MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                       Jan 20 2016, 10:00 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
Amanda O. Blackketter                                     Gregory F. Zoeller
Blackketter Law, LLC                                      Attorney General of Indiana
Shelbyville, Indiana
                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
     COURT OF APPEALS OF INDIANA

Ryan A. Kish,                                             January 20, 2016
Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          73A01-1505-CR-450
        v.                                                Appeal from the Shelby Superior
                                                          Court
State of Indiana,                                         The Honorable David N. Riggins,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          73D02-1308-FC-72



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 73A01-1505-CR-450 | January 20, 2016         Page 1 of 9
                                              Case Summary
[1]   Ryan Kish appeals the revocation of his probation and the sentence imposed by

      the trial court. We affirm.


                                                     Issues
[2]   Kish raises three issues, which we restate as:

                       I.      whether the trial court properly denied his
                               request for a continuance;

                       II.     whether he was denied due process during the
                               probation revocation hearing; and

                       III.    whether his sentence was proper.

                                                      Facts
[3]   In October 2013, Kish pled guilty to Class C felony battery causing serious

      bodily injury after a physical fight with his girlfriend. Kish was sentenced to

      four years, with two years executed and two years suspended to probation. As

      part of his probation, Kish was ordered to complete an anger management

      program and to successfully complete fifty hours of community service work.


[4]   On March 24, 2015, a petition to revoke Kish’s probation was filed and alleged

      that Kish failed to complete an anger management program and his community

      service hours. At an April 9, 2015 initial hearing, Kish denied the allegation,

      and the matter was set for a fact-finding hearing on April 23, 2015. During the

      initial hearing, Kish indicated that he had already hired attorney Jack Tagget.




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[5]   On April 23, 2015, attorney Jeffrey Bate entered an appearance and was present

      at the hearing. Bate requested a continuance because he was “newly hired.”

      Tr. p. 10. The trial court rejected the request, observing, “it’s pretty simple

      really. I mean it’s a matter of him not doing the anger management and not

      doing community service hours. So, if he wants to admit I’ll set it for

      disposition. Otherwise, I’d just as soon do it today and be done with it.” Id.

      Bate indicated that Kish would admit to the allegations. Kish, however, said he

      was not sure about admitting to the allegations, and a fact-finding hearing was

      held.


[6]   During the hearing, the trial court questioned Deanna Holder, Kish’s probation

      officer, about the allegations. She stated that Kish had been on probation for

      over a year and had been kicked out of the anger management classes for losing

      his job. She explained that Kish was to complete the anger management classes

      before starting community service. She testified that the anger management

      classes should have been finished six months ago and that Kish had received a

      tax refund of over $3,000.00 but did not use that money to pay for the classes.


[7]   Kish also testified at the hearing. When his attorney asked Kish if he agreed

      with the probation officer’s testimony, he replied, “Yeah, somewhat.” Id. at 15.

      He explained that he lost his job, could not pay the fees, and was suspended

      from the program. Kish said he had sixteen to eighteen weeks left of a twenty-

      six week program. He indicated that he used a portion of his tax refund to pay

      a $250.00 fee and was only allowed to pay for one week of classes in advance.

      Kish was then questioned by the trial court about why he lost his job, and Kish

      Court of Appeals of Indiana | Memorandum Decision 73A01-1505-CR-450 | January 20, 2016   Page 3 of 9
       explained that someone had accused him of intimidating him or her. The trial

       court then questioned Kish about his efforts to get a job. When questioned by

       the trial court about what he did with the remainder of his tax refund, Kish

       stated that he bought a van for his girlfriend and that it was wrecked a week

       later. The prosecutor then questioned Kish about when he started probation

       and the underlying conviction.


[8]    The trial court found that Kish violated probation by not completing anger

       management classes. The trial court did not find that Kish failed to complete

       community service. The trial court stated, “I find he had the opportunity to

       complete anger management, did not complete anger management.” Id. at 23.

[9]    The trial court ordered Kish to serve a year of his suspended sentence and to

       serve the remainder on probation. The trial court explained, “I just don’t know

       what else to do with you. All right? So I’m trying to change your behavior.

       When you get out, you know, redouble your efforts to find a job.” Id. at 27.

       Kish now appeals.


                                                    Analysis
                                                 I. Continuance

[10]   Kish argues the trial court erred in denying his request for a continuance of the

       fact-finding hearing. Whether to grant a continuance lies within the trial court’s

       sound discretion when the motion is not based upon statutory grounds. Warner

       v. State, 773 N.E.2d 239, 247 (Ind. 2002). “There is a strong presumption that

       the trial court properly exercised its discretion.” Id.

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[11]   Kish contends a continuance should have been granted because only a short

       period of time had passed since the petition to revoke his probation was filed, his

       attorney had just been hired, and it is customary for defense counsel to

       attempt to resolve the case with the prosecutor. Kish, however, fails to show

       that the denial of his request prejudiced him where, as the trial court pointed

       out, the allegation—that he had not completed an anger management

       program—was relatively straightforward. Kish does not suggest what defenses

       would have been found and used had defense counsel been given more time to

       prepare. Further, although the record shows that defense counsel had

       contacted the prosecutor, there is no indication that they had discussed an

       agreed resolution of the matter. Finally, at the fact-finding hearing, Kish’s

       attorney cross-examined witnesses, and Kish was able to testify in support of his

       defense. Accordingly, Kish has not shown that the trial court abused its

       discretion in denying the motion for a continuance.


[12]   Kish also claims that the trial court erred by holding the dispositional hearing

       immediately following the fact-finding hearing. He claims that, because the trial

       court had offered to reset the matter for disposition if Kish admitted to the

       allegations, it was penalizing him for not admitting to the allegation. Although

       there was some confusion on this issue, when the trial court explained that they

       would resolve the matter that day, defense counsel did not object. Instead,

       defense counsel made an argument as to why Kish should be given another

       opportunity to complete the anger management classes. Kish does not explain

       how additional time would have changed the outcome of the disposition.


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       Accordingly, he has not shown that the trial court erred in conducting the

       dispositional hearing immediately following the fact-finding hearing.


                                                 II. Due Process

[13]   Kish argues he was denied due process during the fact-finding hearing.

       Although the Fourteenth Amendment’s Due Process Clause applies to

       probation revocation proceedings, because a probation revocation proceeding is

       in the nature of a civil action, it is not to be equated with an adversarial

       criminal proceeding. McCauley v. State, 22 N.E.3d 743, 748 (Ind. Ct. App.

       2014), trans. denied. A probationer is entitled to some, but not all, of the rights

       afforded to a criminal defendant, and the due process applicable in a probation

       revocation proceeding allows for procedures that are more flexible than in a

       criminal prosecution. Id.


               A probationer is entitled to (a) a written notice of the claimed
               violations, (b) disclosure of the evidence against him or her, (c)
               the opportunity to be heard in person and present witnesses and
               evidence, (d) the right to confront and cross-examine witnesses,
               (e) a neutral and detached hearing body, and (f) a written
               statement by the factfinder regarding the evidence relied upon
               and reason for revocation.


       Id.


[14]   Kish argues he was denied a neutral and detached hearing body because the trial

       court denied his request for a continuance, offered to postpone the dispositional

       hearing if Kish admitted to the allegations, and questioned the

       probation officer and Kish during the hearing. We have already concluded that

       Court of Appeals of Indiana | Memorandum Decision 73A01-1505-CR-450 | January 20, 2016   Page 6 of 9
       the trial court did not err in denying Kish’s request for a continuance. Further,

       the trial court’s assessment of the allegation as “pretty simple really” and

       inquiry into whether Kish was going to admit to the violation is a reflection of

       the relatively straightforward allegation. Tr. p. 10. It does not suggest that the

       trial court “began the hearing with the preconceived belief that Kish had

       violated his probation” as Kish suggests. Appellant’s Br. p. 11.


[15]   Regarding the questioning of witnesses by the trial court, although we do not

       endorse this manner of questioning, under these circumstances, we cannot say

       that Kish was denied due process. During the hearing Kish was represented by

       counsel, who did not object to the trial court’s questioning of the probation

       officer or Kish. Further, Kish was given an opportunity to explain why he had

       not completed the classes and what he used the tax refund money for. Finally,

       the trial court found that Kish violated the term of probation requiring him to

       complete anger management classes and did not violate the term of probation

       requiring him to complete community service. Thus, given the relatively

       straightforward nature of the allegation, the fact that Kish was represented by

       counsel and given an opportunity to explain his failure to complete the classes,

       and the trial court’s finding that one of the allegations was not proven, we

       cannot say that Kish was denied due process.


                                                 III. Disposition

[16]   Kish contends that the trial court abused its discretion by revoking his probation

       and ordering him to serve a year of his previously-suspended sentence because

       he could not pay for the anger management classes. “As provided by Indiana’s
       Court of Appeals of Indiana | Memorandum Decision 73A01-1505-CR-450 | January 20, 2016   Page 7 of 9
       statutory scheme, probation may be revoked for violation of a probation

       condition but, for violations of financial conditions, only if the probationer

       recklessly, knowingly, or intentionally fails to pay.” Runyon v. State, 939

       N.E.2d 613, 616 (Ind. 2010) (referencing Ind. Code § 35-38-2-3 (g), which

       provides, “Probation may not be revoked for failure to comply with conditions

       of a sentence that imposes financial obligations on the person unless the person

       recklessly, knowingly, or intentionally fails to pay”).


[17]   Here, to the extent Kish’s failure to complete the anger management courses

       was based on his purported inability to pay, the evidence showed that Kish,

       who was on probation following a battery conviction, lost his job because of

       allegations that he intimidated a coworker. Further, after receiving more than

       $3,000.00 in the form of a tax refund, Kish paid the fees he owed for the anger

       management program and for one week of classes, showing that he knew he

       needed to pay for the classes. Even if he was only allowed to pay ahead for one

       week, he used the remainder of the tax refund to buy his girlfriend a van, which

       was wrecked within a week. This evidence shows that Kish recklessly failed to

       pay for his anger management courses by making the conscious choice not to do

       so.


[18]   Indiana Code Section 35-38-2-3(m) provides, “Failure to pay fines or costs

       (including fees) required as a condition of probation may not be the sole basis

       for commitment to the department of correction.” Kish claims that he was

       improperly committed to the Department of Correction solely for his failure to

       pay. However, Kish failed to complete classes despite having the ability to pay

       Court of Appeals of Indiana | Memorandum Decision 73A01-1505-CR-450 | January 20, 2016   Page 8 of 9
       for them after receiving a tax refund. In revoking Kish’s probation, the trial

       court acknowledged the offense for which he was convicted, battery, and the

       importance of Kish completing the anger management classes. The trial court

       also crafted the sentence so that, upon Kish’s release, he would still be on

       probation and would be required to complete the classes. The trial court did

       not abuse its discretion in ordering Kish to serve one year of his suspended

       sentence.


                                                  Conclusion
[19]   The trial court did not err in revoking Kish’s probation or ordering him to serve

       a portion of his suspended sentence. We affirm.


[20]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1505-CR-450 | January 20, 2016   Page 9 of 9
