MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Feb 24 2016, 8:49 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                      Gregory F. Zoeller
Anderson, Indiana                                        Attorney General

                                                         Brian Reitz
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gregory Manis,                                           February 24, 2016
Appellant-Respondent,                                    Court of Appeals Case No.
                                                         48A02-1506-CR-645
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable David A. Happe,
Appellee-Petitioner.                                     Judge
                                                         Trial Court Cause No.
                                                         48C04-1209-FC-1661



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 1 of 13
[1]   In 2012, Appellant-Respondent Gregory Manis was charged with one count of

      Class D felony theft and eighty-seven counts of Class C felony forgery. In

      charging Manis, Appellee-Petitioner the State of Indiana (the “State”) alleged

      that Manis stole nearly $80,000 from the Utility Workers Union of America

      Local #108 (the “Union”) in order to satisfy his gambling addiction. Manis

      subsequently pled guilty to one count of Class D felony theft and one count of

      Class C felony forgery. The trial court sentenced Manis to an aggregate term of

      seven years with one year executed in the Department of Correction (“DOC”),

      one year executed on work release, and five years suspended to probation. As a

      term of his probation, Manis was ordered to pay approximately $80,000 in

      restitution to the Union.


[2]   On March 12, 2014, the State filed a petition seeking to revoke Manis’s

      probation. In this petition, the State alleged that Manis had violated the terms

      of his probation by failing to pay the ordered restitution. Following an

      evidentiary hearing, the trial court determined that the State had proven by a

      preponderance of the evidence that Manis had violated the terms of his

      probation. The trial court then revoked Manis’s probation and ordered Manis

      to serve two years of his previously-suspended sentence in the DOC.


[3]   On appeal, Manis contends that the evidence presented by the State is

      insufficient to prove that he violated the terms of his probation. Concluding

      that Manis recklessly, knowingly, or intentionally failed to make restitution

      payments, we affirm.



      Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 2 of 13
                            Facts and Procedural History
[4]   On September 4, 2012, the State charged Manis with one count of Class D

      felony theft and eighty-seven counts of Class C felony forgery. In charging

      Manis, the State alleged that Manis stole nearly $80,000 from the Union in

      order to satisfy his gambling addiction. On July 1, 2013, Manis pled guilty to

      one count of Class D felony theft and one count of Class C felony forgery. That

      same date, trial court sentenced Manis to an aggregate term of seven years with

      one year executed in the DOC, one year executed on work release,1 and five

      years suspended to probation.


[5]   As a term of his probation, Manis was ordered to pay restitution to the Union.

      On August 26, 2013, the trial court determined that Manis owed $79,641.97 in

      restitution. The trial court also ordered that the probation department conduct

      yearly assessments of Manis’s “payments on said restitution.” Appellant’s App.

      p. 99. On January 5, 2015, the trial court held a hearing to review Manis’s

      restitution payments. During this hearing, the trial court ordered the probation

      department to review Manis’s payment history and file a violation if warranted.


[6]   On March 12, 2015, the State filed a petition seeking to revoke Manis’s

      probation. The trial court conducted an evidentiary hearing on the State’s

      petition on May 18, 2015. During this hearing, the State presented evidence



      1
       Manis’s work release placement was subsequently changed to in-home detention. On
      November 25, 2014, a notice was filed stating that Manis had completed the in-home
      detention portion of his sentence.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 3 of 13
      demonstrating that Manis was employed from June 2014 through February

      2015, during which time he earned the equivalent of $26,000 per year; he also

      received monthly retirement payments of $1077; and an annuity payment

      which the trial court noted “would’ve been a big check.” Tr. p. 10. While

      Manis did not remember the exact amount he received in the annuity payment,

      he admitted that he frittered the money away by gambling. Despite these

      multiple sources of income, Manis paid only $240 towards the restitution order

      of his own volition.2


[7]   At the conclusion of the evidentiary hearing, the trial court determined that

      Manis had violated the terms of his probation by failing to pay restitution as

      ordered. In reaching this determination, the trial court stated the following:

              Okay. All right. Well I appreciate that thought from probation,
              but, uh, Mr. Manis isn’t gonna comply with that. He’s had the
              ability to comply already. I’ve lectured him about this being his
              important priority to pay restitution. He stole nearly eighty
              thousand dollars ($80,000.00) from innocent people to fuel his
              addiction. And he’s had the ability to pay and he’s just chose not
              to pay. There’s only one (1) resolution for someone who just
              willfully thumbs their nose at an obligation that they have and
              refused to pay, and that’s what Mr. Manis has done. There
              needs to be some additional prison time here. That’s the only
              reasonable result here. There is no way that we would expect
              Mr. Manis to do anything different if we did nothing different
              with him. I frankly would expect that Mr. Manis would say I’m
              disabled again now and I’m not able to pay. I can’t prove that, I



      2
        Pursuant to court order, $1000 from Manis’s bond was also applied toward the restitution
      order.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 4 of 13
              won’t bring any documentation, but take my word for it, I’m
              disabled and I can’t pay this. That’s what I would expect from
              Mr. Manis based on past history. I’m very disappointed to learn
              that there was an eight (8) month period of time when Mr. Manis
              was earning at the rate of twenty-six thousand dollars
              ($26,000.00) a year, and other than the thousand dollar
              ($1,000.00) bond payment that was taken from him, he’s paid
              two hundred and forty dollars ($240.00) toward the restitution.
              He has put restitution almost at the lowest possible priority he
              could place it, and that’s not acceptable. The reason that Mr.
              Manis got the benefit of the length of suspended time and
              community corrections time he had was so that he could work
              toward paying restitution, and he simply elected not to do that,
              and that’s not acceptable and there are consequences for it. Mr.
              Manis, I’m very, very disappointed that you made those choices.
              Those choices have left me without a choice here. The only way
              to adequately address your behavior over the course of your
              sentence is to impose [DOC] time.


      Tr. pp. 61-63. The trial court then revoked Manis’s probation and ordered him

      to serve two years of his previously-suspended sentence in the DOC. This

      appeal follows.



                                 Discussion and Decision
[8]   Manis contends that the State failed to present sufficient evidence to support 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

      Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 5 of 13
               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).


               A probation revocation hearing is in the nature of a civil
               proceeding. Therefore, an alleged violation of probation only has
               to be proven by a preponderance of the evidence. When we
               review the determination that a probation violation has occurred,
               we neither reweigh the evidence nor reassess witness credibility.
               Instead, we look at the evidence most favorable to the [trial]
               court’s judgment and determine whether there is substantial
               evidence of probative value supporting revocation. If so we will
               affirm.


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

      and quotation omitted). 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).


[9]   In order for a probationer to be found to have violated the terms of their

      probation by failing to comply with a condition that imposes a financial

      obligation, “the probationer must be shown to have recklessly, knowingly, or

      intentionally failed to pay.” Smith v. State, 963 N.E.2d 1110, 1113 (Ind. 2012).


      Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 6 of 13
       In Smith, the Indiana Supreme Court determined that “‘[a]s to the fact of

       violation, the statute expressly imposes the burden of proof upon the State.’”

       Id. (quoting Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010)).


               Noting that revoking probation for violating a financial
               obligation requires proof of both the underlying violation and the
               defendant probationer’s state of mind, [the Indiana Supreme
               Court] held, “it is the State’s burden to prove both the violation
               and the requisite state of mind in order to obtain a probation
               revocation.” [Runyon, 939 N.E.2d at 616]. With respect to the
               ability to pay, [the Indiana Supreme Court] held that it is the
               defendant probationer’s burden “to show facts related to an
               inability to pay and indicating sufficient bona fide efforts to pay
               so as to persuade the trial court that further imprisonment should
               not be ordered.” Id. at 617 (citing Woods v. State, 892 N.E.2d
               637, 641 (Ind. 2008)).


       Id.


[10]   In the instant matter, the record demonstrates that during the probationary

       period, Manis had at least two sources of income, yet paid very little towards

       the restitution order. While not admitting to having violated the terms of his

       probation, Manis does not dispute that he has paid very little towards the

       restitution order. He claims, however, that the evidence presented during the

       revocation hearing was insufficient to prove that he had the requisite mental

       state or that he had the ability to pay.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 7 of 13
                                   A. Requisite Mental State
[11]   In challenging the sufficiency of the evidence to prove that he acted with the

       requisite mental state, Manis alleges that the record demonstrates that he made

       “reasonable bona fide efforts” to pay restitution. Appellant’s Br. p. 13. Our

       review of the record indicates otherwise.


[12]   “‘[B]ecause the phrase ‘recklessly, knowingly, or intentionally’ appears in the

       disjunctive and thus prescribes alternative considerations, the state of mind

       requirement may be satisfied by adequate evidence that a defendant’s failure to

       pay a probation imposed financial obligation was either reckless, knowing, or

       intentional.” Smith, 963 N.E.2d at 1113 (quoting Runyon, 939 N.E.2d at 616).

       Indiana Code section 35-41-2-2 provides that:

               (a) A person engages in conduct “intentionally” if, when he
               engages in the conduct, it is his conscious objective to do so.

               (b) A person engages in conduct “knowingly” if, when he
               engages in the conduct, he is aware of a high probability that he
               is doing so.

               (c) A person engages in conduct “recklessly” if he engages in the
               conduct in plain, conscious, and unjustifiable disregard of harm
               that might result and the disregard involves a substantial
               deviation from acceptable standards of conduct.


       “Because knowledge is a mental state of the actor, it may be proved by

       circumstantial evidence and inferred from the circumstances and facts of each

       case.” Id. (citing Young v. State, 761 N.E.2d 387, 389 (Ind. 2002)).


       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 8 of 13
[13]   In claiming that he did not act with the requisite mental state, Manis seems to

       argue that he could not have knowingly, intentionally, or recklessly failed to

       pay the ordered restitution because the relevant documents were ambiguous

       with respect to the rate at which he was to pay the ordered restitution. Manis’s

       claim in this regard, however, is without merit. The document setting forth the

       terms of Manis’s probation clearly states that payment was to be made at the

       rate of “no less than 25%” of Manis’s “income per week.” Appellant’s App. p.

       100. In addition, the trial court’s sentencing order clearly stated that Manis was

       “ordered to pay Restitution at a rate of no less than 25% of [his] income.”

       Appellant’s App. p. 99. While these documents did not set forth a specific

       payment rate, they clearly set forth an unambiguous payment floor.


[14]   Again, during the probation revocation hearing, the State provided evidence

       demonstrating that Manis was employed from June 2014 through February

       2015, a period of nine months, during which time he earned the equivalent of

       $26,000 per year. He also received monthly retirement payments of $1077 and

       an annuity payment which the trial court noted “would’ve been a big check.”

       Tr. p. 10. While Manis did not remember the exact amount he received in the

       annuity payment, he admitted that he frittered the money away by gambling.

       Despite these multiple sources of income, Manis paid only $240 towards the

       restitution order of his own volition. Notably, the $240 paid by Manis was less

       than 25% of one month of his monthly $1077 retirement payment, much less

       any additional income earned during his nine-month period of employment and

       the sum received from his annuity payment. The record further establishes that


       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 9 of 13
       Manis was aware of the order that he pay nearly $80,000 in restitution but

       made the conscious decision to gamble and pay other claimed expenses rather

       than pay the ordered restitution.


[15]   Furthermore, to the extent that Manis relies on our prior decision in Mauch v.

       State, 33 N.E.3d 387 (Ind. Ct. App. 2015), we find such reliance to be

       unavailing. In Mauch, we concluded that the trial court had abused its

       discretion in revoking the appellant’s probation. 33 N.E.3d at 391. In that

       case, Mauch was a seventy-six years old man who suffered from many health

       problems which impacted his ability to work and who received only $1134 per

       monthly in income. Id. However, despite suffering from numerous health

       issues and having a limited amount of monthly income, Mauch made

       consistent monthly restitution payments, except for a few months when he was

       hospitalized and received home health care. Id.


[16]   The record paints a very different picture in the instant matter. Unlike Mauch,

       Manis did not ever make consistent restitution payments. In fact, as of the date

       of the revocation hearing, Manis had only paid $240 toward the nearly $80,000

       restitution order of his own volition, despite having multiple sources of income

       during the probationary period. We therefore conclude that the State proved

       that Manis acted with a knowing mental state.


                                           B. Ability to Pay
[17]   Manis also claims that the trial court erred in finding that he failed to prove that

       he was unable to pay the ordered restitution. In support, Manis argues that he

       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 10 of 13
       presented evidence demonstrating that was unable to pay the ordered restitution

       because he was disabled and unable to work and his expenses outnumbered his

       income.


[18]   With respect to his claimed inability to work, Manis produced two notes from

       doctors which he claims proves he was unable to work during the probationary

       period. The first note was dated January 29, 2014 and indicated that Manis

       was unable to work for one month. The second note was dated March 7, 2014,

       and indicated that because Manis was recovering from an intracranial infection,

       he “should not be working or in an environment where there is potential risk for

       injury.” Appellant’s App. p. 110. The March 7, 2014 note did not specify a

       length of time during which Manis was to refrain from working. However, it

       appears that Manis recovered from his intracranial infection as he subsequently

       maintained employment from June of 2014 through February of 2015. Manis

       provided no additional documentation indicating that he was unable to work as

       of the date of the probation hearing.


[19]   With respect to his claimed disability, Manis asserted that he suffered from

       cognitive and memory problems. Manis also asserted that he had filed for

       disability benefits. Manis, however, provided no documentation to support

       either of these assertions, instead relying on his own self-serving testimony and

       the testimony of his sister and a friend.


[20]   Manis also claimed to have significant other financial obligations which

       affected his ability to pay the ordered restitution. Manis indicated that he had a


       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 11 of 13
       monthly child support obligation of $688 per month. He subsequently

       acknowledged, however, that his monthly child support obligation had, at some

       point, been reduced. Manis provided no documentation proving that he ever

       had a $688 monthly child support obligation or indicating the amount to which

       his monthly child support obligation had been reduced. Manis also claimed

       that his monthly living expenses included $600 for rent plus additional sums for

       food, gas, and other normal expenses. Manis, however, acknowledged during

       the revocation hearing that he receives $172 per month in food stamps to help

       cover expenses relating to food.


[21]   Manis’s claim that the trial court erred in finding that he failed to prove that he

       was unable to pay restitution amounts to little more than an invitation to

       reweigh the evidence. Again, in arguing that he was unable to pay the ordered

       restitution, Manis relied almost entirely on his own self-serving testimony and

       the testimony of his sister and a friend. The trial court, acting as the trier-of-

       fact, was in the best position to judge Manis’s credibility as well as the

       credibility of these other witnesses. We will not disturb the trial court’s

       credibility determinations or reweigh the evidence on appeal. See Whatley, 847

       N.E.2d at 1010.



                                               Conclusion
[22]   Again, “[i]t is the probationer’s burden ‘to show facts related to the inability to

       pay and indicating sufficient bona fide efforts to pay so as to persuade the trial

       court that further imprisonment should not be ordered.’” Smith, 96. N.E.2d at

       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 12 of 13
       1114 (quoting Runyon, 939 N.E.2d at 617). Manis failed to carry this burden.

       As such, we conclude that the trial court did not abuse its discretion in revoking

       Manis’s probation and ordering Manis to serve two years of his previously-

       suspended sentence in the DOC.


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


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1506-CR-645 | February 24, 2016   Page 13 of 13
