MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                              Jun 29 2020, 8:35 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                         Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana

                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Cole Hornsby,                                            June 29, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A-CR-85
        v.                                               Appeal from the Dearborn Circuit
                                                         Court
State of Indiana,                                        The Honorable James D.
Appellee-Plaintiff.                                      Humphrey, Judge
                                                         Trial Court Cause No.
                                                         15C01-1804-F5-30



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-85 | June 29, 2020                     Page 1 of 9
[1]   Cole Hornsby appeals his sentence following the revocation of his probation.

      We affirm.


                                      Facts and Procedural History

[2]   On April 18, 2018, the State charged Hornsby with: Count I, carrying a

      handgun without a license on or in school property as a level 5 felony; Count II,

      maintaining a common nuisance as a level 6 felony; and Count III, possession

      of marijuana as a class B misdemeanor. On February 1, 2019, the court

      approved a plea agreement in which Hornsby pled guilty to Count I, carrying a

      handgun without a license as a level 5 felony, and the State agreed to dismiss

      the remaining counts as well as cause number 15D02-1901-CM-29 and

      recommend a sentence of four years with three years and ninety-five days

      suspended. The plea agreement provided that Hornsby shall obey all

      conditions of probation attached as Exhibit A, which provided in part: “You

      must not commit another criminal offense. If you do commit another criminal

      offense, your probation may be revoked.” Appellant’s Appendix Volume II at

      52. The court accepted the plea agreement, sentenced Hornsby to the

      Department of Correction for four years with three years and ninety-five days

      suspended, and ordered that he shall obey all conditions of probation set forth

      in Exhibit A attached to the plea agreement.


[3]   On September 13, 2019, a probation officer filed a Request for Probation

      Violation Hearing alleging Hornsby committed a new criminal offense,

      invasion of privacy as a class A misdemeanor on or about June 23, 2019. On

      November 21, 2019, the probation officer filed an Amended Request for
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-85 | June 29, 2020   Page 2 of 9
      Probation Violation Hearing alleging Hornsby committed another criminal

      offense of invasion of privacy as a class A misdemeanor on or about September

      12, 2019.


[4]   On November 25, 2019, the court held a hearing, and the prosecutor stated that

      the request for probation violation hearing should state Hornsby committed

      invasion of privacy on October 12, 2019, instead of September 12, 2019. The

      court admitted a protective order dated February 28, 2019, indicating it expired

      on February 8, 2021, and prohibiting Hornsby from harassing, annoying,

      telephoning, contacting, or directly or indirectly communicating with Lindsay

      Packer. Dearborn County Sheriff’s Deputy Craig Elliott testified he received a

      complaint from Packer that she was at a bar in Harrison, Ohio, noticed

      Hornsby at the same bar, and received a text message the next day on June 23,

      2019, that was a “third-party communication from Mr. Hornsby that identified

      them self [sic] to be an Ian Hornsby,” who Deputy Elliott learned was

      Hornsby’s cousin. Transcript Volume II at 10. The text message states:


              Hey this is Ian Hornsby, and [I] just wanted to let you know that
              [C]ole said if you don’t drop the protective order by the end of
              the week, he’s going to hire a lawyer and take you to court over
              it. He said he’ll leave you completely alone, but the protective
              order will be dropped one way or another, because it’s
              completely unnecessary.


      State’s Exhibit 3. Deputy Elliott indicated he spoke with Ian who told him that

      he was with Hornsby on the 22nd, denied sending the message to Packer, and

      stated he had no idea who Packer was. Deputy Elliott completed a probable

      Court of Appeals of Indiana | Memorandum Decision 20A-CR-85 | June 29, 2020   Page 3 of 9
      cause affidavit related to the charge of invasion of privacy which stated in part:

      “Your [affiant] was told by Packer that she and Hornsby had never been in a

      relationship and that she was just being followed and stalked by Hornsby. Your

      affiant read reports that stated previously Packer had to be escorted through

      school because she was in fear of Hornsby.” State’s Exhibit 1. He testified that

      Packer disclosed that she believed Hornsby communicated with her since the

      filing of the charge in a text message on October 12th that stated: “Jesus

      Christ.” Transcript Volume II at 16-17; State’s Exhibit 4. Hornsby’s counsel

      indicated that Hornsby would admit that he sent this message.


[5]   Packer testified she knew Hornsby from high school but was not his friend and

      that he had nonconsensual contact with her in the form of phone calls and

      appearing at places where she was located. She indicated she told Hornsby to

      leave her alone plenty of times, but he continued to contact her and changed his

      number so he could continue to contact her. She testified “it started about in

      2016 in high school” during her junior year and Hornsby would say “weird

      things” to her which made her feel uncomfortable. Transcript Volume II at 27.

      When asked by the court if she was telling it that “this has gone on for almost

      three years,” Packer answered affirmatively. Id. When asked what she meant

      by “weird things,” she stated that Hornsby called her a “bad b----” and an

      “effing b----,” screamed at her, and tripped her in the hallway. Id. On

      November 27, 2019, the court resumed the hearing and found that the State had

      presented sufficient evidence to prove the allegations of the petition.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-85 | June 29, 2020   Page 4 of 9
[6]   On December 4, 2019, the court held a sentencing hearing. Hornsby’s father

      stated that Hornsby was very intelligent and he was, at one point, concerned his

      son was using drugs, but Hornsby “turned out to be clean.” Id. at 44. Hornsby

      said: “I would just like to say to the victim that I love her, and I apologize if I

      was ever offensive or caused you to be uncomfortable.” Id. at 46. Probation

      Officer Jennifer Benson testified that Hornsby’s brother called her on September

      13th and told her that Hornsby was “saying crazy things,” wanted his guns,

      argued with him, and Hornsby “had hurt the cat and killed the cat.” Id. at 48.

      Packer’s mother testified regarding Hornsby’s behavior and her and her

      husband’s concern for Packer’s safety. The prosecutor read a letter from Packer

      which stated in part:


              Since the protective order, he has shown up where I’m at, texted
              me in a way that I perceived as threatening, and he even texted
              me from the jail. I just really want to live my life without
              worrying about him being around every corner. I have lived in
              fear and so has my family.


      Id. at 57. When asked by the court for argument, Hornsby’s counsel stated:

      “Your Honor, there’s a long history that we’ve heard. However, to remind the

      Court that there’s two particular issues with regards to probation, and we’d like

      the Court to keep that in mind.” Id. at 58.


[7]   The court stated that “there’s lots of disturbing things about what I’ve heard

      here today and on previous occasions,” it “heard evidence here today of this

      obsessive behavior, compulsive obsessive behavior,” it “observed Mr. Hornsby

      smiling and snickering as [Packer] was testifying in the courtroom,” and “[t]he
      Court of Appeals of Indiana | Memorandum Decision 20A-CR-85 | June 29, 2020   Page 5 of 9
      other thing that may be most disturbing of all is that when given the

      opportunity, it is his right to have the statement of allocution, he made it, and

      in spite of all these things, he says, ‘I love her.’” Id. at 61-65.


[8]   The court ordered that the remaining suspended sentence be revoked. The

      court’s order states in part:


              Among the circumstances considered by the Court in making this
              decision are the following:

              1. The Defendant is on probation for possessing a firearm on
              school property.

              2. That Defendant carried on an obsessive and continuous
              pattern of unwanted contact toward the victim over a period of
              years. This included, while the victim and Defendant were
              attending high school together. Contact continued and included
              up to 80 attempted telephone contacts while Defendant was
              incarcerated at the Dearborn County Law Enforcement Center.
              Defendant attempted personal contact. Defendant even
              attempted contact during the pendency of this case.

              3. The fact that Defendant used threatening language in a text
              message to the victim indicating that “. . . the protective order
              will be dropped one way or another . . .”.

              4. Court considers the letter submitted to the Court on or about
              September 13, 2019, shortly before the probation violation was
              filed in this case. In this letter, Defendant demanded that the
              Court return his firearms to him in spite of his Felony conviction
              and the Court’s previous order. Considering this letter in the
              context of Defendant’s obsessive behavior and other evidence
              regarding his desire to obtain firearms, the Court finds this is an
              indication of extreme danger.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-85 | June 29, 2020   Page 6 of 9
              5. Court also considers Defendant’s statement of allocution.
              Defendant used this statement to express a “love” for the victim,
              which further confirms his obsessive behavior.

              6. Court also considers Defendant’s behavior during victim’s
              testimony at the Fact-Finding Hearing, in which the court
              observed him smiling and laughing.

              7. Based upon these facts and circumstances, and other evidence
              presented at the Fact-Finding Hearing, the Court finds that the
              Defendant has deliberately violated his terms and conditions of
              probation, that he has no intention of following rules and
              conditions of probation and that he poses an extreme danger to
              the victim and to the community.


      Appellant’s Appendix Volume II at 65-66.


                                                   Discussion

[9]   Hornsby concedes that he violated his probation by committing an additional

      criminal offense but asserts his violation did not warrant a revocation of his

      entire suspended sentence. He asserts that he was not on probation for

      “anything having to do with” Packer, he was only nineteen years old when he

      violated his probation, and reports from his father and brother that his behavior

      was unexpected suggests he was exhibiting mental health issues. Appellant’s

      Brief at 11. The State contends that Hornsby waived any argument regarding

      his mental health because he did not raise it below and the trial court was well

      within its discretion to revoke the balance of his sentence because he committed

      two new criminal offenses while on probation and presented a danger to Packer

      and the community.



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-85 | June 29, 2020   Page 7 of 9
[10]   Ind. Code § 35-38-2-3(h), which sets forth a trial court’s sentencing options if

       the court finds a probation violation, provides:


               (h) If the court finds that the person has violated a condition at
               any time before termination of the period, and the petition to
               revoke is filed within the probationary period, the 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.


[11]   We review trial court probation violation determinations and sanctions for an

       abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (citing

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The Indiana Supreme Court

       has explained that “[o]nce a trial court has exercised its grace by ordering

       probation rather than incarceration, the judge should have considerable leeway

       in deciding how to proceed” and that “[i]f 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.” Prewitt, 878

       N.E.2d at 188. An abuse of discretion occurs where the decision is clearly

       against the logic and effect of the facts and circumstances. Id.


[12]   The record reveals that the court initially sentenced Hornsby for carrying a

       handgun without a license as a level 5 felony to four years with three years and

       Court of Appeals of Indiana | Memorandum Decision 20A-CR-85 | June 29, 2020    Page 8 of 9
       ninety-five days suspended. The evidence indicates Hornsby violated the

       protective order and committed invasion of privacy in June 2019 and again in

       October 2019. We note that Hornsby’s communication with Parker in October

       2019 occurred after the initial Request for Probation Violation Hearing was

       filed on September 13, 2019. Given the circumstances and in light of the

       record, we cannot say that the trial court abused its discretion in revoking

       Hornsby’s probation and ordering that he serve the remainder of his previously-

       suspended sentence.


[13]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CR-85 | June 29, 2020   Page 9 of 9
