      MEMORANDUM DECISION
                                                                           FILED
      Pursuant to Ind. Appellate Rule 65(D),                          Sep 09 2016, 8:31 am
      this Memorandum Decision shall not be
      regarded as precedent or cited before any                            CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
      court except for the purpose of establishing                          and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Paul J. Podlejski                                        Gregory F. Zoeller
      Anderson, Indiana                                        Attorney General of Indiana
                                                               Richard C. Webster
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Casey Dale Redman,                                       September 9, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               48A05-1511-CR-1896
              v.                                               Appeal from the
                                                               Madison Circuit Court
      State of Indiana,                                        The Honorable
      Appellee-Plaintiff.                                      Angela Warner Sims, Judge
                                                               Trial Court Cause No.
                                                               48C01-0910-FB-555



      Kirsch, Judge.


[1]   Casey Dale Redman (“Redman”) appeals the trial court’s revocation of his

      probation, raising one issue that we restate as: whether the trial court abused its


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      discretion by ordering Redman to serve two years of the previously-suspended

      four-year portion of his sentence.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In October 2009, the State charged Redman with five counts of Class B felony

      child molesting for engaging in intercourse with a child under the age of

      fourteen years of age. On February 8, 2010, Redman pleaded guilty to the five

      charges. The plea agreement provided a cap of ten years on executed time, and

      the State agreed to recommend “six years executed with probation for the

      balance.” Appellant’s App. at 50.


[4]   The trial court sentenced Redman to fourteen years of incarceration on each of

      the five convictions, with ten years executed in the Indiana Department of

      Correction (“DOC”) and four years suspended to supervised probation. Id. at

      56-57. The trial court ordered the sentences to be served concurrently. In

      addition, the trial court imposed special sex offender conditions, as well as the

      standard conditions of probation. One condition of Redman’s probation

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

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

      Id. at 54; State’s Ex. 1. Redman also was required to maintain steady progress

      toward all treatment goals as determined by the treatment provider, and

      unsuccessful completion or non-compliance would be a violation of the terms

      and conditions of his probation. Id.

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[5]   Redman completed the executed portion of his sentence and was released to

      probation on May 12, 2014. Id. at 70. On September 19, 2014, the State filed a

      Notice of Probation Violation (“Notice No. 1”). The State alleged that

      Redman failed to comply with sex offender treatment, failed to pay court costs,

      failed to pay probation fees, failed to pay an administrative fee, failed to

      maintain employment and verify employment to the probation department, and

      failed to pay a sexual assault fee. Id. at 71. On November 3, 2014, the trial

      court dismissed Notice No. 1.


[6]   On February 4, 2015, the State filed another Notice of Probation Violation

      (“Notice No. 2”), alleging that Redman violated the conditions of his probation

      by failing to pay costs and fees, failing to pay for a urine drug screen, failing to

      maintain or verify employment, and failing to complete the sex offender

      treatment program. Id. at 81. On March 30, following a hearing on Notice No.

      2, the trial court deferred sanctions, but thereafter issued an order on May 18,

      2015, finding that Redman was in “substantial compliance,” and it imposed no

      sanctions. Id. at 100.


[7]   On August 7, 2015, the State filed a third Notice of Probation Violation

      (“Notice No. 3”), alleging that Redman failed to comply with and complete

      treatment recommendations, failed to pay probation fees, failed to pay a urine

      screen fee, and failed to maintain employment and provide verification of

      employment. Id. at 101. At a September hearing on Notice No. 3, Redman

      admitted to the allegations that he failed to pay probation and urine drug screen

      fees and failed to maintain and verify employment, but he denied that he failed

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      to complete the required sex offender treatment. Because the probation

      department had just recently received information from the sex offender

      treatment program, which Redman’s counsel had not yet had an opportunity to

      review, the trial court continued the hearing, but in closing, it reminded

      Redman:


              [Y]ou’ve been in front of me now several different times. It
              always seems to be an issue that we have a job on the horizon or
              we’re going to an orientation or we’ve got something lined up.
              And for one reason or another, none of those really have seemed
              to pan out. When I see you [at the next scheduled hearing], if
              you have employment, it’s no longer acceptable . . . for your
              attorney just to tell me that you have employment. You [] need
              to show me some type of verification that you are, in fact
              employed.


      Tr. at 87-88.


[8]   At the continued hearing on Notice No. 3, Redman provided a faxed letter

      from his shift supervisor indicating he was employed. Redman admitted that

      he failed to pay probation fees, failed to pay the urine screen fee, and failed to

      maintain or verify employment to the probation department. Id. at 95.

      However, Redman denied that he did not complete the sex offender treatment

      program. The State thereafter presented evidence that Redman underwent an

      evaluation at the sex offender treatment program, began treatment in May

      2014, and his therapist, licensed clinical social worker Donald Allbaugh

      (“Allbaugh”), recommended outpatient sex offender treatment once a week

      until all assignments were completed. Allbaugh testified that, “from the

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      beginning, Mr. Redman was [] very uncooperative with treatment,” noting that

      on several occasions personnel from the treatment program had to meet with

      Redman and his probation officer “to reinforce treatment recommendations,”

      which he said is “unusual” or “rare.” Tr. at 102. Redman failed to schedule or

      submit to polygraph tests every six months as required, and when he did

      schedule one after eight months, he failed to bring payment for the test with

      him as he had been instructed to do. Redman was terminated from the

      program at that time, but was thereafter permitted back into the treatment

      program under a “zero tolerance” policy, “meaning that if there were any

      further [] failure[s] on his part to comply with [] the treatment requirements, []

      he would be terminated from treatment.” Id. at 104.


[9]   According to Allbaugh, Redman completed only one of ten written treatment

      assignments after having been in the program for approximately one year,

      which Allbaugh characterized as “poor compliance.” Id. Allbaugh

      recommended that Redman attend sessions twice per week to provide him

      additional input from other offenders in the treatment group, so that Redman

      might better understand what the assignments required. While Redman did

      attend twice per week “for a period of time,” Redman at some point contacted

      Allbaugh advising that he could not attend a session because he would be at the

      hospital with his mother. Id. at 105. Allbaugh told Redman that he would be

      excused if he brought written verification. Redman never produced the

      required verification, and never completed remaining assignments. In

      September 2015, Redman was again terminated form the sex offender treatment


      Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016   Page 5 of 9
       program. Probation Officer Carl Chambers (“Chambers”) summarized, “[I]t’s

       been non-consistent, non-compliance with this Defendant.” Id. at 98. The

       State requested that the entirety of Redman’s four-year suspended sentence be

       revoked.


[10]   Redman testified he had obtained employment and presented a faxed letter

       from his shift manager. With regard to the sex offender treatment program,

       Redman testified that, initially, he did not have the funds to pay for the

       polygraph test. He also testified that his lack of completion of the written

       assignments was not due to lack of effort, explaining that he wrote several drafts

       of the first assignment before it was accepted as being adequate, and he

       attempted the second assignment, but it was not deemed satisfactory. Redman

       asked the trial court to continue his placement on probation, asserting that he

       had made substantial progress and was in substantial compliance with

       treatment requirements and had secured employment.


[11]   The trial court acknowledged that Redman in the last several weeks had made

       efforts to comply with probation and recognized that some of the failures to

       comply were due to monetary reasons, but found that from the beginning of

       probation Redman was not motivated to comply with the required conditions

       and only made the recent efforts under the threat of losing his liberty; the trial

       court deemed it to be “too little, too late.” Tr. at 168. The trial court

       determined that Redman failed to successfully complete his sex offender

       treatment, and he failed to maintain and verify employment, both conditions of

       his probation. The trial court revoked two years of the previously-suspended

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       four-year portion of his sentence, ordering that the two years be served at the

       DOC, after which Redman would return to probation. Appellant’s App. at 112-

       13. Redman now appeals.


                                      Discussion and Decision
[12]   Redman does not assert that he did not violate probation or that the trial court

       did not follow the proper procedures when it revoked his probation. Rather,

       Redman’s challenge is to the sanction imposed, claiming it was too severe and

       constituted an abuse of discretion. Probation is a conditional liberty that is a

       privilege, not a right. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013); Prewitt v.

       State, 878 N.E.2d 184, 188 (Ind. 2007). Probation revocation is a two-step

       process. First, the trial court must make a factual determination that a violation

       of a condition of probation actually occurred. Heaton, 984 N.E.2d at 616.

       Second, if a violation is found, then the trial court must determine the

       appropriate sanctions for the violation. Id. We review a trial court’s decision to

       revoke probation and a trial court’s sentencing decision in a probation

       revocation proceeding for an abuse of discretion. Id.; Abernathy v. State, 852

       N.E.2d 1016, 1020 (Ind. Ct. App. 2006). An abuse of discretion occurs if the

       trial court’s decision is against the logic and effect of the facts and

       circumstances before the court or when the trial court misinterprets the law.

       Heaton, 984 N.E.2d at 616.


[13]   Upon finding that a probationer has violated a condition of probation, a court

       may continue him on probation, with or without modifying or enlarging the


       Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016   Page 7 of 9
       conditions, extend his probation for not more than one year beyond the original

       probationary period, or order execution of the initial sentence that was

       suspended. Ind. Code § 35-38-2-3(g). The imposition of an entire suspended

       sentence is well within the trial court’s discretion. Sandlin v. State, 823 N.E.2d

       1197, 1198 (Ind. 2005); Sanders v. State, 825 N.E.2d 952, 957-58 (Ind. Ct. App.

       2005), trans. denied. Accordingly, when the trial court in the present case

       ordered Redman to serve two of the four previously-suspended years for

       violating his probation, it was acting within its statutory authority.


[14]   Redman urges that his violations “were largely technical in nature” and did not

       warrant revocation and incarceration in the DOC. Appellant’s Br. at 6. He

       argues that the trial court “chose the strictest sanction of revoking a part of his

       suspended sentence and ordering it be executed in the DOC,” but that “the

       more appropriate sanction” would have been to extend his probation, place him

       on in-home detention, or allow him to serve his sentence in work release. Id. at

       7. We disagree that his violations were technical in nature. Redman was aware

       that upon release he needed to abide by the terms of his probation, which

       included submitting to polygraph tests every six months, and he was advised of

       the fees associated with those tests, yet he failed to properly plan and save for

       those tests. He also was required to obtain employment and provide

       verification of it to the probation department, although there is no indication

       that Redman was employed until shortly before the last evidentiary hearing on

       Notice No. 3, in October 2015. With regard to the required written

       assignments in the sex offender treatment program, Allbaugh testified that


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       “diligent” participants can complete all ten assignments in a year and “most”

       complete them within eighteen months; Redman completed one in

       approximately a year. Tr. at 113. Allbaugh testified that Redman was “very

       uncooperative with treatment,” and Chambers described Redman as “non-

       consistent” with treatment. Id. at 98, 102. From the evidence presented, the

       trial court perceived that Redman simply was not motivated until Redman

       sensed his “feet on the fire” and a possible return to incarceration. Id. at 166.

       Redman has failed to establish that the trial court’s decision to revoke his

       probation and order him to serve two years of a previously-suspended four-year

       sentence was an abuse of discretion.


[15]   Affirmed.


[16]   Najam, J., concurs.
[17]   Riley, J., concurs in result without opinion.




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