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COA: Revocation of sex offender’s probation was not an abuse of discretion

January 11, 2017

The Harrison Superior Court did not abuse its discretion when it revoked a convicted sex offender’s probation after he contacted people under 18 years of age and lived within one mile of his victim in violation of the terms of his probation, the Indiana Court of Appeals held Wednesday.

In May 2015, Dominique Castillo pleaded guilty to sexual misconduct with a minor, a Level 5 felony, and was sentenced to four years in the Indiana Department of Correction. Of his four-year sentence, 2 ½ years were suspended to probation, contingent upon the fact that he did not have contact with persons under the age of 18 without authorization and did not live within one mile of his victim, who was 14 years old at the time of the incident.

After his release several months later in October, Castillo told the Harrison County Probation Department that his mother had kicked him out of her house, so he was living with his 17-year-old girlfriend and her family, including her 14-year-old brother. The house Castillo was living in was within one mile of his victim’s home. After being told to move out under the terms of his probation, Castillo told his probation officer that he was living at a new address.

When probation officers went to visit Castillo at his new address, they passed the girlfriend’s house and saw Castillo standing in the yard, then entering the home. When officers confronted him, he admitted he had stayed overnight in the girlfriend’s residence.

At an ensuing probation revocation hearing, Castillo again admitted to living at his girlfriend’s house, so the Harrison Superior Court revoked his probation in March 2016 and ordered him to serve the entire 2 ½ year sentence. Castillo appealed in Dominique Castillo v. State of Indiana, 31A01-1604-CR-742, arguing that his due process rights were violated because the trial court didn’t provide a list of reasons as to why it ordered him to serve the suspended sentence rather than “other available alternatives,” and that the revocation of his probation was an abuse of discretion because the court may have considered inappropriate testimony.

Castillo relied on the case of Medicus v. State, 664 N.E.2d 1163 (Ind. 1996), which requires written notice of probation violations, disclosure of the evidence and a written statement for the reasons of revocation, among other things, to support his due process argument.  But in a unanimous Wednesday opinion, the Indiana Court of Appeals held that Castillo’s reliance on Medicus was misplaced because it “addresses the due process requirements for revocation of probation, not for ordering sanctions following the revocation of probation.”

“This court has held that a detailed sentencing statement following revocation of probation is not required when reinstating a portion of an already imposed sentence, and that a written statement indicating the trial court, following a probation revocation, considered alternatives to incarceration is not necessary,” Senior Judge John Sharpnack wrote.

Additionally, the appellate court found that Castillo’s argument that the judge may have considered inappropriate testimony was “pure speculation.” Castillo had argued that the testimony of his probation officer and the evidence regarding his mother’s wishes for him not to live with his girlfriend “might be akin to error that occurred in Puckett v. State, 956 N.E.2d 1182 (Ind. Ct. App. 2011)”. In that case, the appellate court held that the revocation hearing judge had considered “multiple inappropriate factors,” including whether the original plea agreement was too lenient.

But, “here, there is no suggestion that the trial judge may have been trying to make up for an initial sentence he considered inadequate,” Sharpnack wrote.

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