Anthony Wayne Cilek v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jun 07 2019, 9:28 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
P. Jeffrey Schlesinger Curtis T. Hill, Jr.
Merrillville, Indiana Attorney General of Indiana
Evan M. Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Wayne Cilek, June 7, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2005
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Natalie Bokota,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
45G03-1406-FA-20
Sharpnack, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019 Page 1 of 13
Statement of the Case
[1] Anthony Wayne Cilek appeals from the trial court’s decision to revoke his
probation and to impose the balance of his suspended sentence less time served.
We affirm.
Issue
[2] Cilek presents one issue for our review, which we restate as the following
question: Did the trial court abuse its discretion by entering an order that Cilek
serve the entire three years of his sentence previously suspended to probation,
minus time served, for the admitted probation violations?
Facts and Procedural History
[3] On June 22, 2017, in Lake County, Cilek pleaded guilty to Aggravated Battery,
a Class B felony. The stipulated factual basis reflects that Cilek admitted that
he struck his victim, slammed her head against the ground, and choked her
until she lost consciousness. Appellant’s App. Vol. II, p. 96. The victim was
transported to a hospital where she received treatment for her injuries which
included a fractured shoulder, fractured ribs, a fractured orbital socket,
fractured wrist, fractured vertebrae and bruising. Id.
[4] By agreement of the parties and after exploring various placement options,
Cilek was sentenced to ten years in the Indiana Department of Correction
(DOC) with seven years executed and three years suspended to probation. The
State also agreed to dismiss all remaining charges against him. Among the
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terms of the Lake Superior Court’s rules and conditions of probation, Cilek
agreed to this following condition:
7. SUPPORT AND COOPERATION: I agree to permit my
Probation Officer to make personal visits to my home,
employment or elsewhere. I will keep the probation officer
informed of my affairs and truthfully answer any questions asked
of me. I understand that I am solely responsible for setting and/or
rescheduling my appointment. I will report (face to face) as directed by
my Probation Officer and understand that failure to report as directed is a
violation.
Id. at 97 (emphasis added).
[5] Later, on December 5, 2017, the Lake County trial court granted Cilek’s request
to transfer his probation to Starke County, Indiana. However, in its order, the
Lake County Court specifically retained the authority to “impose any and all
sanctions for any probation violation, and approve any modifications of
probation.” Id. at 120.
[6] On March 5, 2018, the State filed a petition to revoke Cilek’s probation,
alleging that he had violated the terms of his probation because his whereabouts
were unknown. After Cilek was arrested on March 20, 2018, the trial court
found that Cilek was indigent and appointed counsel to represent him. The
petition was later amended to add the allegation that Cilek had violated the
terms of his probation by engaging in criminal activity (failure to register as a
sex or violent offender). Cilek denied the allegations and the matter was set for
an evidentiary hearing. On the date of Cilek’s hearing, the State filed another
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amended petition to revoke, adding the allegations that Cilek had failed to
attend mandatory meetings with his probation officer since March 2018 and
that he had failed to pay probation fees.
[7] At that hearing, which was held on July 19, 2018, the trial court attempted to
determine if an agreement on disposition had been reached or if a new hearing
date should be scheduled. Counsel for Cilek initially questioned whether Cilek
had been evaluated for mental health court. The trial court indicated that he
would not be eligible based on the nature of his original charges. Cilek was
allowed to address the court and, during his colloquy with the court, said that
he was also disqualified from serving any of his sentence under house arrest
because of his medical conditions. He stated that was the reason the sentence
in his plea agreement was structured as such.
[8] Ultimately, during that hearing, Cilek admitted under oath that he violated two
of the terms and conditions of his probation by failing to report for mandatory
meetings since March 2018, and by failing to pay his financial obligations
associated with probation. The parties agreed to immediately proceed to
sentencing.
[9] During the sentencing portion of the hearing, the probation officer asked for
imposition of the suspended sentence and reported the number of actual days
Cilek had served. The probation officer also noted that the length of the
original sentence was a term of the plea agreement. Cilek’s counsel asked that
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the trial court impose a sentence of time served especially in light of potential
difficulties the DOC might have with treating Cilek’s medical conditions.
[10] The trial court sentenced Cilek to three years in the DOC with a
recommendation for mental health treatment. The trial court stated the
following:
I’m going to be imposing, by necessity, the three year DOC
sentence. We will recommend the mental health treatment.
They’ll do a full evaluation and make sure you receive the
treatment and medicine you need. You already have 121 days
in, so with day-for-day credit it’s 242 days. And it is an
unsatisfactory discharge from probation. The matter is disposed.
Good luck to you, sir. That will be all.
[11] Tr. Vol. 2, p. 13. Cilek now appeals.
Discussion and Decision
[12] Cilek contends that the trial court abused its discretion by ordering him to serve
his suspended sentence of three years, less time served, in the DOC for the
violations to which he admitted.
[13] Reviewing courts evaluate a trial court’s decision to revoke probation for an
abuse of discretion. Whatley v. State, 847 N.E.2d 1007, 1009 (Ind. Ct. App.
2006). As we have often stated, an abuse of discretion occurs if the decision is
against the logic and effect of the facts and circumstances before the court. Id.
[14] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Murdock v. State, 10 N.E.3d 1265, 1267 (Ind.
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2014). “The trial court ‘enjoys wide latitude in fashioning the terms of a
defendant’s probation.’” Kays v. State, 963 N.E.2d 507, 509 (Ind. 2012)
(quoting Bailey v. State, 717 N.E.2d 1, 4 (Ind. 1999)). “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.” Prewitt v. State,
878 N.E.2d 184, 188 (Ind. 2007). “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.” Id.
[15] Probation revocation hearings are civil in nature, and the State must prove an
alleged probation violation by a preponderance of the evidence. Ind. Code §
35-38-2-3(f) (2015); Murdock, 10 N.E.3d at 1267. If sufficiency of the evidence
of the probation violation is at issue, then a reviewing court will consider only
the evidence most favorable to the judgment, without regard to weight or
credibility, and will affirm if there is substantial evidence of probative value to
support the trial court’s conclusion. Murdock, 10 N.E.3d at 1267.
[16] Probation revocation proceedings are not to be equated with adversarial
criminal proceedings. Isaac v. State, 605 N.E.2d 144, 149 (Ind. 1992). “It is a
narrow inquiry, and its procedures are to be more flexible.” Id. “We have
previously held that, precisely because probation revocation procedures are to
be flexible, strict rules of evidence do not apply.” Cox v. State, 706 N.E.2d 547,
550 (Ind. 1999). Indiana Evidence Rule 101(d) provides that the rules, other
than those with respect to privileges, do not apply in probation proceedings.
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[17] The two steps to the revocation process involve 1) a factual determination by
the trial court that a violation of a condition of probation occurred, and 2) if so,
a determination whether the violation warrants a revocation. Woods v. State,
892 N.E.2d 637, 640 (Ind. 2008) (citing Morrissey v. Brewer, 408 U.S. 471, 479-
80, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)). “When a probationer admits to
the violations, the procedural safeguards of Morrissey and the evidentiary
hearing are unnecessary.” Woods, 892 N.E.2d at 640. The court may proceed
directly to the second step of the process. Id. “However, even a probationer
who admits the allegations against him must still be given an opportunity to
offer mitigating evidence suggesting that the violation does not warrant
revocation.” Id.
[18] The probation violations filed against Cilek charged as follows:
VIOLATIONS:
RULE #4: LAWS AND CONDUCT:
*-The defendant engaged in criminal activity as shown by his
arrest for Failure to Register as a Sex or Violent Offender, a Level
6 Felony in Starke County, Indiana. Case#75C01-1712-F6-
000214.
-The defendant engaged in criminal activity as shown by his
arrest for Failure to Register as a Sex or Violent Offender, a Level
6 Felony in Starke County, Indiana. Case #75C01-1803-F6-
00040.
RULE #7: SUPPORT AND COOPERATION:
*-The defendant has failed to report for his mandatory meetings
since March 2018.
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-The defendant was transferred to Starke County Probation on
December 5, 2017. The Starke County Probation Department
closed interest in his case due to non-compliance and the
defendant residing back in Lake county[sic]. I received a call on
March 1, 2018 stating that the defendant was in the in-patient
unit at Regional Mental Health and he was scheduled to come to
Lake County Probation on March 8, 2018. On March 5, 2018,
Probation Officer Jacob Sherron received a call from Regional
Mental Health stating the defendant had left the inpatient [sic]
unit on March 2, 2018. The defendant’s whereabouts are
unknown at this point.
RULE #11: FINANCIAL OBLIGATIONS:
*-The defendant was ordered to pay Probation fees in the amount
of $690.00. He has not made any payments and is behind
$255.00.
Appellant’s App. Vol. II, p. 145. Cilek admitted to violating Rules 7 and 11.
[19] Indiana Code section 35-38-2-3(g) (2015) provides that “[p]robation may not be
revoked for failure to comply with conditions of a sentence that imposes
financial obligations on the person unless the person recklessly, knowingly, or
intentionally fails to pay.” The Supreme Court of the United States held in
Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983),
that courts may not revoke probation because of a defendant’s failure to pay a
fine or restitution without first making an inquiry into the reason for that failure
to pay. As our Supreme Court stated in Woods, “failure to pay a probation user
fee where the probationer has no ability to pay certainly cannot result in a
probation revocation.” 892 N.E.2d at 641. Further, as our Chief Justice wrote
in a dissenting opinion to the denial of a petition for transfer, “incarceration is
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reserved for those who can pay, but won’t–not for those who merely can’t
pay.” Martin v. State, 115 N.E.3d 1272, 1273 (Ind. 2019).
[20] Cilek, who was represented by appointed counsel after being found indigent,
admitted to violating this rule. However, after his admission, there was no
inquiry into his ability to pay and he offered no evidence in mitigation of the
admitted violation. Thus, it appears that the trial court erred by failing to make
the additional inquiry after the admission. Nevertheless, this was not the only
violation to which Cilek admitted.
[21] Indiana Code section 35-38-2-3(h) (2015), provides the trial court with the
following options if it has found that the probationer violated a condition of
probation during the probation period:
(1) Continue the person on probation, with or without modifying
or enlarging the conditions.
(2) Extend the person’s probationary period for not more than
one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
[22] Cilek also admitted to violating Rule 11. Unlike violations involving financial
obligations, once the probationer has admitted the violation, the trial court may
proceed to the second step. We observe that “proof of a single violation of the
conditions of probation is sufficient to support the decision to revoke
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probation.” Bussberg v. State, 827 N.E.2d 37, 44 (Ind. Ct. App. 2005), trans.
denied.
[23] The probation violation alleged that one of Cilek’s probation officers received a
telephone call that on March 1, 2018, Cilek was located at the in-patient unit at
Regional Mental Health and he was scheduled to come to the Lake County
Probation Department on March 8, 2018. On March 5, 2018, one of Cilek’s
probation officers received a call from Regional Mental Health stating that
defendant had left the in-patient unit on March 2, 2018. After that, Cilek’s
whereabouts were unknown, a petition to revoke his probation was filed in
Lake County, and the trial court issued a bench warrant for Cilek’s arrest.
[24] Prior to being sworn to testify, Cilek engaged in a colloquy with the trial court
during which he stated he had been diagnosed with dementia and that he had a
long history of mental illness. He further stated that he heard voices and saw
things. Cilek said he was in the hospital counselor’s office when he received a
call from his probation officer. The probation officer instructed him to report to
Brother’s Keeper upon leaving the counselor’s office.
[25] Cilek informed the court that upon leaving the counselor’s office, he checked in
at the sheriff’s department, called his probation officer, and went to Brother’s
Keeper. Cilek claimed that he started hearing sirens and voices while at
Brother’s Keeper, decided to leave, and walked to a bus station. Cilek called a
friend and called his wife telling both of them that he was going to St.
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Catherine’s in East Chicago. He also told them that he was going to take all of
the medications he had in his possession. He then boarded the bus.
[26] Cilek told the court that he took all of the pills, including thirty 100 milligram
doses of Trazodone, thirty 100 milligram doses of Seroquel, and thirty 200
milligram doses of Seroquel. He walked into the emergency room and handed
over a piece of paper with his wife’s name and phone number and his probation
officer’s name and phone number on it. He instructed the person there to notify
them about what had happened. Cilek stated that he was in a coma for seven
days and was in the hospital for about two more weeks after that. Later, while
under oath, Cilek reiterated his mental health issues, and pointed out that he
had a wife and three children and a mother who was in poor health.
[27] We note that Cilek admitted he had missed at least the March 8, 2018
appointment with his probation officer and had attended no further meetings.
To the extent he claims that the imposition of the remainder of his suspended
sentence is too harsh based on missing one appointment, we find that this
argument appears to be a challenge to the sufficiency of the evidence and an
attempt to have this court reweigh the evidence offered in mitigation. Based on
our standard of review, we decline the invitation to do so.
[28] Cilek also argues on appeal that the trial court misapprehended its options
when making a sentencing decision for the probation violation. More
specifically, Cilek focusses on the trial court’s use of the language “I’m going to
be imposing, by necessity, the three year DOC sentence.” Tr. at 13 (emphasis
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added). Cilek contends that the trial court abused its discretion by failing to
recognize Cilek’s mental health issues as a mitigating circumstance for purposes
of imposing the sentence for the admitted probation violation.
[29] In probation revocation proceedings, trial courts are not required to balance
aggravating or mitigating circumstances when imposing a sentence for a
violation. Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied
1
(citing Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993)). In Patterson
v. State, 659 N.E.2d 220, 223 n.2 (Ind. Ct. App. 1995), a separate panel of this
Court clarified that although a trial court must consider evidence offered in
mitigation of revocation, including mental health issues, the trial court is not
required to balance aggravating and mitigating circumstances when imposing
the sentence for a probation revocation.
[30] Additionally, courts on review have consistently held that plea agreements are
contracts. Archer v. State, 81 N.E.3d 212, 215 (Ind. 2017). Once a trial court
accepts a plea agreement, the terms of that agreement are binding on the trial
court, the State, and the defendant. Id. Therefore, the principles of contract
1
A fair reading of Mitchell leads us to the conclusion that the panel in that appeal perceived the probationer’s
argument to involve a balancing of aggravating and mitigating factors. The appellant seemed to suggest that
the trial court abused its discretion by imposing the previously suspended sentence because the record
contained an abundance of evidence of the probationer’s mental health issues. The panel affirmed the trial
court’s decision, noting that the trial court had no duty to balance aggravating and mitigating circumstances
when imposing a sentence for a probation revocation. The decision was clarified by another panel of this
Court in Patterson v. State, 659 N.E.2d 220, 223 n.2 (Ind. Ct. App. 1995).
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law can provide courts on review with guidance when considering plea
agreements. Id.
[31] Cilek agreed to the length of his sentence and to the number of years executed
and the number of years to be spent on probation. He was aware of his
disqualification for other sentencing options due to medical conditions and
discussed this with the trial court. Had the trial court imposed a sentence for
time served as requested by Cilek’s counsel, that sentence would have been in
contravention of the plea agreement. In other words, by violating the
conditions of his probation, Cilek would have obtained a more favorable
sentence than the one negotiated for and agreed to in his plea agreement. These
factors explain the trial court’s statement that the sentence was imposed “by
necessity.”
[32] We conclude that the trial court did not abuse its discretion by imposing the
remainder of Cilek’s previously suspended sentence.
Conclusion
[33] The trial court did not abuse its discretion in imposing the sentence it did based
upon his admission to failing to meet with his probation officer.
[34] Affirmed.
Robb, J., and Altice, J., concur.
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