Court of Appeals of Indiana | Memorandum Decision 34A02

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
A TTORNEY FOR A PPELLANT Derick W. Steele Deputy Public Defender Kokomo, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIA NA

Michael E. Wisehart , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. August 3, 2018 Court of Appeals Case No. 34A02

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- 2599 Appeal from the Howard Superior Court The Honorable William C. Menges, Jr. , Judge Trial Court Cause No. 34D01

- 0909

- FA

- 794

Najam , Judge .Court of Appeals of Indiana | Memorandum Decision 34A02

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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 serv e 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 aggrega te term of twenty
- six years, with eighteen years executed in t he 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 educationCourt of Appeals of Indiana | Memorandum Decision 34A02

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classes

. After a hearing, t he 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 insta nt drug offenses. The report also listed all of the programs that Wisehart had completed while incarcerated

.
[5] Thereafter, on April 6, t he trial court issued an order in which it: amended Wi sehart’s sent ence; ordered that he be released from the Department of Correction on August 3 ; and approved his participation in the community transitions p rogram. 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, o n May 10, 2017, Wisehart’s probation of ficer notified the State that the re - entry program intended to term inate Wisehart’s participation because Wisehart had engaged in a sexual relationship with another participant of the program and then lied about it. T he trial court held a hearing on the notice of termination from the re

- entry program. During that hearin g, 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.Court of Appeals of Indiana | Memorandum Decision 34A02

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[7] T he 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 requ ired 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 hi s 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 th e 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 no t received any demerits or had any issues during his incarceration, that he had received promotions at his job, and that he ha d not had any trouble with theCourt of Appeals of Indiana | Memorandum Decision 34A02

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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 ri ght. [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.Court of Appeals of Indiana | Memorandum Decision 34A02

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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 individua l character and circumstances of the Defendant not to, to other people who were involved. Mr. W isehart 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 h e’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. 

### Discussi on 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 grac e 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 hi s 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

c ourt.” Seals v. State , 700 N.E.2d 1189, 1190 (Ind. Ct. App. 1998). “An abuseCourt of Appeals of Indiana | Memorandum Decision 34A02

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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

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- 2.3(b)(1) provides that “[w]hen a person i s placed on probation, the person shall be given a written statement specifying . . . t he conditions of probation[.]” “The intent behind Indiana Code section 35

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- 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.’” McCar ty , 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]ot h ing in the record indicates that Wis ehart 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 pro vided 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.Court of Appeals of Indiana | Memorandum Decision 34A02

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[14] Bu t 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 containe d the following condition: “As specific condition s of probation, the Defendant is Ordered to successfully attend, complete and pay for the Howard Co unty Drug and Alcohol Program . . . . ” Appellant’s App. Vol. II at 63. And, after Wisehart had filed a pe tition 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 writ ten notice to Wisehart that he was required to complete the re

- entry program as a specific condition of hi s 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 revoke d 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 duri ng 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.Court of Appeals of Indiana | Memorandum Decision 34A02

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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 d id 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 b ecause 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 opportu nity 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, d uring 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. Vo l. II at 52. Accordingly ,Court of Appeals of Indiana | Memorandum Decision 34A02

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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.
T o reverse a trial court’s de cision 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 resu lt if the evidence is excluded. The purpose of an offer of proof is to convey the point of the witness’s testimony an d provide the trial judge the opportunity to rec onsider 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 Wise hart 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 d id not explain how he would have testified and, a s such, he did not explain how his testimony c ould have affe cted the outcome, especially given the fact that Wisehart still presented other mitigating evidence in the form o f his testimony and the testimony from several people whoCourt of Appeals of Indiana | Memorandum Decision 34A02

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described his work ethic and his character. Because Wisehart did not make an offer o f proof, he has not preserved the issue for our review. See i d . 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 discern able 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 assert s t hat 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 f inds 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

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- 3(h)(3) (2018). And, again, “[a] trial court’s sentencing d ecisions 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 serveCourt of Appeals of Indiana | Memorandum Decision 34A02

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the balance of his previously suspended sentence. We init ially 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 incar cerated 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

sen tence based on several factors , including the fact that W isehart was initially sentenced to an aggregate term of eighteen years executed after he had pleaded guilty to several drug

- related offenses , includ ing dealing in methamphetamine, as a Class B felony. A dditionally, 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 inappropriat e sexual conduct. As a result , the trial court found that Wisehart “presents a danger to

our society” and sentenced hi m to the balance of his sentence. Tr. Vol. II at 58

. Based on those factors, w e cannot say that th e trial court abuse d its discretion

w hen 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.Court of Appeals of Indiana | Memorandum Decision 34A02

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[24] Affirmed.
Crone, J., and Pyle, J., concur

.