Michael E. Wisehart v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 03 2018, 8:45 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steele Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael E. Wisehart, August 3, 2018
Appellant-Defendant, Court of Appeals Case No.
34A02-1711-CR-2599
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable William C.
Appellee-Plaintiff. Menges, Jr., Judge
Trial Court Cause No.
34D01-0909-FA-794
Najam, Judge.
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Statement of the Case
[1] Michael E. Wisehart appeals the trial court’s revocation of his probation. He
raises two issues for our review, which we reorder and restate as follows:
1. Whether the trial court abused its discretion when it
revoked his probation because the trial court had failed to
notify him of the terms of his probation.
2. Whether the trial court abused its discretion when it
ordered him to serve the balance of his previously
suspended sentence.
[2] We affirm.
Facts and Procedural History
[3] On September 1, 2009, the State charged Wisehart with eight counts of various
drug-related offenses. Subsequently, Wisehart pleaded guilty to one count of
dealing in methamphetamine, as a Class B felony; one count of possession of a
controlled substance, as a Class D felony; and one count of possession of
marijuana, as a Class D felony. The trial court accepted Wisehart’s guilty plea
and sentenced him to an aggregate term of twenty-six years, with eighteen years
executed in the Department of Correction and eight years suspended to
supervised probation.
[4] In early 2016, Wisehart petitioned the trial court to modify his sentence based
on the fact that he had completed the equivalent of more than fourteen years of
his sentence and that he had completed several rehabilitation and education
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classes. After a hearing, the court ordered that Wisehart be evaluated for the re-
entry program and took the matter under advisement. An individual with the
New Castle Correctional Facility evaluated Wisehart and created a report.
According to that report, which Wisehart signed, Wisehart was also serving a
twenty-year sentence for sexual misconduct with a minor, as a Class B felony,
while he was serving his sentence for the instant drug offenses. The report also
listed all of the programs that Wisehart had completed while incarcerated.
[5] Thereafter, on April 6, the trial court issued an order in which it: amended
Wisehart’s sentence; ordered that he be released from the Department of
Correction on August 3; and approved his participation in the community
transitions program. As a specific condition of the community transitions
program, the court ordered Wisehart to successfully complete a re-entry
program. On April 13, the parties signed a re-entry program participation
agreement.
[6] Some thirteen months later, on May 10, 2017, Wisehart’s probation officer
notified the State that the re-entry program intended to terminate Wisehart’s
participation because Wisehart had engaged in a sexual relationship with
another participant of the program and then lied about it. The trial court held a
hearing on the notice of termination from the re-entry program. During that
hearing, Wisehart admitted that he had violated the terms and conditions of the
re-entry program. The trial court accepted his admission and terminated him
from the program.
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[7] The State then filed a petition to revoke Wisehart’s probation. In the petition,
the State alleged that Wisehart had violated the terms of his probation when he
failed to complete the re-entry program. On October 12, the trial court held a
hearing on the State’s petition. During the hearing, Wisehart testified that he
had previously admitted to a sexual relationship with another participant that
“[he] knew [he] wasn’t supposed to” engage in. Tr. Vol. II at 31. Wisehart’s
probation officer testified that Wisehart was required to complete the re-entry
program as a condition of his placement but that he did not complete the
program. Wisehart’s probation officer further testified that Wisehart
understood the rules that he was required to follow.
[8] The trial court found that Wisehart had violated the terms of his probation and
proceeded to hear evidence concerning sentencing. Wisehart called the other
program participant with whom Wisehart had the sexual relationship as a
witness. The other program participant testified that she had also admitted to
violating the terms of her re-entry program when she had sexual contact with
Wisehart. Wisehart’s sexual partner further testified that, as a result of her
violation, she spent the weekend in jail and was then placed back into the re-
entry program.
[9] Wisehart called several other individuals as witnesses who testified as to his
character, his work ethic, and his regular attendance in recovery programs.
Wisehart also testified during the hearing. Wisehart testified that he had not
received any demerits or had any issues during his incarceration, that he had
received promotions at his job, and that he had not had any trouble with the
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law since his release. Wisehart attempted to give mitigating testimony
regarding the violation of the drug re-entry program, but the trial court did not
allow the testimony. Specifically, the following dialogue occurred between
Wisehart and his attorney, Mr. Curtis:
[MR. CURTIS]: And so in terms of what we’re here about today
is in regard to a violation of rules and you did have a relationship
with [the other program participant], is that correct?
[Wisehart]: I did.
[MR. CURTIS]: Ok. And you weren’t totally forthcoming with
[your probation officer], is that right?
[Wisehart]: That’s right.
[MR. CURTIS]: Tell the Judge about that.
[Wisehart]: Well,—
THE COURT: Mr. Curtis, we’ve already indicated—
MR. CURTIS: That’s fine.
THE COURT: We’re not going to go into the reasons for the
termination from Re-Entry.
MR. CURTIS: I understand.
Id. at 51-52.
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[10] At the conclusion of the hearing, the trial court found as follows:
As I indicated earlier, I think we have to take into consideration
individual character and circumstances of the Defendant not to,
to other people who were involved. Mr. Wisehart went to
prison, convicted of Dealing in Methamphetamine, and what the
Court was unaware of or had forgotten . . . when he came back
to the Re-Entry Program they said he was also serving time as a
child molester and what we have is behavior, while he’s on Re-
Entry, is he continues to be a sexual predator and he lies about
it[.]
Id. at 58. Accordingly, the trial court revoked Wisehart’s probation and
ordered him to serve the balance of his previously-suspended sentence. This
appeal ensued.
Discussion and Decision
Issue One: Probation Revocation
[11] Wisehart first contends that the trial court abused its discretion when it revoked
his probation because it failed to provide Wisehart with written or oral rules of
probation. “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. 2007). “‘Probation is a criminal sanction wherein a convicted
defendant specifically agrees to accept conditions upon his behavior in lieu of
imprisonment.’” McCarty v. State, 94 N.E.3d 350, 352 (Ind. Ct. App. 2018)
(quoting Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013)). “The
decision to grant probation is a matter within the sound discretion of the trial
court.” Seals v. State, 700 N.E.2d 1189, 1190 (Ind. Ct. App. 1998). “An abuse
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of discretion occurs when the decision is clearly against the logic and effect of
the facts and circumstances before it, or the reasonable, probable, and actual
deductions to be drawn therefrom.” McCarty, 94 N.E.3d at 353. “The court
determines the conditions of probation and may revoke probation if the
conditions are violated.” Seals, 700 N.E.2d at 1190.
[12] Indiana Code Section 35-38-2-2.3(b)(1) provides that “[w]hen a person is placed
on probation, the person shall be given a written statement specifying . . . the
conditions of probation[.]” “The intent behind Indiana Code section 35-38-2-
2.3 is ‘to provide a defendant with prospective notice of the standard of conduct
required of him or her while on probation and to prohibit the imposition of
additional conditions after sentencing.’” McCarty, 94 N.E.3d at 353 (quoting
Kerrigan v. State, 540 N.E.2d 1251, 1252 (Ind. Ct. App. 1989)).
[13] Wisehart specifically asserts that the trial court failed to provide him with
written terms of his probation and that “[n]othing in the record indicates that
Wisehart acknowledged that he understood the conditions of his probation.”
Appellant’s Br. at 11. He further asserts that because the trial court revoked his
probation “based upon the violation of a term of probation that was not
included in any writing provided to Wisehart at the time of his modification,
nor recorded orally on the record with an acknowledgment by Wisehart that he
understood the terms of probation,” he should be returned to the Howard
County Probation Department. Appellant’s Br. at 12.
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[14] But Wisehart did receive written notice of the conditions of his probation,
including the specific condition that he complete the re-entry program. When
the trial court originally sentenced Wisehart after he had pleaded guilty, the
sentencing order contained the following condition: “As specific conditions of
probation, the Defendant is Ordered to successfully attend, complete and pay
for the Howard County Drug and Alcohol Program . . . .” Appellant’s App.
Vol. II at 63. And, after Wisehart had filed a petition to modify his sentence,
the trial court issued another order that stated: “As a specific condition of the
Community Transition Program and Probation, the Defendant is ordered to
successfully complete, and make satisfactory arrangements to pay for, the
Howard County Re-Entry Program.” Id. at 77. As such, the trial court twice
notified Wisehart in written orders that he was required to successfully
complete the re-entry program as a condition of his probation.1 Because the
trial court provided written notice to Wisehart that he was required to complete
the re-entry program as a specific condition of his probation and because
Wisehart violated that condition when he failed to complete the re-entry
program, the trial court did not abuse its discretion when it revoked Wisehart’s
probation.
1
Wisehart does not contend that the trial court failed to provide him with written notice of the conditions of
the re-entry program. Further, Wisehart admitted during the hearing on the petition to revoke his probation
that he knew he “wasn’t supposed to” engage in a sexual relationship with another re-entry program
participant. Tr. Vol. II at 31.
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Issue Two: Sentence
[15] Wisehart next asserts that the trial court abused its discretion when it ordered
him to serve the balance of his previously-suspended sentence. “A trial court’s
sentencing decisions for violations of probation are reviewed for an abuse of
discretion.” Figures v. State, 920 N.E.2d 267, 273 (Ind. Ct. App. 2010) (citing
Prewitt, 878 N.E.2d at 188). “An abuse of discretion occurs where the trial
court’s decision is clearly against the logic and effects of the facts and
circumstances. Id. Specifically, Wisehart contends that the trial court abused
its discretion when it sentenced him because it did not allow him to present
mitigating evidence and because he received a harsher sentence than his sexual
partner. We address each argument in turn.
Mitigating Evidence
[16] Wisehart asserts that the trial court abused its discretion when it sentenced him
because it did not allow him to present mitigating evidence to explain why his
violation should not result in the revocation of his probation. It is well settled
that “even a probationer who admits the allegations against him must still be
given an opportunity to offer mitigating evidence suggesting that the violation
does not warrant revocation.” Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).
[17] Here, during the hearing on the petition to revoke his suspended sentence,
Wisehart attempted to testify about the violation of the drug re-entry program,
but the trial court interrupted and stated that the court was “not going to go into
the reasons for the termination from Re-Entry.” Tr. Vol. II at 52. Accordingly,
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Wisehart contends that “the trial court intervened and prevented questioning on
the facts and circumstances leading up to the termination from Re-Entry Court”
and, thus, he was not given an opportunity to explain why his violation should
not have resulted in the revocation of his probation. Appellant’s Br. at 8. We
agree.
[18] By denying Wisehart this opportunity, the trial court erred. See Woods, 892
N.E.2d at 641. However, on this record, Wisehart is not entitled to relief.
To reverse a trial court’s decision to exclude evidence, there must
have been error by the court that affected the defendant’s
substantial rights and the defendant must have made an offer of
proof or the evidence must have been clear from the context.
This offer to prove is necessary to enable both the trial court and
the appellate court to determine the admissibility of the
testimony and the prejudice which might result if the evidence is
excluded. The purpose of an offer of proof is to convey the point
of the witness’s testimony and provide the trial judge the
opportunity to reconsider the evidentiary ruling. Equally
important, it preserves the issue for review by the appellate court.
Id. at 641-42 (citations and quotation marks omitted).
[19] While the trial court did not allow Wisehart to explain why his violation should
not result in the revocation of his probation, Wisehart did not make an offer of
proof to the court. He did not explain how he would have testified and, as
such, he did not explain how his testimony could have affected the outcome,
especially given the fact that Wisehart still presented other mitigating evidence
in the form of his testimony and the testimony from several people who
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described his work ethic and his character. Because Wisehart did not make an
offer of proof, he has not preserved the issue for our review. See id. at 642.
Disparate Sentence
[20] Wisehart next contends that the trial court abused its discretion when it ordered
him to serve the remainder of his previously-suspended sentence. Specifically,
he argues that the trial court abused its discretion when it sentenced him to the
full balance of his term because his sexual partner was only “sanctioned and
returned to the Re-Entry Court program without further punishment” and that
there was “no discernable difference between the violation committed by [her]”
and the violation that Wisehart had committed. Appellant’s Br. at 9. Wisehart
acknowledges that the “disparate treatment alone is not clearly an abuse of
discretion[.]” Id. at 10. But, he asserts that the disparate treatment “coupled
with the numerous achievements Wisehart had made during his time in the Re-
Entry Court Program” demonstrates that the trial court abused its discretion.
Id. We cannot agree.
[21] It is well settled that, if the court finds that a person has violated a condition
probation, the court may “[o]rder execution of all or part of the sentence that
was suspended at the time of initial sentencing.” Ind. Code. § 35-38-2-3(h)(3)
(2018). And, again, “[a] trial court’s sentencing decisions for violations of
probation are reviewed for an abuse of discretion.” Figures, 920 N.E.2d at 273.
[22] Even though Wisehart received a different sanction than his sexual partner, we
cannot say that the trial court abused its discretion when it ordered him to serve
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the balance of his previously suspended sentence. We initially note that
Wisehart has not presented any evidence regarding the original crime that his
sexual partner committed, the length of her original sentence, or her behavior
while incarcerated or while on probation. As such, we cannot speculate as to
why his sexual partner was returned to the re-entry program after she had
admitted to violating the rules.
[23] But, here, the trial court sentenced Wisehart to the balance of his suspended
sentence based on several factors, including the fact that Wisehart was initially
sentenced to an aggregate term of eighteen years executed after he had pleaded
guilty to several drug-related offenses, including dealing in methamphetamine,
as a Class B felony. Additionally, the trial court considered the fact that
Wisehart had previously been convicted of a sex offense and that the instant
violation of the re-entry rules involved another incident of inappropriate sexual
conduct. As a result, the trial court found that Wisehart “presents a danger to
our society” and sentenced him to the balance of his sentence. Tr. Vol. II at 58.
Based on those factors, we cannot say that the trial court abused its discretion
when it sentenced Wisehart to serve the balance of his previously-suspended
sentence.2 We affirm the trial court’s order.
2
While the trial court only relied on the above-mentioned violations when it sentenced Wisehart to serve the
balance of his sentence, the record indicates that Wisehart committed other minor violations when he twice
missed calling in for a drug test, when he failed to bring meeting slips to the trial court, when he missed a
scheduled meeting, when he approached the Assistant Chief Probation Officer at church about probation
rules, and when he had a protective order filed against him.
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[24] Affirmed.
Crone, J., and Pyle, J., concur.
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