MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing                              FILED
the defense of res judicata, collateral
                                                                      Jul 07 2017, 7:16 am
estoppel, or the law of the case.
                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                      Curtis T. Hill, Jr.
Elkhart, Indiana                                         Attorney General of Indiana

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jewell D. Riley,                                         July 7, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A04-1701-CR-155
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1408-FC-177



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017            Page 1 of 12
                                           Case Summary
[1]   Appellant-Defendant Jewell D. Riley was placed on probation after he pled

      guilty to Class C felony child molesting. On July 28, 2016, Riley was found to

      have violated the terms of his probation. With respect to this violation, Riley

      was sanctioned with time-served and permitted to continue on probation with

      GPS monitoring. On December 5, 2016, Appellee-Plaintiff the State of Indiana

      (“the State”) filed a second notice of probation violation. Following an

      evidentiary hearing, the trial court found Riley in violation of the terms of his

      probation. As a result of this violation, the trial court revoked Riley’s

      probation, ordered that Riley serve three years of his previously-suspended

      sentence in the Department of Correction (“DOC”), and imposed an additional

      year of probation.


[2]   On appeal, Riley contends that the trial court abused its discretion in revoking

      his probation. In making this contention, Riley argues that the State failed to

      present evidence demonstrating that he recklessly, knowingly, or intentionally

      failed to follow the terms of his probation. Finding no abuse of discretion by

      the trial court, we affirm.



                            Facts and Procedural History
[3]   In January of 2015, Riley pled guilty to Class C felony child molesting and was

      sentenced to a term of six years, with five years suspended to probation. In

      addition to the standard terms of probation, Riley was ordered to undergo a risk


      Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017   Page 2 of 12
      assessment at Lincoln Therapeutic, to comply with sex offender registration

      terms, to comply with the sex offender terms of probation, and to register as a

      sex offender. Riley was subsequently released to probation on September 29,

      2015.


[4]   On February 24, 2016, based on reports that Riley had contact with a minor

      relative and left Elkhart County without permission, the State requested that the

      trial court modify the terms of Riley’s probation to require GPS monitoring.

      Following a hearing, the trial court granted the State’s request.


[5]   On June 8, 2016, the State filed a notice of probation violation in which it

      alleged that Riley had violated the terms of his probation by consuming alcohol

      and failing to pay certain fees. Riley subsequently admitted the alleged

      violations, after which the trial court sanctioned him with time served and

      ordered him to continue on probation with GPS monitoring. The trial court

      also ordered Riley to undergo an addiction evaluation and to follow up as

      necessary.


[6]   On December 5, 2016, the State filed a second notice of probation violation.

      The State alleged that Riley had violated the terms of his probation by (1)

      violating the trial court’s order that he undergo an addiction evaluation and

      follow the recommendations, (2) failing to fulfill certain financial obligations,

      and (3) violating a special probation condition for adult sex offenders, which

      required him to “attend, actively participate in and successfully complete a

      court-approved sex offender treatment program as directed by the court.”


      Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017   Page 3 of 12
      Appellant’s App. Vol. II – Confidential, p. 28. The trial court conducted an

      evidentiary hearing on the second notice of probation violation on December

      29, 2016.


[7]   With respect to Riley’s failure to undergo an addiction evaluation and to follow

      all related recommendations, Riley’s probation officer, Melanie Godden,

      testified that in order to help ensure that Riley complied with the trial court’s

      order that he undergo an addiction evaluation and follow-up treatment, she

      “gave [Riley] a list of the acceptable treatment providers.” Tr. Vol. II, p. 21.

      From this list, Riley chose Addictions Recovery Center (“ARC”) because it was

      convenient and “it was close to [his] area where [he] could walk if [he] had to.”

      Tr. Vol. II, p. 26. Although Riley submitted to an initial evaluation at ARC on

      August 15, 2016, he failed to follow through with treatment.


[8]   On November 15, 2016, Godden was notified by representatives from ARC that

      Riley “called to cancel an appointment and stated that counseling was too

      expensive so he wasn’t going to be following through with treatment or

      attending his appointment.” Tr. Vol. II, p. 15. On December 5, 2016, Godden

      received “another alert from ARC” indicating that while Riley had attended

      orientation, he had “never attended a further appointment after that.” Tr. Vol.

      II, pp. 15, 16. Godden indicated that she “spent from August to December …

      instructing [Riley] multiple times to schedule appointments and that he needed

      to comply with treatment.” Tr. Vol. II, p. 16. Despite these instructions, Riley

      failed to do so.



      Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017   Page 4 of 12
[9]    During the relevant time period, Riley received $1022.00 per month in Social

       Security benefits. His wife received $926.90 per month in Social Security

       benefits and earned approximately $676.00 per month from her part-time

       employment. Godden indicated that, in her experience, “the combined income

       between [Riley’s] benefits and his wife’s income were sufficient for him to live

       and pay for probation requirements.” Tr. Vol. II, p. 16. Godden further

       testified that after reviewing Riley’s income, she “tried to refer him to Recovery

       Works, which is financial assistance for treatment, so that they would pay for

       all or part of it at least, but [Riley] didn’t qualify because his income is too

       high.” Tr. p. 21.


[10]   Riley has not participated in any treatment, at ARC or elsewhere, since

       September 16, 2016. Riley acknowledged that despite being in possession of a

       list of other acceptable alternatives to ARC, he did not “at any point” attempt

       to call or make arrangements with any of these alternatives. Tr. Vol. II, p. 26.

       Likewise, Riley did not talk to Godden about other possible, less-expensive

       alternatives to ARC.


[11]   With respect to Riley’s alleged failure to fulfill certain financial obligations, the

       record reflects that Riley owes $793.00 in costs and fees. He also owes $298.00

       to the probation department for user’s fees and drug screens. Riley owes an

       additional $1638.00 to the probation department for GPS monitoring fees.

       Riley testified that while he pays “as much as I can when I can,” he did not

       dispute “the numbers of what [he] owe[d].” Tr. Vol. II, p. 24.



       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017   Page 5 of 12
[12]   With respect to Riley’s alleged failure to cooperate and make progress in sex

       offender treatment, Godden testified and explained that Riley had “struggled in

       treatment with accepting responsibility for his actions. He has, after much

       prompting, … acknowledged other victims, which is necessary to continue

       treatment.” Tr. Vol. II, p. 17. However, as of December 2, 2016, Riley “had

       been suspended from treatment due to the issues of failing to progress,

       struggling with accepting responsibility for his actions, and also failing to pay

       fees.” Tr. Vol. II, p. 17. “[M]oney aside, [Riley] is not invested in his sex

       offender specific treatment and he’s not invested in making progress in that

       treatment.” Tr. Vol. II, pp. 17-18.


[13]   At the conclusion of the evidentiary hearing, the trial court found as follows:

               The court, after hearing all the testimony, reviewing the violation
               of probation petition, hereby finds that the defendant has violated
               the terms if [sic] his probation in that he failed to follow court
               orders for the addictions evaluation and followup [sic] that was
               imposed due to the prior violation. In addition, the court also
               finds probable cause or, actually, the court also finds that the
               defendant is not compliant with his treatment through his sex
               offender [status] and I think that is even more concerning to the
               court than the addictions issue even though I -- the court knows
               that those are tied hand-in-hand. The GPS monitoring was also
               added due to the previous violation due to the defendant not
               taking responsibility for his actions; here again, we have the
               defendant not taking responsibility for his actions. It seems to be
               an ongoing issue where he’s putting himself at risk.


       Tr. Vol. II, pp. 33-34. In determining how to sanction Riley for his violations

       of the terms of his probation, the trial court considered that Riley had “shown a

       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017   Page 6 of 12
pattern of non-compliance with court orders, not taking this seriously.” Tr.

Vol. II, p. 39. The trial court further noted the following:


        [Riley] had ample opportunity to check out other treatment
        providers for his addictions treatment. He failed to do so. He
        did not follow through with what he needed to do and that is
        why the court has found him in violation of probation.

        The court mentioned those other reasons as additional, I guess,
        caveats or information for [Riley] that the court realizes that
        these two things are in conjunction with each other. There is an
        addictions issue for not only alcohol but other things. It’s
        obvious from his conduct that was pointed out in the probation
        violation, not only this probation violation, but the previous
        probation violation that was filed on June 16th or, excuse me,
        June 8th of 2016 where, there again, was indications that the
        defendant was not compliant with his treatment through the sex
        offender program. The adage that you can lead a horse to water,
        but you cannot make him drink seems to be appropriate in this
        case.

        [Riley] may be seemingly attempting to comply with all court
        orders; however, he is not, because that is evidence from the
        therapist terminating his treatment. Because in order for him to
        be successful in his probation, a term of his probation is to be
        assessed and followed up by the sex offender treatment; and the
        idea that this is all financial is a ruse, because even though there
        are many people that have many things that they need and want,
        they are not necessarily ones that -- things that you can have.

        So part of the condition of probation was that he provide -- that
        he attend counseling and participate in counseling. That -- the
        addictions counseling, he didn’t even attend. He didn’t -- even
        though a list was provided for him for many other places, he
        chose ARC. The evidence is clear that this defendant did not call
        any of those other providers to find out for himself whether or

Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017   Page 7 of 12
               not they accepted a sliding scale, what their fees were; he did not
               attempt to go back. He had half of the money in August. He
               wasn’t picked up till December. He had half of the money in
               August; what did he do with those funds? If he had half of the
               money in August, he could have saved up and in September had
               a full fee and been able to comply. [Riley] failed to do that.
               [Riley] uses the fact that his wife has ill health and that they are
               limited by Social Security to try and garner some type of
               sympathy from the court, but the court cannot be swayed by
               outside actions. The court can only act upon what [Riley] did
               and the consequences of his action on third parties or third
               persons are not to be considered.

               So based on that information and that information alone that the
               court has considered, the court does find that a stint at the [DOC]
               would prove to [Riley] the severity of these actions as it seems
               that the one year that was previously imposed, [Riley] was not, I
               guess, sent to the [DOC] as he was housed here.


       Tr. Vol. II, pp. 39-41.


[14]   The trial court ordered that Riley serve three years in the DOC and indicated

       that “[u]pon his release, [Riley] is to obtain a new addictions assessment and do

       any follow up that’s necessary.” Tr. Vol. II, p. 41. The court also extended

       Riley’s probation for one year and recommended that while incarcerated, Riley

       participate “in the INSOMM program, if acceptable, or if accepted.” Tr. Vol.

       II, p. 41. The trial court further addressed Riley, stating the following:


               Mr. Riley, these are very serious matters [and] you need to start
               taking them seriously. The court does not feel that you are
               taking this sentence seriously and that is why it has imposed the
               sentence which it has. You have not been a participant in this
               case and the court hopes that you will not only be a participant,

       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017   Page 8 of 12
               but gain some understanding and knowledge to avoid these
               actions in the future.


       Tr. Vol. II, pp. 41-42.



                                  Discussion and Decision
[15]           Probation is a matter of grace left to trial court discretion, not a
               right to which a criminal defendant is entitled. The trial court
               determines the conditions of probation and may revoke
               probation if the conditions are violated. 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. Accordingly, a trial court’s sentencing
               decisions for probation violations are reviewable using the abuse
               of discretion standard. An abuse of discretion occurs where the
               decision is clearly against the logic and effect of the facts and
               circumstances.


       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citations omitted).


               A probation hearing is civil in nature and the State need only
               prove the alleged violations by a preponderance of the evidence.
               Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). We will consider
               all the evidence most favorable to supporting the judgment of the
               trial court without reweighing that evidence or judging the
               credibility of witnesses. Id. If there is substantial evidence of
               probative value to support the trial court’s conclusion that a
               defendant has violated any terms of probation, we will affirm its
               decision to revoke probation. Id.



       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017   Page 9 of 12
       Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012).


[16]   “A person’s probation may be revoked if ‘the person has violated a condition of

       probation during the probationary period.’” Id. (quoting Ind. Code § 35-38-2-

       3(a)(1)). “However, if the condition violated involves a financial obligation,

       then the probationer must be shown to have recklessly, knowingly, or

       intentionally failed to pay.” Id. “[I]t is the State’s burden to prove both the

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

       revocation.” Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010). With respect to

       the ability to pay, it is the 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)).


[17]   In Smith, the Indiana Supreme Court considered the sufficiency of the evidence

       to prove that a probationer recklessly, knowingly, or intentionally attempted to

       circumvent the terms of his probation by failing to meet his financial obligation.

       In doing so, the Indiana Supreme Court held as follows:


               First, as we observed in Runyon “because the phrase ‘recklessly,
               knowingly, or intentionally’ appears in the disjunctive and thus
               prescribes alternative considerations, the state of mind
               requirement may be satisfied by adequate evidence that a
               defendant’s failure to pay a probation imposed financial
               obligation was either reckless, knowing, or intentional.” 939
               N.E.2d at 616. Indiana Code section 35-41-2-2(b) provides that a
               person engages in conduct “knowingly” if, when he or she
               engages in the conduct, the person is aware of a “high
               probability” that he or she is doing so. Because knowledge is a
       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017   Page 10 of 12
               mental state of the actor, it may be proved by circumstantial
               evidence and inferred from the circumstances and facts of each
               case. See Young v. State, 761 N.E.2d 387, 389 (Ind. 2002).


       963 N.E.2d at 1113. The Court found that the evidence was such that the trial

       court, acting as fact-finder, “could reasonably conclude that Smith knowingly

       failed to pay current child support every week as required by the terms of his

       probation.” Id. at 1114. The Indiana Supreme Court further found that Smith

       had failed to carry his burden to prove that his finances were such that he was

       not able to make the required payments. Id.


[18]   In claiming that the trial court abused its discretion in revoking his probation

       Riley argues that “there was no evidence presented that [he] recklessly,

       knowingly, or intentionally attempted to circumvent the trial court’s orders by

       failing to complete his court ordered treatment.” Appellant’s Br. p. 10. We

       disagree.


[19]   Aside from an inability to pay, the State was required to prove that Riley was

       aware of a high probability that he was not current on his financial obligations

       or that his inability to meet certain financial obligations kept him from

       complying with other terms of his probation. See Smith, 963 N.E.2d at 1113.

       The evidence indicates that Riley understood the terms of his probation but

       failed to seek out programs which would allow for more flexibility with regard

       to payment while enabling him to participate in the required addiction

       treatment. The evidence further indicates that Riley knew that he had failed to

       pay certain fees as required by the terms of his probation. The evidence also

       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017   Page 11 of 12
       indicates that Riley failed to attend, actively participate in and successfully

       complete a court-approved sex offender treatment program.1


[20]   As for Riley’s claimed inability to pay for the required addiction treatment and

       fees, Riley presented testimony during the evidentiary hearing regarding his

       financial situation. The trial court was not persuaded by Riley’s testimony and

       found that Riley had the financial means to meet his financial obligations.

       Upon review, we consider the evidence most favorable to the judgment of the

       trial court and will not reweigh the evidence or reassess witness credibility. See

       Smith, 963 N.E.2d at 1112. As such, we will not disturb the trial court’s

       determination that Riley failed to carry his burden of proving that he was

       unable to meet his financial obligation. We therefore conclude that the trial

       court did not abuse its discretion in revoking Riley’s probation.


[21]   The judgment of the trial court is affirmed.


       Najam, J., and Riley, J., concur.




       1
         Riley does not appear to make any claim regarding his ability to pay as to this term. As such, it would seem
       that Riley’s failure to successfully participate in and complete the court-ordered sex offender treatment would
       be sufficient, without more, to support the revocation of Riley’s probation.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-155 | July 7, 2017               Page 12 of 12
