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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019   Page 2 of 13
      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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019     Page 3 of 13
      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




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019   Page 4 of 13
       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.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019   Page 5 of 13
       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.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019   Page 6 of 13
[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.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019   Page 7 of 13
               -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

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019   Page 8 of 13
       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



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019   Page 9 of 13
       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.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019   Page 10 of 13
       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


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019   Page 11 of 13
       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).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019                        Page 12 of 13
       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.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2005 | June 7, 2019   Page 13 of 13
