Wesley Cashdollar v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Jul 03 2013, 7:05 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRYAN E. BARRETT GREGORY F. ZOELLER
Rush County Public Defender’s Office Attorney General of Indiana
Rushville, Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WESLEY CASHDOLLAR, )
)
Appellant-Defendant, )
)
vs. ) No. 70A01-1204-CR-139
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE RUSH SUPERIOR COURT
The Honorable David E. Northam, Judge
Cause No. 70D01-0307-FA-228
July 3, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Wesley Cashdollar (“Cashdollar”) appeals the Rush Superior Court’s revocation
of his probation. Cashdollar argues that the trial court abused its discretion when it
ordered Cashdollar to serve seventy-one months executed after Cashdollar violated the
terms of his probation.
We affirm.
Facts and Procedural History
On March 17, 2005, Cashdollar pleaded guilty to Class B felony dealing in
cocaine. As part of the plea agreement, the State and Cashdollar agreed that Cashdollar
would serve a ten-year sentence and that the two additional felony charges of dealing
cocaine would be dismissed. On April 20, 2005, when Cashdollar failed to appear at his
sentencing hearing, the trial court held him in contempt and issued a warrant for his
arrest. On May 17, 2005, the State filed a Motion to Vacate Plea Recommendation and
to Set Jury Trial. The trial court granted the motion.
Ten days before the rescheduled trial, on May 6, 2009, Cashdollar again pleaded
guilty to Class B felony dealing in cocaine. The trial court sentenced him to twelve years
in the Indiana Department of Correction. The plea agreement provided that the State
would agree to a sentence modification and suspension of the remainder of the sentence
to probation after Cashdollar had completed six years’ incarceration which, with credit
for good behavior, would amount to three years of incarceration.
On April 29, 2011, Cashdollar filed a Petition for Sentence Modification. After a
hearing on the petition, the trial court issued a July 7, 2011 order suspending the
remainder of Cashdollar’s sentence to probation. The order included a special condition
2
that Cashdollar complete a drug and alcohol rehabilitation program with Certified
Counseling Services, Inc. (“CCS”).
Cashdollar began the rehabilitation program at CCS on July 7, 2011. Not quite
three months later, on September 29, 2011, Ron McKiernan, the President of CCS,
reported to the Rush County Probation Department that Cashdollar had admitted to using
Opana, an opiate, and, thus, had failed to comply with CCS’s rehabilitation program
requirements.1 Thereafter, Mark Fields of the Rush County Probation Department filed a
Verified Petition of Probation Violation and on October 11, 2011, Cashdollar was
arrested for the probation violation.
On November 7, 2011, Cashdollar and the State entered into a plea agreement
calling for Cashdollar to serve a three-year sentence. In the agreement, Cashdollar
admitted that he had violated the terms of his probation. The trial court, however, voiced
“serious reservations” about the agreement. Appellant’s App. p. 93. On January 20,
2012, the State filed a Motion to Withdraw Plea Agreement and Set Adjudicatory
Hearing. The trial court granted the motion and held the adjudicatory hearing on the
petition on March 2, 2012. At the hearing, Cashdollar admitted leaving CCS’s recovery
program but denied the use of drugs.
Cashdollar asked the court to place him in Lighthouse Recovery Center for
treatment or to allow him to serve a combination of executed time and placement for
treatment. Instead, the trial court revoked Cashdollar’s probation and sentenced him to
1
On September 28, 2011, approximately six weeks after entering the program at CCS, Cashdollar
admitted to a CCS employee that he had used Opana, a controlled substance forbidden by the recovery
program. Cashdollar permanently left CCS that night.
3
seventy-one months executed at the Indiana Department of Correction with credit for 456
days. Cashdollar now appeals.
Discussion and Decision
Cashdollar argues that the Rush Superior Court abused its discretion when it
sentenced Cashdollar to the entire seventy-one month suspended sentence because the
sentence was unsupported by a “sufficient legal or factual basis.” Appellant’s Br. at 3.
We disagree.
Probation is “a matter of grace left to trial court discretion.” Prewitt v. State, 878
N.E.2d 184, 188 (Ind. 2007). It is a “conditional liberty” of a criminal defendant, rather
than a right. Black v. Romano, 471 U.S. 606, 610 (1985); Braxton v. State, 651 N.E.2d
268, 269 (Ind. 1995). Accordingly, pursuant to Indiana Code section 35-38-2-3, a trial
court may, upon a defendant’s violation of the terms of his probation, 1) continue the
original probation sentence; 2) extend the probationary period for no longer than one year
beyond the original period; and/or 3) order the execution of all or part of a previously
suspended sentence. A criminal defendant may “appeal the terms of a sentence ordered
to be served in a probation revocation proceeding that differ from those terms originally
imposed.” Stephens v. State, 818 N.E.2d 936, 939 (Ind. 2004).
We review a trial court’s decision to revoke probation for abuse of discretion,
considering only that evidence which is most favorable to the trial court’s judgment.
Prewitt, 878 N.E.2d at 188; Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008). A trial
court abuses its discretion when its decision “is clearly against the logic and effect of the
facts and circumstances.” Prewitt, 878 N.E.2d at 188. Upon review, we neither assess the
4
credibility of the witnesses nor reweigh the evidence. Woods, 892 N.E.2d at 639.
Further, we do not review the appropriateness of the original sentence imposed on the
defendant. Johnson v. State, 692 N.E.2d 485, 488 (Ind. Ct. App. 1998).
While, at his probation revocation hearing, Cashdollar admitted only that he
violated the terms of his probation and denied using Opana, CCS President Ron
McKiernan had previously reported that Cashdollar admitted using Opana. Cashdollar
claims, however, that the trial court “did not properly take into account the facts of his
case and illegally concluded that it had no other choice but to sentence [Cashdollar] to the
remaining suspended time.” Appellant’s Br. at 12. Cashdollar points out that he “has
been attempting to better his life and his personal situation.” Appellant’s Br. at 14. He
further emphasizes that his probation violation did not involve the commission of a new
crime, but rather, the desertion of “a rehabilitation center that he believed was not
adequate for his individual and spiritual needs, in addition to his well-being.”
Appellant’s Br. at 13.
We applaud Cashdollar for seeking to improve his life. However, we cannot say
that the trial court's revocation of Cashdollar’s probation defies logic and the effect of
facts and circumstances before the court. Cashdollar agreed to comply with the terms of
his probation, including the condition that he successfully complete the rehabilitation
program at CCS. Cashdollar violated that term when he left CCS before completion of
the program, approximately two months after the trial court had modified his sentence to
probation.2
2
In Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), trans denied, this court observed that even
one violation of a probation condition justifies the trial court’s decision to revoke probation.
5
Upon finding that Cashdollar violated the terms of his probation, the trial court
properly looked to Indiana’s probation revocation statute to determine the range of
consequences that would follow. See Ind. Code § 35-38-2-3(g). This statute gives the
trial court broad discretion to order execution of all or part of Cashdollar’s suspended
sentence.
While Cashdollar could possibly benefit from the rehabilitation program at
Lighthouse Recovery Center he put forward to the trial court as an alternative sentencing
placement, Indiana statute does not require the trial court to seek out alternatives other
than incarceration for a defendant who fails to comply with his probation terms. As to
Cashdollar’s denial that he used the opiate Opana before he left CCS, it is important to
remember that we do not reweigh evidence or assess the credibility of witnesses. For
these reasons, we conclude that the trial court acted within its discretion when it revoked
Cashdollar’s probation and ordered him to serve seventy-one months executed in the
Department of Correction.
Conclusion
The trial court did not abuse its discretion when it revoked Cashdollar’s probation
and ordered him to serve seventy-one months in the Department of Correction.
Affirmed.
BAKER, J., and MAY, J., concur.
6