Michael J. Bedtelyon v. State of Indiana (mem. dec.) ( 2020 )

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.
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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
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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
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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
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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
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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
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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.
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[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).
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[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
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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
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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.
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