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.




Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-715 | January 30, 2017   Page 1 of 10
[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”).



      Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-715 | January 30, 2017   Page 2 of 10
[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,

      Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-715 | January 30, 2017   Page 3 of 10
       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)).



       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-715 | January 30, 2017   Page 4 of 10
[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


       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-715 | January 30, 2017   Page 5 of 10
       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.

       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-715 | January 30, 2017              Page 6 of 10
       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.




       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-715 | January 30, 2017   Page 7 of 10
                                                  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

       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-715 | January 30, 2017   Page 8 of 10
       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.

       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-715 | January 30, 2017          Page 9 of 10
[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.




       Court of Appeals of Indiana | Memorandum Decision 31A01-1604-CR-715 | January 30, 2017   Page 10 of 10
