MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                                Feb 19 2019, 9:23 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
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Brooklyn, Indiana                                        Attorney General of Indiana
                                                         George P. Sherman
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Dylan Lee Cheesman,                                      February 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1925
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff.                                      Judge.
                                                         Trial Court Cause No.
                                                         84D01-1703-F6-717




Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1925 | February 19, 2019                Page 1 of 8
                                             Case Summary
[1]   Dylan Cheesman appeals the sentence imposed after the trial court revoked his

      probation. We affirm.


                                                     Issue
[2]   Cheesman raises one issue, which we restate as whether the trial court properly

      ordered Cheesman to serve the balance of his sentence in the Vigo County Jail.


                                                     Facts
[3]   Cheesman pleaded guilty to auto theft, a Level 6 felony. On August 23, 2017,

      the trial court sentenced Cheesman to two years in the Indiana Department of

      Correction with his sentence suspended to probation.


[4]   On January 19, 2018, the probation department filed a notice of probation

      violation and alleged that Cheesman had been charged with battery, a Class A

      misdemeanor; criminal trespass, a Class A misdemeanor; possession of

      paraphernalia, a Class C misdemeanor; operating a motor vehicle without a

      license, a Class C misdemeanor; and driving while suspended, a Class A

      misdemeanor. On March 21, 2018, the probation department filed an amended

      notice of probation violation. The probation department alleged that, in

      addition to the earlier charges, Cheesman had: (1) tested positive for THC on

      February 20, 2018; (2) tested positive for spice on February 20, 2018, March 2,

      2018, and March 13, 2018; (3) failed to take drug screens on February 9, 2018,

      February 12, 2018, and March 8, 2018; (4) failed to call the drug screen


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1925 | February 19, 2019   Page 2 of 8
      notification system on six occasions in February and March 2018; and (5) failed

      to keep an appointment for an assessment at Harbor Lights on March 6, 2018.


[5]   After a revocation hearing, the trial court found that Cheesman had violated his

      probation. On May 21, 2018, the trial court “sentence[d] [Cheesman] to time

      served” in the Vigo County Jail from March 26, 2018, through May 21, 2018.

      Appellant’s App. Vol. II p. 68. The trial court returned Cheesman to probation

      on May 21, 2018, and ordered Cheesman, as a part of probation, to: (1)

      participate in a daily drug screen call-in protocol; (2) schedule an alcohol and

      drug evaluation and follow all treatment recommendations; and (3) reside with

      his mother.


[6]   On June 11, 2018, the probation department filed another notice of probation

      violation. The probation department alleged that Cheesman had: (1) tested

      positive for spice on May 25, 2018, and June 1, 2018; (2) failed to call the drug

      screen notification system on June 9, 2018, June 10, 2018, and June 11, 2018;

      and (3) failed to report for a drug screen on June 7, 2018.


[7]   At the revocation hearing on July 2, 2018, the parties discussed the possibility

      of Cheesman participating in work release. Cheesman reported that his father

      would help him with the work release fees. The trial court stated:


              If [Cheesman is] going to admit [the violation] based on this
              agreement that he’s going to work release, I’m telling you that . .
              . I haven’t decided that I’m accepting that he is going to work
              release. So if you’re going to admit, you have to admit knowing
              that you probably have six (6) months in the Vigo County Jail.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1925 | February 19, 2019   Page 3 of 8
      Tr. Vol. II p. 7. The trial court found that Cheesman had violated the terms of

      his probation and, pursuant to Cheesman’s attorney’s request, ordered “an

      evaluation by Vigo County Community Corrections for defendant’s possible

      placement in Work Release . . . .” Appellant’s App. Vol. II p. 78.


[8]   The community corrections evaluation determined that Cheesman was

      unemployed, that his family could not help with the fees, and that Cheesman

      was not an appropriate candidate for work release because he could not afford

      the program. At the dispositional hearing on July 16, 2018, the State requested

      that Cheesman serve the balance of his sentence in the Vigo County Jail. The

      State noted that the trial court made it clear during the May 21, 2018 hearing

      that, if Cheesman “messed up this chance, he would just go to sit in the Vigo

      County Jail.” Tr. Vol. II p. 19. The trial court then stated:


              I’m not going to repeat the conversation we had the last time on
              the probation violation because the State just summarized it. We
              gave you every chance. We gave you another chance to get out
              and do the treatment. Didn’t [sic] take advantage of that
              opportunity. I don’t have anywhere else to put you. You’re not
              appropriate for community corrections. I’m not sentencing you
              to time served. That’s not appropriate either. So the balance of
              your time is in the Vigo County Jail. I will put on here that with
              six (6) weeks left, you should be put in Jail Linkage, but at this
              point, the balance of your time is in the Vigo County Jail.


      Id. at 21. The trial court revoked Cheesman’s probation and ordered him to

      serve the balance of his suspended sentence in the Vigo County Jail. The trial




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1925 | February 19, 2019   Page 4 of 8
       court ordered Cheesman to serve the last six weeks of his sentence in the Jail

       Linkage Program.


                                                   Analysis
[9]    Cheesman argues that the trial court abused its discretion by ordering him to

       serve the balance of his suspended sentence in the Vigo County Jail.

       “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). Where, like here, the trial court finds that a defendant has violated a

       condition of his probation, it may: (1) continue the probation with or without

       modifying the probation conditions; (2) extend the probationary period for up

       to one year; or (3) revoke the probation and order the execution of all or part of

       the sentence suspended at the initial hearing. Ind. Code § 35-38-2-3(h). 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.


[10]   Cheesman does not dispute that his placement in community corrections is a

       decision made at the “sole discretion of the trial court.” Appellant’s Br. p. 7.

       But Cheesman argues that the trial court “cannot exercise its discretion in an

       arbitrary manner.” Id. According to Cheesman, he could not be denied the

       opportunity to participate in work release merely because he was indigent.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1925 | February 19, 2019   Page 5 of 8
       Cheesman contends that, but for his inability to pay work release fees, “he

       would have been eligible and appropriate for the program.” Id. at 8.


[11]   In support of his argument, Cheesman relies on Mueller v. State, 837 N.E.2d 198

       (Ind. Ct. App. 2005), where we considered whether requiring the payment of a

       fee before a defendant could participate in a pretrial diversion program violated

       the United States Constitution. We held: “Completely foreclosing a benefit that

       the State offers to defendants in the criminal justice system, based solely on an

       inability to pay a fee or fine, violates the Fourteenth Amendment.” Mueller, 837

       N.E.2d at 204. “As such, precluding [the defendants] from participating in the

       Prosecutor’s pretrial diversion program based solely on their asserted inability

       to pay the $230 in fees violated their rights under the United States

       Constitution.” Id. at 204-05.


[12]   Mueller is distinguishable from this case. Cheesman was not denied the

       opportunity to participate in work release solely based on his inability to pay

       the fees associated with the program. Although Cheesman was only on

       probation for a few months, he repeatedly and significantly violated the terms

       of his probation. In May 2018, after the trial court found that Cheesman had

       violated his probation, the trial court warned Cheesman that if he “messed up

       this chance, he would just go to sit in the Vigo County Jail.” Tr. Vol. II p. 19.

       Within days, Cheesman had again violated his probation. At the revocation

       hearing, the trial court expressed reluctance to put Cheesman on work release

       but allowed him to obtain an evaluation. At the dispositional hearing two

       weeks later, the trial court sentenced Cheesman to serve his suspended sentence

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1925 | February 19, 2019   Page 6 of 8
       in the county jail, not because Cheesman lacked the funds for work release, but

       because Cheesman had failed to take advantage of every opportunity given to

       him. The trial court stated: “We gave you every chance. We gave you another

       chance to get out and do the treatment. Didn’t [sic] take advantage of that

       opportunity. I don’t have anywhere else to put you. You’re not appropriate for

       community corrections.” Id. at 21.


[13]   The trial court was not required to give all the reasons that it did not grant

       Cheesman’s request for work release. We will not speculate that the denial was

       based on lack of funds, especially given the trial court’s statements at the

       revocation and dispositional hearings. Rather, the trial court’s statements

       indicate that it found work release inappropriate based on Cheesman’s repeated

       probation violations. Under these circumstances, we do not find Mueller

       applicable. Our Supreme Court has held:


               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. 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.


       Prewitt, 878 N.E.2d at 188. The trial court had “considerable leeway” in

       deciding the consequences of Cheesman’s probation violations. Id. Given

       Cheesman’s repeated probation violations, we do not find the imposition of the

       suspended sentence to be an abuse of discretion. See, e.g., McKnight v. State, 787

       N.E.2d 888, 893 (Ind. Ct. App. 2003) (holding that the trial court properly

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1925 | February 19, 2019   Page 7 of 8
       ordered the defendant to serve seven years of his previously-suspended sentence

       after finding four probation violations).


                                                 Conclusion
[14]   The trial court did not abuse its discretion by imposing Cheesman’s suspended

       sentence. We affirm.


[15]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1925 | February 19, 2019   Page 8 of 8
