Dylan Lee Cheesman v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Feb 19 2019, 9:23 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Brooklyn, Indiana Attorney General of Indiana
George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dylan Lee Cheesman, February 19, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1925
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable John T. Roach,
Appellee-Plaintiff. Judge.
Trial Court Cause No.
84D01-1703-F6-717
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1925 | February 19, 2019 Page 1 of 8
Case Summary
[1] Dylan Cheesman appeals the sentence imposed after the trial court revoked his
probation. We affirm.
Issue
[2] Cheesman raises one issue, which we restate as whether the trial court properly
ordered Cheesman to serve the balance of his sentence in the Vigo County Jail.
Facts
[3] Cheesman pleaded guilty to auto theft, a Level 6 felony. On August 23, 2017,
the trial court sentenced Cheesman to two years in the Indiana Department of
Correction with his sentence suspended to probation.
[4] On January 19, 2018, the probation department filed a notice of probation
violation and alleged that Cheesman had been charged with battery, a Class A
misdemeanor; criminal trespass, a Class A misdemeanor; possession of
paraphernalia, a Class C misdemeanor; operating a motor vehicle without a
license, a Class C misdemeanor; and driving while suspended, a Class A
misdemeanor. On March 21, 2018, the probation department filed an amended
notice of probation violation. The probation department alleged that, in
addition to the earlier charges, Cheesman had: (1) tested positive for THC on
February 20, 2018; (2) tested positive for spice on February 20, 2018, March 2,
2018, and March 13, 2018; (3) failed to take drug screens on February 9, 2018,
February 12, 2018, and March 8, 2018; (4) failed to call the drug screen
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notification system on six occasions in February and March 2018; and (5) failed
to keep an appointment for an assessment at Harbor Lights on March 6, 2018.
[5] After a revocation hearing, the trial court found that Cheesman had violated his
probation. On May 21, 2018, the trial court “sentence[d] [Cheesman] to time
served” in the Vigo County Jail from March 26, 2018, through May 21, 2018.
Appellant’s App. Vol. II p. 68. The trial court returned Cheesman to probation
on May 21, 2018, and ordered Cheesman, as a part of probation, to: (1)
participate in a daily drug screen call-in protocol; (2) schedule an alcohol and
drug evaluation and follow all treatment recommendations; and (3) reside with
his mother.
[6] On June 11, 2018, the probation department filed another notice of probation
violation. The probation department alleged that Cheesman had: (1) tested
positive for spice on May 25, 2018, and June 1, 2018; (2) failed to call the drug
screen notification system on June 9, 2018, June 10, 2018, and June 11, 2018;
and (3) failed to report for a drug screen on June 7, 2018.
[7] At the revocation hearing on July 2, 2018, the parties discussed the possibility
of Cheesman participating in work release. Cheesman reported that his father
would help him with the work release fees. The trial court stated:
If [Cheesman is] going to admit [the violation] based on this
agreement that he’s going to work release, I’m telling you that . .
. I haven’t decided that I’m accepting that he is going to work
release. So if you’re going to admit, you have to admit knowing
that you probably have six (6) months in the Vigo County Jail.
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Tr. Vol. II p. 7. The trial court found that Cheesman had violated the terms of
his probation and, pursuant to Cheesman’s attorney’s request, ordered “an
evaluation by Vigo County Community Corrections for defendant’s possible
placement in Work Release . . . .” Appellant’s App. Vol. II p. 78.
[8] The community corrections evaluation determined that Cheesman was
unemployed, that his family could not help with the fees, and that Cheesman
was not an appropriate candidate for work release because he could not afford
the program. At the dispositional hearing on July 16, 2018, the State requested
that Cheesman serve the balance of his sentence in the Vigo County Jail. The
State noted that the trial court made it clear during the May 21, 2018 hearing
that, if Cheesman “messed up this chance, he would just go to sit in the Vigo
County Jail.” Tr. Vol. II p. 19. The trial court then stated:
I’m not going to repeat the conversation we had the last time on
the probation violation because the State just summarized it. We
gave you every chance. We gave you another chance to get out
and do the treatment. Didn’t [sic] take advantage of that
opportunity. I don’t have anywhere else to put you. You’re not
appropriate for community corrections. I’m not sentencing you
to time served. That’s not appropriate either. So the balance of
your time is in the Vigo County Jail. I will put on here that with
six (6) weeks left, you should be put in Jail Linkage, but at this
point, the balance of your time is in the Vigo County Jail.
Id. at 21. The trial court revoked Cheesman’s probation and ordered him to
serve the balance of his suspended sentence in the Vigo County Jail. The trial
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court ordered Cheesman to serve the last six weeks of his sentence in the Jail
Linkage Program.
Analysis
[9] Cheesman argues that the trial court abused its discretion by ordering him to
serve the balance of his suspended sentence in the Vigo County Jail.
“Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007). Where, like here, the trial court finds that a defendant has violated a
condition of his probation, it may: (1) continue the probation with or without
modifying the probation conditions; (2) extend the probationary period for up
to one year; or (3) revoke the probation and order the execution of all or part of
the sentence suspended at the initial hearing. Ind. Code § 35-38-2-3(h). A trial
court’s sentencing decisions for probation violations are reviewable using the
abuse of discretion standard. Prewitt, 878 N.E.2d at 188. An abuse of
discretion occurs where the decision is clearly against the logic and effect of the
facts and circumstances. Id.
[10] Cheesman does not dispute that his placement in community corrections is a
decision made at the “sole discretion of the trial court.” Appellant’s Br. p. 7.
But Cheesman argues that the trial court “cannot exercise its discretion in an
arbitrary manner.” Id. According to Cheesman, he could not be denied the
opportunity to participate in work release merely because he was indigent.
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Cheesman contends that, but for his inability to pay work release fees, “he
would have been eligible and appropriate for the program.” Id. at 8.
[11] In support of his argument, Cheesman relies on Mueller v. State, 837 N.E.2d 198(Ind. Ct. App. 2005), where we considered whether requiring the payment of a
fee before a defendant could participate in a pretrial diversion program violated
the United States Constitution. We held: “Completely foreclosing a benefit that
the State offers to defendants in the criminal justice system, based solely on an
inability to pay a fee or fine, violates the Fourteenth Amendment.” Mueller, 837
N.E.2d at 204. “As such, precluding [the defendants] from participating in the
Prosecutor’s pretrial diversion program based solely on their asserted inability
to pay the $230 in fees violated their rights under the United States
Constitution.” Id. at 204-05.
[12] Mueller is distinguishable from this case. Cheesman was not denied the
opportunity to participate in work release solely based on his inability to pay
the fees associated with the program. Although Cheesman was only on
probation for a few months, he repeatedly and significantly violated the terms
of his probation. In May 2018, after the trial court found that Cheesman had
violated his probation, the trial court warned Cheesman that if he “messed up
this chance, he would just go to sit in the Vigo County Jail.” Tr. Vol. II p. 19.
Within days, Cheesman had again violated his probation. At the revocation
hearing, the trial court expressed reluctance to put Cheesman on work release
but allowed him to obtain an evaluation. At the dispositional hearing two
weeks later, the trial court sentenced Cheesman to serve his suspended sentence
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in the county jail, not because Cheesman lacked the funds for work release, but
because Cheesman had failed to take advantage of every opportunity given to
him. The trial court stated: “We gave you every chance. We gave you another
chance to get out and do the treatment. Didn’t [sic] take advantage of that
opportunity. I don’t have anywhere else to put you. You’re not appropriate for
community corrections.” Id. at 21.
[13] The trial court was not required to give all the reasons that it did not grant
Cheesman’s request for work release. We will not speculate that the denial was
based on lack of funds, especially given the trial court’s statements at the
revocation and dispositional hearings. Rather, the trial court’s statements
indicate that it found work release inappropriate based on Cheesman’s repeated
probation violations. Under these circumstances, we do not find Mueller
applicable. Our Supreme Court has held:
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.
Prewitt, 878 N.E.2d at 188. The trial court had “considerable leeway” in
deciding the consequences of Cheesman’s probation violations. Id. Given
Cheesman’s repeated probation violations, we do not find the imposition of the
suspended sentence to be an abuse of discretion. See, e.g., McKnight v. State, 787
N.E.2d 888, 893 (Ind. Ct. App. 2003) (holding that the trial court properly
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ordered the defendant to serve seven years of his previously-suspended sentence
after finding four probation violations).
Conclusion
[14] The trial court did not abuse its discretion by imposing Cheesman’s suspended
sentence. We affirm.
[15] Affirmed.
Baker, J., and May, J., concur.
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