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
Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 1 of 9
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.
Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 2 of 9
[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
Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 3 of 9
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
Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 4 of 9
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
Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 6 of 9
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
Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 8 of 9
“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.
Court of Appeals of Indiana | Memorandum Decision 48A05-1511-CR-1896 | September 9, 2016 Page 9 of 9