MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any
                                                                         Jan 31 2018, 11:21 am
court except for the purpose of establishing
the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

George F. Hauk, IV,                                      January 31, 2018
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         70A01-1710-CR-2455
        v.                                               Appeal from the Rush Superior
                                                         Court
State of Indiana,                                        The Honorable Brian D. Hill,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         70D01-1404-FA-150



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 70A01-1710-CR-2455 | January 31, 2018           Page 1 of 8
                                          Case Summary
[1]   On January 8, 2015, Appellant-Respondent George F. Hauk IV was sentenced

      to eight years, with four years executed on home detention and four years

      suspended to probation after he pled guilty to Class B felony dealing in

      methamphetamine. On May 15, 2017, Appellee-Petitioner the State of Indiana

      (“the State”) filed a petition alleging that Hauk had violated the terms of his

      probation by being convicted of Level 3 felony rape and Level 6 felony sexual

      battery. Hauk subsequently admitted to the violation. After accepting Hauk’s

      admission, the trial court revoked Hauk’s four-year suspended sentence and

      ordered that the four-year sentence be served in the Department of Correction

      (“DOC”).


[2]   On appeal, Hauk contends that the evidence is insufficient to prove that he

      violated the terms of his probation. In raising this contention, Hauk concedes

      that the State sufficiently proved that he had been convicted of Level 3 felony

      rape, but claims that the State failed to prove that the rape occurred while he

      was on probation. Concluding otherwise, we affirm.



                            Facts and Procedural History
[3]   On April 1, 2014, the State charged Hauk with Class A felony dealing in

      methamphetamine, Class B felony possession of methamphetamine, Class B

      felony dealing in methamphetamine, Class D felony possession of

      methamphetamine, Class D felony dealing in a legend drug, and Class D felony


      Court of Appeals of Indiana | Memorandum Decision 70A01-1710-CR-2455 | January 31, 2018   Page 2 of 8
      unlawful possession or use of a legend drug or precursor. Hauk subsequently

      agreed to plead guilty to Class B felony dealing in methamphetamine. In

      exchange for Hauk’s guilty plea, the State agreed to dismiss the remaining

      charges and to an eight-year maximum sentence. The trial court accepted

      Hauk’s guilty plea on January 8, 2015, and imposed an eight-year sentence with

      four years suspended to probation. The trial court also ordered that the

      executed portion of Hauk’s sentence would be served on home detention.


[4]   On May 15, 2017, the State filed a probation renovation petition. In this

      petition, the State alleged that Hauk had violated the terms of his probation by

      committing another criminal offense. Specifically, the State alleged that Hauk

      “was charged in Rush County Indiana on May 4, 2017 under cause 70C01-

      1705-F3-343 [“Cause No. F3-343”] for Rape-Level 3 Felony and Sexual

      Battery-Level 6 Felony. The aforementioned charges were committed between

      March 1, 2016 and April 15, 2016.” Appellant’s App. Vol. II, p. 69.


[5]   The State filed a second probation revocation petition on August 10, 2017. In

      this petition, the State alleged that Hauk had violated the terms of his probation

      by failing to inform his probation officer that he had been in contact with law

      enforcement within twenty-four hours of being charged with rape under Cause

      No. F3-343.


[6]   On September 25, 2017, the parties appeared before the trial court for a hearing

      on the State’s petitions. At that time, Hauk, through counsel, indicated that he

      wished to admit the allegation contained in the petition that was filed on May


      Court of Appeals of Indiana | Memorandum Decision 70A01-1710-CR-2455 | January 31, 2018   Page 3 of 8
15, 2017. After Hauk indicated that he wished to admit to the alleged

probation violation, the following exchange occurred:


        [The Court]: Do you now, in fact admit to the allegations
        outlined in your Petition for Revocation of Probation filed on or
        about May 15th, 2017?

        [Hauk]:          Yes.

        [The Court]: Does the State have a [factual basis] to offer?

        [The State]: Yes, your Honor. If this matter were to proceed to
        an Adjudicatory hearing, the State would prove by a
        preponderance of the evidence that [Hauk] was placed on
        probation for a period of thirty, forty-eight months after being
        convicted of Dealing in Methamphetamine as a Class “B”
        Felony. The State would show that Mr. Hauk, uh, was, one of
        the rules of probation was he would not commit another criminal
        offense. And that while he was still on probation here on March
        1st, uh, through April 15th, sometime in that time-period, uh, Mr.
        Hauk, uh, committed the offense of Rape and he was charged
        with that on May 4th of 2017 under cause number 70C01-1705-
        F3-343. Uh, rape as a Level 3 Felony and Sexual Battery [a]s a
        Level 6 Felony. He subsequently had a Jury trial on that and
        was convicted of both counts on or about August 23 rd of 2017.
        The State would, uh, show that all of those events occurred while
        he was still on probation here in Rush County, Indiana.

        [The Court]: Mr. Hauk, are those facts true?

        [Hauk]:     I admit I was convicted at trial. I’m pursuing my
        innocence and appealing it.

        [The Court]: Court finds the, uh, Defendant to be twenty-one
        years of age. Understands the nature of the allegations, uh, the
        possible penalties. I’ll find the admission is freely and voluntarily

Court of Appeals of Indiana | Memorandum Decision 70A01-1710-CR-2455 | January 31, 2018   Page 4 of 8
              given and that there is a factual basis. I’ll accept the admission.
              Find the Defendant to have violated probation pursuant to the
              allegations contained in that Petition for Revocation of Probation
              on May 15th.


      Tr. Vol. II, p. 7. The trial court subsequently revoked the four-year previously

      suspended portion of Hauk’s sentence and ordered that the four years be served

      in the DOC. The trial court further ordered that the four years be served

      “consecutive to the executed sentence in [Cause No. F3-343].” Appellant’s

      App. Vol. II, p. 84 (emphasis removed from original). This appeal follows.



                                 Discussion and Decision
[7]   On appeal, Hauk challenges the revocation of his probation.


              Probation is a matter of grace left to trial court discretion, not a
              right to which a criminal defendant is entitled. The trial court
              determines the conditions of probation and may revoke
              probation if the conditions are violated. Once a trial court has
              exercised its grace by ordering probation rather than
              incarceration, the judge should have considerable leeway in
              deciding how to proceed. If this discretion were not afforded to
              trial courts and sentences were scrutinized too severely on
              appeal, trial judges might be less inclined to order probation to
              future defendants. Accordingly, a trial court’s sentencing
              decisions for probation violations are reviewable using the abuse
              of discretion standard. An abuse of discretion occurs where the
              decision is clearly against the logic and effect of the facts and
              circumstances.


      Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citations omitted).



      Court of Appeals of Indiana | Memorandum Decision 70A01-1710-CR-2455 | January 31, 2018   Page 5 of 8
[8]   In challenging the revocation of his probation, Hauk contends that the State

      failed to present sufficient evidence to prove that he violated the terms of his

      probation. As is stated above, Hauk concedes that the State sufficiently proved

      that he had been convicted of Level 3 felony rape, but claims that the State

      “presented no evidence to show that the rape occurred” while he was on

      probation. Appellant’s Br. p. 9.


              A probation revocation hearing is in the nature of a civil
              proceeding. Marsh v. State, 818 N.E.2d 143, 148 (Ind. Ct. App.
              2004). Therefore, an alleged violation of probation only has to
              be proven by a preponderance of the evidence. Id. When we
              review the determination that a probation violation has occurred,
              we neither reweigh the evidence nor reassess witness credibility.
              Id. “Instead, we look at the evidence most favorable to the
              probation court’s judgment and determine whether there is
              substantial evidence of probative value supporting revocation. If
              so, we will affirm.” Id. When, as here, the alleged probation
              violation is the commission of a new crime, the State does not
              need to show that the probationer was convicted of a new crime.
              Richeson v. State, 648 N.E.2d 384, 389 (Ind. Ct. App. 1995), trans.
              denied. The trial court only needs to find that there was probable
              cause to believe that the defendant violated a criminal law. Id.


      Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006).


[9]   The Indiana Supreme Court has held that probation revocation is a two-step

      process. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). “First, the court must

      make a factual determination that a violation of probation actually occurred. If

      a violation a proven, then the trial court must determine if the violation

      warrants revocation of the probation.” Id. When a probationer admits to the


      Court of Appeals of Indiana | Memorandum Decision 70A01-1710-CR-2455 | January 31, 2018   Page 6 of 8
       violation, the first step is satisfied and the trial court may move to the second

       step and determine whether the violation warrants revocation of the

       probationer’s probation. Id.


[10]   In this case, Hauk admitted that he had been convicted of a new crime, i.e.,

       rape. While evidence of a conviction is not necessary to prove that a

       probationer committed a new crime, we conclude that evidence of a conviction

       is sufficient to prove that there was probable cause to believe that the

       probationer violated a criminal law. See Whatley, 847 N.E.2d at 1010

       (providing that the State is not required to show that a probationer has been

       convicted of a new crime, but only that there was probable cause to believe the

       probationer violated a criminal law). As such, we further conclude that the trial

       court could rely on Hauk’s admission that he had been convicted of rape in

       finding that Hauk had violated the terms of his probation. Therefore, the fact

       that Hauk also indicated that he was “pursuing his innocence and appealing

       it[,]” Tr. Vol. II, p. 7, did not invalidate his admission.


[11]   Further, the factual basis presented by the State clearly indicated that the new

       offense of which Hauk had been convicted of committing, i.e., the rape,

       occurred while Hauk was on probation in the instant case. Hauk did not

       dispute this fact when he admitted to the violation. As such, we conclude that

       Hauk’s contention that the State failed to present sufficient evidence to prove

       that he committed the rape while on probation is without merit.


[12]   The judgment of the trial court is affirmed.


       Court of Appeals of Indiana | Memorandum Decision 70A01-1710-CR-2455 | January 31, 2018   Page 7 of 8
Robb, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 70A01-1710-CR-2455 | January 31, 2018   Page 8 of 8
