MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Jul 25 2017, 7:29 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
Donald R. Shuler                                         Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General of Indiana
Goshen, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tommy J. Sexton,                                         July 25, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         43A05-1703-CR-630
        v.                                               Appeal from the Kosciusko
                                                         Superior Court
State of Indiana,                                        The Honorable Joe V. Sutton,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         43D03-1210-FB-616



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017                 Page 1 of 13
[1]   Tommy J. Sexton appeals the trial court’s order revoking his probation and

      ordering that he serve a portion of his previously suspended sentence. Sexton

      raises one issue which we revise and restate as whether the trial court abused its

      discretion in sentencing him following revocation of his probation. We affirm.


                                      Facts and Procedural History

[2]   On October 5, 2012, the State charged Sexton with failure to remain at the

      scene of an accident causing serious bodily injury as a class B felony and

      causing serious bodily injury while operating a motor vehicle as a class D

      felony. On October 3, 2013, Sexton entered a plea agreement in which he pled

      guilty to failing to remain at the scene of an accident causing serious bodily

      injury as a class B felony. The plea agreement provided for a “cap on the initial

      executed portion of the sentence of seven (7) years executed in the Indiana

      Department of Corrections/KCJ, and the balance of any sentence suspended by

      the Court to be served on formal probation with the Kosciusko County

      Probation Department.” Appellant’s Appendix Volume 2 at 57-58.


[3]   On October 31, 2013, the court found Sexton’s guilty plea and his remorse as

      mitigators, and his criminal history, failure on probation in the past, and high

      risk to re-offend as aggravators. The court sentenced Sexton to twelve years

      with five years suspended and seven years of incarceration. It also ordered that

      Sexton’s operator’s license and driving privileges be suspended for a period of

      five years with the suspension to begin after his release from incarceration.




      Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 2 of 13
[4]   After serving his term of incarceration, Sexton reported to probation on August

      7, 2015, was provided a set of rules of probation, received an explanation of the

      rules, and acknowledged that he understood them. He signed an Order of

      Court Specifying Conditions of Probation indicating that he had been placed on

      probation for five years from July 29, 2015, to July 29, 2020. The order stated:

      “You shall make and keep an appointment for an evaluation; comply with

      recommended treatment and pay therefor with KCADP, and sign a release of

      information form.” Id. at 72. The order also stated that his driver’s license was

      suspended for five years beginning after his incarceration.


[5]   On July 1, 2016, the State filed a verified petition of probation violation alleging

      that “KCADP has closed the file unsuccessful.” Id. at 73. The petition

      attached a letter from the program director of the KCADP which stated in part:

              This letter is to inform you that the above Tommy Sexton
              KCADP file has been close [sic] down . . . . Tommy has failed to
              complete his KCADP appointments/assessments on multiple
              occasions. See time line below:


              1. INTAKE: was schedule for 11/24/16, he was a no show, no
              call
              2. INTAKE: was scheduled for 12/15/15, he was a no show, no
              call
              3. ASSESSMENT was scheduled for 3/3/16, KCADP
              rescheduled do [sic] to a conflict in schedule
              4. ASSESSMENT: was scheduled for 3/11/16, he was a no
              show, no call
              5. ASSESSMENT: was scheduled for 4/12/16, he showed, but
              did not have his fee.
              6. ASSESSMENT: was scheduled for 5/11/16, he showed, but
              again did not have his fee. His program fee had been reduced
              down to $100.00.
      Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 3 of 13
              As you can see KCADP has worked with Tommy and he
              continues to make the choice not to comply.

      Id. at 78.


[6]   On February 16, 2017, the court held a hearing, and Sexton admitted the

      probation violation. When asked if there was a reason he did not complete the

      KCADP program, he answered:


              Well it started out I didn’t have the money to pay the drug
              assessment fee. I didn’t have a job. Well, I got a, he filed that
              violation before I got the job. I got a job. I paid the assessment
              fee, but I mean transportation has been a big problem for me,
              man. I mean, I won’t drive. I mean, that’s the deal. I mean, I
              have a hard time getting around. I got a good job now. But I
              mean, I’m trying. I mean I went up for the assessment at the
              Bowen Center, but I got to get these classes in, that’s all I got to
              do.


      Transcript Volume 2 at 12-13. He testified that when he paid the drug

      assessment fee, he received a referral to the Bowen Center and then “they never

      received any referral so I held up on that and then they finally called me back

      and said they got the referral and I went up there like three (3) weeks ago and

      took the first assessment up there.” Id. at 13. When asked when he found a job

      following his release, he answered:


              It took me awhile to find a job because of transportation. I went
              and worked for a guy that traveled around, you know, but he
              finally didn’t have enough work to keep his other guys busy and I
              needed more work. And I finally got the job at Tri-Lakes
              Containers like five (5) months ago, I think, six (6). Where I can

      Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 4 of 13
        have transportation, I got a cousin that works there and he picks
        me up for work and drops me back home.


Id. at 14. The court stated that Sexton was a “no-show” and “[n]o call” and

stated, “It doesn’t take money to show up or call.” Id. at 14-15. Sexton replied,

“No, Your Honor.” Id. at 15. The following exchange then occurred between

the court and Sexton:


        Q: The assessment was scheduled for 3/3/16. KCADP
        rescheduled because they had a conflict. The assessment
        rescheduled for 3/11/16. No show, no call. The next line is
        assessment was scheduled for 4/12/16, he showed but did not
        have a fee.


        A: Yeah, that was when I was having trouble with money.


        Q: Rescheduled for 5/11/16. He showed, again, no fee. His
        program fee was reduced to $100.00.


        A: Oh yeah, he did do that.


        Q: Have you paid any money yet?


        A: Yes, sir. I paid that and that’s when he started going on with
        the process.


        Q: Are you out at Bowen Center now doing classes?


        A: I went like three (3) weeks ago for their first assessment.
        That’s the first time I can get in there. And I got to start twenty
        (20) week of classes here.


Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 5 of 13
        Q: Was the schedule three (3) weeks ago determined by Bowen
        Center or was that just?


        A: No, that, I mean, I having, I’m trying line [sic] up
        transportation, Your Honor. I mean it’s a problem for me to get
        transportation, man. I don’t know, I mean. I got a good ride to
        work, but, I mean, it’s a struggle. I had a good ride for a while,
        but he’s been sick.


        Q: Okay. Walk me through this. May 11 of 16 you showed, did
        not have a fee, reduced the fee to $100.00. When did you pay the
        $100.00?


        A: I can’t remember the date, I mean?


        Q: And you’re having trouble getting out to Bowen Center
        because of transportation?


        A: Yes, Your Honor. I mean, because they got to take me up
        there, and, I went up there for the assessment, but I mean, it’s
        just hard to, it’s hard for me to make it to the grocery store, man.
        I don’t have very much family up here. I’m from Kentucky.
        And it’s been pretty rough to get around. I mean, I could drive
        but I won’t drive, I mean.


        Q: Okay, but you agreed, would you agree with me that you
        signed a plea agreement that required you to do drug and alcohol
        counseling?


        A: Yes, Your Honor.


        Q: And that you had a lot of suspended time in here on doing
        certain things set out in your plea agreement. And you


Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 6 of 13
              understand that you’re bound by that agreement as would be
              your attorney, as would be the prosecutor and the court as well?


              A: Yes, yes, Your Honor.


      Id. at 15-16. The court found a sufficient factual basis to accept Sexton’s

      admission and found him in violation of probation.


[7]   On February 28, 2017, the court held a sentencing hearing on the probation

      violation. Without objection, the court admitted a monthly progress report for

      January 2017 from the Bowen Center which stated that Sexton had not

      attended Substance Use group or individual treatment that month, that he

      “[n]o-showed to all group sessions and no-showed to individual session on

      1/27/17,” and that it was recommended that he “complete MRT group

      treatment in Warsaw and complete all recommendations of assessment.”

      State’s Exhibit 1. The report also listed “Treatment Progress” as

      “Unsatisfactory” and “Motivation” as “Clinician has not met client to

      determine.” Id.


[8]   Sexton stated that he “had a ride” who is old and had been in the hospital for

      pneumonia twice that year, but was “just now getting healthy.” Transcript

      Volume 2 at 23. He stated that he had “a good ride to work. He lives over by

      me, he’s my nephew. He works there.” Id. at 24. Upon questioning by the

      court, Sexton indicated that he worked in Pierceton, Indiana, and that he lived

      in Silver Lake, Indiana. When asked by the court if he could not obtain a ride

      to go from Silver Lake to Warsaw for treatment, Sexton answered in part that

      Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 7 of 13
      he did not know they had recommended him to go to Warsaw. The following

      exchange occurred:


              THE COURT: Mr. Sexton, if I was facing five (5) years on
              probation violation I think I’d ride a bike if I had to to Warsaw.
              I mean there’s Bowen Centers in most towns. There is one in
              Syracuse. There is one in Wabash. There is one in Warsaw.
              There’s one in Columbia City. I mean, did you ever investigate
              having your services done in Warsaw?


              [Sexton]: I didn’t know they recommended me for Warsaw. I
              really didn’t. I did call up there and told them I couldn’t make it.
              I don’t know if they had that on record or not. I didn’t know
              they recommended for Warsaw.


              THE COURT: Well, I mean here is the bottom line. The rules
              of probation said that you are going to attend these classes if they
              recommend them. And then they file a violation and you still
              haven’t attended class.


              [Sexton]: I mean, I’ve got to take twenty (20) of them. I mean, I
              can, I’ve got twenty (20) weeks of them. Anyway. If I can start
              now, I mean, I’ll get them in. And I’m on probation for five (5)
              years. It’s a long time.


      Id. at 27.


[9]   Sexton indicated that he was working forty hours a week at least and that “if I

      have to I mean I thought about getting a taxi. Like I said, I’ve been behind. I’ll

      get a taxi if I have too [sic]. Pete, my ride, said he would take me.” Id. at 30.

      Sexton also stated:



      Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 8 of 13
               I’ve been struggling with transportation, I really have, Your
               Honor. I mean, I can, I will do better at it. I mean, I don’t
               know, I mean it’s been, I know it’s been a long time. I’ve been
               on probation. I should have had it done. I mean I admit that. I
               should be working on it more than what I should. I mean I will
               in the future.


       Id. at 31.


[10]   After further discussion, the court stated:


               [Y]ou’re blaming an old guy for not getting you to work and
               we’re thinking about cabs, we’re thinking about doing this and
               we’re thinking about doing that. And time is a ticking. And it’s
               easy for you because you don’t have commit [sic], you don’t
               have to perform. You don’t have to do anything, but it comes
               home to roost when you don’t. So, the Court makes a specific
               finding [Sexton] did have the ability to pay, scholarships were
               available for Bowen Center programs which the Probation
               Officer secured for him. Probation, Drug and Alcohol Director
               waived some of the fees to get things moving. Paying for cab
               rides was discussed in October. And we have no progress on
               attendance. . . . You’ll just have to go back on the failure to
               perform. It’s not a money issue. It’s making arrangements and
               make a few sacrifices and paying a few dollars to get to the
               classes that were part of the deal.


       Id. at 32-33. The court ordered Sexton to serve four and one-half years in the

       Department of Correction.




       Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 9 of 13
                                                    Discussion

[11]   The issue is whether the trial court abused its discretion in sentencing Sexton

       following revocation of his probation. Ind. Code § 35-38-2-3(h) sets forth a trial

       court’s sentencing options as follows:


               If the court finds that the person has violated a condition at any
               time before termination of the period, and the petition to revoke
               is filed within the probationary period, the court may impose one
               (1) 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 (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.


[12]   “Probation is a matter of grace left to trial court discretion, not a right to which

       a criminal defendant is entitled.” Smith v. State, 963 N.E.2d 1110, 1112 (Ind.

       2012) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The Indiana

       Supreme Court has held that a trial court’s sentencing decisions for probation

       violations are reviewable using the abuse of discretion standard. Prewitt, 878

       N.E.2d at 188. An abuse of discretion occurs where the decision is clearly

       against the logic and effect of the facts and circumstances. Id. (citation

       omitted).



       Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 10 of 13
[13]   Sexton contends the court abused its discretion in imposing a particularly severe

       sentence for a minor probation violation. He argues that initially his failure to

       attend was due to his unemployment and inability to pay, and that he paid the

       drug assessment fee once he found a job. He also asserts that his difficulty with

       transportation should be considered genuine given that the suspension of his

       driver’s license was a term of his probation and underlying sentence.


[14]   The State argues that Sexton repeatedly failed to appear for his appointments

       and on several occasions did not even call to explain his absence. It points out

       that the probation violation Sexton admitted to stated that he failed to appear

       for appointments or call to his explain his absences and that he acknowledged

       that he was able to obtain a ride to work. The State also notes that Sexton

       failed to successfully complete probation in the past.


[15]   In Runyon v. State, the Indiana Supreme Court held that if the violation of a

       probation condition involves a financial obligation, then the probationer must

       be shown to have recklessly, knowingly, or intentionally failed to pay. 939

       N.E.2d 613, 616 (Ind. 2010). See also Ind. Code § 35-38-2-3(g) (“Probation 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 Court determined “[a]s to the fact of violation,

       the statute expressly imposes the burden of proof upon the State. But with

       respect to the ability to pay, the burden of proof is not explicitly designated.”

       939 N.E.2d at 616. The Court held, “it is the State’s burden to prove both the

       violation and the requisite state of mind in order to obtain a probation

       Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 11 of 13
       revocation.” Id. With respect to the ability to pay, the Court held that it is the

       defendant probationer’s burden “to show facts related to an inability to pay and

       indicating sufficient bona fide efforts to pay so as to persuade the trial court that

       further imprisonment should not be ordered.” Id. at 617 (citing Woods v. State,

       892 N.E.2d 637, 641 (Ind. 2008)). If the offender is able to make this showing,

       then the trial court “must consider alternative measures of punishment other

       than imprisonment.” Id. at 616 (quoting Bearden v. Georgia, 461 U.S. 660, 672,

       103 S. Ct. 2064, 2073 (1983)).


[16]   The record reveals that Sexton failed to show up or call for multiple

       appointments. While he testified that he experienced difficulties with

       transportation, he also testified that he had two individuals providing him

       transportation at various times, that he worked at least forty hours a week, and

       that he thought about using a taxi. He also testified: “I mean, I can, I will do

       better at it. . . . I should have had it done. I mean I admit that. I should be

       working on it more than what I should.” Transcript Volume 2 at 31. We also

       note that the trial court stated: “It’s not a money issue. It’s making

       arrangements and make a few sacrifices and paying a few dollars to get to the

       classes that were part of the deal.” Id. at 33. Under the circumstances, we

       cannot say that the trial court abused its discretion in ordering that Sexton serve

       four and one-half years in the Department of Correction.


                                                   Conclusion

[17]   For the foregoing reasons, we affirm the trial court’s sentence following the

       revocation of Sexton’s probation.
       Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 12 of 13
[18]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 43A05-1703-CR-630 | July 25, 2017   Page 13 of 13
