MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                        FILED
court except for the purpose of establishing                       Aug 09 2017, 7:46 am

the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
estoppel, or the law of the case.                                      Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                         Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana

                                                         Angela N. Sanchez
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Eshelman,                                        August 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A04-1703-CR-476
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff                                       Humphrey, Judge
                                                         Trial Court Cause No.
                                                         15C01-0603-FB-4



Altice, Judge.


                                         Case Summary

Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017        Page 1 of 6
[1]   Anthony Eshelman appeals following the revocation of his probation. On

      appeal, he argues that he was denied due process because the trial court was

      biased against him and that the trial court abused its discretion in ordering him

      to serve the remainder of his previously suspended sentence in the Department

      of Correction.


[2]   We affirm.


                                       Facts & Procedural History


[3]   In January 2007, Eshelman pled guilty to Class B felony burglary and was

      sentenced to fifteen years, with thirteen years suspended to probation.

      Eshelman was released to probation in September 2007, and by January 7,

      2008, a request for a probation violation hearing was filed alleging that

      Eshelman had tested positive for cannabinoids, cocaine, and opiates. The

      request was later amended to include allegations that Eshelman had committed

      a number of new offenses, including Class C felony robbery and Class B

      misdemeanor battery in December 2007, as well as charges relating to a high-

      speed police chase occurring in Ohio in March 2008. Eshelman ultimately pled

      guilty to the robbery charge and admitted to violating probation. He was

      sentenced to eight years executed on the new robbery charge and four years of

      his previously suspended sentence was revoked.


[4]   Eshelman was again released to probation in September 2015. In May 2016,

      another request for probation violation hearing was filed alleging that Eshelman

      had again committed new offenses. Specifically, Eshelman had been charged

      Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017   Page 2 of 6
      with two counts of Level 5 felony criminal confinement and one count of Class

      A misdemeanor theft. The incident on which the request was based involved

      Eshelman stealing his girlfriend’s cell phone and confining her and her eleven-

      year-old daughter to his car without their consent. Following a hearing, the

      trial court found that Eshelman had violated his probation and ordered him to

      serve the remaining nine-year balance of his previously suspended sentence.

      Eshelman now appeals.


                                          Discussion & Decision


[5]   We review a trial court’s sentencing decision in a probation revocation

      proceeding for an abuse of discretion. Jones v. State, 838 N.E.2d 1146, 1148

      (Ind. Ct. App. 2005). An abuse of discretion occurs if the decision is against the

      logic and effect of the facts and circumstances before the court. Prewitt v. State,

      878 N.E.2d 184, 188 (Ind. 2007). Moreover, “[o]nce a trial court has exercised

      its grace by ordering probation rather than incarceration, the judge should have

      considerable leeway in deciding how to proceed.” Id. “If the court finds the

      defendant has violated a condition of his probation at any time before the

      termination of the probationary period, and the petition to revoke is filed within

      the probationary period, then the court may order execution of the sentence

      that had been suspended.” Gosha v. State, 873 N.E.2d 660, 664 (Ind. Ct. App.

      2007); see also Ind. Code § 35-38-2-3(h).


[6]   Moreover, “probation is a favor granted by the State, not a right to which a

      criminal defendant is entitled.” Cox v. State, 850 N.E.2d 485, 488 (Ind. 2006).


      Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017   Page 3 of 6
      Nevertheless, once the State grants that favor, it cannot revoke the privilege at

      its discretion. Id. Because probation implicates a defendant’s liberty interest,

      he is entitled to some procedural due process before probation is revoked. Id.

      However, because probation revocation deprives a defendant of only a

      conditional liberty, he is not entitled to the full panoply of due process rights

      afforded in a criminal proceeding. Id. The minimum due process requirements

      in a probation hearing include, among other things, a hearing before a neutral

      and detached hearing body. Id.


[7]   Eshelman claims that he was deprived of due process because the trial court

      was biased against him. In Indiana, the law presumes that a judge is unbiased

      and unprejudiced. Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002). To rebut

      this presumption, a defendant must establish from the judge’s conduct actual

      bias or prejudice that placed the defendant in jeopardy. Id. “Such bias and

      prejudice exists only where there is an undisputed claim or where the judge

      expressed an opinion of the controversy over which the judge was presiding.”

      Id. “‘To assess whether the judge has crossed the barrier into impartiality, we

      examine both the judge’s actions and demeanor.’” Perry v. State, 904 N.E.2d

      302, 307-08 (Ind. Ct. App. 2090) (quoting Timberlake v. State, 690 N.E.2d 243,

      256 (Ind. 1997)). Neither adverse rulings nor the imposition of the maximum

      possible sentence will support a claim of judicial bias. Tharpe v. State, 955

      N.E.2d 836, 839 (Ind. Ct. App. 2011); Smith, 770 N.E.2d at 823.


[8]   Eshelman argues that the trial court was biased because it “improperly relied on

      previous criminal history and his prior violation in determining his

      Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017   Page 4 of 6
      revocation[.]” Appellant’s Brief at 11. This argument is meritless. There is

      nothing improper about a trial court considering such matters in determining

      the appropriate sanction for a probation violation. Eshelman also argues that

      the trial court expressed bias in its written order revoking Eshelman’s probation

      for the first time in 2009 and in its statements during the hearing on this

      revocation. Specifically, in its 2009 order, the trial court expressed its belief that

      the entire thirteen-year suspended sentence should be revoked, but stated that it

      was “reluctantly” accepting the State’s recommendation and revoking only four

      years. Appellant’s Appendix Vol. 2 at 152. Additionally, when imposing

      sanctions for the current probation violation, the trial court made the following

      statements: “Nine (9) years will be revoked. That is based upon the history

      that you have before this Court and other Courts Mr. Eshelman. It is a

      sentenced [sic] you have earned, frankly you’ve previously earned it and now

      you’re going to receive it.” Transcript at 139. According to Eshelman, these

      statements indicate that the trial court “intended to revoke Eshelman’s entire

      suspended sentence no matter what evidence was presented.” Appellant’s Brief

      at 12.


[9]   We are unpersuaded. There is simply nothing about these statements that leads

      us to the conclusion that the trial court was biased against Eshelman. As to the

      2009 order, we note that the trial court was not bound by the State’s

      recommendation at that time—it was free to revoke the entirety of Eshelman’s

      sentence. That it chose not to do so despite its misgivings is certainly not

      indicative of bias. Furthermore, the trial court’s statements at the hearing on


      Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017   Page 5 of 6
       the current probation revocation articulate the court’s reasoning for imposing

       the entirety of the previously suspended sentence—Eshelman had been shown

       considerable lenience in the past and nevertheless reoffended. The trial court’s

       reasoning in this regard was sound and in no way suggestive of bias.


[10]   Eshelman also argues that the trial court’s decision to revoke the entire nine-

       year balance of his previously suspended sentence was an abuse of discretion.

       In support, he directs our attention to his own testimony that he was gainfully

       employed, had a family support system, and had earned an associate’s degree.

       He also points to testimony that he completed multiple “life changing”

       programs while in prison. Id. at 12. None of this, however, has prevented

       Eshelman from reoffending. On two separate occasions, Eshelman has violated

       his probation in this case by committing new felony offenses within less than a

       year of his release from incarceration. In sum, Eshelman has demonstrated that

       he is a poor candidate for probation, and revocation of his entire sentence was

       appropriate.


[11]   Judgment affirmed.


[12]   Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 15A04-1703-CR-476 | August 9, 2017   Page 6 of 6
