MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 30 2019, 9:58 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joshua Haas, October 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1275 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Jeffrey Sharp, Appellee-Plaintiff. Special Judge Trial Court Cause No. 69C01-1402-FB-2
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019 Page 1 of 6 STATEMENT OF THE CASE
[1] Appellant-Defendant, Joshua Haas (Haas), appeals the trial court’s Order,
revoking his probation and imposing the balance of his previously suspended
sentence.
[2] We affirm.
ISSUE [3] Haas presents this court with one issue on appeal, which we restate as:
Whether the trial court abused its discretion by revoking the balance of his
previously suspended sentence following his admission to having violated the
conditions of his probation.
FACTS AND PROCEDURAL HISTORY
[4] At some point between February 2014, and October 2014, in Ripley County,
Indiana, the State filed an Information, charging Haas with one Count of Class
B felony burglary, five Counts of Class C felony burglary, two Counts of Class
D felony theft, one Count of Class D felony receiving stolen property, one
Count of Class B misdemeanor, and alleged that Haas was an habitual
offender. On June 30, 2015, Haas pleaded guilty to two Counts of burglary,
Class C felonies. The trial court subsequently sentenced Haas to the
Department of Correction (DOC) for consecutive terms of six years on one
Count and four years with two years suspended to probation on the other
Count.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019 Page 2 of 6 [5] On August 14, 2018, Haas was released from the DOC. Haas’ “parole was
transferred to Ohio.” (Appellant’s App. Vol. II, p. 76). “In an attempt to
transfer [Haas’] Ripley County Probation to Ohio[,] an Interstate Transfer
appointment” was scheduled with probation officer Cody Tillison (Tillison) on
September 24, 2018 at 10:00 a.m. (Appellant’s App. Vol. II, p. 76). That
meeting was to take place at the Ripley County Probation Department
(Probation Department). Haas was absent at that meeting. A “second
Interstate Transfer appointment was scheduled with [probation officer] Tillison
on November 13, 2018 at 11:00 [a.m.]” (Appellant’s App. Vol. II, p. 76). Haas
also failed to attend that meeting. On November 14, 2018, the Probation
Department sent Haas a “Final Notice Failure to Appear Letter” directing him
to appear for an “appointment on November 28, 2018 at 1:00 [p.m.]”
(Appellant’s App. Vol. II, p. 76). Haas did not show up for that meeting and
was absent at another probation meeting on December 26, 2018.
[6] On December 27, 2018, the probation department filed a notice of probation
violation and requested that a warrant be issued for Haas’ arrest since he was
missing his appointments with the probation department. A warrant was
issued, and Haas was arrested in Ohio on March 20, 2019.
[7] On May 8, 2019, the trial court conducted a probation revocation hearing.
Haas admitted to missing his Interstate Transfer appointments with probation
officer Tillison, and three of his meetings with his assigned probation officer,
Justin Lynette (Lynette). At the conclusion of the hearing, the trial court
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019 Page 3 of 6 revoked Haas’ probation, and ordered him to serve the balance of his previously
suspended sentence in the DOC.
[8] Haas now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [9] Haas appeals the trial court’s Order, revoking his probation and imposing the
balance of his previously suspended sentence. “Probation is a matter of grace
left to the trial court’s discretion, not a right to which a criminal defendant is
entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). It is within the
discretion of the trial court to determine probation conditions and to revoke
probation if these conditions are violated. Id. We review the appeal from a
trial court’s probation determination and sanction for an abuse of discretion.
See id. An abuse of discretion occurs when the decision is clearly against the
logic and effect of the facts and circumstances. Smith v. State, 963 N.E.2d 1110,
1112 (Ind. 2012). A probation hearing is civil in nature and the State need only
prove the alleged violation by a preponderance of the evidence. Id.
[10] Probation revocation is a two-step process. First, the trial court must make a
factual determination that a violation of a condition has actually occurred.
Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. If a
violation is proven, then the trial court must determine if the violation warrants
revocation of the probation. Id. However, where, as here, a probationer admits
to the violations, the trial court can proceed immediately to the second step of
the inquiry and determine whether the violation warrants revocation. Id. In
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019 Page 4 of 6 determining whether the violation warrants revocation, the probationer must be
given an opportunity to present evidence that explains and mitigates his
violation. See id. Once a violation has been found and revocation of probation
is warranted, the 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 person’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. See
Ind. Code § 35-38-2-3(h).
[11] The record shows that on September 24 and November 13, 2018, Haas failed to
appear at two meetings to discuss the transfer of his probation to Ohio with
probation officer Tillison. Then on November 13, and 28, 2018, and December
26, 2018, Haas failed to appear for meetings with his assigned probation officer,
Lynette. At the fact-finding hearing, while Haas admitted to not showing up
for his probation meetings, he also attempted to mitigate his nonattendance by
offering several unsubstantiated excuses. Haas first claimed that he had a full-
time job in Ohio that prevented him from attending all of his appointments with
the Probation Department. Haas additionally claimed that he had no valid
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 30 2019, 9:58 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana Madison, Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joshua Haas, October 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1275 v. Appeal from the Ripley Circuit Court State of Indiana, The Honorable Jeffrey Sharp, Appellee-Plaintiff. Special Judge Trial Court Cause No. 69C01-1402-FB-2
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019 Page 1 of 6 STATEMENT OF THE CASE
[1] Appellant-Defendant, Joshua Haas (Haas), appeals the trial court’s Order,
revoking his probation and imposing the balance of his previously suspended
sentence.
[2] We affirm.
ISSUE [3] Haas presents this court with one issue on appeal, which we restate as:
Whether the trial court abused its discretion by revoking the balance of his
previously suspended sentence following his admission to having violated the
conditions of his probation.
FACTS AND PROCEDURAL HISTORY
[4] At some point between February 2014, and October 2014, in Ripley County,
Indiana, the State filed an Information, charging Haas with one Count of Class
B felony burglary, five Counts of Class C felony burglary, two Counts of Class
D felony theft, one Count of Class D felony receiving stolen property, one
Count of Class B misdemeanor, and alleged that Haas was an habitual
offender. On June 30, 2015, Haas pleaded guilty to two Counts of burglary,
Class C felonies. The trial court subsequently sentenced Haas to the
Department of Correction (DOC) for consecutive terms of six years on one
Count and four years with two years suspended to probation on the other
Count.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019 Page 2 of 6 [5] On August 14, 2018, Haas was released from the DOC. Haas’ “parole was
transferred to Ohio.” (Appellant’s App. Vol. II, p. 76). “In an attempt to
transfer [Haas’] Ripley County Probation to Ohio[,] an Interstate Transfer
appointment” was scheduled with probation officer Cody Tillison (Tillison) on
September 24, 2018 at 10:00 a.m. (Appellant’s App. Vol. II, p. 76). That
meeting was to take place at the Ripley County Probation Department
(Probation Department). Haas was absent at that meeting. A “second
Interstate Transfer appointment was scheduled with [probation officer] Tillison
on November 13, 2018 at 11:00 [a.m.]” (Appellant’s App. Vol. II, p. 76). Haas
also failed to attend that meeting. On November 14, 2018, the Probation
Department sent Haas a “Final Notice Failure to Appear Letter” directing him
to appear for an “appointment on November 28, 2018 at 1:00 [p.m.]”
(Appellant’s App. Vol. II, p. 76). Haas did not show up for that meeting and
was absent at another probation meeting on December 26, 2018.
[6] On December 27, 2018, the probation department filed a notice of probation
violation and requested that a warrant be issued for Haas’ arrest since he was
missing his appointments with the probation department. A warrant was
issued, and Haas was arrested in Ohio on March 20, 2019.
[7] On May 8, 2019, the trial court conducted a probation revocation hearing.
Haas admitted to missing his Interstate Transfer appointments with probation
officer Tillison, and three of his meetings with his assigned probation officer,
Justin Lynette (Lynette). At the conclusion of the hearing, the trial court
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019 Page 3 of 6 revoked Haas’ probation, and ordered him to serve the balance of his previously
suspended sentence in the DOC.
[8] Haas now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION [9] Haas appeals the trial court’s Order, revoking his probation and imposing the
balance of his previously suspended sentence. “Probation is a matter of grace
left to the trial court’s discretion, not a right to which a criminal defendant is
entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). It is within the
discretion of the trial court to determine probation conditions and to revoke
probation if these conditions are violated. Id. We review the appeal from a
trial court’s probation determination and sanction for an abuse of discretion.
See id. An abuse of discretion occurs when the decision is clearly against the
logic and effect of the facts and circumstances. Smith v. State, 963 N.E.2d 1110,
1112 (Ind. 2012). A probation hearing is civil in nature and the State need only
prove the alleged violation by a preponderance of the evidence. Id.
[10] Probation revocation is a two-step process. First, the trial court must make a
factual determination that a violation of a condition has actually occurred.
Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. If a
violation is proven, then the trial court must determine if the violation warrants
revocation of the probation. Id. However, where, as here, a probationer admits
to the violations, the trial court can proceed immediately to the second step of
the inquiry and determine whether the violation warrants revocation. Id. In
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019 Page 4 of 6 determining whether the violation warrants revocation, the probationer must be
given an opportunity to present evidence that explains and mitigates his
violation. See id. Once a violation has been found and revocation of probation
is warranted, the 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 person’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. See
Ind. Code § 35-38-2-3(h).
[11] The record shows that on September 24 and November 13, 2018, Haas failed to
appear at two meetings to discuss the transfer of his probation to Ohio with
probation officer Tillison. Then on November 13, and 28, 2018, and December
26, 2018, Haas failed to appear for meetings with his assigned probation officer,
Lynette. At the fact-finding hearing, while Haas admitted to not showing up
for his probation meetings, he also attempted to mitigate his nonattendance by
offering several unsubstantiated excuses. Haas first claimed that he had a full-
time job in Ohio that prevented him from attending all of his appointments with
the Probation Department. Haas additionally claimed that he had no valid
driver’s license; therefore, he could not drive to his probation meetings. In his
brief, Haas concedes that while he violated the terms of his probation by
missing several of his appointments, his “violation was not intentional but the
result of his economic and transportation circumstances.” (Appellant’s Br. p.
11).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019 Page 5 of 6 [12] Haas fails to show that the trial court’s decision to revoke his probation was
against the logic and effect of the facts and circumstances. Out of eight
meetings with the probation department, Haas missed five. As the trial court
stated, “probation is rendered completely ineffective when an individual fails to
appear.” (Tr. p. 27). Here, the State met its burden of proving by a
preponderance of the evidence that Haas violated the terms of his probation by
failing to show up for his probation meetings; therefore, we hold that the trial
court did not abuse its discretion by revoking Haas’ probation and ordering
Haas to serve the balance of his previously suspended sentence.
CONCLUSION [13] In sum, we conclude that the trial court did not abuse its discretion by revoking
Haas’ probation. Accordingly, we affirm the trial court’s Order that Haas serve
the balance of his previously suspended sentence.
[14] Affirmed.
[15] Vaidik, C. J. and Bradford, J. concur
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019 Page 6 of 6