                                                                  FILED
                                                             Jan 11 2017, 6:09 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Anthony D. Hutson                                           Curtis T. Hill
      Jeffersonville, Indiana                                     Attorney General of Indiana
                                                                  Marjorie E. Newell
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Dominique Castillo,                                        January 11, 2017

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 31A01-1604-CR-742
              v.                                                 Appeal from the Harrison Superior
                                                                 Court.
                                                                 The Honorable Joseph L. Claypool,
      State of Indiana,                                          Judge.
      Appellee-Plaintiff.                                        Cause No. 31D01-1408-F5-472




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   The trial court revoked the probation of Dominique Castillo and ordered that

      he serve the whole of his suspended sentence. He appeals contending that the

      trial court violated his due process rights because it did not explain why it

      ordered him to serve his entire suspended sentence. He also claims that because

      the trial court did not explain its choice, it is possible that it may have
      Court of Appeals of Indiana | Opinion 31A01-1604-CR-742 | January 11, 2017                Page 1 of 10
      considered inappropriate testimony. He requests that we “reverse the trial

      court’s order revoking his suspended sentence and remand for an additional

      hearing to address the appropriate sanction for his violation of probation after

      which the trial court should issue a statement of its reasons for its decision.”

      Appellant’s Reply Br. p. 7. We affirm.


                                                      Issues
[2]   Castillo raises one issue, which we expand and restate as:

                 I. Whether Castillo was denied due process because the trial
                 court did not state specific reasons for ordering the execution of
                 all of the sentence, two and one-half years, that was suspended at
                 the time of his original sentencing; and


                 II. Whether because the trial court did not state specific reasons
                 for the sanction, the trial court may have considered some
                 evidence it should not have.


                                   Facts and Procedural History
[3]   On May 27, 2015, Castillo pleaded guilty to sexual misconduct with a minor, a
                            1
      Level 5 felony, for having sexual intercourse with a fourteen-year-old female

      victim. He was sentenced to four years in the Indiana Department of

      Correction (IDOC), with two and one-half years suspended to probation and

      one and one-half years served. As a condition of his probation, Castillo was




      1
          Ind. Code § 35-42-4-9(a) (2014).


      Court of Appeals of Indiana | Opinion 31A01-1604-CR-742 | January 11, 2017      Page 2 of 10
      prohibited from having contact with persons under the age of eighteen, unless

      authorized by his probation officer, and from living within one mile of the

      victim.


[4]   Castillo was released from the IDOC on October 22, 2015. The next day, he

      contacted the Harrison County Probation Department. He first met with the

      sex offender officer, and later with his probation officer. He told the officers

      that since his release he had been living with his mother, that his mother made

      him leave her house because he insisted on visiting his seventeen-year-old

      girlfriend, and that he currently was living with his girlfriend and her family.

      The girlfriend’s brother, who was fourteen years old, also lived in the house,

      which was located within one mile of the home of Castillo’s victim in his sexual

      misconduct case. The officers each reminded Castillo of the terms of his

      probation and told him to move out of the house immediately. Castillo

      contacted his probation officer the next morning and told her he was living at a

      new address.


[5]   The following day, the officers drove to the new address to visit with Castillo.

      On the way, they passed the girlfriend’s house and saw Castillo standing in the

      yard. Castillo then went inside the residence. The officers stopped at the

      residence and confronted Castillo, who admitted he had stayed overnight.


[6]   Probation revocation proceedings commenced. At the revocation hearing,

      Castillo admitted to living at his girlfriend’s house in violation of the terms of

      his probation. On March 9, 2016, the trial court issued its order finding that


      Court of Appeals of Indiana | Opinion 31A01-1604-CR-742 | January 11, 2017   Page 3 of 10
      Castillo had violated the terms of his probation and ordering him to serve his

      entire two and one-half years suspended sentence, saying:

              Well[,] the Court finds that Dominique through his own
              testimony has violated the conditions of probation so the State
              has proved their case well beyond a preponderance of the
              evidence and he also [sic] one of the terms of those conditions
              that he violated is to have no contact with persons under the age
              of eighteen unless authorized by a probation officer and he’s
              supposed to tell a probation office when you do that before you
              do that, face to face and he admitted again to going into a
              person’s home and living [sic] that home for [sic] a woman under
              – seventeen years of age and a younger brother at that time so
              therefore, the Court is revoking your probation. We’re going to
              revoke his probation for the two and a half years that was on the
              shelf and I’m hearing the testimony of both sides in this matter. I
              think that he has blatantly violated the terms and conditions here
              and he is going to be revoked for the two and a half years.


      Tr. pp. 54-55. Castillo now appeals.


                                    Discussion and Decision
[7]   Castillo argues that his due process rights were violated because the trial court

      did not provide a statement of reasons why it ordered him to serve his

      previously suspended sentence instead of “other available alternatives.”

      Appellant’s Br. p. 9. Castillo also contends the trial court abused its discretion

      when it revoked his probation and ordered him to serve his previously

      suspended sentence because it may have considered inappropriate testimony.


[8]   “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.
      Court of Appeals of Indiana | Opinion 31A01-1604-CR-742 | January 11, 2017   Page 4 of 10
       2007). “The trial court determines the conditions of probation and may revoke

       probation if the conditions are violated.” Prewitt, 878 N.E.2d at 188; see also,

       Ind. Code § 35-38-2-3 (2015). If the court finds that the person has violated a

       condition at any time before termination of the probation period, and the

       petition to revoke is filed within the probationary period, the court may impose

       one or more sanctions, including ordering execution of all or part of the

       sentence that was suspended at the time of initial sentencing. Ind. Code § 35-

       38-2-3(h) (2015). A trial court’s decision for imposing sanctions for probation

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

       N.E.2d at 188; see also, Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App.

       2005) (trial court’s sentencing decision in probation revocation proceeding is

       reviewed for abuse of discretion), trans denied. “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.


                                                           I.

[9]    Castillo first argues that his due process rights were violated because the trial

       court failed to give a statement of reasons explaining why it ordered him to

       serve his previously suspended sentence.


[10]   In support of his argument, Castillo relies on Medicus v. State, 664 N.E.2d 1163

       (Ind. 1996), for the proposition that due process requires a statement of the trial

       court’s reasons for ordering the execution of a suspended sentence. Castillo’s

       reliance on Medicus is misplaced. Medicus addresses the due process


       Court of Appeals of Indiana | Opinion 31A01-1604-CR-742 | January 11, 2017   Page 5 of 10
       requirements for revocation of probation, not for ordering sanctions following

       revocation of probation.


[11]   In Medicus, our Supreme Court set forth the procedural and substantive due

       process rights of probationers facing a revocation of probation, which include 1)

       written notice of the claimed violations; 2) disclosure of the evidence against the

       defendant; 3) the opportunity to be heard and to present witnesses and

       evidence; 4) a limited right to confront and cross-examine witnesses; 5) a

       neutral and detached factfinder; and 6) a written statement of the reasons for

       revocation. Id. at 1164 (citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct.

       2593, 2604, 33 L. Ed. 2d 484 (1972), where the United States Supreme Court

       applied the Due Process Clause to parole revocation hearings and stated the

       minimum requirements of a parole revocation hearing, including the written

       statement requirement). Our Supreme Court in Medicus held that the trial

       court’s statement that “the defendant has violated his terms of probation” failed

       to satisfy the written statement requirement set forth in Morrissey, and remanded

       the case to the trial court for a probation revocation statement consistent with

       the due process requirement. Medicus, 664 N.E.2d at 1164, 1165.


[12]   Medicus, citing Black v. Romano, 471 U.S. 606, 105 S. Ct. 2254, 85 L. Ed. 2d 636

       (1985), requires a written statement of reasons for probation revocation.

       Medicus does not directly address any requirement that specific reasons must be




       Court of Appeals of Indiana | Opinion 31A01-1604-CR-742 | January 11, 2017   Page 6 of 10
                                                                                         2
       given for the sanction that is imposed upon revocation. Here, the trial court

       provided a sufficiently clear statement of its reasons for revoking Castillo’s

       probation to satisfy the Morrissey due process statement requirement. Black

       agreed that a statement of reasons for revocation is required, but that no specific

       statement regarding consideration of alternative sanctions is required. See Black,

       471 U.S. at 612 (“One point relevant to the present case is immediately evident

       from a review of the minimum procedures set forth in some detail in Gagnon[ ]
                                                                                  3



       and Morrissey: the specified procedures do not include an express statement by

       the factfinder that alternatives to incarceration were considered and rejected.”).


[13]   This court has held that a detailed sentencing statement following revocation of

       probation is not required when reinstating a portion of an already imposed

       sentence, and that a written statement indicating the trial court, following a

       probation revocation, considered alternatives to incarceration is not necessary.

       See Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009); Monday v. State, 671

       N.E.2d 467, 469 (Ind. Ct. App. 1996) (citing Black, 471 U.S. 606). We

       conclude there is no due process requirement for a specific statement of reasons

       for the sanction imposed following revocation of probation.




       2
        Upon revocation of probation, the trial court may impose any 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; and (3)
       order execution of all or part of the sentence that was suspended at the time of initial sentencing. Ind. Code §
       35-38-2-3(h) (2015).
       3
           Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).


       Court of Appeals of Indiana | Opinion 31A01-1604-CR-742 | January 11, 2017                         Page 7 of 10
[14]   Regarding whether the trial court abused its discretion when it imposed the

       sanction, we find it did not. At the conclusion of Castillo’s probation

       revocation hearing, the court reiterated that under the terms of his probation,

       Castillo was prohibited from having contact with persons under the age of

       eighteen, unless authorized by his probation officer. The court noted that

       Castillo testified that he was living with his seventeen-year-old girlfriend and

       her younger brother without authorization, and was in violation of the terms of

       his probation. The trial court indicated that it had heard testimony from both

       the State and Castillo, and that it found Castillo violated his probation because

       he admitted to doing so “through his own testimony.” Tr. p. 54. The court

       also determined that Castillo’s violation of his probation was blatant. Given

       Castillo’s blatant disregard for the terms of his probation, the trial court was

       well within its discretion to sanction him by ordering him to serve his

       previously suspended sentence.


                                                          II.

[15]   Castillo next argues the trial court may have abused its discretion in the

       revocation process. He suggests that because the trial court did not state

       specific reasons for the sanction, the trial court may have considered

       inappropriate testimony when it sentenced him to serve his previously

       suspended sentence. In support of his argument, Castillo asserts that sex

       offenses, of the type he committed, “evoke strong opinions and reactions and it

       is especially important to ensure that only proper factors are considered in

       sentencing.” Appellant’s Br. p. 10. Castillo points to his probation officer’s

       Court of Appeals of Indiana | Opinion 31A01-1604-CR-742 | January 11, 2017   Page 8 of 10
       testimony that he was not “an appropriate candidate for probation,” and

       evidence at trial of his “[going] against [his mother’s] wishes” when he left her

       house to live with his girlfriend. Tr. pp. 28, 45. Castillo argues that

       consideration of the nature of his underlying offense, the officer’s opinion, and

       the evidence regarding his mother’s wishes might be akin to the error that

       occurred in Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011). In Puckett,

       we held that a special judge in the defendant’s probation revocation hearing had

       “consider[ed] multiple improper factors” in choosing a sanction, such as:

       whether the original plea accepted by the original trial judge was too lenient,

       finding the defendant committed a more serious crime than the one of which he

       was convicted, and the special judge’s personal beliefs. See Puckett, 956 N.E.2d

       at 1187-89.


[16]   The facts of this case are distinguishable from Puckett. Here, there is no

       suggestion that the trial judge may have been trying to make up for an initial

       sentence he considered inadequate.


[17]   Castillo’s argument, by his own admission, is “pure speculation because”

       according to Castillo “there is [no statement] from which the trial court’s

       rationale [in choosing a sanction] can be discerned.” Appellant’s Br. p. 11.

       However, we already have determined the trial court was not required to

       provide specific reasons for imposing the sanction. We are unpersuaded the

       trial court may have considered inappropriate testimony. No abuse of

       discretion occurred here.



       Court of Appeals of Indiana | Opinion 31A01-1604-CR-742 | January 11, 2017   Page 9 of 10
                                                 Conclusion
[18]   For the reasons stated above, the judgment of the trial court is affirmed.


[19]   Affirmed.

       Riley, J., and Mathias, J., concur.




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