David L. Moses v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Jan 30 2017, 8:33 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
A. David Hutson Curtis T. Hill, Jr.
Hutson Legal Attorney General of Indiana
Jeffersonville, Indiana
Majorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David L. Moses, January 30, 2017
Appellant-Defendant, Court of Appeals Case No.
31A01-1604-CR-715
v. Appeal from the Harrison Superior
Court
State of Indiana, The Honorable Joseph L.
Appellee-Plaintiff. Claypool, Judge
Trial Court Cause No.
31D01-0306-FA-457
Mathias, Judge.
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[1] David Moses (“Moses”) appeals the order of the Harrison Superior Court
revoking his probation, arguing that the evidence was insufficient to support the
trial court’s decision to revoke his probation.
[2] We affirm.
Facts and Procedural History
[3] In 2003, Moses pleaded guilty to Class A felony child molesting. He was
sentenced to thirty years, with twenty-five years executed and five years
suspended to probation, and with credit for time served. On June 17, 2015,
Moses was released from incarceration and reported to probation. One of the
conditions of Moses’s probation was the following:
You shall attend, comply with all rules of, and successfully
complete treatment for sex offenders as directed by the Probation
Officer. The sex offender treatment provider must be approved by
the Probation Officer. Prompt payment of any fees is your
responsibility and you must maintain steady progress toward all
treatment goals.
Appellant’s App. p. 7.
[4] Shortly after Moses was released to probation, he moved to Marion County.
The probation officer in Marion County gave Moses a list of three places where
he could receive his required sex-offender treatment. Because he lived close to
downtown Indianapolis, Moses chose to go to the Indianapolis Counsel Center
(“ICC”).
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[5] At ICC, Moses met with counselor Denise Ackerman (“Ackerman”) for his
initial evaluation. Moses did not have a positive attitude about the treatment,
and told Ackerman, “I’m here to jump through hoops. I told them I would do
and say whatever you want.” Appellant’s App. p. 10. He also told Ackerman
that he had few possessions because he anticipated being sent back to prison.
When asked if he had any mental health issues, Moses replied, “not yet,” and
stated, “I thought about seeing the psych doc so he could pump me full of all
those drugs and make me like a zombie for the next five years.” Id. at 17.
Ackerman described Moses as being sarcastic and disrespectful. When
Ackerman asked Moses about his victim’s allegation that he had molested her
at least ten times, Moses grew angry and stated, “Maybe I should go back to
Harrison County and confront her myself.” Id. at 11. When read the list of ICC
clients’ rights, he stated, “So next time I come here for one of these scheduled
groups, I can bring my attorney with me, right?” Id. at 18.
[6] Due to Moses’s attitude and behavior, and his threat to bring an attorney to
therapy, Ackerman concluded that Moses did not want treatment and was not
an appropriate candidate for services. Ackerman concluded that Moses “should
be referred to another agency for sex offender treatment. He may also need a
mental health evaluation to determine if there are any underlying factors
contributing to his current state.” Id. at 19.
[7] On September 15, 2015, the State filed a petition to revoke Moses’s probation,
alleging that Moses “failed to comply with sex offender treatment as directed by
Probation.” Id. at 7. The trial court held a hearing on the matter on January 4,
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2016, finding that Moses had violated his probation and therefore revoked
Moses’s probation. The court ordered Moses to serve the remaining five-year
balance of his executed sentence. Moses now appeals.
Probation Revocation Standard of Review
[8] Our courts have long noted that probation is an alternative to incarceration and
is granted in the sole discretion of the trial court. Davis v. State, 743 N.E.2d 793,
794 (Ind. Ct. App. 2001), trans. denied. Accordingly, a defendant is not entitled
to serve a sentence on probation; instead, probation is a matter of grace and a
conditional liberty that is a favor, not a right. Id.
[9] The revocation of probation is a two-step process. Cox v. State, 850 N.E.2d 485,
488 (Ind. Ct. App. 2006). First, the court must make a factual determination
that a violation of probation has occurred. Id. Where a probationer admits to
the violation, the court can proceed to the second step of the inquiry and
determine whether the violation warrants revocation. Id.
[10] Upon revocation of probation, a trial court may impose one or more of the
following sanctions: (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 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. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012)
(citing Ind. Code § 35-38-2-3(h)(l)–(3)).
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[11] We review a trial court’s sentencing decision following a probation violation for
an abuse of discretion. Alford, 965 N.E.2d at 135 (citing 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 the court. Id.
Discussion and Decision
[12] Moses argues that the State presented no evidence that he failed to comply with
the required sex offender treatment as directed by his probation officer. Moses
acknowledges that the State presented evidence that he was angry, sarcastic,
resistant, and disrespectful, but argues that this does not amount to proof that
he failed to comply with the treatment.
[13] In support of his argument, Moses relies upon the opinion of this court in
Mateyko v. State, 901 N.E.2d 554 (Ind. Ct. App. 2009). In that case, the
defendant’s probation included a requirement that he “attend, actively
participate in and successfully complete a court-approved sex offender
treatment program as directed by the court or probation.” Id. at 559. This
condition also provided that “[u]nsuccessful termination from treatment or
noncompliance with other required behavioral management requirements will
be considered a violation of your probation.” Id. When Mateyko attended the
court-ordered therapy, he became agitated with the therapist, stood up, and
used vulgar language toward her. Specifically, he told her to “F* *k off,” and
stated, “You cannot take my f* *king kids away from me.” Id. at 556. The
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therapist then asked Mateyko to leave, and he did. Id. The therapist felt
“unsafe” and she locked the doors to her office, but Mateyko remained outside
a while. Based on this incident, Mateyko’s probation was revoked, and he
appealed.
[14] On appeal, we held that this evidence was prima facie1 insufficient to support a
revocation of Mateyko’s probation. Id. 559. In so doing, we noted that the
testifying probation officer admitted that the therapist was incorrect when she
told Mateyko that he could not have contact with his own children, which was
specifically permitted under the terms of his plea agreement. Id. We also
observed that this incident took place during Mateyko’s first therapy session. Id.
We therefore held that the evidence was insufficient to conclude that Mateyko
failed to attend, actively participate in, and successfully complete his treatment
program. Id.
[15] Moses argues that his case is indistinguishable from Mateyko and that we should
therefore reverse the trial court’s order revoking his probation. The State,
however, claims that Mateyko is distinguishable in several respects. First, the
State notes that, in Mateyko, no appellee’s brief had been filed, and this court
applied the less onerous prima facie error standard. The State also notes that
Mateyko’s therapist had incorrectly told him that he could not see his own
children, which precipitated his outburst, whereas here there was no such
1
Because the State did not file an appellee’s brief in Mateyko’s appeal, we applied the prima facie error
standard of review. See id. at 557.
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provocation. We believe the State has the better argument, and do not consider
Mateyko to be controlling.
[16] Moses’s behavior demonstrated a lack of a good-faith effort to cooperate with
his therapist or participate in the court-ordered sex offender treatment. Moses’s
probation officer testified that, in her opinion, Moses had not made any effort
to comply with the program and that sending Moses to another counseling
agency was not a solution. Importantly, she stated that she would not refer
Moses to another agency given his negative attitude.
[17] We further note that Moses appeared to be fatalistic regarding his return to
prison, and his behavior during the appointment with his therapist
demonstrated his lack of any intention to seriously participate in his required
sex offender therapy. Accordingly, the trial court did not abuse its considerable
discretion when it concluded that that Moses violated his probation by failing to
comply with sex offender treatment as required by the terms of his probation.
[18] Affirmed.
Pyle, J., concurs.
Baker, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
David L. Moses, Court of Appeals Case No.
31A01-1604-CR-715
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Baker, Judge, dissenting.
[19] Because I believe that the trial court has the authority to require Moses to
attend and complete treatment for sex offenders, but does not have the
authority to require him to be happy about it, I respectfully dissent.
[20] I have two disagreements with the majority. First, I can find no meaningful
distinction between the present case and Mateyko, 901 N.E.2d at 554. Indeed,
as the majority notes, that defendant’s conduct impeded or threatened to
impede his therapist’s attempt to treat him—he aggressively cursed, made her
feel unsafe, and stood outside her office after she had locked the door to protect
herself. Id. at 556. But despite the fact that the defendant actually hindered the
provision of therapy, we reversed the revocation of his probation.
[21] In contrast to the somewhat menacing behavior involved in Mateyko, Moses
displayed nothing more than a mild cynicism towards the conditions of his
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probation. There is no suggestion that Moses did not want to complete his
therapy; his statement, “I’m here to jump through hoops. I told them I would
do and say whatever you want,” appellant’s app. p. 10, while perhaps off-color,
suggests the opposite. This case would be different if Ackerman’s conclusion
that Moses did not want treatment were based on more than a single meeting in
which Moses acted less than happy to be attending. There is no evidence of
Moses’s inability to make progress because his therapist ended his therapy after
one session. Indeed, this makes me question the therapist’s skill and dedication
far more than Moses’s.
[22] Second, I find the majority’s focus on Moses’s supposed “fatalism” to be
misplaced. Fatalism is an honorable philosophical stance, traces of which can
be found in the traditions of ancient Greece, ancient Rome, Judaism,
Christianity, Islam, Hinduism, Daoism, and many other religious and
philosophical traditions. See Matt Stefon and Theodorus P. van Baaren,
“Providence,” Encyclopaedia Britannica, https://www.britannica.com/topic/
Providence-theology. I would no more revoke Moses’s probation for his
“fatalism” than I would revoke the probation of a Christian for believing that he
will remain a sinner or a Muslim for believing that the universe is willed by
Allah.2
2
I would also note that in determining that Moses could not be sent to another counseling agency, the
probation officer exhibited more than a healthy share of fatalism herself.
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[23] Unless and until there is evidence in the record of Moses committing acts that
hinder the provision of his therapy, or of a sustained failure to benefit from
therapy such that he is unable to successfully complete the program, I do not
believe his probation can be revoked. Many enter therapy doubtful of its
efficacy; part of the job of a therapist is to convince the participant otherwise.
Because that chance was not given to Moses, I would reverse.
[24] For the foregoing reasons, I respectfully dissent.
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