CRONE, Judge.
Floyd William Treece was convicted of possession of methamphetamine and possession of an illegal drug lab and admitted to being a habitual offender. He was sentenced to an aggregate term of fourteen years, which included a term of commitment to the Department of Correction ("DOC"), followed by time in a community corrections program, and the remainder suspended to probation. Before the scheduled release date from his DOC commitment, he requested and was granted assignment to a community transition program ("CTP") for the last 120 days of his DOC commitment. He was assigned to the CTP at Tippecanoe County Community Corrections ("TCCC").
During his time in the CTP, Treece discovered another person sitting in his chair and kicked him in the face, which was a violation of TCCC's rule against assault and battery. He admitted to the violation, and TCCC removed him from its CTP. When Treece was released from the DOC, he reported to TCCC for the community corrections portion of his sentence. TCCC informed him that he had been rejected from participation in any of its programs as a result of his violent rule violation. The State filed a motion requesting that Treece be committed to the DOC and that his placement in community corrections be revoked, which the trial court granted.
Treece appeals the revocation of his community corrections placement. He argues that the trial court abused its discretion in revoking his community corrections placement because (1) the TCCC did not have the authority to reject his placement in community corrections for a rule violation he committed while assigned to the CTP because the CTP is a DOC program and the DOC is not statutorily authorized to reject an inmate's placement in community corrections as a disciplinary action; and (2) the trial court failed to consider the progress he made toward rehabilitation during his DOC commitment. We conclude that the CTP is a TCCC program and that the statutes governing the DOC's disciplinary actions do not apply to TCCC. Therefore, TCCC had the authority to reject Treece from his placement in community corrections for a violation he committed while in the CTP. We also conclude that the trial court was not required to consider his progress toward rehabilitation when determining whether his rule violation warranted revocation of his community corrections placement. We conclude that he committed an act of violence, and therefore the trial court did not abuse its discretion in revoking his community corrections placement. Therefore, we affirm. We also remand for the trial court to clarify its sentencing order.
Treece pled guilty to class D felony possession of methamphetamine and class C felony possession of an illegal drug lab and admitted to being a habitual substance offender.
Treece was incarcerated at the Westville Correctional Facility. By letter dated February 1, 2013, he informed the trial court that his release date was July 25, 2013, and requested assignment to a CTP for the last 120 days of his commitment to the DOC. After the trial court received a recommendation from the TCCC CTP recommendation panel that Treece be assigned to the CTP, the court granted Treece's request and ordered the DOC to assign him to the CTP. Id. at 28. Treece was transported to TCCC to serve in its CTP until July 25, 2013, at which time he was to begin serving the two-year portion of his sentence with TCCC pursuant to the sentencing order.
On June 22, 2013, Treece was serving in the CTP at TCCC when he returned to the TCCC day room and found that someone was sitting in a seat that he had formerly occupied. Tr. at 10. A still from the video recording of the room in which the incident occurred shows over sixty seats, almost all of which were unoccupied. Appellant's App. at 33. Instead of taking one of the other seats, Treece kicked the person in the face. A TCCC hearing officer conducted a hearing, at which Treece admitted to kicking the inmate in the face. The hearing officer concluded that Treece violated TCCC Rule 212 regarding assault and battery. Id. at 32. As a consequence of his rule violation, TCCC removed him from its CTP. On July 9, 2013, the trial court received notice from TCCC that it was rejecting Treece from the community corrections portion of his sentence due to fighting while he was in its CTP. Id. at 29. TCCC explained that it had a "zero tolerance for participants that fight" and that if "a participant fights while on [TCCC] they will never be accepted for placement again." Id.
On July 25, 2013, Treece was released from commitment to the DOC. He reported to TCCC to serve his two years in community corrections pursuant to the sentencing order, at which time he was informed that TCCC was rejecting his placement in its program. On July 26, 2013, the State filed a motion to commit Treece to the DOC, asking the court to revoke his community corrections placement and remand him to the custody of the DOC for the two years that he was supposed to serve in community corrections. At the hearing on the State's motion, Treece argued that TCCC did not have the authority to reject him from its program because at the time of his rule violation he was still in the CTP, which, he argued, was a DOC program. The trial court concluded that TCCC could reject Treece based upon his rule violation while assigned to its CTP and granted the State's motion. Treece appeals.
Treece presents two arguments that the trial court abused its discretion in
McQueen v. State, 862 N.E.2d 1237, 1242 (Ind.Ct.App.2007) (citations and quotation marks omitted).
Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct.App.2005) (citations omitted), trans. denied.
Treece's first argument is that the trial court erred in concluding that TCCC had the authority to reject him from the community corrections portion of his sentence based on a rule violation he committed while still committed to the DOC. The State does not directly address TCCC's authority to reject an inmate but argues that the trial court's discretion to revoke an offender's placement in a community corrections program may be exercised before the offender's placement commences, citing Ashba v. State 570 N.E.2d 937 (Ind. Ct.App.1991), cert. denied (1992) and Million v. State, 646 N.E.2d 998 (Ind.Ct.App. 1995).
In Ashba, this Court held that the trial court could properly revoke Ashba's probation before his probationary period began for an offense that he committed while he was on parole from the DOC. 570 N.E.2d at 940. The court explained that the terms of Ashba's probation attached to his suspended sentence from the moment that the sentence was imposed. Id.; see also Baker v. State, 894 N.E.2d 594, 596-98 (Ind.Ct.App.2008) (holding that probation may be revoked for commission of crime while serving executed portion of sentence). In Million, this Court held that the trial court did not abuse its discretion in revoking Million's placement in a community corrections program before that placement began for conduct that occurred while he was in work release for a prior conviction. 646 N.E.2d at 1002; see also Toomey v. State, 887 N.E.2d 122, 124-25
Treece acknowledges Ashba and Million but argues that they are inapposite because neither case involved a CTP. He argues that TCCC had no authority to reject him because (1) a CTP is a DOC program, (2) permissible DOC disciplinary actions are provided for by statute, and (3) such disciplinary actions do not include rejection from a community corrections program.
To the extent that our analysis of Treece's argument relies on statutory interpretation, we observe that
Leedy v. State, 998 N.E.2d 307, 309-10 (Ind.Ct.App.2013) (citations omitted), trans. denied (2014).
Treece's argument begins with the assertion that a "CTP is a DOC program." Appellant's Br. at 6. In support, he cites Indiana Code Chapter 11-10-11.5, which governs the assignment of offenders to CTPs.
Treece's assertion that a CTP is a DOC program completely ignores the numerous statutory provisions that indicate that a CTP is operated by a community corrections program. CTP is defined by Indiana Code Section 11-8-1-5.5 as follows:
(Emphasis added.)
Community corrections program means
Ind.Code § 11-12-1-1 (emphasis added). Counties are required to establish CTPs as part of their community corrections programs. Ind.Code § 11-12-10-1. Also, a county may establish a community corrections advisory board to operate its community corrections programs, which may be operated for any of the following:
Ind.Code § 11-12-1-2 (emphasis added). Further, a CTP may include any of the services provided by a community corrections program: "A community transition program for a county must provide services that improve an offender's chances of making a successful transition from commitment to employment and participation in the community without the commission of further crimes. The program may include any of the services described in IC 11-12-1-2.5[
While assigned to a CTP, "a person must comply with the rules concerning the conduct of persons in the [CTP] ... that are adopted by the community corrections advisory board establishing the program" and "any conditions established by the sentencing court for the person." Ind.Code § 11-10-11.5-11(a) (emphasis added). If a person violates a CTP rule or any condition established by the sentencing court, the CTP is authorized to take the following actions:
Ind.Code § 11-10-11.5-11.5(b). This statutory framework shows that a CTP is not a DOC program but a community corrections
Here, when Treece was assigned to a CTP he was assigned to TCCC, which operated the CTP. Treece violated TCCC rules. TCCC took the action of removing Treece from its CTP, as it is authorized to do. See id. TCCC also has a policy to reject any person who commits an act of violence while participating in one of its programs from any further participation in its programs. It is of no moment that Treece was still committed to the DOC when he violated TCCC rules. Treece's commitment to the DOC does not render TCCC powerless from enforcing its rules and policies.
Treece argues that the CTP is subject to the disciplinary rules promulgated under Indiana Code Chapter 11-11-5 based on Section 11-11-5-1(a), which provides, "This chapter applies to persons: (1) placed in a community corrections program; or assigned to a[CTP]." Although Chapter 11-11-5 applies to offenders who are assigned to a CTP, we disagree with Treece that the disciplinary rules in Sections 11-11-5-3 and -4 limit the authority of CTPs to impose their own disciplinary measures on persons in their programs who violate their rules. Section 11-11-5-3 lists permissible disciplinary actions and states, "The [DOC] may impose any of the following as disciplinary action." (Emphasis added.) Likewise, Section 11-11-5-4 lists impermissible disciplinary actions and provides, "The [DOC] may not impose the following as disciplinary action." (Emphasis added.) We observe that "[i]t is just as important to recognize what the statute does not say as it is to recognize what it does say." State v. Dugan, 793 N.E.2d 1034, 1036 (Ind.2003). We conclude that Sections 11-11-5-3 and -4 specifically limit the actions that the DOC may take against offenders while they are placed in a community corrections program or assigned to a CTP. Sections 11-11-5-3 and -4 control the DOC's disciplinary actions with regard to offenders in a CTP, but they do not control or limit a CTP's disciplinary actions with regard to offenders in CTP.
A CTP's authority to discipline offenders when they are assigned to a CTP is granted in Indiana Code Section 11-10-11.5-11.5(b), which provides that a CTP may remove an offender from its program upon a rule violation or take "disciplinary action" against the offender. It does not say that a CTP may take disciplinary action under Indiana Code Section 11-11-5-3. If the legislature wanted CTPs to take only the disciplinary actions listed in Section 11-11-5-3, it could have cited to that section. We conclude that the TCCC had the authority to reject Treece from its community corrections programs after he violated its rules while assigned to its CTP.
Treece also argues that even if TCCC had the authority to reject him from community corrections for his CTP rule violation, the trial court abused its discretion in revoking his placement by failing to account for his achievements while committed to the DOC. Specifically, he argues that he completed his GED and the Clean Lifestyle is Freedom Forever (CLIFF) program, had obtained fulltime employment, and was "seemingly being rehabilitated." Appellant's Br. at 10. Initially, we observe that trial courts are not required to balance "aggravating or mitigating circumstances when imposing sentence in a probation revocation proceeding." Mitchell v. State, 619 N.E.2d 961, 964 (Ind.Ct.App.1993), overruled in part by Patterson v. State, 659 N.E.2d 220, 223
Treece received an aggregate sentence of fourteen years. The sentencing order states that Treece "shall execute eight (8) years at the [DOC] to include two (2) years with [TCCC] at a level to be determined by Community Corrections" and "that four (4) years of the sentences of imprisonment should be, and the same hereby are, suspended and [Treece] placed on supervised probation for four (4) years." Appellant's App. at 15. Do we interpret this order to mean eight years at the DOC plus two years with TCCC plus four years suspended for a total sentence of fourteen years?
Affirmed and remanded.
BAKER, J., and BARNES, J., concur.
