sphere” so “he can move up and down as well as laterally within that sphere,” and that
Johnson is not to be outside his apartment, “[b]ut because of the way the monitoring company’s equipment
functions there is a sphere called an inclusion zone that he is to remain within.” Transcript at 35.

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 but had agreed to move to the work release center until he qualified for support

through the Bloomfield Housing Authority and that he “seemed to function

quite well at the work release center while he was there.” Id. at 48.

[9] A community corrections field officer testified that, on approximately

November 10th, he traveled to the high-rise where Johnson lived, pulled into

the parking lot, observed Johnson sitting at a bench located outside underneath

the canopy and just adjacent to the front door with another man, informed

Johnson he was not to be outside, and walked him back to his apartment. The

officer also testified that he met with Johnson several times over a period of a

few months, that he recognized that Johnson had problems understanding

things, and that he took his time to explain to Johnson that he could not be

outside of the four walls of his apartment unless he was scheduled to leave.

When asked if Johnson indicated whether he understood he was not supposed

to be at the bench, the officer testified that Johnson indicated that he just

wanted to go downstairs. At Johnson’s request, the court admitted into

evidence the two reports prepared by the health care professionals in 2010. The

State recommended that Johnson be transferred to the DOC for the remainder

of his sentence, and Johnson’s counsel requested the court to place him at the

work release facility and argued he has the funds to participate in the program.

[10] The court asked whether Johnson, after returning from the bank, paid for his

home detention, and the case manager answered that Johnson had the money

in his pocket to pay for the month and chose not to do so. When asked “[s]o

was [Johnson] having the funds to remain on the program was that an issue,”

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 the case manager testified “it is or it was an issue yes.” Id. at 64. Johnson’s

counsel asked the case manager if he was reluctant to pay all of the fees because

he also needed to pay his rent, and the case manager stated that he “did indicate

that was part of his issue that day” but that there was a discussion about his

monetary obligations when he moved to home detention and he “felt

comfortable with his monetary obligation that he had established with us and

the high-rise.” Id. at 65. The case manager testified that Johnson receives $720

per month, that his rent was $240 per month, and that as a GPS client he was

charged fifteen dollars per day. When asked “[d]idn’t leave a lot for food did

it,” the case manager testified “he represented that he was able to receive

assistance from area churches and that he was willing to request assistance from

local food banks in addition to applying for food stamps to be able to

supplement his circumstances, we discussed all of these things on a number of

occasions . . . .” Id. at 66. The case manager also indicated that, if Johnson

were to be placed into the work release facility, he would be charged $110 per

week.

[11] The trial court stated that it was going to show that Johnson’s sentence would

be modified to seven years executed in the DOC and that he would receive

credit for time served in home detention, work release, and the Greene County

Jail, which was 640 days total with good time credit.

Discussion

[12] The issue is whether the trial court abused its discretion in revoking Johnson’s

placement in community corrections and ordering him to serve the remainder
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 of his executed sentence in the DOC. 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. Cox v.

State, 706 N.E.2d 547, 549 (Ind. 1999). 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. Id. Placement on probation or

in a community corrections program is a matter of grace and not a right. Id.; see

State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015) (“The similarities between

the two programs have led to common treatment in appellate review of a trial

court’s decision to revoke either . . . .”). Our standard of review of an appeal

from the revocation of a community corrections placement mirrors that for

revocation of probation. Cox, 706 N.E.2d at 551. 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, and if

there is substantial evidence of probative value to support the court’s conclusion

that a defendant has violated any terms of probation, we will affirm its decision

to revoke probation. Id.

[13] Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640

(Ind. 2008); Treece v. State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014) (setting forth

the two-step process in addressing the revocation of placement in community

corrections), trans. denied. First, the court must make a factual determination

that a violation of a condition of probation actually occurred. Woods, 892

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 N.E.2d at 640. If a violation is proven, then the trial court must determine if

the violation warrants revocation of the probation. 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. In addition, “failure to pay a probation user fee where

the probationer has no ability to pay certainly cannot result in a probation

revocation.” Id. at 641.

[14] “We review a trial court’s sentencing decision in a probation revocation

proceeding for an abuse of discretion.” Puckett v. State, 956 N.E.2d 1182, 1186

(Ind. Ct. App. 2011) (citing Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct.

App. 2006)). An abuse of discretion occurs if the trial court’s decision is against

the logic and effect of the facts and circumstances before the court. Id. A

defendant cannot collaterally attack the propriety of an original sentence in the

context of a probation revocation proceeding. Id. However, a defendant is

entitled to challenge the sentence a trial court decides to impose after revoking

probation. Id. (citing Abernathy, 852 N.E.2d at 1020 (citing Stephens v. State, 818

N.E.2d 936, 939 (Ind. 2004) (“A defendant is entitled to dispute on appeal the

terms of a sentence ordered to be served in a probation revocation proceeding

that differ from those terms originally imposed.”))). A trial court’s discretion in

determining an appropriate sentence for a probation violation is not boundless.

See id. at 1188.

[15] Johnson argues that the nature of his violations were minor, that he did not

commit any new offenses or violate the no contact order, and that, “[w]hen he

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 was out of place, he was either very close to his small apartment, but still within

his apartment building, leaving at the wrong time but going to the right place,

or near where he was supposed to go.” Appellant’s Brief at 11. He further

argues that the court had alternatives to sending him to the DOC and that it is

undisputed that he had been successful in the work release program, had no

disciplinary problems, and was able to pay his bills while on work release. He

also argues that his community corrections fees were fifteen dollars per day or

$450 in a thirty-day month, his rent was $240 per month leaving only thirty

dollars per month for food, he would have been on the program for ten months

at the time the notice to the court was filed which meant that he fell behind on

average of only sixty-seven dollars per month, and that, given his financial

constraints of $720 in social security disability benefits, his failure to keep

current with his community corrections fees was due to an inability, not a

refusal, to pay and that the shortage was not so egregious as to warrant

placement in the DOC even with the other violations. Johnson also argues his

financial burden would have been eased in work release given that he would

not have to pay rent and the court imposed the most extreme sanction and

bypassed other, likely more effective sanctions.

[16] The State responds that Johnson violated the condition that he was to remain in

the interior living area of the apartment unit in which he resided on at least five

occasions, he was $668 in arrears at the time of the notice to the court, and that

he had indicated to a case manager that he had the money to pay his monthly

fee but chose not to pay. The State further asserts that the violations were not

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 an isolated event but occurred over several weeks and that Johnson simply

refused to abide by the rules placed upon him.

[17] Johnson does not argue that he did not violate the term of his placement that he

not leave his apartment. Rather, he challenges the sentence or sanction of

serving the entire remaining portion of his executed sentence in prison.

According to the PSI, he previously received a sentence for theft as a class D

felony of two years suspended to probation with eligibility for reduction to a

misdemeanor upon successful completion of probation, and that two years later

his conviction was modified to a class A misdemeanor. His probation officer

indicated that he successfully completed his probation with no problems, and

the trial court noted that Johnson “did wonderful” on probation and that it

believed that placing him in the DOC would not be beneficial for him.

Transcript at 19. At the modification hearing, the case manager testified that

Johnson originally moved to the work release center until he qualified for

support through the Bloomfield Housing Authority and that he “seemed to

function quite well at the work release center while he was there.” Id. at 48.

The record demonstrates Johnson’s successful placement on work release in the

past.

[18] With respect to the nature of the violations, we note that the first violation

involved Johnson visiting the Shalom Center in Bloomington although he had

been given authorization to visit the social security office in Bloomington, the

second violation involved Johnson sitting on a bench adjacent to the front door

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 of his apartment building speaking with another man, that Johnson was given

permission to travel to a bank at 8:00 a.m. on December 1, 2015, but left home

to travel to the bank at 5:17 a.m., and that the other two violations involved

Johnson moving the GPS monitoring equipment for short periods within the

apartment building. We agree with Johnson that, when he was “out of place,

he was either very close to his small apartment, but still within his apartment

building, leaving at the wrong time but going to the right place, or near where

he was supposed to go.” Appellant’s Brief at 11. We also believe that well-

documented mental limitations or illness as presented in this case, and which

are clearly shown in the record, are relevant and deserve careful consideration

as a mitigator by any reviewing trial judge.

[19] As for Johnson’s resources and fees, the record shows that he receives social

security benefits of $720 per month, paid $240 in rent per month, was required

to pay home detention fees of fifteen dollars per day, and was required to pay

for his food and personal items with the remaining funds. The case manager

stated that Johnson had represented he was able to receive assistance from area

churches. The Notice indicated that, after Johnson returned from the bank on

December 1, 2015, he paid $260 of his fees of $465 for the month of December,

and the case manager agreed that Johnson was reluctant to pay all of the fees

because he also needed to pay his rent. To the extent the court’s decision to

revoke Johnson’s placement was based in part on his failure to make full

payment of his fees of fifteen dollars per day, the record does not establish that

Johnson had the ability to make full payment of the fees. Also, the case

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 manager indicated that, if Johnson were placed into the work release facility, he

would be charged $110 per week. Johnson has had prior success in a work

release facility, he could more easily afford the work release placement fees if he

did not have a rent payment, and placement in a work release facility is less

severe than placement in the DOC, particularly given Johnson’s level of

intellectual functioning.

[20] The evidence supports the trial court’s determination that Johnson violated the

term of his community corrections placement that he not leave his apartment

and its decision to revoke the placement. However, under the circumstances

reflected in the record, including the level of Johnson’s functioning and his

resources, his previous successful placement on work release, the nature of the

violation, and the severity of the court’s sentence, we conclude that the trial

court abused its discretion in finding that Johnson’s violation warranted serving

the entirety of the remaining portion of his executed sentence in the DOC. See

Puckett, 956 N.E.2d at 1188 (noting that the offender admitted to violating the

terms of his probation and that the trial court’s discussion did not reveal

anything particularly egregious about the offender’s violation of failing to

register as a sex offender and concluding that the trial court abused its

discretion in ordering the offender to serve the entirety of his previously-

suspended sentence); see also Sullivan v. State, 56 N.E.3d 1157, 1162 (Ind. Ct.

App. 2016) (noting the offender did not dispute that he did not report as

required by his community corrections placement and concluding in part, based

on the nature of the violation and the sanction, that the trial court abused its

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 discretion in ordering the offender to serve the entire remaining portion of his

executed sentence in prison) (citing Ripps v. State, 968 N.E.2d 323, 325-326

(Ind. Ct. App. 2012) (noting the offender admitted to violating the terms of his

probation and concluding in part that the trial court abused its discretion in

ordering the offender to serve the remainder of his suspended sentence in prison

in light of the offender’s medical condition and the technical nature of the

violation)). Accordingly, we remand to the trial court with instructions to enter

an order that Johnson be placed on work release for the remaining portion of

his executed sentence.2

Conclusion

[21] For the foregoing reasons, we reverse and remand for an order that Johnson be

placed on work release for the remaining portion of his executed sentence.

[22] Reversed and remanded.

Robb, J., and Mathias, J., concur.

2
We note that Johnson has been incarcerated in the DOC since January 11, 2016. In addition to the credit
previously awarded as noted in the court’s January 2016 abstract of judgment, Johnson is entitled to credit
for time served, and any applicable good time credit, attributable to his incarceration in the DOC after the
court’s January 11, 2016 modification.

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