MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Aug 27 2018, 9:26 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John S. Terry                                            Curtis T. Hill, Jr.
Cate, Terry & Gookins LLC                                Attorney General of Indiana
Carmel, Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy D. Martin,                                       August 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A04-1712-CR-2992
        v.                                               Appeal from the Hamilton Circuit
                                                         Court
State of Indiana,                                        The Honorable Paul Felix, Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         29C01-0102-CF-5



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018           Page 1 of 25
                                          Statement of the Case
[1]   Timothy Martin appeals the trial court’s revocation of his probation and order

      that he serve the entirety of his previously suspended four-year sentence at the

      Indiana Department of Correction (“DOC”). Martin presents a single issue for

      our review, namely, whether the trial court abused its discretion when it

      revoked his probation and sentenced him. We affirm.


                                   Facts and Procedural History
[2]   In 2001, Martin pleaded guilty to three counts of child molesting, all as Class B

      felonies. The trial court entered judgment accordingly and sentenced Martin to

      three consecutive terms of twelve years, each with ten years executed and two

      years suspended. In March 2015, Martin was released from the DOC and

      began a six-year term on probation. In December 2015, the State filed a

      petition to revoke probation, alleging that Martin had failed to provide his

      probation officer with three different written verifications, and Martin admitted

      to the probation violations in March 2016. The trial court modified Martin’s

      sentence by ordering two years of his suspended sentence be executed in work

      release through Hamilton County Community Corrections. Martin was

      released on April 27, 2017, with four years remaining on probation.1




      1
        Martin was also convicted of sexual misconduct with a minor in 1995. He received a four-year sentence, a
      year and one-half of which was to be served in work release and the balance suspended to probation. After
      his first violation for non-compliance with work release and failure to pay, the trial court modified Martin’s
      probation and he served one and one-half years in the Hamilton County Jail. After his return to probation,
      Martin violated probation twice more, which included failure to attend and successfully complete counseling
      and failure to pay.

      Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018            Page 2 of 25
[3]   While on work release, Martin worked at a Wendy’s restaurant in Noblesville.

      However, once Martin returned to probation, he eventually moved to

      Anderson. Martin’s driver’s license has been suspended since 1998, and,

      lacking “reliable transportation to and from [Wendy’s],” Martin eventually lost

      his job. Id.


[4]   Soon thereafter, Martin missed four required sex offender counseling sessions

      from June 27, 2017, to August 1, 2017, and as of August 11, 2017, he had an

      outstanding balance of $310 owed to the counseling center. Martin was

      eventually discharged from sex offender counseling due to this noncompliance

      with attendance and unpaid fees. On August 14, 2017, the State filed another

      petition to revoke probation. This time, the State alleged that Martin had

      violated two conditions of his 2003 sentencing order:


              Condition 3. 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
              toward all treatment goals as determined by your treatment
              provider. 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.


                                                      ***


              Condition 4. You shall not miss any appointments for treatment,
              psychotherapy, counseling or self-help groups (any 12 Step
              Group, Community Support Group, etc.) without prior approval

      Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 3 of 25
              from your probation officer and the treatment provider involved,
              or a doctor’s excuse. You shall comply with the attendance
              policy for attending appointments as outlined by the Court. You
              shall continue to take any medication prescribed by your
              physician.


      Appellant’s App. Vol. II at 26.


[5]   The trial court appointed a public defender to represent Martin, and the court

      set the matter for a fact-finding hearing on October 19, 2017. At that hearing,

      Martin admitted that he had violated the conditions of his probation as the

      State had alleged, and he requested and was granted forty-five days before a

      dispositional hearing so that he could secure employment and begin payment of

      the counseling fees.


[6]   At the dispositional hearing, Martin testified that he had only missed the

      counseling appointments because of his lack of employment and trouble

      securing transportation. Martin stated that since the fact-finding hearing, he

      had secured a full-time job which was set to start either that afternoon or the

      next morning as well as a part-time job at Wendy’s for which he was going to

      fill out “[his] tax paperwork on Monday.” Tr. Vol. 2 at 15. Martin also alleged

      that he had solved his transportation issues because he had obtained

      employment and would be able to pay someone gas money.


[7]   At the conclusion of the dispositional hearing, the trial court stated as follows:


              The Court has considered the evidence that was presented
              today. . . . [I]f I looked at this case in a vacuum and just thought
              about an individual who is having difficulty getting to his
      Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 4 of 25
              counseling, the plea that I heard today may seem reasonable.
              But as I look at the case in its totality, it does not any longer
              appear to me to be reasonable. It should be noted for the record
              that . . . [Martin] was convicted in this matter of multiple counts
              of Child Molest as a Class B felony. [Martin] prior to this cause
              had previously attempted to participate in probation for a prior
              conviction for Sexual Misconduct With a Minor. The probation
              that he attempted to serve in that cause was violated multiple
              times. At least two of those multiple times was based upon
              [Martin’s] claimed, or due to [Martin’s] inability to complete the
              counseling that he was required to do. And here we are once again
              with the same exact situation, [Martin] is not doing the counseling that
              he is required to do.

              . . . It was not the Court’s requirement that [Martin] live so far
              away that he could not go to counseling; it was his choice to do
              that. Whatever other choices he has made that make it difficult
              for him to go to counseling, that’s on you, Mr. Martin. This is
              not your first time being told to go to counseling, it’s not your
              first time failing to go to counseling, even in this cause. This is
              your second time coming to court under allegations that you
              have failed to go to counseling.


      Id. at 24 (emphasis added). Accordingly, the trial court revoked Martin’s

      probation and sentenced him to serve the remaining four years of his sentence

      at the DOC. Martin now appeals.


                                     Discussion and Decision
[8]   It is well settled that


              [p]robation is a matter of grace and a conditional liberty which is
              a favor, not a right. The trial court determines the conditions of
              probation and may revoke probation if those conditions are
              violated. The decision to revoke probation is within the sound
      Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 5 of 25
               discretion of the trial court. And its decision is reviewed on
               appeal for abuse of that discretion.


      Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012). “An abuse of

      discretion occurs when the decision is clearly against the logic and effect of the

      facts and circumstances before the court.” Id. We consider only the evidence

      most favorable to the judgment, and we will not reweigh the evidence or judge

      the credibility of the witnesses. Cox v. State, 850 N.E.2d 485, 488 (Ind. Ct. App.

      2006).


[9]   Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640

      (Ind. 2008). First, the trial court makes a factual determination that a violation

      of a condition of probation actually occurred and then, if the violation is

      proven, the trial court must determine if the violation warrants revocation of the

      probation. Id. “However, even a probationer who admits the allegations

      against him must still be given an opportunity to offer mitigating evidence

      suggesting that the violation does not warrant revocation.” Id. And, if the trial

      court finds that a violation occurred, the court may impose one 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.
      Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 6 of 25
       Ind. Code § 35-38-2-3(h) (2018). A defendant is entitled to challenge the

       sentence a trial court decides to impose after revoking probation. Stephens v.

       State, 818 N.E.2d 936, 939 (Ind. 2004).


[10]   Under Indiana Code Section 35-38-2-3(g), a trial court may not revoke a

       defendant’s probation “for failure to comply with conditions of a sentence that

       impose financial obligations on the person unless the person recklessly,

       knowingly, or intentionally fails to pay.” In Runyon v. State, our Supreme Court

       held as follows:


               While the State has the burden to prove (a) that a probationer
               violated a term of probation and (b) that, if the term involved a
               payment requirement, the failure to pay was reckless, knowing,
               or intentional, we hold that it is the defendant probationer’s
               burden, consistent with the result in Woods[ v. State, 892 N.E.2d
               637 (Ind. 2008)], 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.


       939 N.E.2d 613, 616 (Ind. 2010) (emphasis added). If the defendant makes this

       showing, then the trial court “must consider alternative measures of

       punishment other than imprisonment.” Id.


[11]   Here, Martin contends that his “violations stem from his inability to meet the

       financial obligations inherently imposed in the terms of his probation.”

       Appellant’s Br. at 7. And he maintains that, pursuant to Indiana Code Section

       35-38-2-3(g), while the State satisfied its burden of proof under Runyon, he

       satisfied his burden with respect to the violations of both probation conditions


       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 7 of 25
       “to show facts related to an inability to pay and indicating sufficient bona fide

       efforts to pay.” See Runyon, 939 N.E.2d at 613. Thus, he asserts that the trial

       court was required to, and failed to, consider alternative measures of

       punishment other than placement with the DOC.


[12]   In particular, Martin directs us to his testimony that he was unable to pay

       counseling fees because he had lost his job at Wendy’s in Noblesville and could

       not find a job in Anderson until the time of the dispositional hearing. But the

       trial court had no obligation to credit Martin’s testimony. Indeed, the court

       discounted Martin’s excuses in light of his history of “multiple” probation

       violations, including two prior instances of failing to complete counseling. Tr.

       Vol. 2 at 23. Martin’s contentions on appeal amount to a request that we

       reweigh the evidence, which we cannot do. Martin concedes that he knowingly

       failed to pay the costs associated with his attendance at counseling sessions, and

       the court was not “persuaded” by his testimony that he was unable to pay and

       had made sufficient bona fide efforts to pay. See Runyon, 939 N.E.2d at 616.


[13]   It is well settled that a single violation of a condition of probation is sufficient to

       permit the trial court to revoke probation. Treece v. State, 10 N.E.3d 52, 59 (Ind.

       Ct. App. 2014), trans. denied. Because Martin did not satisfy his burden of proof

       under Runyon with respect to his failure to pay fees, we need not address his

       contention regarding his violation of Condition 4, which required him to attend

       counseling sessions. We hold that the trial court did not abuse its discretion

       when it revoked Martin’s probation and imposed the four-year sentence. See

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (holding trial court did not

       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 8 of 25
       abuse its discretion in ordering defendant to serve previously suspended

       sentence when he had multiple probation violations, a past criminal history,

       and an inability to comply with ordered programs).


[14]   Finally, the dissent concludes that Indiana Code Section 35-38-2-3(g) extends to

       any financial obligation directly related to a condition of probation, in this case

       to transportation costs related to counseling sessions. We believe that

       interpretation is overbroad. Neither this court nor our Supreme Court has ever

       interpreted the statute to apply to ancillary costs such as transportation. The

       condition that Martin attend those sessions does not impose a “financial

       obligation” as contemplated by the statute. Transportation is an ancillary

       expense commonly assumed by probationers. And, even if the statute did apply

       to transportation costs, Martin has not shown that he was unable to attend

       counseling sessions in Anderson instead of Noblesville after his move.


                                                   Conclusion

[15]   The trial court’s sanction for Martin’s probation violations is not clearly against

       the logic and effect of the facts and circumstances before the court in this case.

       As the trial court observed at the dispositional hearing, Martin has a long

       history of probation violations, including at least two failures to complete court-

       ordered counseling. The trial court was well within its discretion to order

       Martin to serve his entire previously suspended sentence.


[16]   Affirmed.




       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 9 of 25
Altice, J., concurs.


Robb, J., dissents with separate opinion.




Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 10 of 25
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Timothy D. Martin,                                       Court of Appeals Case No.
                                                                29A04-1712-CR-2992
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Robb, Judge, dissenting.

[17]   I respectfully dissent from the majority’s conclusion that the trial court did not

       abuse its discretion in revoking Martin’s probation and ordering the remaining

       four years of his previously suspended sentence be served at the DOC. Indiana

       Code section 35-38-2-3(g) intends to prevent the incarceration of probationers

       based solely on their inability to satisfy financial obligations and I believe the

       facts before us present just that. Therefore, in the absence of the trial court’s

       consideration of the financial nature of Martin’s violations and alternative

       measures of punishment other than imprisonment, I would vacate the trial

       court’s order and remand for such consideration.



       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 11 of 25
[18]   The majority concludes that because Martin failed to satisfy his burden of proof

       with respect to his failure to pay counseling fees, it “need not address [Martin’s]

       contention regarding his violation of Condition 4,” slip opinion at ¶ 13, namely,

       whether Indiana Code section 35-38-2-3(g) also applies to Martin’s

       transportation issues. I believe Martin satisfied his burden and persuaded the

       trial court. However, because Martin’s failure to pay counseling fees and

       Martin’s transportation issues share the same factual basis, I first consider the

       merits of Martin’s argument regarding Indiana Code section 35-38-2-3(g).


                               I. Indiana Code section 35-38-2-3(g)
[19]   Martin testified it was transportation issues stemming from his lack of

       employment which prevented him from attending the counseling sessions. Tr.,

       Vol. 2 at 14. Martin’s driver’s license was suspended in 1998, and, for yet more

       unmet financial obligations, his suspension persists.2 Therefore, because Martin

       is entirely dependent upon others for transportation and traveling to and from

       counseling sessions “requires at least money for gas,” Appellant’s Br. at 8,




       2
           Martin testified:

                I have fines and fees to pay out of both Superior 4 and Superior 5. I’m checking on SR-22s
                now, and right now it’s $500 to get an SR-22 in order to turn in to be able to get the indigent
                form to get my license back.
       Tr., Vol. 2 at 16. When asked what he has done to obtain his driver’s license since 1998, Martin stated:
                I got out of the DOC in March of 2015, had to settle a warrant with Tipton. Got out of there in
                2017. I finally came to court over here for Superior 5 on the driving while suspended, and then
                that’s when they told me I had $334 in fines. And then I have an old outstanding ticket from
                Noblesville for [$]321. And then one of them is $1,000. That was imposed as a fine. I can’t
                remember which because I don’t have my driving record with me that they give me a copy of.
                But I'm trying to get the indigent form to get those fees waived so I can re-obtain my license.
       Id. at 17.

       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018               Page 12 of 25
       Martin asks that we apply Indiana Code section 35-38-2-3(g) to this violation as

       well.


[20]   The State acknowledges that it is “a general rule that probation cannot be

       revoked for a failure to pay court-ordered fees where a defendant has no ability

       to acquire funds.” Brief of Appellee at 12. However, the State argues

       Condition 4 of Martin’s probation requiring his attendance at counseling

       sessions is a “non-monetary obligation” and that “Indiana courts have

       interpreted [Indiana Code section 35-38-2-3(g)] as applying only to purely

       financial conditions placed on a defendant’s probation.” Id. Although my

       review of decisions applying Indiana Code section 35-38-2-3(g) to conditions

       such as child support, court costs, restitution, and probation user fees, 3 is

       consistent with the State’s argument, I believe it remains an open question of

       law as to whether the ancillary costs implicated by this case constitute the type

       of financial obligations contemplated by Indiana Code section 35-38-2-3(g).


                When faced with a question of statutory interpretation, we first
                examine whether the language of the statute is clear and
                unambiguous. If it is, we need not apply any rules of
                construction other than to require that words and phrases be
                given their plain, ordinary, and usual meanings. Where a statute
                is open to more than one interpretation, it is deemed ambiguous
                and subject to judicial construction.




       3
        See, e.g., Mauch v. State, 33 N.E.3d 387, 391-92 (Ind. Ct. App. 2015) (applying Indiana Code section 35-38-2-
       3(g) to restitution); Runyon, 939 N.E.2d at 615 (applying Indiana Code section 35-38-2-3(g) to child support
       obligations, court costs, and probation user fees).

       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018          Page 13 of 25
       Dobeski v. State, 64 N.E.3d 1257, 1259 (Ind. Ct. App. 2016) (citations and

       quotations omitted).


[21]   Indiana Code section 35-38-2-3(g) provides:


               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 legislature did not define “financial obligations” as it appears in Indiana

       Code chapter 35-38-2. As the parties have presented reasonable—and

       competing—interpretations of “financial obligations,” the language is

       ambiguous and I turn to the rules of statutory construction. When engaging in

       statutory interpretation, our primary objective is to “ascertain and give effect to

       the legislature’s intent,” Dobeski, 64 N.E.3d at 1259, and we presume that the

       General Assembly “intended its language to be applied in a logical manner

       consistent with the statute’s underlying policy and goals,” State v. CSX Trans.,

       Inc., 673 N.E.2d 517, 519 (Ind. Ct. App. 1996).


[22]   Although it is difficult to determine legislative intent in the absence of

       legislative history or a purpose statement, Wallace v. State, 905 N.E.2d 371, 379

       (Ind. 2009), I am aided by the assumption that our legislature sought to avoid

       utilizing our state’s penal facilities as modern day debtor’s prisons. Moreover,

       the text of Indiana Code section 35-38-2-3(g) reflects the holding of Bearden v.

       Georgia, 461 U.S. 660 (1983). There, the United States Supreme Court

       explained:

       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 14 of 25
               We hold, therefore, that in revocation proceedings for failure to
               pay a fine or restitution, a sentencing court must inquire into the
               reasons for the failure to pay. If the probationer willfully refused
               to pay or failed to make sufficient bona fide efforts legally to
               acquire the resources to pay, the court may revoke probation and
               sentence the defendant to imprisonment within the authorized
               range of its sentencing authority. If the probationer could not
               pay despite sufficient bona fide efforts to acquire the resources to
               do so, the court must consider alternate measures of punishment
               other than imprisonment. Only if alternate measures are not
               adequate to meet the State’s interests in punishment and
               deterrence may the court imprison a probationer who has made
               sufficient bona fide efforts to pay. To do otherwise would
               deprive the probationer of his conditional freedom simply
               because, through no fault of his own, he cannot pay the fine.
               Such a deprivation would be contrary to the fundamental fairness
               required by the Fourteenth Amendment.


       Id. at 672-73; see also Runyon, 939 N.E.2d at 616 (looking to Bearden to interpret

       Indiana Code section 35-38-2-3(g)). Accordingly, I believe Indiana Code

       section 35-38-2-3(g) exhibits our legislature’s intent to comply with Bearden and

       the principles of “fundamental fairness” required by the Fourteenth

       Amendment. 461 U.S. at 672. The question remains, however, to which

       “financial obligations” do these principles apply?


[23]   When a statute is reasonably susceptible to more than one interpretation, this

       court must consider the consequences of a particular construction. Dreiling v.

       Custom Builders, 756 N.E.2d 1087, 1089 (Ind. Ct. App. 2001). And, we “do not

       presume that the Legislature intended language used in a statute to be applied

       illogically or to bring about an unjust or absurd result.” Anderson v. Gaudin, 42


       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 15 of 25
       N.E.3d 82, 85 (Ind. 2015). If the term “financial obligations” is interpreted as

       narrowly as the State contends, Indiana Code section 35-38-2-3(g) provides a

       defendant added protection only when the defendant is unable to afford

       typically higher cost obligations—such as fees, restitution, or child support

       payments—but not typically lower cost obligations—such as transportation. In

       other words, so long as a defendant is poor enough to be unable to meet his

       higher cost obligations, he receives the added protection of Indiana Code

       section 35-38-2-3(g), but if the defendant is too poor even to obtain

       transportation, he receives no such benefit. Surely this is an unjust result and I

       am unaware of any logical reason why our legislature would extend such

       protection to the former while restricting it from the latter. I am similarly

       unaware of any reason the Fourteenth Amendment’s principles of

       “fundamental fairness” would be so limited. See Sims v. United States Fid. &

       Guar. Co., 782 N.E.2d 345, 349 (Ind. 2003) (noting “[i]f a statute has two

       reasonable interpretations, one constitutional and the other not, we will choose

       the interpretation that will uphold the constitutionality of the statute”). After

       all, de facto debtor’s prisons are no less repugnant to the Constitution than

       those established by law.


[24]   Furthermore, while the State certainly has a legitimate—indeed compelling—

       interest in insuring a defendant complies with the terms of his probation, I do

       not believe revoking their probation absent such consideration serves to further

       that interest. As the Supreme Court warned in Bearden, revoking a defendant’s

       probation where, through no fault of their own, they failed to satisfy a financial


       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 16 of 25
       obligation, will not make payment “suddenly forthcoming.” 461 U.S. at 670.

       Rather, “such a policy may have the perverse effect of inducing the probationer

       to use illegal means to acquire funds to pay in order to avoid revocation.” Id. at

       671.


[25]   For these reasons, I believe Indiana Code section 35-38-2-3(g) extends to any

       financial obligation directly relating to a condition of probation. Where the

       defendant’s violation stems from an overt financial obligation, such as the

       payment of fees, restitution, or child support, the State’s burden—pursuant to

       Runyon—would remain unchanged. However, in cases involving a defendant’s

       inability to meet ancillary financial obligations, should the defendant seek to

       avail himself of the added protection of Indiana Code section 35-38-2-3(g), the

       defendant would admit the violation and notify the trial court of his financial

       inability to satisfy the condition of probation. Then, consistent with Runyon,

       admission of such a violation would be “sufficient to establish by a

       preponderance of the evidence that the defendant violated conditions of his

       probation and this failure to pay was knowing, if not also intentional.” 939

       N.E.2d at 617. Thereafter, it would become the defendant’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., and if the defendant makes this showing, the trial court “must

       consider alternative measures of punishment other than imprisonment,” id. at

       616 (citation omitted).


[26]   The State argues:

       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 17 of 25
        In a purely practical sense, it is impossible for a trial court to
        provide services to a probationer without the defendant incurring
        some sort of incidental costs. Trial courts are given wide latitude
        to impose conditions such as drug tests, counseling, and
        supervision when tailoring probation to a specific defendant. I.C.
        § 35-38-2-2.3(a). In light of this, the text of Section 35-38-2-3[g]
        is not so far reaching as to impose a heightened standard on the
        State every time these services require a probationer to pay for
        foreseeable secondary expenses like gas, public transportation,
        child care, or food.


Brief of Appellee at 13. In light of my interpretation of Indiana Code section

35-38-2-3(g), however, the State’s concerns would be misplaced. First, under

such an interpretation, nothing limits a trial court’s ability to impose conditions

of probation. See Ind. Code § 35-38-2-2.3. Trial courts, of course, would

remain free to impose conditions of probation within their broad discretion.

Second, “financial obligations directly relating to a condition of probation”

should not be read as encompassing every imaginable cost. Rather, “directly

relating” encompasses any cost whereby the defendant’s inability to satisfy the

financial obligation prevents the defendant from complying with the conditions

of his probation. For example, although ancillary, a defendant’s inability to pay

for transportation prevents the defendant from complying with the terms of his

probation requiring attendance at a specific location. Third and finally, this

interpretation does little to impact the State’s burden in revocation

proceedings—it simply allows a defendant the same opportunity to persuade a

trial court that “further imprisonment should not be ordered” where the




Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 18 of 25
       violation stems from an inability to satisfy an ancillary financial obligation.

       Runyon, 939 N.E.2d at 617.


[27]   Applying my interpretation here, the cost of Martin’s transportation for

       counseling sessions was a financial obligation directly relating to a condition of

       his probation—i.e., that he attend counseling sessions. Martin admitted to the

       violation and notified the trial court of his financial inability to satisfy the

       condition of probation. This admission was sufficient to satisfy the State’s

       burden. Then it became Martin’s burden to demonstrate an inability to pay for

       transportation costs and bona fide efforts to obtain transportation. For the

       reasons discussed below, I believe Martin satisfied this burden.


                                 II. Martin’s Burden of Proof
[28]   Having concluded Indiana Code section 35-38-2-3(g) extends to Martin’s

       transportation issues, I proceed to the question for which I primarily diverge

       from the majority: whether Martin demonstrated an inability to pay and bona

       fide efforts to pay. In light of the shared factual basis for the violations, I

       consider them jointly.


[29]   Martin admitted his probation violations and later conceded those admissions

       were sufficient to satisfy the State’s burden of proof and his failure to comply

       with the terms of his probation was therefore “knowing.” Appellant’s Br. at 10;

       see Runyon, 939 N.E.2d at 617 (holding a defendant’s admission that he failed to

       make required payments was sufficient to establish by a preponderance of the

       evidence that his failure to pay was “knowing, if not also intentional”).

       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 19 of 25
       However, Martin argues that he nevertheless demonstrated an inability to pay

       and bona fide efforts to pay by way of obtaining employment. I agree.


[30]   Although Martin maintained employment at a Wendy’s restaurant throughout

       his time in work release, shortly after his return to probation, Martin found

       himself homeless and needing to move to Anderson for a place to live. Lacking

       a driver’s license or “reliable transportation to and from [Wendy’s],” Martin

       eventually lost his job. Tr., Vol. 2 at 17. Now without a driver’s license,

       reliable transportation, or a job, Martin found himself unable to pay counseling

       fees or transportation costs. There was no evidence that Martin had a source of

       income or that he was willfully unemployed and the record reflects that Martin

       received the aid of a public defender throughout the proceedings and he was in

       over $3,000 of debt to the judicial system. Having admitted to his inability to

       satisfy his financial obligations, Martin requested forty-five days before the

       dispositional hearing “so he can hopefully get the money and get back into

       treatment.” Id. at 8.


[31]   At the dispositional hearing, Martin testified that he had not only obtained a

       full-time job in the interim, but also a part-time job. Both jobs were set to begin

       immediately after the dispositional hearing so while Martin was yet to earn a

       paycheck or begin payment on his counseling fees, he only needed “[$]60 to get

       back into the classes.” Id. at 23. Martin also testified that he had moved to a

       more accessible area and that the income from his employment would alleviate

       his transportation issues:



       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 20 of 25
               [Defense Counsel]: Who is going to be able to provide the driving
                                  or the transportation if you can’t get your
                                  license back?


               [Martin]:                It would be my ex-wife’s friend, Jennifer.
                                        She brought me over here to court this
                                        morning and she lives in Cambridge City and
                                        she told me anytime that I needed a ride to
                                        get anywhere, as long as I gave her gas
                                        money, she could get me anywhere I needed
                                        to go.


               [Defense Counsel]: And you think that’s going to be reliable
                                  transportation?


               [Martin]:                Yes, it will because they’re getting ready to
                                        become my roommates because they’re
                                        wanting to move from Cambridge City.


       Tr., Vol. 2 at 16.


[32]   Rather than idly asserting an inability to pay, Martin offered uncontroverted

       testimony that he had eliminated his transportation issues and obtained two

       jobs—a notable accomplishment under Martin’s circumstances. Having heard

       evidence of Martin’s inability to pay and his bona fide—now successful—efforts

       to obtain employment and transportation, the trial court concluded:


               The Court has considered the evidence that was presented today.
               Of course[,] in regards to its disposition I will take judicial notice
               of the underlying file and the conviction. I am reviewing the Pre-
               Sentence Investigation Report that was filed in this case
               originally back on October 30, 2001, and while today if I looked

       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 21 of 25
        at this case in a vacuum and just thought about an individual
        who is having difficulty getting to his counseling, the plea that I
        heard today may seem reasonable. But as I look at the case in its
        totality, it does not any longer appear to me to be reasonable. It
        should be noted for the record that this is, that the Defendant was
        convicted in this matter of multiple counts of Child Molest as a
        Class B felony. The Defendant prior to, prior to this cause had
        previously attempted to participate in probation for a prior
        conviction for Sexual Misconduct With a Minor. The probation
        that he attempted to serve in that cause was violated multiple
        times. At least two of those multiple times was based upon the
        Defendant’s claimed, or due to the Defendant’s inability to
        complete the counseling that he was required to do. And here we
        are once again with the same exact situation, the Defendant is
        not doing the counseling that he is required to do.


        This is obviously no minor offense and the Defendant received
        no minor sentence. The Court originally ordered the Defendant
        to serve a substantial time in prison and then after a period of
        time believed that the Defendant could participate back in society
        by returning him with requirements to do counseling. It was not
        the Court’s requirement that the Defendant live so far away that
        he could not go to counseling; it was his choice to do that.
        Whatever other choices he has made that make it difficult for
        him to go to counseling, that’s on you, Mr. Martin. This is not
        your first time being told to go to counseling, it’s not your first
        time failing to go to counseling even in this cause. This is your
        second time coming to court under allegations that you have
        failed to go to counseling. I’m going to revoke your probation,
        order you to serve all of your previously suspended time in the
        Department of Corrections.


Id. at 23-24.




Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 22 of 25
[33]   While I agree with the majority’s statement that “the trial court had no

       obligation to credit Martin’s testimony,” I disagree with the majority’s

       conclusion that the “court discounted Martin’s excuses in light of his history of

       ‘multiple’ probation violations.” See slip op. at ¶ 12. In fact, the trial court

       appears to have accepted Martin’s testimony.4 After explaining it had

       “considered the evidence that was presented today,” the court noted that “while

       today if I looked at this case in a vacuum and just thought about an individual

       who is having difficulty getting to his counseling, the plea that I heard today

       may seem reasonable.” Id. at 23. The trial court then focused on the

       seriousness of Martin’s underlying crimes and his history of probation

       violations. However, Martin was already sentenced for his crimes and the

       question before the trial court was whether the present violations warranted

       revocation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). And, to the extent

       the trial court relied on Martin’s past probation violations, several of those




       4
         The National Center for State Courts’ National Task Force on Fines, Fees and Bail Practices has produced
       a “bench card for judges” entitled Lawful Collection of Legal Financial Obligations, available at
       https://www.ncsc.org/~/media/Images/Topics/Fines%20Fees/BenchCard_FINAL_Feb2_2017.ashx. The
       task force recommends that to determine willfulness a court should consider a number of factors, including:
              e. Basic living expenses, including, but not limited to, food, rent/mortgage, utilities, medical
              expenses, transportation, and child support.
       Id. at 1 (emphasis added). The task force also recommends that after determining that incarceration must be
       imposed, the Court should make findings about:
              1.   The financial resources relied upon to conclude that nonpayment was willful; or
              2.   If the defendant/respondent was not at fault for nonpayment, why alternate measures are
                   not adequate, in the particular case, to meet the state’s interest in punishment and
                   deterrence.
       Id. at 2. Although not required by Indiana Code section 35-38-2-3(g), I believe a trial court’s entering of the
       foregoing findings would help ensure compliance with the statute, protect constitutional principles of
       fundamental fairness, and significantly aid our review of such cases.

       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018             Page 23 of 25
       violations involved Martin’s inability to satisfy financial obligations, i.e., failure

       to pay, and there is no evidence that Martin’s past failures to attend counseling

       sessions were not also due to his inability to pay.


[34]   Moreover, moving when you are homeless and impoverished can only be

       considered a “choice” in the most stringent sense of the word. It is axiomatic

       that convicted felons, and particularly sex offenders, face numerous challenges

       obtaining suitable housing and employment. It should come as no surprise then

       that Martin faced difficulty obtaining such necessities. Considering the

       financial nature of Martin’s violations and the fact that he now had housing,

       employment, and transportation, the trial court could have placed Martin on a

       “short leash,” mandating his strict compliance while saving the remaining

       balance of Martin’s sentence as a sanction for any future violation.


[35]   That being said, I am cognizant, of course, of the broad discretion a trial court

       possesses in revoking probation and determining an appropriate sentence and I

       also acknowledge that Martin’s history of probation violations may well

       support imposing the remaining balance of his sentence to be served at the

       Indiana Department of Correction. However, I believe the trial court abused its

       discretion in finding the violations warranted such a sanction absent

       consideration of the financial nature of Martin’s violations and alternative

       measures of punishment other than imprisonment. See Mauch, 33 N.E.3d at

       391-92 (concluding trial court abused its discretion in revoking defendant’s

       probation despite trial court finding defendant’s testimony was not credible

       when there was no indication in the record that he could pay restitution and the

       Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 24 of 25
defendant made a sufficient showing of his inability to pay and bona fide efforts

to pay). I would therefore vacate the trial court’s order and remand for

consideration of the financial nature of Martin’s violations and for

consideration of alternative measures of punishment.




Court of Appeals of Indiana | Memorandum Decision 29A04-1712-CR-2992 | August 27, 2018   Page 25 of 25
