MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Apr 21 2020, 6:37 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
R. Patrick Magrath                                        Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                       Attorney General of Indiana
Madison, Indiana
                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Morris W. Haas,                                           April 21, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2809
        v.                                                Appeal from the
                                                          Ripley Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       Jeffrey L. Sharp, Judge
                                                          Trial Court Cause Nos.
                                                          69D01-1902-F6-18
                                                          69D01-1902-F6-20
                                                          69D01-1906-CM-195
                                                          69D01-1908-CM-234
                                                          69D01-1908-F6-147



Kirsch, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020           Page 1 of 13
[1]   Morris W. Haas (“Haas”), who was on probation at the time of his offenses,

      appeals from the trial court’s sentencing order imposing a sentence for his new

      offenses and sentencing him for the revocation of his probation. He raises the

      following restated issues for our review:


                 I. Whether Haas’s sentence is inappropriate in light of the nature
                 of the offenses and the character of the offender; and


                 II. Whether the trial court abused its discretion when it revoked
                 Haas’s probation and ordered him to serve the balance of his
                 previously-suspended sentence in the Indiana Department of
                 Correction (“the DOC”).


[2]   We affirm.


                                      Facts and Procedural History
[3]   In 2018, a protective order was issued against Haas and in favor of L.D.

      Appellant’s App. Vol. 2 at 14. On February 6, 2019, L.D. reported to law

      enforcement that Haas was “at it again[,] yelling at her and saying things[,]”

      specifically, “You’re dead whore.” Id. at 16. L.D. used her cell phone to create

      a video and audio recording of the incident. Id. On February 11, 2019, Haas

      was charged under cause number 69D01-1902-F6-18 (“F6-18”) with Level 6
                                            1
      felony invasion of privacy for violating the 2018 protective order. Id. at 14.




      1
          See Ind. Code § 35-46-1-15.1(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 2 of 13
[4]   On February 7, 2019, C.M. contacted law enforcement to report the

      unauthorized use of her debit card at a dollar store in the amount of $0.91.

      Appellant’s App. Vol. 3 at 14. The manager of the store confirmed that Haas used

      the card to purchase candy. Id. On February 15, 2019, Haas was charged
                                                                                              2
      under cause number 69D01-1902-F6-20 (“F6-20”) with Level 6 felony fraud.

      Id. at 12.


[5]   On April 17, 2019, under a Joint Motion in Tender of Conditional Plea

      Agreement, Haas pleaded guilty to invasion of privacy as a Level 6 felony in

      F6-18 and to Level 6 felony fraud in F6-20. Id. at 33. In F6-18, he was

      sentenced to two and one-half years, with all but time served suspended to

      probation. Appellant’s App. Vol. 2 at 44. In F6-20, he was sentenced to two and

      one-half years, with the entire sentence suspended to probation. Appellant’s App.

      Vol. 3 at 33.


[6]   As part of the terms of his probation under F6-18 and F6-20, Haas was required

      to attend behavioral therapy program meetings. Appellant’s App. Vol. 2 at 53.

      However, he failed to attend two meetings. Thus, on May 14, 2019, under F6-

      18 and F6-20, the State filed separate petitions to revoke Haas’s probation. Id.

      On May 15, 2019, the trial court revoked Haas’s probation in both cases. Id. at

      59; Appellant’s App. Vol. 3 at 46. That same day, the trial court revoked ninety

      days of Haas’s suspended sentence in F6-18 but stayed execution of the




      2
          See Ind. Code § 35-43-5-4(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 3 of 13
      sentence pending completion of probation. Appellant’s App. Vol. 2 at 59. The

      trial court did not revoke any part of the previously-suspended sentence in F6-

      20. Appellant’s App. Vol. 3 at 46.


[7]   On June 25, 2019, law enforcement was at an apartment assisting an elderly

      woman who was having chest pains when Haas entered the apartment.

      Appellant’s App. Vol. 4 at 14. The responding officer, who had previously

      trespassed Haas from the same property, confronted Haas. Id. Haas told the

      officer that he thought the trespass had been “dropped.” Id. The officer told

      Haas this was not the case and then arrested Haas. Id. On June 27, 2019,

      under cause number 69D01-1906-CM-195 (“CM-195”), Haas was charged with
                               3
      criminal trespass as a Class A misdemeanor. Id. at 8.


[8]   On July 2, 2019, in F6-18, and on July 3, 2019, in F6-20, the State filed

      petitions to revoke Haas’s probation, this time alleging that Haas had violated

      his probation by committing a new offense, that is, criminal trespass in CM-

      195. Appellant’s App. Vol. 2 at 62; Appellant’s App. Vol. 3 at 47.


[9]   While the second set of petitions to revoke Haas’s probation were pending,

      Haas committed another offense – namely, another incidence of Class A

      misdemeanor criminal trespass. Specifically, on August 5, 2019, the manager

      of a liquor store saw Haas enter the store and go into an upstairs apartment to




      3
          See Ind. Code § 35-43-2-2(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 4 of 13
       visit the tenant. Appellant’s App. Vol. 5 at 10. The manager contacted the police

       because Haas had previously been trespassed from the liquor store. Id. The

       following day, Haas was charged with criminal trespass as a Class A

       misdemeanor under 69D01-1908-CM-234 (“CM-234”). Id. at 8.


[10]   Also, on August 5, 2019, Haas committed Level 6 felony invasion of privacy

       when he violated a protective order that was in place against him and in favor

       of C.M. Appellant’s App. Vol. 6 at 13. Specifically, Haas made contact with

       C.M.’s son. Id. On August 9, 2019, under cause number 69D01-1908-F6-147

       (“F6-147”), Haas was charged with invasion of privacy as a Level 6 felony. Id.

       at 10.


[11]   On August 20, 2019, in F6-18 and in F6-20, the State filed a third set of

       petitions to revoke Haas’s probation. Appellant’s App. Vol. 2 at 69; Appellant’s

       App. Vol. 3 at 54. The petitions alleged that Haas violated his probation by

       committing new offenses. Id.


[12]   On September 30, 2019, Haas admitted to violating the terms of his probation

       in F6-18 and F6-20. Tr. at 13. Haas also entered a guilty plea to Class A

       misdemeanor criminal trespass in CM-195 and CM-234 and to Level 6 felony

       invasion of privacy in F6-147. Id. at 14. On October 29, 2019, the trial court

       held a combined sentencing hearing and revocation hearing on all five cause

       numbers. Id. at 17. The trial court revoked the balance of Haas’s suspended

       sentence in both F6-18 and F6-20. Id. at 50-51. He was sentenced to

       consecutive sentences of 816 days in F6-18; 910 days in F6-20; 180 days in CM-


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 5 of 13
       195; 180 days in CM-234; and 910 days in F6-147 – for a total executed term of

       2,996 days. Id. Haas now appeals.


                                      Discussion and Decision

                                      I. Inappropriate Sentence
[13]   Haas contends that the three and one-half years executed sentence that he

       received for the offenses he committed in CM-195, CM-234, and F6-147 is

       inappropriate in light of the nature of the offenses and the character of the

       offender. Pursuant to Indiana Appellate Rule 7(B), this court “may revise a

       sentence authorized by statute if, after due consideration of the trial court’s

       decision, the [c]ourt finds that the sentence is inappropriate in light of the

       nature of the offense and the character of the offender.” Our Supreme Court

       has explained that the principal role of appellate review should be to attempt to

       leaven the outliers, “not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We independently

       examine the nature of Haas’s offenses and his character under Appellate Rule

       7(B) with substantial deference to the trial court’s sentence. Satterfield v. State,

       33 N.E.3d 344, 355 (Ind. 2015). “In conducting our review, we do not look to

       see whether the defendant’s sentence is appropriate or if another sentence might

       be more appropriate; rather, the test is whether the sentence is ‘inappropriate.’”

       Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App. 2013), trans. denied. Whether

       a sentence is inappropriate ultimately depends upon “the culpability of the

       defendant, the severity of the crime, the damage done to others, and myriad



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 6 of 13
       other factors that come to light in a given case.” Cardwell, 895 N.E.2d at 1224.

       Haas bears the burden of persuading us that his sentence is inappropriate. Id.


[14]   “As to the nature of the offense, the advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”

       Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015). Here, Haas

       pleaded guilty to Class A misdemeanor criminal trespass in CM-195 and CM-

       234 and to Level 6 felony invasion of privacy in F6-147. Tr. at 14.

       A class A misdemeanor carries a sentence of not more than one year. Ind.

       Code § 35-50-3-2. The sentencing range for a level 6 felony is six months to two

       and one-half years, with a one-year advisory term. Ind. Code § 35-50-2-7(b).

       Therefore, the maximum sentence Haas could have received from the trial

       court was four and one-half years. The trial court imposed a sentence of three

       and one-half years. Thus, Haas’s executed sentence was one year less than the

       maximum he could have received.


[15]   As this court has recognized, the nature of the offense is found in the details

       and circumstances of the commission of the offense and the defendant’s

       participation. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The nature

       of the offense refers to a defendant’s actions in comparison with the elements of

       the offense. Cardwell, 895 N.E.2d at 1224. When determining the

       appropriateness of a sentence that deviates from an advisory sentence, “we

       consider whether there is anything more or less egregious about the offense as

       committed by the defendant that ‘makes it different from the typical offense

       accounted for by the legislature when it set the advisory sentence.’” Moyer v.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 7 of 13
       State, 83 N.E.3d 136, 142 (Ind. Ct. App. 2017) (quoting Holloway v. State, 950

       N.E.2d 803, 807 (Ind. Ct. App. 2011)), trans. denied.


[16]   Haas maintains that his sentence is inappropriate in light of the nature of the

       offenses because “there is nothing in the nature of [his] criminal actions that

       warranted a [three and one-half] years fully executed sentence[,]” and that he

       was “confused” by the fact that he was charged with the crimes because, at the

       time he committed the offenses, he did not believe he had broken any laws.

       Appellant’s Br. at 14. We are not persuaded. Regarding the criminal trespassing

       offenses, Haas twice trespassed on properties from which he had previously

       been trespassed. As for the invasion of privacy offense, Haas made contact

       with C.M.’s son, knowing that C.M. had a protective order in place against

       Haas. The nature of Haas’s offenses does not merit a shorter term.


[17]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Perry, 78 N.E.3d at 13. When considering the character of the

       offender, one relevant fact is the defendant’s criminal history. Johnson v. State,

       986 N.E.2d 852, 857 (Ind. Ct. App. 2013). At sentencing, the trial court noted

       that Haas’s criminal history was “atrocious,” and “one of the worst criminal

       histories [the court had] seen.” Tr. at 49. The presentence investigation report

       shows Haas to be a career criminal whose offenses began in 1980, when he was

       nineteen years old, and span four decades and six different states. Appellant’s

       Conf. App. Vol. 5 at 23-44. He has “at least [twenty-nine misdemeanor]

       convictions, at least [twenty-six felony] convictions, and [ten] criminal cases

       which may or may not have resulted in a conviction.” Id. at 43. His felony

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 8 of 13
       record includes assault, domestic violence, burglary, numerous convictions of

       theft, dealing in stolen property, obtaining money under false pretenses, forgery,

       and invasion of privacy. Id. at 27-39. His misdemeanor record includes

       convictions for domestic violence, resisting an officer, criminal mischief, theft,

       possession of a controlled substance, trespass, and invasion of privacy. Id. at

       28-39. Haas’s record is peppered with probation violations and revocations,

       which indicate that previous attempts at leniency have failed. Id. at 29-40. He

       committed the offenses in CM-195, CM-234, and F6-147 while on probation.

       Also, at the time of his sentencing for the instant offenses, Haas had active

       warrants for his arrest in Ohio, Kentucky, and Pennsylvania. Id. at 40-41. The

       trial court found that Haas “was pretty much a menace to the town of

       Sunman[, Indiana]. Every person he come[s] in contact with wants a protective

       order.” Tr. at 48. Given Haas’s lengthy criminal history, we cannot say his

       sentence is inappropriate in light of his character.


[18]   Haas has not shown that his sentence is inappropriate in light of the nature of

       the offenses and the character of the offender. We, therefore, affirm the

       sentence imposed by the trial court.


                                      II. Probation Revocation
[19]   Haas next contends that the trial court abused its discretion in revoking his

       probation and ordering him to serve the remainder of his previously-suspended

       sentences in F6-18 and F6-20 in the DOC. “Probation is a matter of grace left

       to trial court discretion, not a right to which a criminal defendant is entitled.”


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 9 of 13
       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Probation revocation is a two-

       step process. First, the trial court must determine that a violation of a condition

       of probation actually occurred. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).

       Second, the court must determine if the violation warrants revocation of

       probation. Id. Where, as here, a probationer admits to the violation, the court

       can proceed to the second step of the inquiry and determine whether the

       violation warrants revocation. Id. But even a probationer who admits the

       allegations against him must still be given an opportunity to offer mitigating

       evidence suggesting that the violation does not warrant revocation. Id.


               “We review a trial court’s sentencing decision in a probation
               revocation proceeding for an abuse of discretion.” Puckett v.
               State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011) (citing
               Abernathy v. State, 852 N.E.2d 1016, 1020 (Ind. Ct. App. 2006)).
               An abuse of discretion occurs if the trial court’s decision is
               against the logic and effect of the facts and circumstances before
               the court. Id. A defendant cannot collaterally attack the
               propriety of an original sentence in the context of a probation
               revocation proceeding. Id. However, a defendant is entitled to
               challenge the sentence a trial court decides to impose after
               revoking probation. Id. (citing Abernathy, 852 N.E.2d at 1020
               (citing Stephens v. State, 818 N.E.2d 936, 939 (Ind. 2004) (“A
               defendant is entitled to dispute on appeal the terms of a sentence
               ordered to be served in a probation revocation proceeding that
               differ from those terms originally imposed.”))).



       Johnson v. State, 62 N.E.3d 1224, 1229-30 (Ind. Ct. App. 2016).


[20]   Indiana Code section 35-38-2-3 provides, in relevant part, as follows:


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 10 of 13
               (a) The court may revoke a person’s probation if:


                        (1) the person has violated a condition of probation during
                        the probationary period; and


                        (2) the petition to revoke probation is filed during the
                        probationary period . . . .


               ....


               (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.


       The violation of a single condition of probation is sufficient to revoke

       probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).


[21]   Haas admitted to violating the terms of his probation but nonetheless argues

       that the trial court abused its discretion when it ordered him to serve the

       remainder of his previously-suspended sentences in F6-18 and F6-20. Haas

       suggests that his probation should not have been revoked because his

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 11 of 13
       “probation violations were based exclusively on the commission of the three

       new criminal offenses[,]” none of which “caused harm or were intended to

       cause harm[;]” he “fully admitted to all criminal conduct and sought the mercy

       of the trial court[;]” and he was in need of mental health treatment, not

       incarceration, due to his “untreated mental health issues” and his “fragile

       mental state[.]” Appellant’s Br. at 18, 19.


[22]   Here, the record reveals that the trial court had ample basis for its decision to

       order Haas to serve his previously-suspended sentences in the DOC. Haas was

       originally sentenced to a term of two and one-half years in both F6-18 and F6-

       20, with the entirety of both sentences suspended to probation. Appellant’s App.

       Vol. 2 at 48; Appellant’s App. Vol. 3 at 31. He violated probation by missing two

       behavioral therapy meetings, and the trial court revoked part of Haas’s sentence

       in F6-18. Appellant’s App. Vol. 2 at 59. Instead of ordering the sentence

       executed in the DOC, the trial court showed leniency – essentially providing

       Haas a second chance – by suspending execution of the sentence pending

       Haas’s completion of probation. Id. However, after having been afforded a

       second opportunity to have his sentence suspended to probation, Haas did not

       refrain from committing additional violations. He again violated the terms of

       his probation, this time by committing three separate offenses.


[23]   To the extent Haas argues that the trial court failed to consider his guilty plea,

       his mental health issues, and his need for treatment, we note that, at sentencing,

       the trial court considered as a mitigating factor Haas’s guilty pleas in CM-195,

       CM-234, and F6-147. Tr. at 50. The court considered Haas’s mental health

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 12 of 13
       issues but determined that “there has [been nothing] presented to the Court here

       today to excuse or to show the nexus between the mental health issues and the

       underlying criminal activity.” Id. As for treatment, we note that the Indiana

       prison system offers multiple programs designed to aid and rehabilitate inmates.

       Based upon the foregoing, and pursuant to the clear language of Indiana Code

       section 35-38-2-3(h), the trial court acted within its discretion in ordering

       execution of the remaining balance of Haas’s suspended sentences.


[24]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2809 | April 21, 2020   Page 13 of 13
