Joshua Allen Wilson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Feb 25 2020, 10:00 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jerry T. Drook Curtis T. Hill, Jr. Marion, Indiana Attorney General of Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Joshua Allen Wilson, February 25, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2245 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Dana J. Kenworthy, Appellee-Plaintiff. Judge Trial Court Cause No. 27D02-1807-F6-408

Bailey, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2245 | February 25, 2020 Page 1 of 6

Case Summary [1] Joshua Allen Wilson (“Wilson”) challenges the sanction imposed for violating

the conditions of his probation. He argues that the trial court abused its

discretion by considering information from prior criminal cases. We affirm.

Facts and Procedural History [2] In October 2018, Wilson pleaded guilty to two offenses: Domestic Battery, as a

Level 6 felony;1 and Interference with Reporting a Crime, as a Class A

misdemeanor.2 Pursuant to the plea agreement, the court imposed an aggregate

sentence of two-and-one-half years. Wilson received credit for time served, and

the balance of the sentence—two years and twenty-two days—was suspended

to probation. As a condition of probation, Wilson was ordered to report to his

probation officer as directed. He was also ordered to begin participating in a

domestic-violence program—the BASS program—by November 15, 2018. [3] In July 2019, Wilson’s probation officer filed a petition to revoke probation.

The petition alleged that Wilson had not engaged in the BASS program and

failed to report to the probation department on three occasions. A hearing was

held in August 2019. At the hearing, Wilson admitted that he had missed an

appointment, received a letter with a new appointment date, and did not report

1 Ind. Code § 35-42-2-1.3. 2 I.C. § 35-45-2-5.

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to the rescheduled appointment. As to the BASS program, Wilson claimed that

he attempted to participate, but was told to wait until he had a steady income.

Wilson claimed to have relayed this information to the probation department. [4] The court found that Wilson violated the conditions of his probation by failing

to report and failing to engage in the program. In selecting a sanction, the court

observed that the underlying offense was “the third crime involving the same

victim.” App. Vol. 2 at 27. The court further observed that Wilson had

previously been convicted of misdemeanor battery “on the same victim” and

“was ordered to have no contact with the victim” and “to complete the

Domestic Violence (BASS) program.” Id. The court noted that Wilson

violated the terms of probation in that prior cause “by failing to complete the

Domestic Violence (BASS) program” and “by committing a new offense”—i.e.

invasion of privacy. Id. The court also noted that Wilson “was later convicted

of more serious offenses involving the same victim”—the instant offenses—an

escalation of conduct that the court treated as a strong consideration. The court

further noted that Wilson had “recently violated the conditions of probation” in

one of those prior causes and that “[h]is violation behavior in that case was

similar to his current violation behavior, and demonstrates a pattern of

complete disregard for the orders of the court.” Id. at 28. “More alarming,

[Wilson] has developed a pattern of continuing to abuse the same victim.” Id. [5] After reflecting on Wilson’s criminal history and pattern of conduct, the court

ordered Wilson to serve the balance of the previously suspended sentence.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2245 | February 25, 2020 Page 3 of 6 [6] Wilson now appeals.

Discussion and Decision [7] “Probation is a matter of grace left to trial court discretion, not a right to which

a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.

2013) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). Moreover,

Indiana Code Section 35-38-2-3(h) provides that, when a court has identified a

violation of a condition of probation, the court “may . . . [o]rder execution of all

or part of the sentence that was suspended at the time of initial sentencing.” [8] “A probation hearing is civil in nature and the State need only prove the alleged

violations by a preponderance of the evidence.” Cox v. State, 706 N.E.2d 547,

551 (Ind. 1999). “We will consider all the evidence most favorable to

supporting the judgment of the trial court without reweighing that evidence or

judging the credibility of witnesses.” Id. Moreover, “[i]f there is substantial

evidence of probative value to support the trial court’s conclusion that a

defendant has violated any terms of probation, we will affirm [the] decision to

revoke probation.” Id. (emphasis added). As to the sanction imposed, we

review for an abuse of discretion. Heaton, 984 N.E.2d at 616. An abuse of

discretion occurs “where the decision is clearly against the logic and effect of

the facts and circumstances” or if the court has misapplied the law. Id.

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Violation [9] Wilson contends that he “does not contest the court’s finding that he violated

his probation rules by failing to report as directed.” Br. of Appellant at 9. He

briefly challenges the court’s finding concerning the BASS program, claiming

that any failure to engage “was for lack of financial ability to pay the fees.” Id. [10] Because of the failure to report, the decision to revoke probation was justified.

See Cox, 706 N.E.2d at 551. Regardless, the court entered the following

statement regarding the BASS fees: “Although Defendant claims that he was

told to delay beginning the program, the Court does not find this testimony

credible.” App. Vol. 2 at 27. We decline the invitation to reweigh evidence.

Sanction [11] Wilson primarily challenges the sanction imposed. While acknowledging that

the Indiana Code permits the sanction, Wilson contends that the court abused

its discretion by considering information from prior cases. Wilson asserts that

the case-related information was “not presented as evidence during the fact-

finding hearing.” Br. of Appellant at 11. He claims that the court improperly

derived “aggravating factors” by “taking judicial notice of cases with cause

numbers from 2015 and 2017.” Id. Wilson argues that “[c]ases that happened

before Wilson was even on probation in this cause should not be used as

aggravating factors.” Id. at 12. He ultimately requests a more lenient sanction. [12] In general, the Indiana Rules of Evidence do not apply at proceedings related to

probation and sentencing. Ind. Evidence Rule 101(d)(2). Further, at hearings Court of Appeals of Indiana | Memorandum Decision 19A-CR-2245 | February 25, 2020 Page 5 of 6

on a petition to revoke, “judges may consider any relevant evidence bearing

some substantial indicia of reliability.” Cox, 706 N.E.2d at 551. Moreover, the

“governing statute imposes no requirement upon the trial court to balance

aggravating and mitigating circumstances . . . when imposing a sanction for a

probation violation.” Porter v. State, 117 N.E.3d 673, 675 (Ind. Ct. App. 2018). [13] Wilson did not object when the court referred to the prior cases at the hearing.

What is more, Wilson does not dispute the accuracy of the information. He has

failed to demonstrate that the evidence lacks substantial indicia of reliability. [14] Ultimately, when a court has identified a violation of a condition of probation,

the court “may . . . [o]rder execution of all or part of the sentence that was

suspended.” I.C. § 35-38-2-3(h). We discern no abuse of discretion here. [15] Affirmed.

Kirsch, J., and Mathias, J., concur.

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