MORTON v. STATE (2021)

Court of Appeals of Indiana.2021-02-26No. Court of Appeals Case No. 20A-CR-1498

Summary · law.co

Holding. The court reversed and remanded, holding that while Morton's rule violations justified partial revocation of his community-corrections placement, they did not justify complete revocation. The trial court is directed to order Morton to serve two years in custody with credit for time served, after which he must return to community corrections for the remainder of his sentence.

Dominique Morton was sentenced to five-and-a-half years in community corrections across four cases in 2019. In 2020, a case manager filed motions to revoke his placement based on three allegations: unauthorized contact with a probationer, fee arrearages, and being charged with a new misdemeanor offense. The trial court found all allegations true and ordered Morton to serve his remaining four-plus years in custody rather than community corrections.

On appeal, Morton challenged the revocation decision. The appellate court agreed with Morton and the State on the threshold issue: a pending criminal charge alone cannot support community-corrections revocation without a conviction. The court acknowledged that Morton's violations—specifically his repeated contact with a probationer despite explicit warnings and placement rules—were serious enough to warrant some revocation. However, the court found the complete revocation disproportionate to the violations, particularly given the minimal fee arrearages of $69.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether pending charges alone can support community-corrections revocation
Whether contact with a probationer violates placement conditions
Proportionality of total revocation versus partial revocation for placement violations

Procedural posture

Morton appealed the trial court's order revoking his community-corrections placement and ordering him to serve the remainder of his sentence in custody.

Authorities cited

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Opinion · public domain

MEMORANDUM DECISION

Case Summary

[1] Dominique L. Morton appeals the trial courts order revoking his placement in community corrections and requiring him to serve the remainder of his sentence in jail or the Department of Correction. We reverse and remand.

Facts and Procedural History

[2] In July 2019, Morton was sentenced to a total of five-and-a-half-years on community corrections in four separate cases: No. 76C01-1608-F5-531 (Level 5 felony child exploitation); No. 76C01-1809-F6-699 (Level 6 felony failure to register as a sex offender); No. 76C01-1811-F6-828 (Level 6 felony failure to register as a sex offender); and No. 76C01-1811-CM-831 (Class A misdemeanor criminal trespass). In May and June of 2020, a community-corrections case manager filed motions asking the trial court to revoke Mortons placement, alleging he (1) had contact with Erica Book, who was on probation, (2) was behind on community-corrections fees, and (3) had been charged with a new criminal offense, Class A misdemeanor driving while suspended. After a hearing in July 2020, the trial court found all the allegations to be true, revoked Mortons community-corrections placement, and ordered him to serve his remaining time—just over four years—in the Steuben County Jail or the DOC.

[3] Morton now appeals.

Discussion and Decision

[4] Morton contends the trial court erred by revoking his community-corrections placement and requiring him to serve the remainder of his sentences in jail or the DOC. We review a trial courts decision to revoke a community-corrections placement for an abuse of discretion. Morgan v. State, 87 N.E.3d 506, 510-11 (Ind. Ct. App. 2017), trans. denied.

[5] Mortons argument is twofold. First, he asserts that merely being charged with the new offense of Class A misdemeanor driving while suspended—as opposed to being found to have committed that offense—cannot be the basis for revoking a community-corrections placement. Second, he argues his other two violations—having contact with a person on probation and falling behind on his community-corrections fees—are insufficient to support the revocation of his placement.

[6] The State agrees with Morton on the first issue, and so do we. We have held that probation—which is treated like community corrections for purposes of appellate review, Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), rehg denied—cannot be revoked based only on the filing of a new charge. Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014); Martin v. State, 813 N.E.2d 388, 390-91 (Ind. Ct. App. 2004).

[7] That leaves the fees and Mortons contact with probationer Erica Book. The fee arrearage was minimal. By the time of the revocation hearing, Morton was behind only $69 on his community-corrections fees. The contact with Book is more troubling. One rule of Mortons community-corrections placement provided, “You shall only associate with law-abiding persons in good standing with the law, who do not have any pending cases, and are not under any supervision including but not limited to; Prison, Jail, Work Release, Community Corrections, Parole, Probation.” Appellants App. Vol. II p. 191. Book worked at Mortons high school when Morton was a student and later became his friend. She was convicted of misdemeanor operating while intoxicated in September 2019 and was on probation when, on April 25, 2020, Morton drove to her neighborhood in his work truck and picked her up. In addition to the rule prohibiting such contact, Mortons case manager had told him five separate times before April 25 not to have any contact with Book. Furthermore, the seventeen-year-old stepsister of one of Mortons friends testified at the revocation hearing Morton had contacted her and asked her to lie and say it was her, not Book, whom Morton had picked up on April 25.

[8] While these rule violations and the surrounding circumstances were certainly sufficient to support some revocation of Mortons community-corrections placement, they were not so serious as to justify a total revocation, requiring Morton to serve more than four years in jail or the DOC. Therefore, we remand this matter to the trial court with instructions to order Morton to serve two years in jail or the DOC, with credit for time already served, after which Morton will be returned to community corrections to serve his remaining time. See Johnson v. State, 62 N.E.3d 1224, 1231 (Ind. Ct. App. 2016) (holding that defendants violations supported revocation of some, but not all, of his community-corrections placement).

[9] Reversed and remanded.

FOOTNOTES

. The State tells us it dismissed the new driving-while-suspended charge in October 2020.

Vaidik, Judge.

Brown, J., and Pyle, J., concur.