MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 05 2020, 9:06 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana
John R. Millikan Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dakota M. Probst, February 5, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2118 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Sally A. Appellee-Plaintiff McLaughlin, Judge Trial Court Cause Nos. 15D02-1809-F6-345, 15D02-1811- F6-440, 15D02-1812-CM-865
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020 Page 1 of 7 [1] Dakota Probst pleaded guilty under three separate cause numbers to Level 6
felony criminal confinement, Level 6 felony possession of methamphetamine,
and Class A misdemeanor battery. The trial court sentenced him to an
aggregate term of 1820 days in prison with 910 of those days suspended to
probation. Probst contends on appeal that his aggregate sentence is
inappropriate in light of the nature of the offenses and his character.
[2] We affirm.
Facts & Procedural History
[3] Raised by his grandparents, Probst dropped out of school in the ninth grade and
then began working when he was sixteen years old. In May 2017, Probst was
adjudicated a delinquent child for operating a vehicle without ever receiving a
license and for the illegal taking of a wild animal, both misdemeanors if
committed by an adult. Probst explained that this adjudication was the result of
him driving another individual’s vehicle while his friend shot at a deer through
a window of the vehicle.
[4] Probst turned eighteen on June 28, 2018 and became a daily methamphetamine
user around this time, in addition to him already being a regular marijuana
user. He continued to live with his grandparents, along with his girlfriend
Roxann Boatman.
[5] On September 4, 2018, during a verbal argument, Boatman told Probst that she
was leaving him. Probst followed her as she walked up to the bedroom that
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020 Page 2 of 7 they shared and kicked down the bedroom door. He was “freaking out” and
“started pushing [her] and choking [her].” Transcript at 60. She managed to get
away and run downstairs and then out to her truck. Probst followed and
grabbed the truck keys from her, telling her that she was not leaving. He
forcefully held her by the arms, struck her in the face, and pushed her into the
side of her truck, causing a dent. During the altercation, he began choking her
again and struck her multiple times. As she tried to get away from him, he bit
her on the back of her shoulder and elsewhere. At some point, Boatman ended
up on the ground, and Probst drove the truck closer to the house. Boatman
then called her mother for help, telling her “if she didn’t come and get me, that
I think he was going to kill me[.]” Id. at 61. Shortly thereafter, Dearborn
County Sheriff’s Department Deputy Brian Weigel responded to the scene. As
Deputy Weigel spoke with Boatman, Probst approached “angry and also
yelling.” Id. at 74. Deputy Weigel opined that Probst was “acting as somebody
using meth would act.” Id. Probst was arrested and charged under cause
number 15D02-1809-F6-345 (Cause F6-345) with Level 6 felony criminal
confinement, Level 6 felony strangulation, Class A misdemeanor battery, and
Class B misdemeanor criminal mischief. He was released on bond within a
week.
[6] Probst continued to use methamphetamine daily upon his release. On
November 15, 2018, he became angry with his new girlfriend, Kaitlyn Lack.
When he began raising his voice and “kind of knocked [her] face”, Lack pushed
him away from her. Id. at 78. Probst then grabbed her by the arms and bit her
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020 Page 3 of 7 on the back of the shoulder. On December 3, 2018, the State charged Probst
under cause number 15D02-1812-CM-865 (Cause CM-865) with Class A
misdemeanor battery.
[7] Before Cause CM-865 was filed but while Probst was still out on bond under
Cause F6-345, a vehicle in which Probst was a passenger was pulled over for a
traffic stop on November 23, 2018. The officer smelled marijuana upon
approaching the vehicle occupied by Probst and the driver. Subsequently,
officers found marijuana and various Oxycodone pills in the vehicle. Probst
also had Oxycodone and methamphetamine on his person. The State charged
Probst under cause number 15D02-1811-F6-440 (Cause F6-440) with Level 6
felony possession of methamphetamine, Class B misdemeanor possession of
marijuana, and Class A misdemeanor possession of a controlled substance.
[8] On June 19, 2019, the State and Probst entered into a plea agreement regarding
his three pending cases. Probst agreed to plead guilty to Level 6 felony criminal
confinement under Cause F6-345, Level 6 felony possession of
methamphetamine under Cause F6-440, and Class A misdemeanor battery
under Cause CM-865. In exchange, the State dismissed the five remaining
counts. Sentencing was left open.
[9] The trial court held a sentencing hearing on July 25, 2019 and took the matter
under advisement. Thereafter, on August 12, 2019, the trial court sentenced
Probst as follows: (1) 545 days under Cause F6-345, with no time suspended;
(2) 365 days under Cause CM-865, with no time suspended and served
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020 Page 4 of 7 consecutive to Cause F6-345; and (3) 910 days under Cause F6-440, all time
suspended and served consecutive to the two other causes. Thus, Probst
essentially received an aggregate sentence of five years with two and one-half of
those years suspended to probation.
Discussion & Decision
[10] Probst challenges the sentence imposed by the trial court as inappropriate. We
may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we find the sentence inappropriate in light of the nature of
the offense and the character of the offender. Ind. Appellate Rule 7(B).
Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Id. at 1224. Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 05 2020, 9:06 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana
John R. Millikan Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dakota M. Probst, February 5, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2118 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Sally A. Appellee-Plaintiff McLaughlin, Judge Trial Court Cause Nos. 15D02-1809-F6-345, 15D02-1811- F6-440, 15D02-1812-CM-865
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020 Page 1 of 7 [1] Dakota Probst pleaded guilty under three separate cause numbers to Level 6
felony criminal confinement, Level 6 felony possession of methamphetamine,
and Class A misdemeanor battery. The trial court sentenced him to an
aggregate term of 1820 days in prison with 910 of those days suspended to
probation. Probst contends on appeal that his aggregate sentence is
inappropriate in light of the nature of the offenses and his character.
[2] We affirm.
Facts & Procedural History
[3] Raised by his grandparents, Probst dropped out of school in the ninth grade and
then began working when he was sixteen years old. In May 2017, Probst was
adjudicated a delinquent child for operating a vehicle without ever receiving a
license and for the illegal taking of a wild animal, both misdemeanors if
committed by an adult. Probst explained that this adjudication was the result of
him driving another individual’s vehicle while his friend shot at a deer through
a window of the vehicle.
[4] Probst turned eighteen on June 28, 2018 and became a daily methamphetamine
user around this time, in addition to him already being a regular marijuana
user. He continued to live with his grandparents, along with his girlfriend
Roxann Boatman.
[5] On September 4, 2018, during a verbal argument, Boatman told Probst that she
was leaving him. Probst followed her as she walked up to the bedroom that
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020 Page 2 of 7 they shared and kicked down the bedroom door. He was “freaking out” and
“started pushing [her] and choking [her].” Transcript at 60. She managed to get
away and run downstairs and then out to her truck. Probst followed and
grabbed the truck keys from her, telling her that she was not leaving. He
forcefully held her by the arms, struck her in the face, and pushed her into the
side of her truck, causing a dent. During the altercation, he began choking her
again and struck her multiple times. As she tried to get away from him, he bit
her on the back of her shoulder and elsewhere. At some point, Boatman ended
up on the ground, and Probst drove the truck closer to the house. Boatman
then called her mother for help, telling her “if she didn’t come and get me, that
I think he was going to kill me[.]” Id. at 61. Shortly thereafter, Dearborn
County Sheriff’s Department Deputy Brian Weigel responded to the scene. As
Deputy Weigel spoke with Boatman, Probst approached “angry and also
yelling.” Id. at 74. Deputy Weigel opined that Probst was “acting as somebody
using meth would act.” Id. Probst was arrested and charged under cause
number 15D02-1809-F6-345 (Cause F6-345) with Level 6 felony criminal
confinement, Level 6 felony strangulation, Class A misdemeanor battery, and
Class B misdemeanor criminal mischief. He was released on bond within a
week.
[6] Probst continued to use methamphetamine daily upon his release. On
November 15, 2018, he became angry with his new girlfriend, Kaitlyn Lack.
When he began raising his voice and “kind of knocked [her] face”, Lack pushed
him away from her. Id. at 78. Probst then grabbed her by the arms and bit her
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020 Page 3 of 7 on the back of the shoulder. On December 3, 2018, the State charged Probst
under cause number 15D02-1812-CM-865 (Cause CM-865) with Class A
misdemeanor battery.
[7] Before Cause CM-865 was filed but while Probst was still out on bond under
Cause F6-345, a vehicle in which Probst was a passenger was pulled over for a
traffic stop on November 23, 2018. The officer smelled marijuana upon
approaching the vehicle occupied by Probst and the driver. Subsequently,
officers found marijuana and various Oxycodone pills in the vehicle. Probst
also had Oxycodone and methamphetamine on his person. The State charged
Probst under cause number 15D02-1811-F6-440 (Cause F6-440) with Level 6
felony possession of methamphetamine, Class B misdemeanor possession of
marijuana, and Class A misdemeanor possession of a controlled substance.
[8] On June 19, 2019, the State and Probst entered into a plea agreement regarding
his three pending cases. Probst agreed to plead guilty to Level 6 felony criminal
confinement under Cause F6-345, Level 6 felony possession of
methamphetamine under Cause F6-440, and Class A misdemeanor battery
under Cause CM-865. In exchange, the State dismissed the five remaining
counts. Sentencing was left open.
[9] The trial court held a sentencing hearing on July 25, 2019 and took the matter
under advisement. Thereafter, on August 12, 2019, the trial court sentenced
Probst as follows: (1) 545 days under Cause F6-345, with no time suspended;
(2) 365 days under Cause CM-865, with no time suspended and served
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020 Page 4 of 7 consecutive to Cause F6-345; and (3) 910 days under Cause F6-440, all time
suspended and served consecutive to the two other causes. Thus, Probst
essentially received an aggregate sentence of five years with two and one-half of
those years suspended to probation.
Discussion & Decision
[10] Probst challenges the sentence imposed by the trial court as inappropriate. We
may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we find the sentence inappropriate in light of the nature of
the offense and the character of the offender. Ind. Appellate Rule 7(B).
Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.” Id. at 1224. Deference to the trial court “prevail[s] unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as accompanied by restraint, regard, and lack of brutality) and the
defendant’s character (such as substantial virtuous traits or persistent examples
of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The
burden is on the defendant to persuade us his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020 Page 5 of 7 [11] For each of his Level 6 felony convictions, Probst faced a sentencing range of
six months to two and one-half years, with the advisory sentence being one
year. See Ind. Code § 35-50-2-7(b). He could be sentenced up to one year for
the Class A misdemeanor. See I.C. § 35-50-3-2. Pursuant to I.C. § 35-50-1-2(e),
the individual sentences were required to be served consecutively. Thus, the
maximum aggregate sentence faced by Probst was six years and the minimum
was two years. The trial court imposed five years and suspended half of that.
[12] With regard to the nature of the confinement and battery offenses, we observe
that there were two separate victims. Probst acknowledges on appeal that the
details of these crimes “depict scary scenarios” where he violently attacked two
different girlfriends “with his hands and teeth.” Appellant’s Brief at 12 (emphasis
supplied). We find that the attacks, committed only months apart, were
particularly disturbing. Moreover, the battery and possession of
methamphetamine offenses were committed within days of each other and
while Probst was out of bond following his brutal attack of Boatman. We agree
with the State that Probst’s offenses over a three-month period show a disregard
for the law and an indifference to the potential consequences of his actions.
Further, Probst admitted that even after the most recent offense he continued to
use methamphetamine daily until he was arrested in early March 2019, on the
warrant issued under Cause CM-865 on December 3, 2018.
[13] Considering his character, we acknowledge that he was only eighteen at the
time of each of his offenses and that he apologized to the victims and accepted
responsibility. But Probst was not a typical eighteen-year old, as he had worked
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020 Page 6 of 7 for over two years as a laborer, having dropped out of high school at sixteen,
and in a short time established a history of serious drug use and violent
propensities. He also had a juvenile adjudication just prior to him turning
seventeen which involved him unlawfully (and dangerously) operating a vehicle
while his passenger shot at a deer out of the vehicle’s window. Probst is indeed
in need of substance abuse treatment and anger management classes, but as the
trial court determined, Probst has established himself to be a “risk to
community safety and is best treated in a facility” and then on probation.
Transcript at 90.
[14] We cannot say that Probst’s aggregate five-year sentence, half of which is
suspended to probation, is inappropriate in light of the nature of the three
entirely separate offenses he committed and his troubling character.
[15] Judgment affirmed.
Robb, J. and Bradford, C.J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020 Page 7 of 7