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.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2245 | February 25, 2020   Page 2 of 6
      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.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2245 | February 25, 2020   Page 4 of 6
                                                  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.




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