Michael J. Bedtelyon v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 30, 2020
• Docket: 20A-CR-794
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 30 2020, 10:17 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald R. Shuler Curtis T. Hill, Jr. Barkes, Kolbus, Rife & Shuler, LLP Attorney General of Indiana Goshen, Indiana Catherine Brizzi Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael J. Bedtelyon, September 30, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-794 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff Judge Trial Court Cause No. 20D03-1802-F4-16

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-794 | September 30, 2020 Page 1 of 11 Case Summary [1] Michael J. Bedtelyon appeals the trial court’s revocation of his community

corrections placement and probation. He asserts that the evidence is

insufficient to support the finding of a violation and that the trial court abused

its discretion in ordering that his remaining executed sentence be served in the

Indiana Department of Correction (DOC) and in executing one year of his

probation. We affirm.

Facts and Procedural History [2] The facts most favorable to the judgment are as follows. On June 28, 2017,

Elkhart police officers discovered Bedtelyon, then age twenty-five, in a public

park with fourteen-year-old A.S., whom he had met through a smartphone

dating application. A.S. told the officers that the two had engaged in sexual

intercourse in the park. She underwent a forensic examination, and test results

confirmed the presence of DNA consistent with Bedtelyon’s. Bedtelyon

initially denied having intercourse with A.S. but eventually admitted that the

two had engaged in sexual intercourse on three different occasions.

[3] The State charged Bedtelyon with three counts of level 4 felony sexual

misconduct with a minor and six class A misdemeanor counts, including two

each for contributing to the delinquency of a minor, public indecency, and

criminal trespass. Bedtelyon was apprehended in Georgia and eventually pled

guilty by plea agreement to one count of level 4 felony sexual misconduct with

a minor and one count of class A misdemeanor criminal trespass. Per the plea

Court of Appeals of Indiana | Memorandum Decision 20A-CR-794 | September 30, 2020 Page 2 of 11 agreement, his sentencing was open to the trial court’s discretion with the

following limitations: sentences were to be concurrent, and any executed

portion would be served in alternative placement. The trial court sentenced

him to eight years, with three years executed in community corrections, with

electronic monitoring, and five years suspended to probation. Bedtelyon

initialed and signed the list of probation terms, many of which were conditions

specifically applicable to sex offenders. These conditions also applied during

his time in community corrections. See Appellant’s App. Vol. 2 at 66 (judgment

of conviction, stating in part, “During defendant’s time on alternative

placement, the sex offender terms of probation apply.”). The conditions

included prohibitions against accessing or using websites, chat rooms, or instant

messaging programs frequented by children and against using a third party to

access social media to communicate with a child. Bedtelyon was ordered to

give probation technology representatives access to his computer and electronic

devices for unannounced examinations and was prohibited from accessing the

Internet or any other online service through any electronic device at any

location without prior approval of his probation officer. Another condition

required Bedtelyon to submit to polygraph examinations. Id. at 75, 77.

[4] In January 2020, Elkhart community corrections issued a notice of violation

based on a finding that Bedtelyon had failed a polygraph examination. The

polygraph administrator analyzed Bedtelyon’s physiological responses during

the polygraph and found that Bedtelyon had a “significant reaction” when

answering in the negative to two questions: “Since your last polygraph have

Court of Appeals of Indiana | Memorandum Decision 20A-CR-794 | September 30, 2020 Page 3 of 11 you had physical sexual contact with anyone?”; and “Since your last polygraph

have you communicated with a minor through the Internet?” Id. at 102.

Bedtelyon disclosed to the examiner that he had engaged in phone sex with his

girlfriend, who is from South Africa and was living either there or in Italy at the

time. Id. at 95. He also admitted that he had communicated with her on

“Facebook Messenger” through his sister-in-law, that he did it to save on long-

distance charges, that the sister-in-law let her minor child say hello to him, and

that he had not disclosed this arrangement to his case manager or obtained

permission before using a third party to access social media. Id. at 95-96. For

all these reasons, the community corrections director petitioned the trial court

to revoke Bedtelyon’s community corrections placement. The probation

department also filed a notice of violation against Bedtelyon, claiming that he

used prohibited websites, chat rooms, or instant messaging programs frequented

by children.

[5] During a community corrections disciplinary hearing, Bedtelyon admitted to

violating the sex offender terms of his placement. Tr. Vol. 2 at 20, 23. The trial

court conducted a violation hearing and found that Bedtelyon had violated the

conditions of his community corrections placement by circumventing the sex

offender rules prohibiting him from accessing social media, whether directly or

through an intermediary, without prior approval. The court revoked his

placement and ordered that he serve the remaining executed portion of his

sentence in the DOC. The trial court also revoked his probation, but executed

Court of Appeals of Indiana | Memorandum Decision 20A-CR-794 | September 30, 2020 Page 4 of 11 one year and re-suspended the four remaining years to probation. Bedtelyon

now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Section 1 – The evidence is sufficient to support the trial court’s conclusion that Bedtelyon violated the terms of his community corrections placement. [6] Bedtelyon asserts that the evidence is insufficient to support the trial court’s

determination that he violated the conditions of his placement. Placement in a

community corrections program or on probation is a matter of grace and not of

right. Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App. 2016). For

purposes of our review, we treat a hearing on a petition to revoke a community

corrections placement the same as we do a hearing on a petition to revoke

probation. Id. In conducting our review, we consider the evidence and

reasonable inferences most favorable to the judgment without reweighing that

evidence or reassessing witness credibility; if substantial evidence of probative

value supports the court’s conclusion that a defendant has violated any terms of

probation, we will affirm its decision to revoke the defendant’s placement/

probation. Id.

[7] Revocation of a community corrections placement or probation is a two-step

process, wherein the trial court first makes a factual determination as to

whether the defendant violated the terms of his placement or probation. Treece

v. State, 10 N.E.3d 52, 56 (Ind. Ct. App. 2014), trans. denied; Woods v. State, 892

N.E.2d 637, 640 (Ind. 2008). Because such a proceeding is civil in nature, the Court of Appeals of Indiana | Memorandum Decision 20A-CR-794 | September 30, 2020 Page 5 of 11 State need only prove the alleged violation by a preponderance of the evidence.

Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). If a violation is

found, the court then determines whether the violation warrants revocation.

Woods, 892 N.E.2d at 640. Proof of a single violation is sufficient to permit a

revocation. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans.

denied. As with probationers, those who are placed in community corrections

are subject to the conditions of that placement; if they violate those terms and

conditions, the community corrections director may change the terms, continue

the placement, reassign the person, or ask the trial court to revoke the person’s

placement. Ind. Code § 35-38-2.6-5(a).

[8] Bedtelyon admitted at his disciplinary hearing that he had violated the terms of

his placement. Yet, he now contends that the State failed to meet its burden of

demonstrating a violation during the violation hearing. He relies on the

following language in the sex offender terms, which he initialed and signed: “8.

You are prohibited from accessing or using certain web sites, chat rooms, or

instant messaging programs frequented by children.”; and “9. You shall not

use a social networking web site or an instant messaging or chat room program

to communicate, directly or through an intermediary, with a child less than

sixteen (16) years of age.” Appellant’s App. Vol. 2 at 75. With respect to

condition 8, he claims that the State failed to prove that he accessed an instant

messaging program frequented by children. During the violation hearing, the

trial court judicially noticed that Facebook is frequented by children. The court

stated that it lacked familiarity specifically with Facebook Messenger, which is

Court of Appeals of Indiana | Memorandum Decision 20A-CR-794 | September 30, 2020 Page 6 of 11 part of the Facebook “realm,” but articulated its incredulity concerning any

claim by Bedtelyon that he was unaware of its usage by children. Tr. Vol. 2 at

44.

[9] Regardless, Bedtelyon is quick to point out that he was not accessing social

media at all. Instead, he simply would call his sister-in-law in Hawaii and have

her access her Facebook Messenger account to contact his girlfriend in South

Africa or Italy so that he could save money on overseas long-distance calls. He

claims that he did not violate condition 9 because his girlfriend was not

underage and his only contact with a child came when his sister-in-law put her

minor child on the line. He claims that he did not violate condition 8 because it

does not specifically prohibit a sex offender/probationer from using a third party

intermediary to access websites, chat rooms, or instant messaging programs

frequented by children. In making these arguments, Bedtelyon ignores other

conditions to which he was subject as a sex offender. For example, condition

27 requires him to give his probation officer and/or probation technology

representative access to his home computer and devices for unannounced

examinations. Appellant’s App. Vol. 2 at 77. Most significantly, condition 26

reads, in part, “You shall not access the Internet or any other on-line service

through use of any electronic device at any location … without prior approval

of your [case manager or] probation officer.” Id. These rules are in place to

prevent defendants from avoiding detection on their own computers by using

the devices and social media accounts of others.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-794 | September 30, 2020 Page 7 of 11 [10] Here, Bedtelyon did just that. He had been granted permission to contact his

girlfriend by phone or letter but not through social media. Community

corrections case manager Lyle Baimter testified that Bedtelyon had never been

given permission to use an intermediary (his sister-in-law) to contact his

girlfriend via her device and social media account. Tr. Vol. 2 at 16-17.

Bedtelyon admitted as much to his polygraph examiner. Appellant’s App. Vol.

2 at 96. He circumvented the sex offender rules by attempting to do indirectly

that which he was prohibited from doing directly. See Hively v. School City of

Nappanee, 202 Ind. 28, 169 N.E. 51, 53 (1929) (contract for leasing of

schoolhouse held void as attempt to do indirectly what was legally prohibited if

done directly). The evidence and reasonable inferences most favorable to the

judgment are sufficient to support the trial court’s conclusion that Bedtelyon

violated the conditions of his placement.

Section 2 – The trial court acted within its discretion in ordering that Bedtelyon serve the remainder of his executed sentence in the DOC and in executing a portion of Bedtelyon’s probation. [11] Bedtelyon also challenges the trial court’s choice of sanction for his

probation/community corrections violation. The trial court’s sentencing

decisions for probation violations are reviewable for an abuse of discretion.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). An abuse of discretion occurs

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

and circumstances before it or where the trial court misinterprets the law.

Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014). Court of Appeals of Indiana | Memorandum Decision 20A-CR-794 | September 30, 2020 Page 8 of 11 [12] The executed portion of Bedtelyon’s sentence comprised placement in the local

community corrections program. As stated, Indiana Code Section 35-38-2.6-

5(a)(4) provides, “If a person who is placed under this chapter violates the terms

of the placement, the community corrections director may …. [r]equest 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.” As for

probation, once a violation is established, the trial court may impose one or

more of the following sanctions: (1) continue the defendant’s probation, with

or without modifying or enlarging the conditions; (2) extend the defendant’s

probationary period for not more than one year beyond the original

probationary period; or (3) order execution of all or part of the sentence that

was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(h).

Here, the trial court actually ordered the execution of only one of the five years

of Bedtelyon’s probation.

[13] Bedtelyon claims that the trial court abused its discretion in imposing a sanction

that is not commensurate with his violation, which he characterizes as technical

and relatively minor. He relies on several cases in which the trial court was

found to have abused its discretion in ordering an excessive sanction,

considering the nature of the defendant’s violation. See, e.g., Johnson v. State, 62

N.E.3d at 1231-32 (court abused discretion where defendant was remanded to

DOC for minor violations and defendant had mental limitations); Sullivan v.

State, 56 N.E.3d 1157, 1162 (Ind. Ct. App. 2016) (court abused discretion in

imposing maximum term for violation of community corrections placement

Court of Appeals of Indiana | Memorandum Decision 20A-CR-794 | September 30, 2020 Page 9 of 11 involving failure to report for home detention as ordered); Ripps v. State, 968

N.E.2d 323, 325-26 (Ind. Ct. App. 2012) (court abused discretion in imposing

severe sanction given technical nature of violation and other circumstances such

as defendant’s poor health); Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct.

App. 2011) (abuse of discretion where court considered improper factors).

[14] Here, Bedtelyon’s violation was neither technical nor minor; rather, it went to

the core of his felony conviction. He had sexual intercourse with a fourteen-

year-old girl and, per his plea agreement, received alternative placement in

community corrections. Many of the sex offender conditions of his placement

comprised orders to stay away from children and from places where children

might be expected to go, whether personally or online through a website, chat

room, or instant messaging program. Bedtelyon was absolutely prohibited from

accessing the sites and programs frequented by children; he was forbidden from

using an intermediary to communicate with a child via social media; his

computer was subject to immediate search; and he was forbidden from using a

computer or device anywhere unless he had prior authorization to do so.

Nevertheless, acting without permission, he used an intermediary to circumvent

these conditions. He admitted that he violated the terms of his community

corrections placement and that his use of an intermediary was not an isolated

incident. Tr. Vol. 2 at 20; see also Appellant’s App. Vol. 2 at 99 (defendant’s

statement that he continues to communicate with girlfriend through sister-in-

law’s Facebook Messenger). He attempted to downplay his conduct by

rationalizing that he used his sister-in-law as an intermediary simply because it

Court of Appeals of Indiana | Memorandum Decision 20A-CR-794 | September 30, 2020 Page 10 of 11 was more cost effective. This does not justify his repeated circumvention of the

terms aimed at keeping him away from children. The trial court found him to

be a risk to “public safety because people who try and circumvent the rules are

the people that are dangerous.” Tr. Vol. 2 at 44.

[15] Finally, we remind Bedtelyon of the grace afforded him through the plea

agreement’s dismissal of three of the four level 4 felony counts against him and

five of the six class A misdemeanor counts against him. His original placement

outside the DOC was a demonstration of grace, and again, he has been afforded

grace, as the trial court chose to re-suspend to probation four years of his

remaining term. We find no abuse of discretion in the trial court’s chosen

sanction. Accordingly, we affirm.

[16] Affirmed.

Robb, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-794 | September 30, 2020 Page 11 of 11