Joshua Haas v. State of Indiana (mem. dec.)

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

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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

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