Casey Dale Redman v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 9, 2016
• Docket: 48A05-1511-CR-1896
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Sep 09 2016, 8:31 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paul J. Podlejski Gregory F. Zoeller Anderson, Indiana Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Casey Dale Redman, September 9, 2016 Appellant-Defendant, Court of Appeals Case No. 48A05-1511-CR-1896 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Appellee-Plaintiff. Angela Warner Sims, Judge Trial Court Cause No. 48C01-0910-FB-555

Kirsch, Judge.

[1] Casey Dale Redman (“Redman”) appeals the trial court’s revocation of his

probation, raising one issue that we restate as: whether the trial court abused its

Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 1 of 9 discretion by ordering Redman to serve two years of the previously-suspended

four-year portion of his sentence.

[2] We affirm.

Facts and Procedural History [3] In October 2009, the State charged Redman with five counts of Class B felony

child molesting for engaging in intercourse with a child under the age of

fourteen years of age. On February 8, 2010, Redman pleaded guilty to the five

charges. The plea agreement provided a cap of ten years on executed time, and

the State agreed to recommend “six years executed with probation for the

balance.” Appellant’s App. at 50.

[4] The trial court sentenced Redman to fourteen years of incarceration on each of

the five convictions, with ten years executed in the Indiana Department of

Correction (“DOC”) and four years suspended to supervised probation. Id. at

56-57. The trial court ordered the sentences to be served concurrently. In

addition, the trial court imposed special sex offender conditions, as well as the

standard conditions of probation. One condition of Redman’s probation

required him to attend, actively participate in, and successfully complete a

court-approved sex offender treatment program as directed by the trial court.

Id. at 54; State’s Ex. 1. Redman also was required to maintain steady progress

toward all treatment goals as determined by the treatment provider, and

unsuccessful completion or non-compliance would be a violation of the terms

and conditions of his probation. Id.

Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 2 of 9 [5] Redman completed the executed portion of his sentence and was released to

probation on May 12, 2014. Id. at 70. On September 19, 2014, the State filed a

Notice of Probation Violation (“Notice No. 1”). The State alleged that

Redman failed to comply with sex offender treatment, failed to pay court costs,

failed to pay probation fees, failed to pay an administrative fee, failed to

maintain employment and verify employment to the probation department, and

failed to pay a sexual assault fee. Id. at 71. On November 3, 2014, the trial

court dismissed Notice No. 1.

[6] On February 4, 2015, the State filed another Notice of Probation Violation

(“Notice No. 2”), alleging that Redman violated the conditions of his probation

by failing to pay costs and fees, failing to pay for a urine drug screen, failing to

maintain or verify employment, and failing to complete the sex offender

treatment program. Id. at 81. On March 30, following a hearing on Notice No.

2, the trial court deferred sanctions, but thereafter issued an order on May 18,

2015, finding that Redman was in “substantial compliance,” and it imposed no

sanctions. Id. at 100.

[7] On August 7, 2015, the State filed a third Notice of Probation Violation

(“Notice No. 3”), alleging that Redman failed to comply with and complete

treatment recommendations, failed to pay probation fees, failed to pay a urine

screen fee, and failed to maintain employment and provide verification of

employment. Id. at 101. At a September hearing on Notice No. 3, Redman

admitted to the allegations that he failed to pay probation and urine drug screen

fees and failed to maintain and verify employment, but he denied that he failed

Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 3 of 9 to complete the required sex offender treatment. Because the probation

department had just recently received information from the sex offender

treatment program, which Redman’s counsel had not yet had an opportunity to

review, the trial court continued the hearing, but in closing, it reminded

Redman:

[Y]ou’ve been in front of me now several different times. It always seems to be an issue that we have a job on the horizon or we’re going to an orientation or we’ve got something lined up. And for one reason or another, none of those really have seemed to pan out. When I see you [at the next scheduled hearing], if you have employment, it’s no longer acceptable . . . for your attorney just to tell me that you have employment. You [] need to show me some type of verification that you are, in fact employed.

Tr. at 87-88.

[8] At the continued hearing on Notice No. 3, Redman provided a faxed letter

from his shift supervisor indicating he was employed. Redman admitted that

he failed to pay probation fees, failed to pay the urine screen fee, and failed to

maintain or verify employment to the probation department. Id. at 95.

However, Redman denied that he did not complete the sex offender treatment

program. The State thereafter presented evidence that Redman underwent an

evaluation at the sex offender treatment program, began treatment in May

2014, and his therapist, licensed clinical social worker Donald Allbaugh

(“Allbaugh”), recommended outpatient sex offender treatment once a week

until all assignments were completed. Allbaugh testified that, “from the

Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 4 of 9 beginning, Mr. Redman was [] very uncooperative with treatment,” noting that

on several occasions personnel from the treatment program had to meet with

Redman and his probation officer “to reinforce treatment recommendations,”

which he said is “unusual” or “rare.” Tr. at 102. Redman failed to schedule or

submit to polygraph tests every six months as required, and when he did

schedule one after eight months, he failed to bring payment for the test with

him as he had been instructed to do. Redman was terminated from the

program at that time, but was thereafter permitted back into the treatment

program under a “zero tolerance” policy, “meaning that if there were any

further [] failure[s] on his part to comply with [] the treatment requirements, []

he would be terminated from treatment.” Id. at 104.

[9] According to Allbaugh, Redman completed only one of ten written treatment

assignments after having been in the program for approximately one year,

which Allbaugh characterized as “poor compliance.” Id. Allbaugh

recommended that Redman attend sessions twice per week to provide him

additional input from other offenders in the treatment group, so that Redman

might better understand what the assignments required. While Redman did

attend twice per week “for a period of time,” Redman at some point contacted

Allbaugh advising that he could not attend a session because he would be at the

hospital with his mother. Id. at 105. Allbaugh told Redman that he would be

excused if he brought written verification. Redman never produced the

required verification, and never completed remaining assignments. In

September 2015, Redman was again terminated form the sex offender treatment

Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 5 of 9 program. Probation Officer Carl Chambers (“Chambers”) summarized, “[I]t’s

been non-consistent, non-compliance with this Defendant.” Id. at 98. The

State requested that the entirety of Redman’s four-year suspended sentence be

revoked.

[10] Redman testified he had obtained employment and presented a faxed letter

from his shift manager. With regard to the sex offender treatment program,

Redman testified that, initially, he did not have the funds to pay for the

polygraph test. He also testified that his lack of completion of the written

assignments was not due to lack of effort, explaining that he wrote several drafts

of the first assignment before it was accepted as being adequate, and he

attempted the second assignment, but it was not deemed satisfactory. Redman

asked the trial court to continue his placement on probation, asserting that he

had made substantial progress and was in substantial compliance with

treatment requirements and had secured employment.

[11] The trial court acknowledged that Redman in the last several weeks had made

efforts to comply with probation and recognized that some of the failures to

comply were due to monetary reasons, but found that from the beginning of

probation Redman was not motivated to comply with the required conditions

and only made the recent efforts under the threat of losing his liberty; the trial

court deemed it to be “too little, too late.” Tr. at 168. The trial court

determined that Redman failed to successfully complete his sex offender

treatment, and he failed to maintain and verify employment, both conditions of

his probation. The trial court revoked two years of the previously-suspended

Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 6 of 9 four-year portion of his sentence, ordering that the two years be served at the

DOC, after which Redman would return to probation. Appellant’s App. at 112-

13. Redman now appeals.

Discussion and Decision [12] Redman does not assert that he did not violate probation or that the trial court

did not follow the proper procedures when it revoked his probation. Rather,

Redman’s challenge is to the sanction imposed, claiming it was too severe and

constituted an abuse of discretion. Probation is a conditional liberty that is a

privilege, not a right. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013); Prewitt v.

State, 878 N.E.2d 184, 188 (Ind. 2007). Probation revocation is a two-step

process. First, the trial court must make a factual determination that a violation

of a condition of probation actually occurred. Heaton, 984 N.E.2d at 616.

Second, if a violation is found, then the trial court must determine the

appropriate sanctions for the violation. Id. We review a trial court’s decision to

revoke probation and a trial court’s sentencing decision in a probation

revocation proceeding for an abuse of discretion. Id.; Abernathy v. State, 852

N.E.2d 1016, 1020 (Ind. Ct. App. 2006). An abuse of discretion occurs if the

trial court’s decision is against the logic and effect of the facts and

circumstances before the court or when the trial court misinterprets the law.

Heaton, 984 N.E.2d at 616.

[13] Upon finding that a probationer has violated a condition of probation, a court

may continue him on probation, with or without modifying or enlarging the

Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 7 of 9 conditions, extend his probation for not more than one year beyond the original

probationary period, or order execution of the initial sentence that was

suspended. Ind. Code § 35-38-2-3(g). The imposition of an entire suspended

sentence is well within the trial court’s discretion. Sandlin v. State, 823 N.E.2d

1197, 1198 (Ind. 2005); Sanders v. State, 825 N.E.2d 952, 957-58 (Ind. Ct. App.

2005), trans. denied. Accordingly, when the trial court in the present case

ordered Redman to serve two of the four previously-suspended years for

violating his probation, it was acting within its statutory authority.

[14] Redman urges that his violations “were largely technical in nature” and did not

warrant revocation and incarceration in the DOC. Appellant’s Br. at 6. He

argues that the trial court “chose the strictest sanction of revoking a part of his

suspended sentence and ordering it be executed in the DOC,” but that “the

more appropriate sanction” would have been to extend his probation, place him

on in-home detention, or allow him to serve his sentence in work release. Id. at

7. We disagree that his violations were technical in nature. Redman was aware

that upon release he needed to abide by the terms of his probation, which

included submitting to polygraph tests every six months, and he was advised of

the fees associated with those tests, yet he failed to properly plan and save for

those tests. He also was required to obtain employment and provide

verification of it to the probation department, although there is no indication

that Redman was employed until shortly before the last evidentiary hearing on

Notice No. 3, in October 2015. With regard to the required written

assignments in the sex offender treatment program, Allbaugh testified that

Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 8 of 9 “diligent” participants can complete all ten assignments in a year and “most”

complete them within eighteen months; Redman completed one in

approximately a year. Tr. at 113. Allbaugh testified that Redman was “very

uncooperative with treatment,” and Chambers described Redman as “non-

consistent” with treatment. Id. at 98, 102. From the evidence presented, the

trial court perceived that Redman simply was not motivated until Redman

sensed his “feet on the fire” and a possible return to incarceration. Id. at 166.

Redman has failed to establish that the trial court’s decision to revoke his

probation and order him to serve two years of a previously-suspended four-year

sentence was an abuse of discretion.

[15] Affirmed.

[16] Najam, J., concurs. [17] Riley, J., concurs in result without opinion.

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