ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID J. COLMAN STEVE CARTER
ELIZABETH ANN CURE Attorney General of Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
JESSE GRABARCZYK, ))
OPINION - FOR PUBLICATION
Whether Grabarczyks conviction for escape violates the prohibition against double jeopardy.
The facts most favorable to the conviction follow.See footnote While awaiting trial on other charges, Grabarczyk filed a motion for reduction of his bond. On November 6, 1998, the trial court ordered that Grabarczyks bond [be] reduced to $50,000.00 surety and conditioned upon [Grabarczyk] being on home detention with work release. Appellants Appendix at 2. The terms of the home detention were set forth in a separate order. Grabarczyk began his home detention with work release under the supervision of the Brown County Community Corrections Program. However, in June of 1999, Grabarczyks monitoring equipment indicated that he did not return home from work and Community Corrections was unable to locate him. The trial court issued a warrant for Grabarczyks arrest. Grabarczyk was arrested in Kentucky on May 31, 2000 and was returned to Brown County.
The State charged Grabarczyk with escape as a class D felony. Following a bench trial, Grabarczyk was convicted as charged. The trial court sentenced him to three years in the Department of Correction.
A person who knowingly or intentionally violates a home detention order or intentionally
removes an electronic monitoring device commits escape, a Class D felony.
A person who knowingly or intentionally fails to return to lawful detention following
temporary leave granted for a specified purpose or limited period commits failure to
return to lawful detention, a Class D felony. However, the offense is
a Class C felony if, while committing it, the person draws or uses
a deadly weapon or inflicts bodily injury on another person.
Grabarczyk was convicted under subsection (b) of the above statute. Both subsection (a) and subsection (c) require a lawful detention. See footnote Ind. Code § 35-44-3-5. However, subsection (b) does not require a lawful detention. Id. Rather, subsection (b) requires only the violation of a home detention order or removal of an electronic monitoring device. Id.
Moreover, even if lawful detention were an element of the offense, Grabarczyks arguments would fail. Grabarczyks argument that the order placing him on home detention was flawed on its face because it applied to offenders on house arrest during probation is misplaced. Appellants Brief at 5. The trial court issued two orders regarding Grabarczyks home detention. The first order is entitled Order on Motion for Reduction of Bond and provides: Bond is reduced to $50,000.00 surety and conditioned upon the defendant being on home detention with work release. The terms of home detention are set forth in the separate order filed herewith. Appellants Appendix at 2. The separate order filed herewith is entitled Order on House Arrest and lists the conditions of house arrest for a defendant on probation. Id. at 3-4. While the Order on House Arrest was not tailored to Grabarczyks pretrial home detention, the Order on Motion for Reduction of Bond clearly placed Grabarczyk on home detention. Thus, regardless of the inapplicable language in the Order on House Arrest, Grabarczyk was ordered to submit to home detention as a condition of his bond.
Finally, contrary to Grabarczyks contention, the trial court had statutory authority to place Grabarczyk on pretrial home detention in the community corrections program. The use of pretrial home detention has been discussed by both our supreme court and this court. See, e.g., Purcell v. State, 721 N.E.2d 220, 224 n.6 (Ind. 1999) (holding that a trial court is within its discretion to deny a defendant credit toward sentence for pre-trial time served on home detention), rehg denied; Molden v. State, 750 N.E.2d 448, 451 (Ind. Ct. App. 2001), rehg denied.
In support of his contention that community corrections programs cannot be utilized in pretrial home detentions, Grabarczyk relies upon Ind. Code § 35-38-2.6-1, which applies to direct placement in community corrections programs. However, article 38 only applies to criminal proceedings following a dismissal, verdict, or finding. See Ind. Code § 35-38. Grabarczyk was required to submit to pretrial home detention as a condition of his bond. Thus, Ind. Code § 35-38-2.6-1 is inapplicable.
However, 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.
(Emphasis added). Further, community corrections programs may include home detention and electronic
monitoring programs. Ind. Code § 11-12-1-2.5. Thus, the trial court had
statutory authority to place Grabarczyk in a community corrections program on pretrial home
The trial court issued an order conditioning Grabarczyks bond upon him being on home detention with work release. Appellants Appendix at 2. Grabarczyk violated his home detention by fleeing to Kentucky. Thus, sufficient evidence existed to find Grabarczyk guilty beyond a reasonable doubt of escape as a class D felony. See, e.g., Leshore v. State, 755 N.E.2d 164, 167 (Ind. 2001) (holding that the evidence was sufficient to sustain defendants conviction for escape even though the Writ of Body Attachment upon which he was arrested was defective).
custody following surrender in lieu of arrest;
detention in a penal facility;
detention in a facility for custody of persons alleged or found to be delinquent children;
detention under a law authorizing civil commitment in lieu of criminal proceedings or authorizing such detention while criminal proceedings are held in abeyance;
detention for extradition or deportation;
placement in a community corrections programs residential facility;
custody for purposes incident to any of the above including transportation, medical diagnosis or treatment, court appearances, work, or recreation; or
any other detention for law enforcement purposes.
(b) Except as provided in subsection (a)(7) and (a)(8), the term does not
include supervision of a person on probation or parole or constraint incidental to
release with or without bail.