Court of Appeals of Indiana | Memorandum Decision 19A-CR-2334 | April 15, 2020 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

Adam C. Squiller

John M. Haecker

Squiller & Hamilton, LLP

Auburn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Sierra A. Murray

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Matthew A. Sokolowski,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

April 15, 2020

Court of Appeals Case No.

19A-CR-2334

Appeal from the DeKalb Superior 

Court

The Honorable Monte L. Brown, 

Judge

Trial Court Cause No.

17D02-1706-F5-39

May, Judge.

[1] Matthew A. Sokolowski appeals the revocation of his probation. He raises four 

issues for our review, which we reorder and restate as: (1) whether a condition 
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of Sokolowski’s probation was unconstitutionally vague; (2) whether the trial 

court abused its discretion in admitting hearsay evidence; (3) whether the State 

presented sufficient evidence that Sokolowski violated a condition of probation; 

and (4) whether Sokolowski was given an opportunity to present mitigating 

evidence. We affirm.

Facts and Procedural History1

[2] On August 27, 2018, pursuant to a plea agreement, Sokolowski pled guilty to 

child exploitation, a Level 5 felony,2 and the trial court imposed a five-year 

sentence, all suspended to probation except for time already served. As a 

condition of his probation, Sokolowski was required to abide by several of the 

Indiana Special Probation Conditions for Adult Sex Offenders. Condition Ten

(“Condition Ten”) stated:

You shall attend, actively participate in and successfully 

complete a Court-approved sex offender treatment program as 

directed by the Court. Prompt payment of any fees is your 

responsibility and you must maintain steady progress towards all 

treatment goals as determined by your treatment provider. 

1 Indiana Rule of Appellate Procedure 46(A)(6) provides that an appellant’s brief “shall describe the facts 

relevant to the issues presented for review but need not repeat what is in the statement of the case [and the]

statement shall be in a narrative form and shall not be a witness by witness summary of the testimony.”

(emphasis added). Sokolowski’s statement of the facts states only, “Additional facts will be supplied in the 

argument section below.” (Appellant’s Br. at 5.) This Statement of the Facts is insufficient. It is not in 

narrative form, and it utterly fails to provide information and context regarding the underlying events. This 

inhibits our review. We remind appellant’s counsel that briefs must comply with the Indiana Rules of 

Appellate Procedure. 

2 Ind. Code § 35-42-4-4.
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Unsuccessful termination from treatment or non-compliance 

with other required behavioral management requirements will be 

considered a violation of your probation. You will not be 

permitted to change treatment providers unless the Court gives 

you prior written approval.

(App. Vol. II at 138.) Sokolowski initially began serving his probation in 

DeKalb County, but the court transferred his probation to Elkhart County in 

November 2018. The Elkhart County Probation Department also required 

Sokolowski to abide by Condition Ten, and Sokolowski regularly attended his

sex offender treatment sessions. 

[3] After a few months of therapy, Kerry Guernsey, Sokolowski’s sex offender 

treatment therapist at Spectra Counseling, LLC, wrote a letter to Melanie 

Godden, Sokolowski’s probation officer, describing Sokolowski’s disclosures 

and demeanor during therapy sessions. She wrote that Sokolowski “frequently 

presents with an aggressive attitude, minimizes his offense and need for 

treatment, identifies blatant disregard for his terms of probation and treatment 

skills, and contaminates the group process.” (State Ex. 1.) During a therapy 

session on May 23, 2019, Sokolowski disclosed he traveled to Michigan while 

on probation. He acknowledged using the social media websites Tinder and 

Instagram, and he reported that he engaged in oral sex with a woman. He also 

described pushing his minor sister, and he discussed getting into physical

altercations with his fiancé. Guernsey noted that before the May 23, 2019,

therapy session, she had “expressed concerns to Mr. Sokolowski regarding his 

lack of compliance with treatment and probation terms, presentation in group, 
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emotional lability, contaminating factor in group, and possible lack of 

amenability to treatment.” (Id.) Guernsey suspended Sokolowski from 

treatment.

[4] The State filed a petition to revoke Sokolowski’s probation on May 28, 2019. 

At the evidentiary hearing on the State’s petition, Guernsey testified regarding 

Sokolowski’s disclosures and demeanor during treatment sessions. Sokolowski 

objected on hearsay grounds to admission of the letter Guernsey sent to 

Godden, but the trial court overruled his objection. Michael Mobley, the 

Elkhart County chief probation officer, testified at the evidentiary hearing

because Godden left her probation officer position prior to the hearing. 

Sokolowski objected to Mobley’s testimony on the ground that it was unreliable 

hearsay. He also objected on hearsay grounds to admission of a letter written to 

Guernsey describing the results of Sokolowski’s sexual history polygraph 

examination. 

[5] Sokolowski testified at the hearing. He denied violating any condition of his 

probation. Sokolowski said he believed he was making progress and he was 

willing to cooperate with sex offender treatment. He testified that he was 

employed doing landscaping, and he was living with his fiancé and son. On 

September 6, 2019, the trial court revoked Sokolowski’s probation because 

Sokolowski “was removed from his sex offender counseling program contrary 

to paragraph 10 of both sets of Rules of Probation and failed to maintain steady 

progress toward all treatment goals as required by said Rule.” (App. Vol. II at 
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227.) The court ordered Sokolowski to serve the balance of his sentence in the 

Indiana Department of Correction.

Discussion and Decision

1. Constitutionality of Condition Ten

[6] “Probation is a criminal sanction wherein a convicted defendant specifically 

agrees to accept conditions upon his behavior in lieu of imprisonment.” 

Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999). “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). Trial 

courts are afforded broad discretion in fashioning probation conditions. 

Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied. 

However, the conditions must be reasonably related to treatment of the 

defendant and public safety. Id. We will not set aside a probation condition 

unless the trial court abuses its discretion. Id. “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.

[7] Sokolowski argues Condition Ten “is impermissibly vague or overbroad 

because it imposes no specific deadline for completion of the program, does not 

give any guidance as [to] the nature of the required participation, and does not 
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define the term ‘steady progress.’” (Appellant’s Br. at 8.)3

 “A probationer has a 

due process right to conditions of supervised release that are sufficiently clear to 

inform him of what conduct will result in his being returned to prison.” McVey 

v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007), reh’g denied, trans. denied. 

Condition Ten’s requirement that Sokolowski “shall attend, actively participate 

in and successfully complete a Court-approved sex offender treatment program”

indicates that the program must be completed during the term of Sokolowski’s 

probation. (Appendix Vol. II at 138, 164.) 

[8] Condition Ten’s terms also make clear that merely attending therapy sessions is 

not enough. Rather, Sokolowski must “actively participate,” promptly pay 

fees, and “maintain steady progress towards all treatment goals as determined 

by [his] treatment provider.” (Id.) The plain language of Condition Ten 

notifies Sokolowski that his treatment provider will set goals for him and that 

he needs to work toward achieving those goals. It also alerts Sokolowski that 

“[u]nsuccessful termination from treatment . . . will be considered a violation of 

your probation.” (Id.)

[9] Condition Ten adequately conveyed to Sokolowski what behavior would result 

in revocation. Guernsey even talked to him about his lack of compliance and 

inappropriate behavior, but he continued to fail to progress in his treatment. 

3 Sokolowski also raises an argument that there is no evidence the program he attended was a court-approved 

program as required by Condition Ten. However, we are unpersuaded by this argument. The probation 

department initially contacted Guernsey on Sokolowski’s behalf. Presumably, the probation department did 

so because she administered an approved program.
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Sex offender treatment serves the public interest because it is designed to 

prevent sex offenders from reoffending. Cf. Matter of Ma. H., 134 N.E.3d 41, 50 

(Ind. 2019) (holding termination of Father’s parental rights was not clearly 

erroneous when Father failed to complete sex offender treatment following 

finding by CHINS court that he sexually abused his stepdaughter). Thus, we 

hold Condition Ten was not unconstitutionally vague, and the trial court did 

not abuse its discretion by imposing it on Sokolowski. See Patton v. State, 990 

N.E.2d 511, 517 (Ind. Ct. App. 2013) (holding probation condition prohibiting 

defendant from accessing websites frequented by children was not 

unconstitutionally vague).

4

2. Admission of Hearsay Evidence

[10] Sokolowski argues the trial court abused its discretion in admitting into 

evidence the letter from Guernsey to Godden, Mobley’s testimony, and a letter 

addressed to Guernsey describing the results of a polygraph examination. He 

argues the trial court admitted “unreliable and not substantially trustworthy” 

hearsay evidence. (Appellant’s Br. at 11.) We review a trial court’s ruling on 

the admission of evidence for an abuse of discretion. Peterson v. State, 909 

N.E.2d 494, 499 (Ind. Ct. App. 2009). The erroneous admission of evidence 

4 To the extent Sokolowski raises an overbreadth argument, such an argument is misplaced because 

Condition Ten imposes an affirmative duty on Sokolowski. It does not prohibit Sokolowski from engaging in 

certain conduct. See Patton, 990 N.E.2d at 516 (holding defendant failed to demonstrate probation condition 

was overly broad because he did “not identify a single activity or other conduct that is prohibited by the 

probation condition but unrelated to [activity meant to be prohibited by the condition]”). 
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amounts to harmless error unless the admission affects the substantial rights of 

a party. See Ind. Appellate Rule 66(A); see also Crawford v. State, 770 N.E.2d 

775, 779 (Ind. 2002) (“Errors in the admission or exclusion of evidence are to 

be disregarded as harmless error unless they affect the substantial rights of a 

party.”).

[11] Probationers are not entitled to the full array of rights given to a criminal 

defendant, but they are entitled to certain due process protections prior to the 

revocation of their probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), 

reh’g denied. Among these due process protections is the right to confront and 

cross-examine witnesses. Id. Indiana Rule of Evidence 101(d) provides that, 

except for rules involving privileges, the Indiana Rules of Evidence do not apply 

in probation revocation hearings. In the probation revocation context, “judges 

may consider any relevant evidence bearing some substantial indicia of 

reliability. This includes reliable hearsay.” Cox, 706 N.E.2d at 551. 

[12] Sokolowski objected to admission of State’s Exhibit 1, the letter Guernsey 

wrote to Godden regarding Sokolowski’s May 23, 2019, therapy session, stating 

“this document has in several different places . . . information that, that is, is 

clearly hearsay without any foundation.” (Tr. Vol. II at 11.) The State 

responded that the letter was Guernsey’s recitation of the reasons why she 

removed Sokolowski from the sex offender treatment program. The court 

overruled the objection and noted Sokolowski could challenge the reliability of 

the statements in the letter during cross-examination.
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[13] Guernsey’s testimony and State’s Exhibit 1 were influential in the trial court’s 

decision to revoke Sokolowski’s probation. The trial court’s order revoking 

Sokolowski’s probation states:

That based upon Kerri Guernsey’s testimony and State’s Exhibit 

1, the Spectra Counseling, LLC, letter authored by Kerri 

Guernsey reflects that the Defendant was removed from his sex 

offender counseling program contrary to paragraph 10 of both 

sets of Rules of Probation and failed to maintain steady progress 

toward all treatment goals as required by said Rules. 

(App. Vol. II at 226-27.) Guernsey testified at the evidentiary hearing, and 

Sokolowski cross-examined her. She identified State’s Exhibit 1 as the letter 

she wrote to Godden. Guernsey also testified regarding Sokolowski’s 

disclosures during the May 23, 2019, therapy session, and she stated 

Sokolowski was not making any progress towards his treatment goals. 

Therefore, we hold Exhibit 1 was sufficiently reliable to be admitted as 

evidence. See Knecht v. State, 85 N.E.3d 829, 835 (Ind. Ct. App. 2017) (holding 

admission of transcript from criminal trial in probation revocation hearing was 

proper because defendant had opportunity to cross-examine witness during 

trial).

[14] The revocation order did not specifically mention Mobley’s testimony or the 

letter describing the results of the polygraph examination. Given that the trial 

court relied on properly admitted evidence in revoking Sokolowski’s probation, 

the admission of the letter containing the results of a polygraph examination 

and of the hearsay contained within Mobley’s testimony could amount to 
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harmless error, at most. See Williams v. State, 937 N.E.2d 930, 935 (Ind. Ct. 

App. 2010) (holding even if trial court erred in admitting exhibits at revocation 

hearing, such error was harmless). 

3. Sufficiency of the Evidence

[15] Sokolowski argues the State presented insufficient evidence that he violated the 

conditions of his probation. He contends he was suspended from treatment 

rather than removed. He also points out that some individuals respond to 

treatment faster to others, and he highlights Guernsey’s acknowledgement that

she “saw a little bit of incite [sic]” on two or three occasions. (Tr. Vol. II at 10.)

[16] “A probation hearing is civil in nature and the State need only prove the alleged 

violations by a preponderance of the evidence.” Cox, 706 N.E.2d at 551. We 

review a decision to revoke probation under an abuse of discretion standard. 

Prewitt, 878 N.E.2d at 188. When reviewing whether sufficient evidence 

supported revocation, we do not reweigh evidence or judge the credibility of 

witnesses. Morgan v. State, 691 N.E.2d 466, 468 (Ind. Ct. App. 1998). If there is 

substantial evidence of probative value to support concluding by a 

preponderance of the evidence that the defendant violated a term of probation, 

we will affirm. Menifee v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992), 

clarified on other grounds on denial of reh’g 605 N.E.2d 1207 (Ind. Ct. App. 1993).

[17] At the evidentiary hearing, Guernsey testified that Sokolowski was making “no 

progress . . . besides attendance” towards his treatment goals. (Tr. Vol. II at 

13.) She also testified that she made the decision to terminate Sokolowski from 
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treatment. She explained that she had concerns regarding Sokolowski’s 

amenability to treatment, behavior at group sessions, and inability to follow 

rules. Sokolowski’s arguments that he was making progress in treatment and 

that he was suspended rather than removed are simply requests for us to 

reweigh the evidence, which we will not do. See Whatley v. State, 847 N.E.2d 

1007, 1010 (Ind. Ct. App. 2006) (“When we review the determination that a 

probation violation has occurred, we neither reweigh the evidence nor reassess 

witness credibility.”). Therefore, we hold the State presented sufficient 

evidence to support the trial court’s finding that Sokolowski violated his 

conditions of probation. See Peterson v. State, 909 N.E.2d 494, 499 (Ind. Ct. 

App. 2009) (holding evidence was sufficient defendant watched pornographic 

movies in violation of his sex offender treatment contract and, thus, violated a 

condition of his probation). 

4. Opportunity to Present Mitigating Evidence

[18] Sokolowski contends that while he was given the opportunity to present 

evidence regarding whether he violated the conditions of his probation, the trial 

court abused its discretion by not affording him the opportunity to present 

mitigating evidence that his violation of probation did not warrant revocation.

Probation revocation involves two steps. Mathews v. State, 907 N.E.2d 1079, 

1081 (Ind. Ct. App. 2009), reh’g denied. First, the court must determine whether 

the probationer violated the conditions of probation. Id. Second, the court 

decides whether the violation warrants revocation. Id. “Even a probationer 

who admits the allegations against him must still be given an opportunity to 
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offer mitigating evidence suggesting that the violation does not warrant 

revocation.” Hampton v. State, 71 N.E.3d 1165, 1171 (Ind. Ct. App. 2017), 

trans. denied. 

[19] In Vernon v. State, the defendant argued he was not given the opportunity to 

present mitigating evidence that his probation violation did not warrant 

revocation. 903 N.E.2d 533, 535 (Ind. Ct. App. 2009), trans. denied. We held 

the defendant’s due process rights were not violated because he was afforded 

the opportunity to present evidence at an evidentiary hearing. Id. at 537-38.

Just like the defendant in Vernon, Sokolowski had the opportunity to present 

evidence at the evidentiary hearing, and he testified in his own defense. He 

denied the alleged probation violations. Further, Sokolowski testified regarding 

his employment and living situation, in an apparent attempt to portray himself 

in a positive light. Therefore, we hold Sokolowski was provided with the 

opportunity to present mitigating evidence that his violation of probation did 

not warrant revocation. See id. 

Conclusion

[20] Condition Ten was not unconstitutionally vague because it was specific enough 

to convey to Sokolowski the conduct that was expected of him and what would 

constitute of violation of the condition. Further, the trial court did not abuse its 

discretion in admitting Guernsey’s letter to Godden. Guernsey testified at the 

evidentiary hearing, and Sokolowski was able to cross-examine her regarding 

any statement she made in the letter. The State presented sufficient evidence 
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Sokolowski violated a condition of his probation, and the trial court afforded 

Sokolowski the opportunity to present mitigating evidence that his probation 

violation did not warrant revocation. Therefore, we affirm the trial court’s 

revocation of Sokolowski’s probation.

[21] Affirmed.

Crone, J., and Pyle, J., concur.