      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                             Apr 15 2020, 6:00 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
      Adam C. Squiller                                          Curtis T. Hill, Jr.
      John M. Haecker                                           Attorney General of Indiana
      Squiller & Hamilton, LLP
      Auburn, Indiana                                           Sierra A. Murray
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Matthew A. Sokolowski,                                    April 15, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-2334
              v.                                                Appeal from the DeKalb Superior
                                                                Court
      State of Indiana,                                         The Honorable Monte L. Brown,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                17D02-1706-F5-39



      May, Judge.

[1]   Matthew A. Sokolowski appeals the revocation of his probation. He raises four

      issues for our review, which we reorder and restate as: (1) whether a condition


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020                 Page 1 of 13
      of Sokolowski’s probation was unconstitutionally vague; (2) whether the trial

      court abused its discretion in admitting hearsay evidence; (3) whether the State

      presented sufficient evidence that Sokolowski violated a condition of probation;

      and (4) whether Sokolowski was given an opportunity to present mitigating

      evidence. We affirm.



                               Facts and Procedural History                                  1




[2]   On August 27, 2018, pursuant to a plea agreement, Sokolowski pled guilty to

      child exploitation, a Level 5 felony, 2 and the trial court imposed a five-year

      sentence, all suspended to probation except for time already served. As a

      condition of his probation, Sokolowski was required to abide by several of the

      Indiana Special Probation Conditions for Adult Sex Offenders. Condition Ten

      (“Condition Ten”) stated:


                 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.




      1
        Indiana Rule of Appellate Procedure 46(A)(6) provides that an appellant’s brief “shall describe the facts
      relevant to the issues presented for review but need not repeat what is in the statement of the case [and the]
      statement shall be in a narrative form and shall not be a witness by witness summary of the testimony.”
      (emphasis added). Sokolowski’s statement of the facts states only, “Additional facts will be supplied in the
      argument section below.” (Appellant’s Br. at 5.) This Statement of the Facts is insufficient. It is not in
      narrative form, and it utterly fails to provide information and context regarding the underlying events. This
      inhibits our review. We remind appellant’s counsel that briefs must comply with the Indiana Rules of
      Appellate Procedure.
      2
          Ind. Code § 35-42-4-4.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020                     Page 2 of 13
              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. Vol. II at 138.) Sokolowski initially began serving his probation in

      DeKalb County, but the court transferred his probation to Elkhart County in

      November 2018. The Elkhart County Probation Department also required

      Sokolowski to abide by Condition Ten, and Sokolowski regularly attended his

      sex offender treatment sessions.


[3]   After a few months of therapy, Kerry Guernsey, Sokolowski’s sex offender

      treatment therapist at Spectra Counseling, LLC, wrote a letter to Melanie

      Godden, Sokolowski’s probation officer, describing Sokolowski’s disclosures

      and demeanor during therapy sessions. She wrote that Sokolowski “frequently

      presents with an aggressive attitude, minimizes his offense and need for

      treatment, identifies blatant disregard for his terms of probation and treatment

      skills, and contaminates the group process.” (State Ex. 1.) During a therapy

      session on May 23, 2019, Sokolowski disclosed he traveled to Michigan while

      on probation. He acknowledged using the social media websites Tinder and

      Instagram, and he reported that he engaged in oral sex with a woman. He also

      described pushing his minor sister, and he discussed getting into physical

      altercations with his fiancé. Guernsey noted that before the May 23, 2019,

      therapy session, she had “expressed concerns to Mr. Sokolowski regarding his

      lack of compliance with treatment and probation terms, presentation in group,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020   Page 3 of 13
      emotional lability, contaminating factor in group, and possible lack of

      amenability to treatment.” (Id.) Guernsey suspended Sokolowski from

      treatment.


[4]   The State filed a petition to revoke Sokolowski’s probation on May 28, 2019.

      At the evidentiary hearing on the State’s petition, Guernsey testified regarding

      Sokolowski’s disclosures and demeanor during treatment sessions. Sokolowski

      objected on hearsay grounds to admission of the letter Guernsey sent to

      Godden, but the trial court overruled his objection. Michael Mobley, the

      Elkhart County chief probation officer, testified at the evidentiary hearing

      because Godden left her probation officer position prior to the hearing.

      Sokolowski objected to Mobley’s testimony on the ground that it was unreliable

      hearsay. He also objected on hearsay grounds to admission of a letter written to

      Guernsey describing the results of Sokolowski’s sexual history polygraph

      examination.


[5]   Sokolowski testified at the hearing. He denied violating any condition of his

      probation. Sokolowski said he believed he was making progress and he was

      willing to cooperate with sex offender treatment. He testified that he was

      employed doing landscaping, and he was living with his fiancé and son. On

      September 6, 2019, the trial court revoked Sokolowski’s probation because

      Sokolowski “was removed from his sex offender counseling program contrary

      to paragraph 10 of both sets of Rules of Probation and failed to maintain steady

      progress toward all treatment goals as required by said Rule.” (App. Vol. II at



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020   Page 4 of 13
      227.) The court ordered Sokolowski to serve the balance of his sentence in the

      Indiana Department of Correction.



                                 Discussion and Decision
                            1. Constitutionality of Condition Ten
[6]   “Probation is a criminal sanction wherein a convicted defendant specifically

      agrees to accept conditions upon his behavior in lieu of imprisonment.”

      Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999). “Probation 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). Trial

      courts are afforded broad discretion in fashioning probation conditions.

      Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied.

      However, the conditions must be reasonably related to treatment of the

      defendant and public safety. Id. We will not set aside a probation condition

      unless the trial court abuses its discretion. Id. “An abuse of discretion occurs

      where the decision is clearly against the logic and effect of the facts and

      circumstances.” Prewitt, 878 N.E.2d at 188.


[7]   Sokolowski argues Condition Ten “is impermissibly vague or overbroad

      because it imposes no specific deadline for completion of the program, does not

      give any guidance as [to] the nature of the required participation, and does not




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020   Page 5 of 13
      define the term ‘steady progress.’” (Appellant’s Br. at 8.) 3 “A probationer has a

      due process right to conditions of supervised release that are sufficiently clear to

      inform him of what conduct will result in his being returned to prison.” McVey

      v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007), reh’g denied, trans. denied.

      Condition Ten’s requirement that Sokolowski “shall attend, actively participate

      in and successfully complete a Court-approved sex offender treatment program”

      indicates that the program must be completed during the term of Sokolowski’s

      probation. (Appendix Vol. II at 138, 164.)


[8]   Condition Ten’s terms also make clear that merely attending therapy sessions is

      not enough. Rather, Sokolowski must “actively participate,” promptly pay

      fees, and “maintain steady progress towards all treatment goals as determined

      by [his] treatment provider.” (Id.) The plain language of Condition Ten

      notifies Sokolowski that his treatment provider will set goals for him and that

      he needs to work toward achieving those goals. It also alerts Sokolowski that

      “[u]nsuccessful termination from treatment . . . will be considered a violation of

      your probation.” (Id.)


[9]   Condition Ten adequately conveyed to Sokolowski what behavior would result

      in revocation. Guernsey even talked to him about his lack of compliance and

      inappropriate behavior, but he continued to fail to progress in his treatment.




      3
       Sokolowski also raises an argument that there is no evidence the program he attended was a court-approved
      program as required by Condition Ten. However, we are unpersuaded by this argument. The probation
      department initially contacted Guernsey on Sokolowski’s behalf. Presumably, the probation department did
      so because she administered an approved program.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020                Page 6 of 13
       Sex offender treatment serves the public interest because it is designed to

       prevent sex offenders from reoffending. Cf. Matter of Ma. H., 134 N.E.3d 41, 50

       (Ind. 2019) (holding termination of Father’s parental rights was not clearly

       erroneous when Father failed to complete sex offender treatment following

       finding by CHINS court that he sexually abused his stepdaughter). Thus, we

       hold Condition Ten was not unconstitutionally vague, and the trial court did

       not abuse its discretion by imposing it on Sokolowski. See Patton v. State, 990

       N.E.2d 511, 517 (Ind. Ct. App. 2013) (holding probation condition prohibiting

       defendant from accessing websites frequented by children was not

       unconstitutionally vague). 4


                                 2. Admission of Hearsay Evidence
[10]   Sokolowski argues the trial court abused its discretion in admitting into

       evidence the letter from Guernsey to Godden, Mobley’s testimony, and a letter

       addressed to Guernsey describing the results of a polygraph examination. He

       argues the trial court admitted “unreliable and not substantially trustworthy”

       hearsay evidence. (Appellant’s Br. at 11.) We review a trial court’s ruling on

       the admission of evidence for an abuse of discretion. Peterson v. State, 909

       N.E.2d 494, 499 (Ind. Ct. App. 2009). The erroneous admission of evidence




       4
        To the extent Sokolowski raises an overbreadth argument, such an argument is misplaced because
       Condition Ten imposes an affirmative duty on Sokolowski. It does not prohibit Sokolowski from engaging in
       certain conduct. See Patton, 990 N.E.2d at 516 (holding defendant failed to demonstrate probation condition
       was overly broad because he did “not identify a single activity or other conduct that is prohibited by the
       probation condition but unrelated to [activity meant to be prohibited by the condition]”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020                 Page 7 of 13
       amounts to harmless error unless the admission affects the substantial rights of

       a party. See Ind. Appellate Rule 66(A); see also Crawford v. State, 770 N.E.2d

       775, 779 (Ind. 2002) (“Errors in the admission or exclusion of evidence are to

       be disregarded as harmless error unless they affect the substantial rights of a

       party.”).


[11]   Probationers are not entitled to the full array of rights given to a criminal

       defendant, but they are entitled to certain due process protections prior to the

       revocation of their probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999),

       reh’g denied. Among these due process protections is the right to confront and

       cross-examine witnesses. Id. Indiana Rule of Evidence 101(d) provides that,

       except for rules involving privileges, the Indiana Rules of Evidence do not apply

       in probation revocation hearings. In the probation revocation context, “judges

       may consider any relevant evidence bearing some substantial indicia of

       reliability. This includes reliable hearsay.” Cox, 706 N.E.2d at 551.


[12]   Sokolowski objected to admission of State’s Exhibit 1, the letter Guernsey

       wrote to Godden regarding Sokolowski’s May 23, 2019, therapy session, stating

       “this document has in several different places . . . information that, that is, is

       clearly hearsay without any foundation.” (Tr. Vol. II at 11.) The State

       responded that the letter was Guernsey’s recitation of the reasons why she

       removed Sokolowski from the sex offender treatment program. The court

       overruled the objection and noted Sokolowski could challenge the reliability of

       the statements in the letter during cross-examination.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020   Page 8 of 13
[13]   Guernsey’s testimony and State’s Exhibit 1 were influential in the trial court’s

       decision to revoke Sokolowski’s probation. The trial court’s order revoking

       Sokolowski’s probation states:


                 That based upon Kerri Guernsey’s testimony and State’s Exhibit
                 1, the Spectra Counseling, LLC, letter authored by Kerri
                 Guernsey reflects that the Defendant was removed from his sex
                 offender counseling program contrary to paragraph 10 of both
                 sets of Rules of Probation and failed to maintain steady progress
                 toward all treatment goals as required by said Rules.


       (App. Vol. II at 226-27.) Guernsey testified at the evidentiary hearing, and

       Sokolowski cross-examined her. She identified State’s Exhibit 1 as the letter

       she wrote to Godden. Guernsey also testified regarding Sokolowski’s

       disclosures during the May 23, 2019, therapy session, and she stated

       Sokolowski was not making any progress towards his treatment goals.

       Therefore, we hold Exhibit 1 was sufficiently reliable to be admitted as

       evidence. See Knecht v. State, 85 N.E.3d 829, 835 (Ind. Ct. App. 2017) (holding

       admission of transcript from criminal trial in probation revocation hearing was

       proper because defendant had opportunity to cross-examine witness during

       trial).


[14]   The revocation order did not specifically mention Mobley’s testimony or the

       letter describing the results of the polygraph examination. Given that the trial

       court relied on properly admitted evidence in revoking Sokolowski’s probation,

       the admission of the letter containing the results of a polygraph examination

       and of the hearsay contained within Mobley’s testimony could amount to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020   Page 9 of 13
       harmless error, at most. See Williams v. State, 937 N.E.2d 930, 935 (Ind. Ct.

       App. 2010) (holding even if trial court erred in admitting exhibits at revocation

       hearing, such error was harmless).


                                    3. Sufficiency of the Evidence
[15]   Sokolowski argues the State presented insufficient evidence that he violated the

       conditions of his probation. He contends he was suspended from treatment

       rather than removed. He also points out that some individuals respond to

       treatment faster to others, and he highlights Guernsey’s acknowledgement that

       she “saw a little bit of incite [sic]” on two or three occasions. (Tr. Vol. II at 10.)


[16]   “A probation hearing is civil in nature and the State need only prove the alleged

       violations by a preponderance of the evidence.” Cox, 706 N.E.2d at 551. We

       review a decision to revoke probation under an abuse of discretion standard.

       Prewitt, 878 N.E.2d at 188. When reviewing whether sufficient evidence

       supported revocation, we do not reweigh evidence or judge the credibility of

       witnesses. Morgan v. State, 691 N.E.2d 466, 468 (Ind. Ct. App. 1998). If there is

       substantial evidence of probative value to support concluding by a

       preponderance of the evidence that the defendant violated a term of probation,

       we will affirm. Menifee v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992),

       clarified on other grounds on denial of reh’g 605 N.E.2d 1207 (Ind. Ct. App. 1993).


[17]   At the evidentiary hearing, Guernsey testified that Sokolowski was making “no

       progress . . . besides attendance” towards his treatment goals. (Tr. Vol. II at

       13.) She also testified that she made the decision to terminate Sokolowski from

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020   Page 10 of 13
       treatment. She explained that she had concerns regarding Sokolowski’s

       amenability to treatment, behavior at group sessions, and inability to follow

       rules. Sokolowski’s arguments that he was making progress in treatment and

       that he was suspended rather than removed are simply requests for us to

       reweigh the evidence, which we will not do. See Whatley v. State, 847 N.E.2d

       1007, 1010 (Ind. Ct. App. 2006) (“When we review the determination that a

       probation violation has occurred, we neither reweigh the evidence nor reassess

       witness credibility.”). Therefore, we hold the State presented sufficient

       evidence to support the trial court’s finding that Sokolowski violated his

       conditions of probation. See Peterson v. State, 909 N.E.2d 494, 499 (Ind. Ct.

       App. 2009) (holding evidence was sufficient defendant watched pornographic

       movies in violation of his sex offender treatment contract and, thus, violated a

       condition of his probation).


                      4. Opportunity to Present Mitigating Evidence
[18]   Sokolowski contends that while he was given the opportunity to present

       evidence regarding whether he violated the conditions of his probation, the trial

       court abused its discretion by not affording him the opportunity to present

       mitigating evidence that his violation of probation did not warrant revocation.

       Probation revocation involves two steps. Mathews v. State, 907 N.E.2d 1079,

       1081 (Ind. Ct. App. 2009), reh’g denied. First, the court must determine whether

       the probationer violated the conditions of probation. Id. Second, the court

       decides whether the violation warrants revocation. Id. “Even a probationer

       who admits the allegations against him must still be given an opportunity to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020   Page 11 of 13
       offer mitigating evidence suggesting that the violation does not warrant

       revocation.” Hampton v. State, 71 N.E.3d 1165, 1171 (Ind. Ct. App. 2017),

       trans. denied.


[19]   In Vernon v. State, the defendant argued he was not given the opportunity to

       present mitigating evidence that his probation violation did not warrant

       revocation. 903 N.E.2d 533, 535 (Ind. Ct. App. 2009), trans. denied. We held

       the defendant’s due process rights were not violated because he was afforded

       the opportunity to present evidence at an evidentiary hearing. Id. at 537-38.

       Just like the defendant in Vernon, Sokolowski had the opportunity to present

       evidence at the evidentiary hearing, and he testified in his own defense. He

       denied the alleged probation violations. Further, Sokolowski testified regarding

       his employment and living situation, in an apparent attempt to portray himself

       in a positive light. Therefore, we hold Sokolowski was provided with the

       opportunity to present mitigating evidence that his violation of probation did

       not warrant revocation. See id.



                                               Conclusion
[20]   Condition Ten was not unconstitutionally vague because it was specific enough

       to convey to Sokolowski the conduct that was expected of him and what would

       constitute of violation of the condition. Further, the trial court did not abuse its

       discretion in admitting Guernsey’s letter to Godden. Guernsey testified at the

       evidentiary hearing, and Sokolowski was able to cross-examine her regarding

       any statement she made in the letter. The State presented sufficient evidence

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020   Page 12 of 13
       Sokolowski violated a condition of his probation, and the trial court afforded

       Sokolowski the opportunity to present mitigating evidence that his probation

       violation did not warrant revocation. Therefore, we affirm the trial court’s

       revocation of Sokolowski’s probation.


[21]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020   Page 13 of 13
