Court of Appeals o f Indiana | Memorandum Decision 20A

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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 Donald R. Shuler Barkes, Kolbus, Rife & Shuler, LLP Goshen, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Catherine Brizzi Deputy Attorney General Indianapolis, Indiana


### IN THE 

# COURT OF APPEALS OF INDIANA
Michael J. Bedtelyon , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff September 30, 2020 Court of Appeals Ca se No. 20A

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- 794 Appeal from the Elkhart Superior Court The Honorable Teresa L. Cataldo, Judge Trial Court Cause No. 20D03

- 1802

- F4

- 16

Crone , Judge .Court of Appeals o f Indiana | Memorandum Decision 20A

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- 794 | September 30, 2020 Page 2 of 11 

### Case Summary
[1] Michael J. Be d t e lyon appeals the trial court’s revocation of his community corrections placement and probation . He asserts that the evidence is insufficient to support the finding of a violation and that the trial court abused its discretion in ordering that his remaining ex ecuted sentence be served in the Indiana Department of Correction (DOC) and in executing one year of his probation. We affirm

. 

### Facts and Procedural History
[2] The facts most favorable to the judgment are as follows. O n June 28, 2017, Elk h art police officers discovered Bedtelyon, then age twenty

- five, in a public park with fourteen

- year - old A.S. , whom he had met through a smartphone dating application. A.S. told the officers that the two had engaged in sexual intercourse in the park . She underwent a forensic examination, and test results confirmed the presence of DNA consistent with Bedtelyon’s

. Bedtelyon initially denied having intercourse with A.S. but eventually admitted that the two had engaged in sexual intercourse on three different occasions.

[3] The State charged Bedtelyon with three counts of level 4 felony sexual misconduct with a minor and six class A misdemeanor counts, including two each for contributing to the delinquency of a minor, public indecency, and criminal trespass. Be dtelyon was apprehended in Georgia a nd eventually pled guilty by plea agreement to one count of level 4 felony sexual misconduct with a minor and one count of class A misdemeanor criminal trespass. Per the pleaCourt of Appeals o f Indiana | Memorandum Decision 20A

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- 794 | September 30, 2020 Page 3 of 11 agreement, his s entencing was open to the tr ial court’s discretion with the following limitations: s entence s were to be concurrent , and any executed portion would be served in alternative placement. The trial court sentenced him to eight years, with three years executed in community corrections , w ith electronic monitoring, and five years suspended to probation. Bedtelyon initialed and signed the list of probation terms , many of which were conditions specifically applicable to sex offenders

. These conditions also applied during his time in community corrections. See Appellant’s App. Vol. 2 at 66 ( judgment of conviction, stating in part, “During defendant’s time on alternative placement, the sex offender terms of probation apply.”)

. The conditions included prohibi tions against accessing or using websites, chat rooms, or instant messaging programs frequented by children and against using a third party to

access social media to communicate with a child. Bedtelyon was ordered to give probation technology representati ves access to his computer and electronic devices for unannounced examinations and was prohibited from accessing the Internet or any other online service through any electronic device at any location without prior approval of his probation officer. Anothe r condition required Bedtelyon to submit to polygraph examinations

. Id

. at 75, 77.

[4] In January 2020, Elkhart community corrections issued a notice of violation based on a finding that Bedtelyon had failed a polygraph examination

. The polygraph administrator analyzed Bedtelyon’s physi ological responses during the polygraph and found that Bedtelyon had a “significant reaction” when answering in the negative to t wo question s: “Since your last polygraph haveCourt of Appeals o f Indiana | Memorandum Decision 20A

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- 794 | September 30, 2020 Page 4 of 11 you had physical sexual co ntact with anyone?”; and “Since your last polygraph have you communicated with a minor through the Internet?” Id

. at 102

. Bedtelyon disclosed to the examiner that he had engaged in phone sex with his girlfriend, who is from South Africa and was living ei ther there or in Italy at the time

. Id . at 95. He also admitted t hat he had communicated with her on “Facebook Messenger” through his si s ter
- in

- law , that he did it to save on long

distance charges, that the sister

- in

- law let her minor child say hello to him, and that he had not disclosed this arrangement to his case manager or obtained permission before using a third party to access social media

. Id . at 95

- 96. For all these reasons, the community c orrections director petitioned the trial court
to revoke Bedtelyon’s community corrections placement. The probation department also filed a notice of violation against Bedtelyon , claiming that he used prohibited websites, chat rooms, or instant messaging programs frequented by children

.
[5] During a community corrections disciplinary hearing, Bedtelyon admitted to violating the sex offender terms of his placement. Tr. Vol. 2 at 20 , 23

. The trial court conducted a violation hearing and found that Bedtelyon ha d violated the conditions of his community corrections placement by circumventing the sex offender rules prohibiting him from accessing social media , whether directly or through an intermediary, without prior approval

. The court revoked his placement and ordered that he serve the remaining executed portion of his sentence in the DOC. The trial court also revoked his probation , but executedCourt of Appeals o f Indiana | Memorandum Decision 20A

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- 794 | September 30, 2020 Page 5 of 11 one year and re - suspended the four remaining years to probation. Bedtelyon

now appeals. Additional facts will be provided as necessary. 

### Discussion and Decision Section 1

– The evidence is sufficient to support the trial court’s conclusion that Bedtelyon violated the terms of his community corrections placement.
[6] Bedtelyon asserts th at the evidence is insufficient to support the trial court’s determination that he violated the conditions of his placement

. Placement in a community corrections program or on probation is a matter of grace and not of right. Johnson v. State , 62 N.E.3d 1224, 1229 (Ind. Ct. App. 2016) . For purposes of our review, we treat a hearing on a petition to revoke a community corrections placement the same as we do a hearing on a petition to revoke probation. Id

. In conducting our review, we consider the evidence and reasonable inferences most favorable to the judgment without reweighing that evidence or reassessing witness credibility ; if substantial evidence of probative value support s the court ’ s conclusion that a defendant has violated any terms of probation, we will affirm its decision to revoke the defendant’s placement / probation. Id

.
[7] R evocation of a community corrections placement or probation is a two

- step process, wherein the trial court first makes a factual determination as to whether the defendant violated the terms of his placement or probation. Treece v. State , 10 N.E.3d 52, 56 (Ind. Ct. App. 2014) , trans. denied ; Woods v. State , 892 N.E.2d 637, 640 (Ind. 2008) . Because such a proceeding is civil in nature, theCourt of Appeals o f Indiana | Memorandum Decision 20A

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- 794 | September 30, 2020 Page 6 of 11 State need only prove the alleged violation by a preponderance of the evidence. Holmes v. State , 923 N.E.2d 479, 485 (Ind . Ct. App. 2010) . If a violation is found, the court then determines whether the violation warrants revocation. Woods , 892 N.E.2d at 640 . Proof of a single violation is sufficient to permit a revocation

. Beeler v. State , 959 N.E.2d 82 8, 830 (Ind. Ct. App. 2011), trans. denied

. As with probationers, those who are placed in community corrections are subject to the conditions of that placement; if they violate those terms and conditions, the community corrections director may change t he terms, continue the placement, reassign the person, or ask the trial court to revoke the person’s placement. Ind. Code § 35

- 38

- 2.6

- 5(a)

.
[8] Bedtelyon admitted at his disciplinary hearing tha t he had violated the terms of his placement. Yet, he now c ontends that the State failed to meet its burden of demonstrat ing a violation during the violation hearing

. He relies on the following language in the sex offender terms, which he initialed and signed: “ 8. You are prohibited f ro m accessing or using certain web sites, chat rooms, or instant messaging programs frequented by children.” ; and “9. You shall not use a social networking web site or an instant messaging or chat room progr am to communicate, directly or through an intermediary, with a child less than si x t e en (16) years of age.” Appellant’s App. Vol. 2 at 75. With respect to condition 8 , he claims that the State failed to prove that he accessed an instant messaging program frequented by children. During the violation hearing, the trial court judicially noticed that Facebook is frequented by children. The court stated that it lack ed familiarity specifically with Facebook Messenger , which isCourt of Appeals o f Indiana | Memorandum Decision 20A

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- 794 | September 30, 2020 Page 7 of 11 part of the Facebook “ realm , ” but articulated i ts incredulity concerning any claim by Bedtelyon that he was unaware of its usage by children. Tr. Vol. 2 at 44.

[9] Regardless , Bedtelyon is quick to point out that he was not access ing social media at all

. Instead, he simply would call his sister

- in

- law in Hawaii and ha ve her access her Facebook Messenger account to contact his girlfriend in South Africa or Italy so that he could save money on overseas long

- distance c all s. He claims that he did not violate condition 9 because his girlf riend was not underage and his only contact with a child came when his sister

- in

- law put her minor child on the line . He claims that he did not violate condition 8 because it does not specifically prohibit a sex offender / probationer from using a third par ty intermediary to access websites, chat rooms, or instant messaging programs frequented by children. In making these arguments, Bedtelyon ignores other conditions to which he was subject as a sex offender. For example, condition 27 requires him to give his probation officer and/or probation technology representative access to his home computer and devices for unannounced examinations. Appellant’s App. Vol. 2 at 77. Most significa ntly, c ondit ion 26 reads, in part, “You shall not access the Internet or any other on

- line service through use of any electronic device at any location ... without prior approval of your [case manager or] probation officer.” Id

. These rules are in place to prevent def endants from avoiding detection on their own computers by using the devices and social media accounts of others.Court of Appeals o f Indiana | Memorandum Decision 20A

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- 794 | September 30, 2020 Page 8 of 11 [10] Here, Bedtelyon did just that. He had been granted permission to contact his girlfriend by phone or letter but not through social media. C omm unity corrections case manager Lyle Baimter testified that Bedtelyon had never been given permission to use an intermediary (his sister

- in

- law) to contact his girlfriend via her device and social media account
. Tr. Vol. 2 at 16

- 17

. Bedtelyon admitted as much to his polygraph examiner. Appellant’s App. Vol. 2 at 96

. H e circumvented the sex offender rules by attempting to do indirectly that which he was prohibited from doing directly. See Hively v. School City of Nappanee , 202 Ind. 28, 169 N.E. 51, 53 (1929) ( contract for leasing of schoolhouse held void as attempt to do indirectly what was legally prohibited if done directly). The evidence and reasonable inferences most favorable to the judgment are sufficient to support the trial court’s conclusion that Bedtelyon violat ed the conditions o f his placement

. 

### Section 2

– The trial court acted within its discretion in ordering that Bedtelyon serve the remainder of his executed sentence in the DOC and in executing a portion of Bedtelyon’s probation.
[11] Bedtelyon also challenges the trial court’s choice of sanction for his probation/community corrections violation

. The trial court’s sentencing decisions for probation violations are reviewable for an abuse of discretion. Prewitt v. State , 878 N.E.2d 184, 188 (Ind. 2007)

. An abuse of discretion occurs where the trial court’s decision is clearly against the logic and effect of the facts and circumstances before it or where the trial court misinterprets the law. Jackson v. State , 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014)

.Court of Appeals o f Indiana | Memorandum Decision 20A

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- 794 | September 30, 2020 Page 9 of 11 [12] The executed portion of Bedtelyon’s sentence comprised placement in the local community corrections program

. As stated, Indiana Code Section 35

- 38

- 2.6

- 5(a)(4) provides , “If a person who is placed under this chapter violates the terms of the placement, the community corrections director may .... [r]equest that the court revoke the placement and commit the person to the county jail or department of correction for the remainder of the person’s sentence.” As for p robation , once a violation is established, the trial court may impose one or more of the following sanctions: (1) continue the defendant’s probation, with or without modifying or enlarging the conditions; (2) extend the defendant’s probationary period for not more than one year beyond the original probationary period; or (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)

. Here, the trial court actually ordered the execution of only one of the five years of Bedtelyon’s probation

.
[13] Bedtelyon claims that the trial court abused its discretion in imposing a sanction that is not commensurate with his violation , which h e characterizes as technical and relatively minor . He relies on several cases in which the trial court was found to have abused its discretion in ordering a n excessive sanction , considering the nature of the defendant ’s violation

. See , e.g. , Johnson v. State , 62 N.E.3d at 1231

- 32 ( court a buse d discretion where defendant was remanded to DOC for minor viola tion s and defendant had mental limitations ); Sullivan v. State , 56 N.E. 3 d 1157, 1162 (Ind. Ct. App . 2016) (court abused discretion in imposing maximum term for violation of community corrections placementCourt of Appeals o f Indiana | Memorandum Decision 20A

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- 794 | September 30, 2020 Page 10 of 11 involving failure to report for home detention as ordered ); Ripps v. State , 968 N.E.2d 323, 325

- 26 (Ind. Ct. App. 201 2 ) (court abused discretion in imposing severe sanction given technical nature of violation and other circumstances such as defendant’s poor health ); Puckett v. State , 956 N.E.2d 1182, 1186 (Ind. C t. App. 2011) ( abuse of discretion where court considered improper factors ).

[14] Here, Bedtelyon’s violation w as neither technical nor minor; rather , it went to the core of his felony conviction. He had sexual intercourse with a fourteen

year - old girl and , per his plea agreement, received alternative placement in community c orrections. M any of the sex offender condition s of his placement comprised order s to stay away from children and from places where children might be expected to go, whe ther personally or online through a website, chat room, or instant messaging program

. Bedtelyon was absolutely prohibited from accessing th e sites and programs frequented by children ; he was forbidden from using an intermediary to communicate with a child via social media ; his computer was subject to immediate search; and he was forbidden from using a computer or device anywhere unless he had prior authorization to do so

. Nevertheless, acting without permission, he used an intermediary to circumvent th ese condition s . He admitted t hat he v iolated the terms of his community corrections placement and that his use of an intermediary was not an isolated incident. Tr. V ol. 2 at 20; see also Appellant’s App. Vol. 2 at 99 (defendant’s statement that he continues to communicate with girlfriend thr ough sister

- in

law’s Facebook Messenger)

. He a ttempted to downplay his conduct by rationalizing that he used his sister

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- law as an intermediary simply because itCourt of Appeals o f Indiana | Memorandum Decision 20A

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- 794 | September 30, 2020 Page 11 of 11 was more cost effective . This does not justify his repeated circumvention of the terms aim ed at keeping him away from children. The trial court found him to be a risk to “ public safety because people who try and circumvent the rules are the people that are dan g erous.” Tr. Vol. 2 at 44.

[15] Finally, w e remind Bedtelyon of the grace afforded him through the plea agreement ’s dismissal of three of the four level 4 felony counts against him and five of the six class A misdemeanor counts against him

. Hi s original placement outside the DOC was a demonstration of grace , and ag ain, he has been afforded grace , as the trial court chose to re - su s pend to probation four years of his remaining term
. We find no abuse of discretion in the trial court’s chosen sanction . Accordingly, we affirm.

[16] Affirmed.
Robb, J., and Brown, J., concur.