Raymond P. Dick v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Sep 30 2014, 10:06 am
regarded as precedent or cited before
any 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:
JEFFREY E. STRATMAN GREGORY F. ZOELLER
Aurora, Indiana Attorney General of Indiana
ANGELA N. SANCHEZ
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RAYMOND P. DICK, )
)
Appellant-Defendant, )
)
vs. ) No. 15A01-1312-CR-554
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN CIRCUIT COURT
The Honorable James D. Humphrey, Judge
Cause No. 15C01-1103-FC-16
September 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
After Raymond P. Dick (“Dick”) pled guilty to Class D felony voyeurism1 and
Class C felony attempted child exploitation,2 the trial court sentenced him—pursuant to
his plea agreement—to an aggregate sentence of seven (7) years with four (4) years
suspended to probation. Among Dick’s special conditions of probation was the
requirement that he actively participate in and complete a court-ordered sex offender
program. After Dick was terminated from the sex-offender program, the trial court
revoked his probation and ordered him to serve his previously four-year suspended
sentence.
Dick now appeals the trial court’s revocation of his probation, arguing that there
was not sufficient evidence to support the revocation and that the trial court abused its
discretion by ordering him to serve his previously suspended sentence. Finding no error
with the trial court’s revocation of Dick’s probation or its order for Dick to serve his
previously suspended sentence, we affirm.
We affirm.
ISSUE
1. Whether there was sufficient evidence to support the trial court’s
revocation of Dick’s probation.
2. Whether the trial court abused its discretion by ordering Dick to serve
his previously suspended sentence.
1
IND. CODE § 35-45-4-5.
2
I.C. §§ 35-41-5-1, 35-42-4-4.
2
FACTS
In March 2011, the State charged Dick with: Count 1, Class D felony voyeurism;
Count 2, Class C felony attempted child exploitation; Counts 3-30, Class C felony child
exploitation, and Counts 31-58, Class D felony possession of child pornography. In
December 2011, pursuant to a written plea agreement, Dick pled guilty to the Class D
felony voyeurism and Class C felony attempted child exploitation charges in exchange
for the State’s dismissal of the remaining fifty-six charges. As part of the plea
agreement, the parties agreed that Dick would be sentenced to three (3) years with three
(3) years suspended to probation for his Class D felony charge and to four (4) years with
one (1) year suspended to probation for his Class C felony charge.3 They also agreed
that, as a condition of his probation, Dick would pay a $100 probation administration fee
and a $100 initial probation user’s fee within ninety days of his release from
incarceration, as well as $165 in court costs within sixty days of his release from
incarceration.
In January 2011, the trial court sentenced Dick pursuant to the plea agreement and
ordered his sentences to be served consecutively. Thus, the trial court imposed an
aggregate seven (7) year sentence with four (4) years suspended to probation. Condition
seven of Dick’s special conditions of probation as a sex offender included the following
provision:
3
The written plea agreement initially provided that Dick would be sentenced to three (3) years with three
(3) years suspended to probation for his Class D felony charge and to four (4) years with three (3) years
suspended to probation for his Class C felony charge; however, the plea agreement was amended and
initialed by the parties.
3
You shall attend, actively participate in and successfully complete a court-
approved sex offender treatment program as directed by the court. Prompt
payment of any fees is your responsibility and you must maintain steady
progress towards all treatment goals as determined by your treatment
provider. Unsuccessful termination from treatment or non-compliance with
other required behavioral management requirements will be considered a
violation of your probation. You will not be permitted to change treatment
providers unless the court gives you prior written approval.
(App. 91) (emphases added).
After serving his executed term of imprisonment, Dick moved to Ohio and had his
probation transferred there. In Ohio, Dick started a weekly sex offender group therapy
program in March 2013. The program was focused on life skills and taking
accountability for the offender’s commission of his sex offense. This sex offender
program was a twenty-four month program, but Dick was terminated from the program
on July 31, 2013.
On August 15, 2013, the State filed a notice of probation violation, alleging that
Dick had violated the terms of his probation by: (1) being “terminated on July 31, 2013
from Lifepoint Solutions, a Sex Offender Treatment Program” for being “uncooperative”
and “disruptive in group” and for “fail[ing] repeatedly to make progress[;]” and (2)
failing to pay probation fees and court costs. (App. 20).
The trial court held a probation revocation hearing on November 13, 2013.
During this hearing, Gary Key (“Key”), a psychotherapist and Dick’s group counselor at
LifePoint Solutions, testified that Dick had completed only four months of a twenty-four-
4
month sex offender treatment program before Key kicked Dick out of the program.4 Key
testified that “throughout the course of treatment it was quite obvious to [him] . . . that
[Dick] usually did not take the group seriously.” (Tr. 31). Key testified that Dick had
missed two sessions and that Dick “did not take the group seriously[,]” “kinda goof[ed]
around[,]” engaged in “fun and games,” and made “snide jokes[.]” (Tr. 31). Key testified
that he had verbally warned Dick on multiple occasions about his behavior. According to
Key’s testimony, after he warned Dick about his behavior, Dick would “calm down” for a
week or two and then return to the “same old kind of . . . non-committal type of approach
to the group itself.” (Tr. 31). Key testified that he ultimately terminated Dick from the
program when he undermined a new member who was taking accountability for his sex
offenses and “minimized” the new member’s sex offense. (Tr. 47). Specifically, the new
member was sharing with the group and “taking much more ownership over his behavior
that brought him to [the] group” when Dick said that the new member was “entrapped by
the police” and “entrapped by the system.” (Tr. 33). Additionally, Key testified that
when group members challenged Dick about him engaging in “high risk situations[,]”
Dick responded by saying, “[H]ey if they sen[d] me back, they sen[d] me back, I can take
care of myself . . . I can do this time standing on my head.” (Tr. 49). Key testified that
he had to terminate Dick from the program for the integrity of the group.
Dick did not testify at the revocation hearing. Additionally, Dick’s counsel did
not dispute that Dick had been terminated from the sex offender program. Instead,
4
In his Appellant’s Brief, Dick states that Key testified telephonically. While the trial court did grant the
State’s request to have Key testify telephonically, the record gives the appearance that Key was present in
the courtroom for the revocation hearing.
5
Dick’s counsel challenged Key’s reasons for terminating Dick from the program and
argued that the trial court should not find that a probation violation had occurred.
The trial court determined that Dick had violated his probation by failing to
comply with his special condition of probation that required him to participate in and
successfully complete a court-approved sex offender treatment program. The trial court
revoked Dick’s probation and ordered him to serve his previously suspended four-year
sentence in the Department of Correction. When doing so, the trial court specifically
addressed its reasons as follows:
We are here because Mr. Raymond Dick is on probation for voyeurism and
attempted child exploitation. And as I recall, I believe this involved
videotaping in – of a young lady in a bathroom. I’ve also reviewed, again
we’ve talked about the conditions of probation . . . and I’ve also reviewed
Mr. Raymond Dick’s history. And if I’ve counted this up, I – the way,
what I’ve come up with is three prior probation violations. I believe there’s
also a parole violation. 21 total prior convictions. 7 felonies. 3 prior sex
offenses. 2 failure to register as a sex offender. And a prior incidence [sic],
I believe this is relating to the parole violation, of not complying with a sex
offender treatment program. That is a pretty substantial record. At the time
that this plea was accepted, I noted that I was very reluctant to accept this
plea. And I was reluctant based upon your history, and based upon what
happened here. The reason that this treatment program was made a
condition of probation is absolutely critical for you and for the people of
this community and other communities is because of your history and what
you were convicted of. And the testimony that I’ve heard here today
convinced me, as I’ve indicated, that you did not successfully complete it
and you were not serious about taking advantage of this opportunity;
because it was an opportunity for you when I accepted – the day I accepted
this plea. And again I think its further – the importance of it is not just the
criminal history involved, but a prior failure to comply with a sex offender
program. You knew how important it was based upon that and you still
didn’t do it. Therefore, based upon these factors that I’ve stated, I am
ordering that the remaining four years of the suspended sentence are
revoked and they will be served with the Indiana Department of Correction.
6
(Tr. 83-84).5 Dick now appeals.
DECISION
Dick argues that the trial court erred by: (1) revoking his probation; and (2)
ordering him to serve his previously suspended sentences. We review each argument in
turn.
1. Revocation of Probation
Turning to Dick’s argument that the trial court erred by revoking his probation, we
note that “[p]robation 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). The
trial court determines the conditions of probation and may revoke probation if the
conditions are violated. Id.; see also IND. CODE § 35–38–2–3(a). Indeed, violation of a
single condition of probation is sufficient to revoke probation. Gosha v. State, 873
N.E.2d 660, 663 (Ind. Ct. App. 2007). When reviewing a trial court’s determination that
a probation violation has occurred, we consider only the evidence most favorable to the
judgment, and we will not reweigh the evidence or judge the credibility of the witnesses.
Sanders v. State, 825 N.E.2d 952, 955-56 (Ind. Ct. App. 2005), trans. denied.
Here, the trial court revoked Dick’s probation because he did not comply with the
special condition of probation that required him to “actively participate in and
successfully complete a court-approved sex offender treatment program[.]” (App. 91).
Dick argues that the trial court erred by revoking his probation because the testimony of
Key, the sex offender treatment counselor, was insufficient to support a finding that he
5
In its probation revocation order, the trial court also set forth its specific reasons for ordering Dick to
serve his suspended sentence.
7
violated the terms of his probation. It is undisputed that Dick failed to comply with his
probation condition that required him to actively participate in and successfully complete
a sex offender treatment program. Additionally, the special condition of probation that
he violated specifically provided, “Unsuccessful termination from treatment or non-
compliance with other required behavioral management requirements will be considered
a violation of your probation.” (App. 91). Dick’s argument challenging the sex offender
treatment counselor’s reasons for terminating Dick from the program is nothing more
than a request to reweigh the evidence and credibility of witnesses, which we will not do.
Because the evidence was sufficient to show that Dick violated the terms of his probation
by failing to complete a sex offender treatment program, we affirm the trial court’s
revocation of his probation.
2. Order to Serve Suspended Sentence
Next, we review Dick’s challenge to the trial court’s order that he serve his
previously suspended sentence. Upon determining that a probationer has violated a
condition of probation, the trial court may “[o]rder execution of all or part of the sentence
that was suspended at the time of initial sentencing.” I.C. § 35–38–2–3(h)(3). “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, 878
N.E.2d at 188. “If this discretion were not given to trial courts and sentences were
scrutinized too severely on appeal, trial judges might be less inclined to order probation
to future defendants.” Id. As a result, we review a trial court’s sentencing decision from
a probation revocation for an abuse of discretion. Id. (citing Sanders, 825 N.E.2d at 956).
8
An abuse of discretion occurs where the decision is clearly against the logic and effect of
the facts and circumstances. Id.
The record reveals that the trial court had ample basis for its decision to order
Dick to serve his four-year suspended sentence. As specifically noted by the trial court,
Dick, who was forty-three years old at the time of his offenses, has a criminal history that
includes twenty-one convictions, including seven felony convictions and three sex
offense convictions (two of which are for fondling in the presence of a minor).
Additionally, Dick has previously failed to comply with court-ordered sex offender
treatment and has failed to register as a sex offender.
Based on the record before us, we conclude that the trial court did not abuse its
discretion by ordering Dick to serve his previously suspended sentence in the Department
of Correction. For the foregoing reasons, we affirm the trial court’s revocation of Dick’s
probation.
Affirmed.
NAJAM, J., and BAILEY, J., concur.
9