Josh McBride v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 26, 2019
• Docket: 19A-CR-1223
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 26 2019, 8:33 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 A. David Hutson Curtis T. Hill, Jr. Hutson Legal Attorney General of Indiana Jeffersonville, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Josh McBride, November 26, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1223 v. Appeal from the Dubois Circuit Court State of Indiana, The Honorable Mark R. Appellee-Plaintiff. McConnell, Special Judge Trial Court Cause No. 19C01-1603-F5-192

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019 Page 1 of 6 Statement of the Case

[1] Josh McBride (“McBride”) appeals the one-year sanction imposed by the trial

court following the revocation of his probation. Concluding that the trial court

did not abuse its discretion, we affirm the sanction imposed by the trial court.

[2] We affirm.

Issue

Whether the trial court abused its discretion by imposing a one-year probation violation sanction.

Facts

[3] Following a bench trial in December 2017, McBride was convicted of Level 5

felony intimidation and sentenced to four (4) years in the Indiana Department

of Correction, with one (1) year to be served on adult day reporting and three

(3) years suspended to supervised probation. As a condition of his probation,

the trial court ordered that McBride “must not commit another criminal offense

while on probation and shall notify the Probation Department immediately if

[he is] arrested or [has] a criminal charge filed against [him].” (App. Vol. 3 at

230).

[4] Almost one year later, in November 2018, Karena Vonderheide

(“Vonderheide”), McBride’s longtime girlfriend, filed a request for a protective

order against McBride. The trial court granted Vonderheide an ex parte

protective order, which prohibited McBride from having any contact or

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019 Page 2 of 6 communication with Vonderheide for two years. After McBride was served

with the protective order, he sent Vonderheide several messages via Facebook

Messenger. The messages discussed various subjects such as the parties’

children, McBride’s work, and his desire to obtain his belongings from

Vonderheide’s residence.

[5] In December 2018, the Dubois County probation department filed a petition to

revoke McBride’s probation, alleging that he had committed a new crime. In

March 2019, the trial court held an evidentiary hearing on the petition to revoke

probation. During this hearing, the State argued that McBride had violated

probation by sending messages via Facebook Messenger to Vonderheide in

violation of the protective order. Conversely, McBride argued that “not one

message was sent to Karena Vonderheide at all.” (Tr. 70). Thereafter, the trial

court found that McBride had violated his probation by committing the crime

of invasion of privacy.

[6] At the ensuing disposition hearing, McBride’s probation officer testified that

McBride had “some delusional problems” and that it was established that he

had “some type of mental disorder.” (Tr. 85). McBride then testified that he

had been taking steps to address his mental health issues. Specifically, he

indicated that he was voluntarily seeing a psychologist every two weeks. He

further stated that his doctor had provided him with medication and that the

“medication helps.” (Tr. 89). The trial court revoked McBride’s probation and

ordered him to serve one-year in the Dubois County Security Center. McBride

now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019 Page 3 of 6 Decision

[7] McBride challenges only the one-year sanction imposed by the trial court for his

probation violation. “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). The trial court determines the conditions of

probation and may revoke probation if the conditions are violated. Id. After

the trial court has determined that a probationer has violated probation, the trial

court may impose one (1) or more of the following sanctions:

(1) Continue the person on probation, with or without modifying or enlarging the conditions.

(2) Extend the person’s probationary period for not more than one (1) 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.

IND. CODE § 35-38-2-3(h). This court has held that a trial court is not required

to balance “aggravating or mitigating circumstances when imposing sentence in

a probation revocation proceeding.” Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct.

App. 2014) (citation omitted), trans. denied. We review a trial court’s decision

regarding the sanction for an abuse of discretion. Puckett v. State, 956 N.E.2d

1182, 1186 (Ind. Ct. App. 2011). An abuse of discretion occurs where the

decision is clearly against the logic and effect of the facts and circumstances. Id.

[8] McBride does not challenge the determination that he violated the terms of his

probation. Rather, his only argument on appeal is that the trial court abused its

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019 Page 4 of 6 discretion by “not tak[ing] the mitigating effect of [his] mental illness into

account[]” when revoking his probation. (McBride’s Br. 9). McBride relies on

Patterson v. State, 659 N.E.2d 220 (Ind. Ct. App. 1995) to support his assertion.

In Patterson, the probationer presented evidence at the probation revocation

hearing that suggested that he was mentally ill at the time he had committed the

underlying crime on which his probation revocation was based. Id. at 222. The

petitioner claimed that because he could not have possessed the requisite

culpability to commit the underlying crime which formed the basis for

revocation, his probation could not be revoked due to the commission of the

underlying crime. Id. Our court held that “[t]he probationer’s mental state at

the time and under the circumstances of the alleged violation is a factor to be

considered” and that “at a minimum, a probationer’s mental state must be

considered in the dispositional determination of the probation revocation

proceeding.” Id. at 222-23.

[9] McBride’s reliance on Patterson is somewhat misplaced. The probationer in

Patterson alleged that his mental illness prevented him from forming the

requisite intent to commit the crime that was the basis for his probation

revocation allegation. Thus, it was the probationer’s mental state “at the time

and under the circumstances of the alleged violation” that was to be considered.

Id. at 222. Here, McBride did not argue during the revocation hearing that his

mental health issues impaired his culpability to commit the underlying crime

that formed the basis for revocation. While McBride’s mental health was

discussed during the disposition hearing, it was well within the prerogative of

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019 Page 5 of 6 the court to determine that, under the circumstances of this particular case,

McBride’s alleged mental condition did not excuse or mitigate the probation

violation. Id. at 223. Based on the foregoing, we conclude that the trial court

did not abuse its discretion when it ordered McBride to serve one year of his

previously suspended sentence.

[10] Affirmed.

May, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019 Page 6 of 6