MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Aug 09 2017, 7:46 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana
Angela N. Sanchez Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony Eshelman, August 9, 2017 Appellant-Defendant, Court of Appeals Case No. 15A04-1703-CR-476 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff Humphrey, Judge Trial Court Cause No. 15C01-0603-FB-4
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017 Page 1 of 6 [1] Anthony Eshelman appeals following the revocation of his probation. On
appeal, he argues that he was denied due process because the trial court was
biased against him and that the trial court abused its discretion in ordering him
to serve the remainder of his previously suspended sentence in the Department
of Correction.
[2] We affirm.
Facts & Procedural History
[3] In January 2007, Eshelman pled guilty to Class B felony burglary and was
sentenced to fifteen years, with thirteen years suspended to probation.
Eshelman was released to probation in September 2007, and by January 7,
2008, a request for a probation violation hearing was filed alleging that
Eshelman had tested positive for cannabinoids, cocaine, and opiates. The
request was later amended to include allegations that Eshelman had committed
a number of new offenses, including Class C felony robbery and Class B
misdemeanor battery in December 2007, as well as charges relating to a high-
speed police chase occurring in Ohio in March 2008. Eshelman ultimately pled
guilty to the robbery charge and admitted to violating probation. He was
sentenced to eight years executed on the new robbery charge and four years of
his previously suspended sentence was revoked.
[4] Eshelman was again released to probation in September 2015. In May 2016,
another request for probation violation hearing was filed alleging that Eshelman
had again committed new offenses. Specifically, Eshelman had been charged
Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017 Page 2 of 6 with two counts of Level 5 felony criminal confinement and one count of Class
A misdemeanor theft. The incident on which the request was based involved
Eshelman stealing his girlfriend’s cell phone and confining her and her eleven-
year-old daughter to his car without their consent. Following a hearing, the
trial court found that Eshelman had violated his probation and ordered him to
serve the remaining nine-year balance of his previously suspended sentence.
Eshelman now appeals.
Discussion & Decision
[5] We review a trial court’s sentencing decision in a probation revocation
proceeding for an abuse of discretion. Jones v. State, 838 N.E.2d 1146, 1148
(Ind. Ct. App. 2005). An abuse of discretion occurs if the decision is against the
logic and effect of the facts and circumstances before the court. Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). Moreover, “[o]nce a trial court has exercised
its grace by ordering probation rather than incarceration, the judge should have
considerable leeway in deciding how to proceed.” Id. “If the court finds the
defendant has violated a condition of his probation at any time before the
termination of the probationary period, and the petition to revoke is filed within
the probationary period, then the court may order execution of the sentence
that had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.
2007); see also Ind. Code § 35-38-2-3(h).
[6] Moreover, “probation is a favor granted by the State, not a right to which a
criminal defendant is entitled.” Cox v. State, 850 N.E.2d 485, 488 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017 Page 3 of 6 Nevertheless, once the State grants that favor, it cannot revoke the privilege at
its discretion. Id. Because probation implicates a defendant’s liberty interest,
he is entitled to some procedural due process before probation is revoked. Id.
However, because probation revocation deprives a defendant of only a
conditional liberty, he is not entitled to the full panoply of due process rights
afforded in a criminal proceeding. Id. The minimum due process requirements
in a probation hearing include, among other things, a hearing before a neutral
and detached hearing body. Id.
[7] Eshelman claims that he was deprived of due process because the trial court
was biased against him. In Indiana, the law presumes that a judge is unbiased
and unprejudiced. Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002). To rebut
this presumption, a defendant must establish from the judge’s conduct actual
bias or prejudice that placed the defendant in jeopardy. Id. “Such bias and
prejudice exists only where there is an undisputed claim or where the judge
expressed an opinion of the controversy over which the judge was presiding.”
Id. “‘To assess whether the judge has crossed the barrier into impartiality, we
examine both the judge’s actions and demeanor.’” Perry v. State, 904 N.E.2d
302, 307-08 (Ind. Ct. App. 2090) (quoting Timberlake v. State, 690 N.E.2d 243,
256 (Ind. 1997)). Neither adverse rulings nor the imposition of the maximum
possible sentence will support a claim of judicial bias. Tharpe v. State, 955
N.E.2d 836, 839 (Ind. Ct. App. 2011); Smith, 770 N.E.2d at 823.
[8] Eshelman argues that the trial court was biased because it “improperly relied on
previous criminal history and his prior violation in determining his
Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017 Page 4 of 6 revocation[.]” Appellant’s Brief at 11. This argument is meritless. There is
nothing improper about a trial court considering such matters in determining
the appropriate sanction for a probation violation. Eshelman also argues that
the trial court expressed bias in its written order revoking Eshelman’s probation
for the first time in 2009 and in its statements during the hearing on this
revocation. Specifically, in its 2009 order, the trial court expressed its belief that
the entire thirteen-year suspended sentence should be revoked, but stated that it
was “reluctantly” accepting the State’s recommendation and revoking only four
years. Appellant’s Appendix Vol. 2 at 152. Additionally, when imposing
sanctions for the current probation violation, the trial court made the following
statements: “Nine (9) years will be revoked.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Aug 09 2017, 7:46 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana
Angela N. Sanchez Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Anthony Eshelman, August 9, 2017 Appellant-Defendant, Court of Appeals Case No. 15A04-1703-CR-476 v. Appeal from the Dearborn Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff Humphrey, Judge Trial Court Cause No. 15C01-0603-FB-4
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017 Page 1 of 6 [1] Anthony Eshelman appeals following the revocation of his probation. On
appeal, he argues that he was denied due process because the trial court was
biased against him and that the trial court abused its discretion in ordering him
to serve the remainder of his previously suspended sentence in the Department
of Correction.
[2] We affirm.
Facts & Procedural History
[3] In January 2007, Eshelman pled guilty to Class B felony burglary and was
sentenced to fifteen years, with thirteen years suspended to probation.
Eshelman was released to probation in September 2007, and by January 7,
2008, a request for a probation violation hearing was filed alleging that
Eshelman had tested positive for cannabinoids, cocaine, and opiates. The
request was later amended to include allegations that Eshelman had committed
a number of new offenses, including Class C felony robbery and Class B
misdemeanor battery in December 2007, as well as charges relating to a high-
speed police chase occurring in Ohio in March 2008. Eshelman ultimately pled
guilty to the robbery charge and admitted to violating probation. He was
sentenced to eight years executed on the new robbery charge and four years of
his previously suspended sentence was revoked.
[4] Eshelman was again released to probation in September 2015. In May 2016,
another request for probation violation hearing was filed alleging that Eshelman
had again committed new offenses. Specifically, Eshelman had been charged
Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017 Page 2 of 6 with two counts of Level 5 felony criminal confinement and one count of Class
A misdemeanor theft. The incident on which the request was based involved
Eshelman stealing his girlfriend’s cell phone and confining her and her eleven-
year-old daughter to his car without their consent. Following a hearing, the
trial court found that Eshelman had violated his probation and ordered him to
serve the remaining nine-year balance of his previously suspended sentence.
Eshelman now appeals.
Discussion & Decision
[5] We review a trial court’s sentencing decision in a probation revocation
proceeding for an abuse of discretion. Jones v. State, 838 N.E.2d 1146, 1148
(Ind. Ct. App. 2005). An abuse of discretion occurs if the decision is against the
logic and effect of the facts and circumstances before the court. Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). Moreover, “[o]nce a trial court has exercised
its grace by ordering probation rather than incarceration, the judge should have
considerable leeway in deciding how to proceed.” Id. “If the court finds the
defendant has violated a condition of his probation at any time before the
termination of the probationary period, and the petition to revoke is filed within
the probationary period, then the court may order execution of the sentence
that had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.
2007); see also Ind. Code § 35-38-2-3(h).
[6] Moreover, “probation is a favor granted by the State, not a right to which a
criminal defendant is entitled.” Cox v. State, 850 N.E.2d 485, 488 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017 Page 3 of 6 Nevertheless, once the State grants that favor, it cannot revoke the privilege at
its discretion. Id. Because probation implicates a defendant’s liberty interest,
he is entitled to some procedural due process before probation is revoked. Id.
However, because probation revocation deprives a defendant of only a
conditional liberty, he is not entitled to the full panoply of due process rights
afforded in a criminal proceeding. Id. The minimum due process requirements
in a probation hearing include, among other things, a hearing before a neutral
and detached hearing body. Id.
[7] Eshelman claims that he was deprived of due process because the trial court
was biased against him. In Indiana, the law presumes that a judge is unbiased
and unprejudiced. Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002). To rebut
this presumption, a defendant must establish from the judge’s conduct actual
bias or prejudice that placed the defendant in jeopardy. Id. “Such bias and
prejudice exists only where there is an undisputed claim or where the judge
expressed an opinion of the controversy over which the judge was presiding.”
Id. “‘To assess whether the judge has crossed the barrier into impartiality, we
examine both the judge’s actions and demeanor.’” Perry v. State, 904 N.E.2d
302, 307-08 (Ind. Ct. App. 2090) (quoting Timberlake v. State, 690 N.E.2d 243,
256 (Ind. 1997)). Neither adverse rulings nor the imposition of the maximum
possible sentence will support a claim of judicial bias. Tharpe v. State, 955
N.E.2d 836, 839 (Ind. Ct. App. 2011); Smith, 770 N.E.2d at 823.
[8] Eshelman argues that the trial court was biased because it “improperly relied on
previous criminal history and his prior violation in determining his
Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017 Page 4 of 6 revocation[.]” Appellant’s Brief at 11. This argument is meritless. There is
nothing improper about a trial court considering such matters in determining
the appropriate sanction for a probation violation. Eshelman also argues that
the trial court expressed bias in its written order revoking Eshelman’s probation
for the first time in 2009 and in its statements during the hearing on this
revocation. Specifically, in its 2009 order, the trial court expressed its belief that
the entire thirteen-year suspended sentence should be revoked, but stated that it
was “reluctantly” accepting the State’s recommendation and revoking only four
years. Appellant’s Appendix Vol. 2 at 152. Additionally, when imposing
sanctions for the current probation violation, the trial court made the following
statements: “Nine (9) years will be revoked. That is based upon the history
that you have before this Court and other Courts Mr. Eshelman. It is a
sentenced [sic] you have earned, frankly you’ve previously earned it and now
you’re going to receive it.” Transcript at 139. According to Eshelman, these
statements indicate that the trial court “intended to revoke Eshelman’s entire
suspended sentence no matter what evidence was presented.” Appellant’s Brief
at 12.
[9] We are unpersuaded. There is simply nothing about these statements that leads
us to the conclusion that the trial court was biased against Eshelman. As to the
2009 order, we note that the trial court was not bound by the State’s
recommendation at that time—it was free to revoke the entirety of Eshelman’s
sentence. That it chose not to do so despite its misgivings is certainly not
indicative of bias. Furthermore, the trial court’s statements at the hearing on
Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017 Page 5 of 6 the current probation revocation articulate the court’s reasoning for imposing
the entirety of the previously suspended sentence—Eshelman had been shown
considerable lenience in the past and nevertheless reoffended. The trial court’s
reasoning in this regard was sound and in no way suggestive of bias.
[10] Eshelman also argues that the trial court’s decision to revoke the entire nine-
year balance of his previously suspended sentence was an abuse of discretion.
In support, he directs our attention to his own testimony that he was gainfully
employed, had a family support system, and had earned an associate’s degree.
He also points to testimony that he completed multiple “life changing”
programs while in prison. Id. at 12. None of this, however, has prevented
Eshelman from reoffending. On two separate occasions, Eshelman has violated
his probation in this case by committing new felony offenses within less than a
year of his release from incarceration. In sum, Eshelman has demonstrated that
he is a poor candidate for probation, and revocation of his entire sentence was
appropriate.
[11] Judgment affirmed.
[12] Baker, J. and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017 Page 6 of 6