MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Nov 26 2019, 8:33 am
court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
estoppel, or the law of the case.                                                 and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
A. David Hutson                                         Curtis T. Hill, Jr.
Hutson Legal                                            Attorney General of Indiana
Jeffersonville, Indiana
                                                        George P. Sherman
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Josh McBride,                                           November 26, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1223
        v.                                              Appeal from the Dubois Circuit
                                                        Court
State of Indiana,                                       The Honorable Mark R.
Appellee-Plaintiff.                                     McConnell, Special Judge
                                                        Trial Court Cause No.
                                                        19C01-1603-F5-192



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019                    Page 1 of 6
                                       Statement of the Case

[1]   Josh McBride (“McBride”) appeals the one-year sanction imposed by the trial

      court following the revocation of his probation. Concluding that the trial court

      did not abuse its discretion, we affirm the sanction imposed by the trial court.


[2]   We affirm.


                                                     Issue

              Whether the trial court abused its discretion by imposing a one-year
              probation violation sanction.

                                                    Facts

[3]   Following a bench trial in December 2017, McBride was convicted of Level 5

      felony intimidation and sentenced to four (4) years in the Indiana Department

      of Correction, with one (1) year to be served on adult day reporting and three

      (3) years suspended to supervised probation. As a condition of his probation,

      the trial court ordered that McBride “must not commit another criminal offense

      while on probation and shall notify the Probation Department immediately if

      [he is] arrested or [has] a criminal charge filed against [him].” (App. Vol. 3 at

      230).


[4]   Almost one year later, in November 2018, Karena Vonderheide

      (“Vonderheide”), McBride’s longtime girlfriend, filed a request for a protective

      order against McBride. The trial court granted Vonderheide an ex parte

      protective order, which prohibited McBride from having any contact or

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019   Page 2 of 6
      communication with Vonderheide for two years. After McBride was served

      with the protective order, he sent Vonderheide several messages via Facebook

      Messenger. The messages discussed various subjects such as the parties’

      children, McBride’s work, and his desire to obtain his belongings from

      Vonderheide’s residence.


[5]   In December 2018, the Dubois County probation department filed a petition to

      revoke McBride’s probation, alleging that he had committed a new crime. In

      March 2019, the trial court held an evidentiary hearing on the petition to revoke

      probation. During this hearing, the State argued that McBride had violated

      probation by sending messages via Facebook Messenger to Vonderheide in

      violation of the protective order. Conversely, McBride argued that “not one

      message was sent to Karena Vonderheide at all.” (Tr. 70). Thereafter, the trial

      court found that McBride had violated his probation by committing the crime

      of invasion of privacy.


[6]   At the ensuing disposition hearing, McBride’s probation officer testified that

      McBride had “some delusional problems” and that it was established that he

      had “some type of mental disorder.” (Tr. 85). McBride then testified that he

      had been taking steps to address his mental health issues. Specifically, he

      indicated that he was voluntarily seeing a psychologist every two weeks. He

      further stated that his doctor had provided him with medication and that the

      “medication helps.” (Tr. 89). The trial court revoked McBride’s probation and

      ordered him to serve one-year in the Dubois County Security Center. McBride

      now appeals.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019   Page 3 of 6
                                                  Decision

[7]   McBride challenges only the one-year sanction imposed by the trial court for his

      probation violation. “Probation is a matter of grace left to trial court discretion,

      not a right to which a criminal defendant is entitled.” Prewitt v. State, 878

      N.E.2d 184, 188 (Ind. 2007). The trial court determines the conditions of

      probation and may revoke probation if the conditions are violated. Id. After

      the trial court has determined that a probationer has violated probation, the trial

      court may impose one (1) 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 (1) year beyond the original probationary period.

              (3) Order execution of all or part of the sentence that was
              suspended at the time of initial sentencing.

      IND. CODE § 35-38-2-3(h). This court has held that a trial court is not required

      to balance “aggravating or mitigating circumstances when imposing sentence in

      a probation revocation proceeding.” Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct.

      App. 2014) (citation omitted), trans. denied. We review a trial court’s decision

      regarding the sanction for an abuse of discretion. Puckett v. State, 956 N.E.2d

      1182, 1186 (Ind. Ct. App. 2011). An abuse of discretion occurs where the

      decision is clearly against the logic and effect of the facts and circumstances. Id.


[8]   McBride does not challenge the determination that he violated the terms of his

      probation. Rather, his only argument on appeal is that the trial court abused its


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019   Page 4 of 6
      discretion by “not tak[ing] the mitigating effect of [his] mental illness into

      account[]” when revoking his probation. (McBride’s Br. 9). McBride relies on

      Patterson v. State, 659 N.E.2d 220 (Ind. Ct. App. 1995) to support his assertion.

      In Patterson, the probationer presented evidence at the probation revocation

      hearing that suggested that he was mentally ill at the time he had committed the

      underlying crime on which his probation revocation was based. Id. at 222. The

      petitioner claimed that because he could not have possessed the requisite

      culpability to commit the underlying crime which formed the basis for

      revocation, his probation could not be revoked due to the commission of the

      underlying crime. Id. Our court held that “[t]he probationer’s mental state at

      the time and under the circumstances of the alleged violation is a factor to be

      considered” and that “at a minimum, a probationer’s mental state must be

      considered in the dispositional determination of the probation revocation

      proceeding.” Id. at 222-23.


[9]   McBride’s reliance on Patterson is somewhat misplaced. The probationer in

      Patterson alleged that his mental illness prevented him from forming the

      requisite intent to commit the crime that was the basis for his probation

      revocation allegation. Thus, it was the probationer’s mental state “at the time

      and under the circumstances of the alleged violation” that was to be considered.

      Id. at 222. Here, McBride did not argue during the revocation hearing that his

      mental health issues impaired his culpability to commit the underlying crime

      that formed the basis for revocation. While McBride’s mental health was

      discussed during the disposition hearing, it was well within the prerogative of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019   Page 5 of 6
       the court to determine that, under the circumstances of this particular case,

       McBride’s alleged mental condition did not excuse or mitigate the probation

       violation. Id. at 223. Based on the foregoing, we conclude that the trial court

       did not abuse its discretion when it ordered McBride to serve one year of his

       previously suspended sentence.


[10]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019   Page 6 of 6
