MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 12 2016, 8:26 am 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 ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy McCool, January 12, 2016 Appellant-Defendant, Court of Appeals Case No. 15A01-1505-CR-336 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Sally A. McLaughlin, Judge Trial Court Cause No. 15D02-1008-FD-172
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016 Page 1 of 6 [1] Jeremy McCool appeals following the revocation of his probation, contending
that the trial court abused its discretion when it imposed his previously
suspended 180-day sentence.
[2] We affirm.
Facts and Procedural History [3] McCool pleaded guilty pursuant to a negotiated plea agreement, under Cause
Number 15D02-1008-FD-172 (“the instant action”), to having committed one
count of Class A misdemeanor intimidation 1 and one count of Class B
misdemeanor harassment on July 17, 2010. The trial court accepted his guilty
plea and, on February 3, 2011, sentenced him to a term of 365 days and 180
days, respectively, suspended to probation. The trial court ordered the
suspended sentences to run concurrent with each other, for an aggregate term of
365 days, but consecutive to his suspended sentence for a 2009 Class B felony
conviction in another county. “McCool’s probation term wasn’t due to end
until February 25, 2027.” Appellant’s Br. at 2.
[4] The conditions of probation for the instant action prohibited McCool from
committing a new criminal offense and from possessing or using lethal weapons
that could be used in the commission of a crime. Appellant’s App. at 28, 33.
“On March 3, 2015, [McCool] was found guilty of Possession of a Firearm after
1 McCool was initially charged with intimidation as a Class D felony, but negotiated that count down to a Class A misdemeanor. Appellant’s App. at 9
Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016 Page 2 of 6 Having Been Barred from Possession of a Firearm, a Level 4 Felony[,] under
15C01-1411-F4-59 [(“Cause 59”)].”2 Id. at 38. On March 10, 2015, the State
filed a Request for Probation Violation Hearing, contending that his conviction
under Cause 59 was a violation of his probation under the instant action. Id.
[5] On March 24, 2015, the probation revocation court (“probation court”)
conducted a fact-finding hearing. During that hearing, the State introduced an
exhibit pertaining to McCool’s conviction under Cause 59, which consisted of a
“certified copy, Judgment of Conviction, and jury entry for March 2nd and 3rd
along with a signed guilty verdict form, the unsigned not guilty form, Warrant,
Charging Information, [and] Probable Cause Affidavit[.]” Tr. at 9. At the
State’s request, the probation court took judicial notice of the Cause 59
proceedings, sentencing order, and judgment of conviction. Id. at 10. Based on
this evidence, the probation court found by a preponderance of the evidence
that McCool had violated the terms of his probation.
[6] About two weeks later, the probation court, noting the prior criminal history set
forth in McCool’s presentence investigation report (“PSI”), sentenced him to
serve 180 days of his previously-suspended with no credit time.3 The probation
2 In Cause 59, McCool was sentenced to the maximum term of twelve years for the Level 4 conviction and appealed. On appeal, McCool did not appeal his conviction, but only his sentence. A panel of this court affirmed McCool’s sentence, finding that the trial court did not abuse its discretion in entering the sentence and that the sentence was not inappropriate in light of the nature of the offense and the character of the offender. McCool v. State, No.15A05-1505-CR-331 (Ind. Ct. App. Dec. 8, 2015). 3 The State filed to revoke McCool’s suspended sentence on both the harassment and intimidation convictions. The probation court found “there was a probation violation.” Tr. at 11. In the Order Granting Petition to Revoke Probation, the probation court referenced only the 180-day suspended sentence for the
Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016 Page 3 of 6 court ordered the sentence to run consecutive to McCool’s executed sentence in
Cause 59 and stated that McCool’s “probation will be terminated upon
completion of sentence.” Id. at 13. McCool now appeals.
Discussion and Decision [7] Probation is a matter of grace left to the trial court’s discretion, not a right to
which a defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
The trial court determines the conditions of probation and may revoke
probation if the conditions are violated. Id. (citing Ind. Code. § 35-38-2-3). A
probation revocation hearing is in the nature of a civil proceeding, accordingly,
an alleged violation of probation only has to be proven by a preponderance of
the evidence. Cain v. State, 30 N.E.3d 728, 732 (Ind. Ct. App. 2015), trans.
denied.
[8] Probation revocation is a two-step process. Alford v. State, 965 N.E.2d 133, 134
(Ind. App. 2012), trans. denied. First, the trial court must make a factual
determination that a violation of a condition of probation has occurred. Id.
Second, the trial court must determine whether the violation warrants
revocation. Id. at 135. Upon the revocation of probation, a trial court may
impose one or more of the following sanctions: (1) continue the person on
probation, with or without modifying or enlarging the conditions; (2) extend the
Class B misdemeanor harassment conviction. Appellant’s App. at 46. The record before us makes no specific reference to the resolution of the 365-day suspended sentence imposed for the Class A misdemeanor intimidation conviction.
Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016 Page 4 of 6 person’s probationary period for not more than one year beyond the original
probationary period; (3) order execution of all or part of the sentence that was
suspended at the time of initial sentencing. Id.; I.C. § 35-38-2-3(h). We review
a trial court’s sentencing decisions on probation violations for an abuse of
discretion. Alford, 965 N.E.2d at 135. An abuse of discretion occurs where the
decision is clearly against the logic and effect of the facts and circumstances. Id.
[9] McCool’s sole argument on appeal is that the trial court abused its discretion
when it revoked his entire 180-day suspended sentence. Appellant’s Br. at 3.
McCool cites to his mental health and lack of education, which he claims are
not of his own making, and argues that the trial court should have taken these
factors into consideration to fashion the appropriate remedy. Id. at 6. McCool
also contends that he is “already paying a hefty price for his illegal act [of
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 12 2016, 8:26 am 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 ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrenceburg, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy McCool, January 12, 2016 Appellant-Defendant, Court of Appeals Case No. 15A01-1505-CR-336 v. Appeal from the Dearborn Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Sally A. McLaughlin, Judge Trial Court Cause No. 15D02-1008-FD-172
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016 Page 1 of 6 [1] Jeremy McCool appeals following the revocation of his probation, contending
that the trial court abused its discretion when it imposed his previously
suspended 180-day sentence.
[2] We affirm.
Facts and Procedural History [3] McCool pleaded guilty pursuant to a negotiated plea agreement, under Cause
Number 15D02-1008-FD-172 (“the instant action”), to having committed one
count of Class A misdemeanor intimidation 1 and one count of Class B
misdemeanor harassment on July 17, 2010. The trial court accepted his guilty
plea and, on February 3, 2011, sentenced him to a term of 365 days and 180
days, respectively, suspended to probation. The trial court ordered the
suspended sentences to run concurrent with each other, for an aggregate term of
365 days, but consecutive to his suspended sentence for a 2009 Class B felony
conviction in another county. “McCool’s probation term wasn’t due to end
until February 25, 2027.” Appellant’s Br. at 2.
[4] The conditions of probation for the instant action prohibited McCool from
committing a new criminal offense and from possessing or using lethal weapons
that could be used in the commission of a crime. Appellant’s App. at 28, 33.
“On March 3, 2015, [McCool] was found guilty of Possession of a Firearm after
1 McCool was initially charged with intimidation as a Class D felony, but negotiated that count down to a Class A misdemeanor. Appellant’s App. at 9
Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016 Page 2 of 6 Having Been Barred from Possession of a Firearm, a Level 4 Felony[,] under
15C01-1411-F4-59 [(“Cause 59”)].”2 Id. at 38. On March 10, 2015, the State
filed a Request for Probation Violation Hearing, contending that his conviction
under Cause 59 was a violation of his probation under the instant action. Id.
[5] On March 24, 2015, the probation revocation court (“probation court”)
conducted a fact-finding hearing. During that hearing, the State introduced an
exhibit pertaining to McCool’s conviction under Cause 59, which consisted of a
“certified copy, Judgment of Conviction, and jury entry for March 2nd and 3rd
along with a signed guilty verdict form, the unsigned not guilty form, Warrant,
Charging Information, [and] Probable Cause Affidavit[.]” Tr. at 9. At the
State’s request, the probation court took judicial notice of the Cause 59
proceedings, sentencing order, and judgment of conviction. Id. at 10. Based on
this evidence, the probation court found by a preponderance of the evidence
that McCool had violated the terms of his probation.
[6] About two weeks later, the probation court, noting the prior criminal history set
forth in McCool’s presentence investigation report (“PSI”), sentenced him to
serve 180 days of his previously-suspended with no credit time.3 The probation
2 In Cause 59, McCool was sentenced to the maximum term of twelve years for the Level 4 conviction and appealed. On appeal, McCool did not appeal his conviction, but only his sentence. A panel of this court affirmed McCool’s sentence, finding that the trial court did not abuse its discretion in entering the sentence and that the sentence was not inappropriate in light of the nature of the offense and the character of the offender. McCool v. State, No.15A05-1505-CR-331 (Ind. Ct. App. Dec. 8, 2015). 3 The State filed to revoke McCool’s suspended sentence on both the harassment and intimidation convictions. The probation court found “there was a probation violation.” Tr. at 11. In the Order Granting Petition to Revoke Probation, the probation court referenced only the 180-day suspended sentence for the
Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016 Page 3 of 6 court ordered the sentence to run consecutive to McCool’s executed sentence in
Cause 59 and stated that McCool’s “probation will be terminated upon
completion of sentence.” Id. at 13. McCool now appeals.
Discussion and Decision [7] Probation is a matter of grace left to the trial court’s discretion, not a right to
which a defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).
The trial court determines the conditions of probation and may revoke
probation if the conditions are violated. Id. (citing Ind. Code. § 35-38-2-3). A
probation revocation hearing is in the nature of a civil proceeding, accordingly,
an alleged violation of probation only has to be proven by a preponderance of
the evidence. Cain v. State, 30 N.E.3d 728, 732 (Ind. Ct. App. 2015), trans.
denied.
[8] Probation revocation is a two-step process. Alford v. State, 965 N.E.2d 133, 134
(Ind. App. 2012), trans. denied. First, the trial court must make a factual
determination that a violation of a condition of probation has occurred. Id.
Second, the trial court must determine whether the violation warrants
revocation. Id. at 135. Upon the revocation of probation, a trial court may
impose one or more of the following sanctions: (1) continue the person on
probation, with or without modifying or enlarging the conditions; (2) extend the
Class B misdemeanor harassment conviction. Appellant’s App. at 46. The record before us makes no specific reference to the resolution of the 365-day suspended sentence imposed for the Class A misdemeanor intimidation conviction.
Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016 Page 4 of 6 person’s probationary period for not more than one year beyond the original
probationary period; (3) order execution of all or part of the sentence that was
suspended at the time of initial sentencing. Id.; I.C. § 35-38-2-3(h). We review
a trial court’s sentencing decisions on probation violations for an abuse of
discretion. Alford, 965 N.E.2d at 135. An abuse of discretion occurs where the
decision is clearly against the logic and effect of the facts and circumstances. Id.
[9] McCool’s sole argument on appeal is that the trial court abused its discretion
when it revoked his entire 180-day suspended sentence. Appellant’s Br. at 3.
McCool cites to his mental health and lack of education, which he claims are
not of his own making, and argues that the trial court should have taken these
factors into consideration to fashion the appropriate remedy. Id. at 6. McCool
also contends that he is “already paying a hefty price for his illegal act [of
possessing a firearm], which harmed no one.” Id. We disagree.
[10] While McCool is, indeed, serving a twelve-year executed sentence for his
firearm conviction under Cause 59, he has never served a day in jail in
connection with his convictions for Class A misdemeanor intimidation and
Class B misdemeanor harassment under the instant action—crimes that he
committed against two separate victims. Instead, the trial court granted
McCool the grace of an aggregate 365-day sentence suspended to probation for
his conviction under the instant action. McCool’s probation was revoked only
after he was convicted of the firearm offense under Cause 59, which was a new
criminal offense. During sentencing for the probation violation, the probation
court took judicial notice of McCool’s “prior criminal history that is addressed
Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016 Page 5 of 6 in the [PSI] from [Cause 59],” a history that included juvenile delinquency
adjudications, and convictions for a Class B felony as well as numerous Class A
and Class B misdemeanors. Appellant’s App. at 66-69. A sentence of 180 days
executed is not clearly against the logic and effect of the facts and
circumstances. The trial court did not abuse its discretion when it sentenced
McCool to 180 days executed, after finding that he violated the terms of his
probation by committing a new criminal offense.
Affirmed.
MATHIAS, J., and BROWN, J., concur.
Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016 Page 6 of 6