Jewell D. Riley v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing FILED
the defense of res judicata, collateral
Jul 07 2017, 7:16 am
estoppel, or the law of the case.
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jewell D. Riley, July 7, 2017
Appellant-Defendant, Court of Appeals Case No.
20A04-1701-CR-155
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D03-1408-FC-177
Bradford, Judge.
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Case Summary
[1] Appellant-Defendant Jewell D. Riley was placed on probation after he pled
guilty to Class C felony child molesting. On July 28, 2016, Riley was found to
have violated the terms of his probation. With respect to this violation, Riley
was sanctioned with time-served and permitted to continue on probation with
GPS monitoring. On December 5, 2016, Appellee-Plaintiff the State of Indiana
(“the State”) filed a second notice of probation violation. Following an
evidentiary hearing, the trial court found Riley in violation of the terms of his
probation. As a result of this violation, the trial court revoked Riley’s
probation, ordered that Riley serve three years of his previously-suspended
sentence in the Department of Correction (“DOC”), and imposed an additional
year of probation.
[2] On appeal, Riley contends that the trial court abused its discretion in revoking
his probation. In making this contention, Riley argues that the State failed to
present evidence demonstrating that he recklessly, knowingly, or intentionally
failed to follow the terms of his probation. Finding no abuse of discretion by
the trial court, we affirm.
Facts and Procedural History
[3] In January of 2015, Riley pled guilty to Class C felony child molesting and was
sentenced to a term of six years, with five years suspended to probation. In
addition to the standard terms of probation, Riley was ordered to undergo a risk
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assessment at Lincoln Therapeutic, to comply with sex offender registration
terms, to comply with the sex offender terms of probation, and to register as a
sex offender. Riley was subsequently released to probation on September 29,
2015.
[4] On February 24, 2016, based on reports that Riley had contact with a minor
relative and left Elkhart County without permission, the State requested that the
trial court modify the terms of Riley’s probation to require GPS monitoring.
Following a hearing, the trial court granted the State’s request.
[5] On June 8, 2016, the State filed a notice of probation violation in which it
alleged that Riley had violated the terms of his probation by consuming alcohol
and failing to pay certain fees. Riley subsequently admitted the alleged
violations, after which the trial court sanctioned him with time served and
ordered him to continue on probation with GPS monitoring. The trial court
also ordered Riley to undergo an addiction evaluation and to follow up as
necessary.
[6] On December 5, 2016, the State filed a second notice of probation violation.
The State alleged that Riley had violated the terms of his probation by (1)
violating the trial court’s order that he undergo an addiction evaluation and
follow the recommendations, (2) failing to fulfill certain financial obligations,
and (3) violating a special probation condition for adult sex offenders, which
required him to “attend, actively participate in and successfully complete a
court-approved sex offender treatment program as directed by the court.”
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Appellant’s App. Vol. II – Confidential, p. 28. The trial court conducted an
evidentiary hearing on the second notice of probation violation on December
29, 2016.
[7] With respect to Riley’s failure to undergo an addiction evaluation and to follow
all related recommendations, Riley’s probation officer, Melanie Godden,
testified that in order to help ensure that Riley complied with the trial court’s
order that he undergo an addiction evaluation and follow-up treatment, she
“gave [Riley] a list of the acceptable treatment providers.” Tr. Vol. II, p. 21.
From this list, Riley chose Addictions Recovery Center (“ARC”) because it was
convenient and “it was close to [his] area where [he] could walk if [he] had to.”
Tr. Vol. II, p. 26. Although Riley submitted to an initial evaluation at ARC on
August 15, 2016, he failed to follow through with treatment.
[8] On November 15, 2016, Godden was notified by representatives from ARC that
Riley “called to cancel an appointment and stated that counseling was too
expensive so he wasn’t going to be following through with treatment or
attending his appointment.” Tr. Vol. II, p. 15. On December 5, 2016, Godden
received “another alert from ARC” indicating that while Riley had attended
orientation, he had “never attended a further appointment after that.” Tr. Vol.
II, pp. 15, 16. Godden indicated that she “spent from August to December …
instructing [Riley] multiple times to schedule appointments and that he needed
to comply with treatment.” Tr. Vol. II, p. 16. Despite these instructions, Riley
failed to do so.
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[9] During the relevant time period, Riley received $1022.00 per month in Social
Security benefits. His wife received $926.90 per month in Social Security
benefits and earned approximately $676.00 per month from her part-time
employment. Godden indicated that, in her experience, “the combined income
between [Riley’s] benefits and his wife’s income were sufficient for him to live
and pay for probation requirements.” Tr. Vol. II, p. 16. Godden further
testified that after reviewing Riley’s income, she “tried to refer him to Recovery
Works, which is financial assistance for treatment, so that they would pay for
all or part of it at least, but [Riley] didn’t qualify because his income is too
high.” Tr. p. 21.
[10] Riley has not participated in any treatment, at ARC or elsewhere, since
September 16, 2016. Riley acknowledged that despite being in possession of a
list of other acceptable alternatives to ARC, he did not “at any point” attempt
to call or make arrangements with any of these alternatives. Tr. Vol. II, p. 26.
Likewise, Riley did not talk to Godden about other possible, less-expensive
alternatives to ARC.
[11] With respect to Riley’s alleged failure to fulfill certain financial obligations, the
record reflects that Riley owes $793.00 in costs and fees. He also owes $298.00
to the probation department for user’s fees and drug screens. Riley owes an
additional $1638.00 to the probation department for GPS monitoring fees.
Riley testified that while he pays “as much as I can when I can,” he did not
dispute “the numbers of what [he] owe[d].” Tr. Vol. II, p. 24.
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[12] With respect to Riley’s alleged failure to cooperate and make progress in sex
offender treatment, Godden testified and explained that Riley had “struggled in
treatment with accepting responsibility for his actions. He has, after much
prompting, … acknowledged other victims, which is necessary to continue
treatment.” Tr. Vol. II, p. 17. However, as of December 2, 2016, Riley “had
been suspended from treatment due to the issues of failing to progress,
struggling with accepting responsibility for his actions, and also failing to pay
fees.” Tr. Vol. II, p. 17. “[M]oney aside, [Riley] is not invested in his sex
offender specific treatment and he’s not invested in making progress in that
treatment.” Tr. Vol. II, pp. 17-18.
[13] At the conclusion of the evidentiary hearing, the trial court found as follows:
The court, after hearing all the testimony, reviewing the violation
of probation petition, hereby finds that the defendant has violated
the terms if [sic] his probation in that he failed to follow court
orders for the addictions evaluation and followup [sic] that was
imposed due to the prior violation. In addition, the court also
finds probable cause or, actually, the court also finds that the
defendant is not compliant with his treatment through his sex
offender [status] and I think that is even more concerning to the
court than the addictions issue even though I -- the court knows
that those are tied hand-in-hand. The GPS monitoring was also
added due to the previous violation due to the defendant not
taking responsibility for his actions; here again, we have the
defendant not taking responsibility for his actions. It seems to be
an ongoing issue where he’s putting himself at risk.
Tr. Vol. II, pp. 33-34. In determining how to sanction Riley for his violations
of the terms of his probation, the trial court considered that Riley had “shown a
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pattern of non-compliance with court orders, not taking this seriously.” Tr.
Vol. II, p. 39. The trial court further noted the following:
[Riley] had ample opportunity to check out other treatment
providers for his addictions treatment. He failed to do so. He
did not follow through with what he needed to do and that is
why the court has found him in violation of probation.
The court mentioned those other reasons as additional, I guess,
caveats or information for [Riley] that the court realizes that
these two things are in conjunction with each other. There is an
addictions issue for not only alcohol but other things. It’s
obvious from his conduct that was pointed out in the probation
violation, not only this probation violation, but the previous
probation violation that was filed on June 16th or, excuse me,
June 8th of 2016 where, there again, was indications that the
defendant was not compliant with his treatment through the sex
offender program. The adage that you can lead a horse to water,
but you cannot make him drink seems to be appropriate in this
case.
[Riley] may be seemingly attempting to comply with all court
orders; however, he is not, because that is evidence from the
therapist terminating his treatment. Because in order for him to
be successful in his probation, a term of his probation is to be
assessed and followed up by the sex offender treatment; and the
idea that this is all financial is a ruse, because even though there
are many people that have many things that they need and want,
they are not necessarily ones that -- things that you can have.
So part of the condition of probation was that he provide -- that
he attend counseling and participate in counseling. That -- the
addictions counseling, he didn’t even attend. He didn’t -- even
though a list was provided for him for many other places, he
chose ARC. The evidence is clear that this defendant did not call
any of those other providers to find out for himself whether or
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not they accepted a sliding scale, what their fees were; he did not
attempt to go back. He had half of the money in August. He
wasn’t picked up till December. He had half of the money in
August; what did he do with those funds? If he had half of the
money in August, he could have saved up and in September had
a full fee and been able to comply. [Riley] failed to do that.
[Riley] uses the fact that his wife has ill health and that they are
limited by Social Security to try and garner some type of
sympathy from the court, but the court cannot be swayed by
outside actions. The court can only act upon what [Riley] did
and the consequences of his action on third parties or third
persons are not to be considered.
So based on that information and that information alone that the
court has considered, the court does find that a stint at the [DOC]
would prove to [Riley] the severity of these actions as it seems
that the one year that was previously imposed, [Riley] was not, I
guess, sent to the [DOC] as he was housed here.
Tr. Vol. II, pp. 39-41.
[14] The trial court ordered that Riley serve three years in the DOC and indicated
that “[u]pon his release, [Riley] is to obtain a new addictions assessment and do
any follow up that’s necessary.” Tr. Vol. II, p. 41. The court also extended
Riley’s probation for one year and recommended that while incarcerated, Riley
participate “in the INSOMM program, if acceptable, or if accepted.” Tr. Vol.
II, p. 41. The trial court further addressed Riley, stating the following:
Mr. Riley, these are very serious matters [and] you need to start
taking them seriously. The court does not feel that you are
taking this sentence seriously and that is why it has imposed the
sentence which it has. You have not been a participant in this
case and the court hopes that you will not only be a participant,
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but gain some understanding and knowledge to avoid these
actions in the future.
Tr. Vol. II, pp. 41-42.
Discussion and Decision
[15] Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled. The trial court
determines the conditions of probation and may revoke
probation if the conditions are violated. Once a trial court has
exercised its grace by ordering probation rather than
incarceration, the judge should have considerable leeway in
deciding how to proceed. If this discretion were not afforded to
trial courts and sentences were scrutinized too severely on
appeal, trial judges might be less inclined to order probation to
future defendants. Accordingly, a trial court’s sentencing
decisions for probation violations are reviewable using the abuse
of discretion standard. An abuse of discretion occurs where the
decision is clearly against the logic and effect of the facts and
circumstances.
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citations omitted).
A probation hearing is civil in nature and the State need only
prove the alleged violations by a preponderance of the evidence.
Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). We will consider
all the evidence most favorable to supporting the judgment of the
trial court without reweighing that evidence or judging the
credibility of witnesses. Id. If there is substantial evidence of
probative value to support the trial court’s conclusion that a
defendant has violated any terms of probation, we will affirm its
decision to revoke probation. Id.
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Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012).
[16] “A person’s probation may be revoked if ‘the person has violated a condition of
probation during the probationary period.’” Id. (quoting Ind. Code § 35-38-2-
3(a)(1)). “However, if the condition violated involves a financial obligation,
then the probationer must be shown to have recklessly, knowingly, or
intentionally failed to pay.” Id. “[I]t is the State’s burden to prove both the
violation and the requisite state of mind in order to obtain a probation
revocation.” Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010). With respect to
the ability to pay, it is the probationer’s burden “to show facts related to an
inability to pay and indicating sufficient bona fide efforts to pay so as to
persuade the trial court that further imprisonment should not be ordered.” Id.
at 617 (citing Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008)).
[17] In Smith, the Indiana Supreme Court considered the sufficiency of the evidence
to prove that a probationer recklessly, knowingly, or intentionally attempted to
circumvent the terms of his probation by failing to meet his financial obligation.
In doing so, the Indiana Supreme Court held as follows:
First, as we observed in Runyon “because the phrase ‘recklessly,
knowingly, or intentionally’ appears in the disjunctive and thus
prescribes alternative considerations, the state of mind
requirement may be satisfied by adequate evidence that a
defendant’s failure to pay a probation imposed financial
obligation was either reckless, knowing, or intentional.” 939
N.E.2d at 616. Indiana Code section 35-41-2-2(b) provides that a
person engages in conduct “knowingly” if, when he or she
engages in the conduct, the person is aware of a “high
probability” that he or she is doing so. Because knowledge is a
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mental state of the actor, it may be proved by circumstantial
evidence and inferred from the circumstances and facts of each
case. See Young v. State, 761 N.E.2d 387, 389 (Ind. 2002).
963 N.E.2d at 1113. The Court found that the evidence was such that the trial
court, acting as fact-finder, “could reasonably conclude that Smith knowingly
failed to pay current child support every week as required by the terms of his
probation.” Id. at 1114. The Indiana Supreme Court further found that Smith
had failed to carry his burden to prove that his finances were such that he was
not able to make the required payments. Id.
[18] In claiming that the trial court abused its discretion in revoking his probation
Riley argues that “there was no evidence presented that [he] recklessly,
knowingly, or intentionally attempted to circumvent the trial court’s orders by
failing to complete his court ordered treatment.” Appellant’s Br. p. 10. We
disagree.
[19] Aside from an inability to pay, the State was required to prove that Riley was
aware of a high probability that he was not current on his financial obligations
or that his inability to meet certain financial obligations kept him from
complying with other terms of his probation. See Smith, 963 N.E.2d at 1113.
The evidence indicates that Riley understood the terms of his probation but
failed to seek out programs which would allow for more flexibility with regard
to payment while enabling him to participate in the required addiction
treatment. The evidence further indicates that Riley knew that he had failed to
pay certain fees as required by the terms of his probation. The evidence also
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indicates that Riley failed to attend, actively participate in and successfully
complete a court-approved sex offender treatment program.1
[20] As for Riley’s claimed inability to pay for the required addiction treatment and
fees, Riley presented testimony during the evidentiary hearing regarding his
financial situation. The trial court was not persuaded by Riley’s testimony and
found that Riley had the financial means to meet his financial obligations.
Upon review, we consider the evidence most favorable to the judgment of the
trial court and will not reweigh the evidence or reassess witness credibility. See
Smith, 963 N.E.2d at 1112. As such, we will not disturb the trial court’s
determination that Riley failed to carry his burden of proving that he was
unable to meet his financial obligation. We therefore conclude that the trial
court did not abuse its discretion in revoking Riley’s probation.
[21] The judgment of the trial court is affirmed.
Najam, J., and Riley, J., concur.
1
Riley does not appear to make any claim regarding his ability to pay as to this term. As such, it would seem
that Riley’s failure to successfully participate in and complete the court-ordered sex offender treatment would
be sufficient, without more, to support the revocation of Riley’s probation.
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