FILED
Jan 11 2017, 6:09 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony D. Hutson Curtis T. Hill
Jeffersonville, Indiana Attorney General of Indiana
Marjorie E. Newell
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dominique Castillo, January 11, 2017
Appellant-Defendant, Court of Appeals Case No.
31A01-1604-CR-742
v. Appeal from the Harrison Superior
Court.
The Honorable Joseph L. Claypool,
State of Indiana, Judge.
Appellee-Plaintiff. Cause No. 31D01-1408-F5-472
Sharpnack, Senior Judge
Statement of the Case
[1] The trial court revoked the probation of Dominique Castillo and ordered that
he serve the whole of his suspended sentence. He appeals contending that the
trial court violated his due process rights because it did not explain why it
ordered him to serve his entire suspended sentence. He also claims that because
the trial court did not explain its choice, it is possible that it may have
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considered inappropriate testimony. He requests that we “reverse the trial
court’s order revoking his suspended sentence and remand for an additional
hearing to address the appropriate sanction for his violation of probation after
which the trial court should issue a statement of its reasons for its decision.”
Appellant’s Reply Br. p. 7. We affirm.
Issues
[2] Castillo raises one issue, which we expand and restate as:
I. Whether Castillo was denied due process because the trial
court did not state specific reasons for ordering the execution of
all of the sentence, two and one-half years, that was suspended at
the time of his original sentencing; and
II. Whether because the trial court did not state specific reasons
for the sanction, the trial court may have considered some
evidence it should not have.
Facts and Procedural History
[3] On May 27, 2015, Castillo pleaded guilty to sexual misconduct with a minor, a
1
Level 5 felony, for having sexual intercourse with a fourteen-year-old female
victim. He was sentenced to four years in the Indiana Department of
Correction (IDOC), with two and one-half years suspended to probation and
one and one-half years served. As a condition of his probation, Castillo was
1
Ind. Code § 35-42-4-9(a) (2014).
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prohibited from having contact with persons under the age of eighteen, unless
authorized by his probation officer, and from living within one mile of the
victim.
[4] Castillo was released from the IDOC on October 22, 2015. The next day, he
contacted the Harrison County Probation Department. He first met with the
sex offender officer, and later with his probation officer. He told the officers
that since his release he had been living with his mother, that his mother made
him leave her house because he insisted on visiting his seventeen-year-old
girlfriend, and that he currently was living with his girlfriend and her family.
The girlfriend’s brother, who was fourteen years old, also lived in the house,
which was located within one mile of the home of Castillo’s victim in his sexual
misconduct case. The officers each reminded Castillo of the terms of his
probation and told him to move out of the house immediately. Castillo
contacted his probation officer the next morning and told her he was living at a
new address.
[5] The following day, the officers drove to the new address to visit with Castillo.
On the way, they passed the girlfriend’s house and saw Castillo standing in the
yard. Castillo then went inside the residence. The officers stopped at the
residence and confronted Castillo, who admitted he had stayed overnight.
[6] Probation revocation proceedings commenced. At the revocation hearing,
Castillo admitted to living at his girlfriend’s house in violation of the terms of
his probation. On March 9, 2016, the trial court issued its order finding that
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Castillo had violated the terms of his probation and ordering him to serve his
entire two and one-half years suspended sentence, saying:
Well[,] the Court finds that Dominique through his own
testimony has violated the conditions of probation so the State
has proved their case well beyond a preponderance of the
evidence and he also [sic] one of the terms of those conditions
that he violated is to have no contact with persons under the age
of eighteen unless authorized by a probation officer and he’s
supposed to tell a probation office when you do that before you
do that, face to face and he admitted again to going into a
person’s home and living [sic] that home for [sic] a woman under
– seventeen years of age and a younger brother at that time so
therefore, the Court is revoking your probation. We’re going to
revoke his probation for the two and a half years that was on the
shelf and I’m hearing the testimony of both sides in this matter. I
think that he has blatantly violated the terms and conditions here
and he is going to be revoked for the two and a half years.
Tr. pp. 54-55. Castillo now appeals.
Discussion and Decision
[7] Castillo argues that his due process rights were violated because the trial court
did not provide a statement of reasons why it ordered him to serve his
previously suspended sentence instead of “other available alternatives.”
Appellant’s Br. p. 9. Castillo also contends the trial court abused its discretion
when it revoked his probation and ordered him to serve his previously
suspended sentence because it may have considered inappropriate testimony.
[8] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
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2007). “The trial court determines the conditions of probation and may revoke
probation if the conditions are violated.” Prewitt, 878 N.E.2d at 188; see also,
Ind. Code § 35-38-2-3 (2015). If the court finds that the person has violated a
condition at any time before termination of the probation period, and the
petition to revoke is filed within the probationary period, the court may impose
one or more sanctions, including ordering execution of all or part of the
sentence that was suspended at the time of initial sentencing. Ind. Code § 35-
38-2-3(h) (2015). A trial court’s decision for imposing sanctions for probation
violations is reviewable using the abuse of discretion standard. See Prewitt, 878
N.E.2d at 188; see also, Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App.
2005) (trial court’s sentencing decision in probation revocation proceeding is
reviewed for abuse of discretion), trans denied. “An abuse of discretion occurs
where the decision is clearly against the logic and effect of the facts and
circumstances.” Prewitt, 878 N.E.2d at 188.
I.
[9] Castillo first argues that his due process rights were violated because the trial
court failed to give a statement of reasons explaining why it ordered him to
serve his previously suspended sentence.
[10] In support of his argument, Castillo relies on Medicus v. State, 664 N.E.2d 1163
(Ind. 1996), for the proposition that due process requires a statement of the trial
court’s reasons for ordering the execution of a suspended sentence. Castillo’s
reliance on Medicus is misplaced. Medicus addresses the due process
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requirements for revocation of probation, not for ordering sanctions following
revocation of probation.
[11] In Medicus, our Supreme Court set forth the procedural and substantive due
process rights of probationers facing a revocation of probation, which include 1)
written notice of the claimed violations; 2) disclosure of the evidence against the
defendant; 3) the opportunity to be heard and to present witnesses and
evidence; 4) a limited right to confront and cross-examine witnesses; 5) a
neutral and detached factfinder; and 6) a written statement of the reasons for
revocation. Id. at 1164 (citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct.
2593, 2604, 33 L. Ed. 2d 484 (1972), where the United States Supreme Court
applied the Due Process Clause to parole revocation hearings and stated the
minimum requirements of a parole revocation hearing, including the written
statement requirement). Our Supreme Court in Medicus held that the trial
court’s statement that “the defendant has violated his terms of probation” failed
to satisfy the written statement requirement set forth in Morrissey, and remanded
the case to the trial court for a probation revocation statement consistent with
the due process requirement. Medicus, 664 N.E.2d at 1164, 1165.
[12] Medicus, citing Black v. Romano, 471 U.S. 606, 105 S. Ct. 2254, 85 L. Ed. 2d 636
(1985), requires a written statement of reasons for probation revocation.
Medicus does not directly address any requirement that specific reasons must be
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2
given for the sanction that is imposed upon revocation. Here, the trial court
provided a sufficiently clear statement of its reasons for revoking Castillo’s
probation to satisfy the Morrissey due process statement requirement. Black
agreed that a statement of reasons for revocation is required, but that no specific
statement regarding consideration of alternative sanctions is required. See Black,
471 U.S. at 612 (“One point relevant to the present case is immediately evident
from a review of the minimum procedures set forth in some detail in Gagnon[ ]
3
and Morrissey: the specified procedures do not include an express statement by
the factfinder that alternatives to incarceration were considered and rejected.”).
[13] This court has held that a detailed sentencing statement following revocation of
probation is not required when reinstating a portion of an already imposed
sentence, and that a written statement indicating the trial court, following a
probation revocation, considered alternatives to incarceration is not necessary.
See Berry v. State, 904 N.E.2d 365, 366 (Ind. Ct. App. 2009); Monday v. State, 671
N.E.2d 467, 469 (Ind. Ct. App. 1996) (citing Black, 471 U.S. 606). We
conclude there is no due process requirement for a specific statement of reasons
for the sanction imposed following revocation of probation.
2
Upon revocation of probation, the trial court may impose any one or more 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 year beyond the original probationary period; and (3)
order execution of all or part of the sentence that was suspended at the time of initial sentencing. Ind. Code §
35-38-2-3(h) (2015).
3
Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).
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[14] Regarding whether the trial court abused its discretion when it imposed the
sanction, we find it did not. At the conclusion of Castillo’s probation
revocation hearing, the court reiterated that under the terms of his probation,
Castillo was prohibited from having contact with persons under the age of
eighteen, unless authorized by his probation officer. The court noted that
Castillo testified that he was living with his seventeen-year-old girlfriend and
her younger brother without authorization, and was in violation of the terms of
his probation. The trial court indicated that it had heard testimony from both
the State and Castillo, and that it found Castillo violated his probation because
he admitted to doing so “through his own testimony.” Tr. p. 54. The court
also determined that Castillo’s violation of his probation was blatant. Given
Castillo’s blatant disregard for the terms of his probation, the trial court was
well within its discretion to sanction him by ordering him to serve his
previously suspended sentence.
II.
[15] Castillo next argues the trial court may have abused its discretion in the
revocation process. He suggests that because the trial court did not state
specific reasons for the sanction, the trial court may have considered
inappropriate testimony when it sentenced him to serve his previously
suspended sentence. In support of his argument, Castillo asserts that sex
offenses, of the type he committed, “evoke strong opinions and reactions and it
is especially important to ensure that only proper factors are considered in
sentencing.” Appellant’s Br. p. 10. Castillo points to his probation officer’s
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testimony that he was not “an appropriate candidate for probation,” and
evidence at trial of his “[going] against [his mother’s] wishes” when he left her
house to live with his girlfriend. Tr. pp. 28, 45. Castillo argues that
consideration of the nature of his underlying offense, the officer’s opinion, and
the evidence regarding his mother’s wishes might be akin to the error that
occurred in Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011). In Puckett,
we held that a special judge in the defendant’s probation revocation hearing had
“consider[ed] multiple improper factors” in choosing a sanction, such as:
whether the original plea accepted by the original trial judge was too lenient,
finding the defendant committed a more serious crime than the one of which he
was convicted, and the special judge’s personal beliefs. See Puckett, 956 N.E.2d
at 1187-89.
[16] The facts of this case are distinguishable from Puckett. Here, there is no
suggestion that the trial judge may have been trying to make up for an initial
sentence he considered inadequate.
[17] Castillo’s argument, by his own admission, is “pure speculation because”
according to Castillo “there is [no statement] from which the trial court’s
rationale [in choosing a sanction] can be discerned.” Appellant’s Br. p. 11.
However, we already have determined the trial court was not required to
provide specific reasons for imposing the sanction. We are unpersuaded the
trial court may have considered inappropriate testimony. No abuse of
discretion occurred here.
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Conclusion
[18] For the reasons stated above, the judgment of the trial court is affirmed.
[19] Affirmed.
Riley, J., and Mathias, J., concur.
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