Brown, J.
Michael Flowers appeals the trial court’s revocation of his placement in a community corrections program. Flowers raises one issue which we revise and restate as whether the doctrine of res judicata precludes the trial court’s revocation of his placement. …
On September 27, 2012, Flowers entered a plea agreement in which he agreed to plead guilty to aggravated battery as a class B felony and the State agreed to dismiss the remaining counts against him. … The court’s sentencing order states that it accepted Flowers’s plea and “sentences [him] to the Indiana Department of Correction for a sixteen (16) year-executed term of imprisonment.” The order also states: “The State has no objection to [Flowers] serving the last six (6) year term (three (3) years actual) in the Clark County Work Release Program if approved by the Court.”
On December 7, 2016, the State filed a Petition to Revoke Placement in Community Corrections Work Release alleging that Flowers failed to follow the rules of the Clark County Community Corrections Program by: “[p]ositive drug screen for Methamphetamine on 11/22/2016. …
On January 18, 2017, the court held a hearing on the petition to revoke placement. Flowers admitted to the violations. Valerie, Flowers’s case manager, indicated she believed Flowers’s behavior would prevent him from qualifying to re-enter community corrections. She testified that Flowers “could not comply with the terms and conditions of Work Release.” The prosecutor recommended that Flowers serve the remainder of his sentence in the Department of Correction. Flowers’s counsel recommended that the court modify the sentence and order Flowers to serve the balance of his sentence on home incarceration. The court found that Flowers violated the terms and conditions of work release, granted the change of placement, and stated that “the executed portion, balance of the executing portion of the sentence be served as a direct placement in the Clark County Community Corrections and is given credit for forty-two (42) actual days good time credit.”
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In a letter dated January 31, 2017, Clark County Community Corrections Director Lindon Dodd wrote to the trial court informing it that the Clark County Community Corrections “feels that . . . Flowers no longer qualifies to be in this program” and that “[t]here are numerous violations and other actions that I feel justified denying him to return to Community Corrections.”
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On February 15, 2017, the court held a revocation hearing. At the beginning of the hearing, Flowers’s counsel objected to the proceedings and asked the court to execute the prior orders made by the court on January 18th. The court noted the objection, provided the background of the case, and noted that the court was informed on February 1, 2017, that Flowers “did not qualify or that they were not accepting Mr. Flowers back into the Community Corrections Program.” The court stated: “We will note your objection to the previously ordered – order of the Court by Senior Judge Nicholas South on January 18th, 2017 and we will note that any court order by a senior judge can be reviewed by the presiding judge, as well as modified or altered by the presiding judge.”
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The court found that Flowers violated the terms of the community corrections program and granted the request of the community corrections program to revoke Flowers’s placement in the program.
… Flowers asserts that the February 15, 2017 hearing on the State’s petition to revoke placement in community corrections was barred by res judicata. …
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To the extent Flowers asserts that there was nothing new at the February 15th hearing, we disagree. Following the trial court’s order in January that Flowers be placed in the community corrections program, the director of the community corrections program informed the court that he felt justified denying Flowers’s return to community corrections and requested that Flowers not be returned to the program. Further, Flowers sent a letter to the court essentially requesting a hearing. Under these circumstances and in light of Ind. Code § 33-23-2-4, we cannot say that the doctrine of res judicata warrants reversal.
Nonetheless, we believe the trial court’s analysis was flawed in two respects warranting remand for reconsideration and entry of a new order. First, we note that the trial court stated at the February 15, 2017 hearing that “any court order by a senior judge can be reviewed by the presiding judge, as well as modified or altered by the presiding judge.” This statement equates the role and authority of a senior judge with that of a commissioner or a magistrate, which finds no support in the law. Ind. Code § 33-23-3-3 sets forth the powers and duties of senior judges and plainly states that a senior judge who is appointed to serve in a county may, with the consent of the circuit court judge (which, presumably, occurred in this case, as Judge South was permitted to preside over the first revocation hearing) “sit as the judge of the consenting judge’s court in any matter as if the senior judge were the elected judge or appointed judge of the court.” In other words, a court order entered by a senior judge must be treated precisely the same as any order entered by any presiding judge. …
Second, the trial court believed that its proverbial hands were tied by the refusal of Community Corrections to accept Flowers as a client: “The problem we have here is Community Corrections isn’t willing to accept Mr. Flowers. I can’t order them to accept him, it’s their program.” This analysis is flawed. Ind. Code § 35-38-2.6-5 is the primary statutory source of authority given to Community Corrections programs.
That statute authorizes the Community Corrections Director to choose between the following courses of action if a client violates the terms of the placement:
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(4) Request that the court revoke the placement and commit the person to the county jail or department of correction for the remainder of the person’s sentence.
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Ind. Code § 35-38-2.6-5 (emphasis added). The statute reveals that the Community Corrections program is not authorized to make the decision to revoke; instead, it must make that request of the court, which then has the authority to grant or deny the request. …
The trial court was incorrect to believe that it was required to accept the Community Corrections program’s decision to revoke Flowers’s placement. Instead, the trial court should have treated that decision as a request for the court to revoke Flowers’s placement, which it would have been free to grant or deny. See Morgan v. State, 87 N.E.3d 506, 510 (Ind. Ct. App. 2017) … We also note that even if the trial court chose to grant the request that Flowers not be readmitted to Community Corrections, it was not bound to remand Flowers to the Department of Correction as the court could have considered other alternatives as well.
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For the foregoing reasons, we reverse and remand.
Reversed and remanded.
Baker, J., concurs.
Riley, J., dissents with separate opinion.
I find the majority’s analysis concerning the trial court’s statements about the authority of both senior judges and Community Corrections is wholly irrelevant to the issue before this court on appeal. Therefore, I dissent. Simply, Indiana Code section 33-23-2-4 authorized the trial court to modify the January 18, 2017 order granting placement in Community Corrections within ninety days. During that timeframe, based upon the recommendation of Community Corrections that Michael Flowers was not qualified for the program, the trial court properly ordered his revocation in accordance with Indiana Code section 35-38-2.6-5(4). Accordingly, I would affirm the trial court.