Court of Appeals of Indiana | Memorandum Decision 34A02-1711-CR-2599 | August 3, 2018 Page 1 of 13

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.

ATTORNEY FOR APPELLANT

Derick W. Steele

Deputy Public Defender

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

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 INDIANA

Michael E. Wisehart,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 3, 2018

Court of Appeals Case No.

34A02-1711-CR-2599

Appeal from the Howard Superior 

Court

The Honorable William C. 

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 reentry 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 reentry 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 ReEntry, 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 ReEntry 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.