MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Feb 05 2020, 9:06 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.
Madison, Indiana                                         Attorney General of Indiana

                                                         John R. Millikan
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Dakota M. Probst,                                        February 5, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2118
        v.                                               Appeal from the Dearborn
                                                         Superior Court
State of Indiana,                                        The Honorable Sally A.
Appellee-Plaintiff                                       McLaughlin, Judge
                                                         Trial Court Cause Nos.
                                                         15D02-1809-F6-345, 15D02-1811-
                                                         F6-440, 15D02-1812-CM-865



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020                Page 1 of 7
[1]   Dakota Probst pleaded guilty under three separate cause numbers to Level 6

      felony criminal confinement, Level 6 felony possession of methamphetamine,

      and Class A misdemeanor battery. The trial court sentenced him to an

      aggregate term of 1820 days in prison with 910 of those days suspended to

      probation. Probst contends on appeal that his aggregate sentence is

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


[2]   We affirm.


                                       Facts & Procedural History


[3]   Raised by his grandparents, Probst dropped out of school in the ninth grade and

      then began working when he was sixteen years old. In May 2017, Probst was

      adjudicated a delinquent child for operating a vehicle without ever receiving a

      license and for the illegal taking of a wild animal, both misdemeanors if

      committed by an adult. Probst explained that this adjudication was the result of

      him driving another individual’s vehicle while his friend shot at a deer through

      a window of the vehicle.


[4]   Probst turned eighteen on June 28, 2018 and became a daily methamphetamine

      user around this time, in addition to him already being a regular marijuana

      user. He continued to live with his grandparents, along with his girlfriend

      Roxann Boatman.


[5]   On September 4, 2018, during a verbal argument, Boatman told Probst that she

      was leaving him. Probst followed her as she walked up to the bedroom that


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020   Page 2 of 7
      they shared and kicked down the bedroom door. He was “freaking out” and

      “started pushing [her] and choking [her].” Transcript at 60. She managed to get

      away and run downstairs and then out to her truck. Probst followed and

      grabbed the truck keys from her, telling her that she was not leaving. He

      forcefully held her by the arms, struck her in the face, and pushed her into the

      side of her truck, causing a dent. During the altercation, he began choking her

      again and struck her multiple times. As she tried to get away from him, he bit

      her on the back of her shoulder and elsewhere. At some point, Boatman ended

      up on the ground, and Probst drove the truck closer to the house. Boatman

      then called her mother for help, telling her “if she didn’t come and get me, that

      I think he was going to kill me[.]” Id. at 61. Shortly thereafter, Dearborn

      County Sheriff’s Department Deputy Brian Weigel responded to the scene. As

      Deputy Weigel spoke with Boatman, Probst approached “angry and also

      yelling.” Id. at 74. Deputy Weigel opined that Probst was “acting as somebody

      using meth would act.” Id. Probst was arrested and charged under cause

      number 15D02-1809-F6-345 (Cause F6-345) with Level 6 felony criminal

      confinement, Level 6 felony strangulation, Class A misdemeanor battery, and

      Class B misdemeanor criminal mischief. He was released on bond within a

      week.


[6]   Probst continued to use methamphetamine daily upon his release. On

      November 15, 2018, he became angry with his new girlfriend, Kaitlyn Lack.

      When he began raising his voice and “kind of knocked [her] face”, Lack pushed

      him away from her. Id. at 78. Probst then grabbed her by the arms and bit her


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020   Page 3 of 7
      on the back of the shoulder. On December 3, 2018, the State charged Probst

      under cause number 15D02-1812-CM-865 (Cause CM-865) with Class A

      misdemeanor battery.


[7]   Before Cause CM-865 was filed but while Probst was still out on bond under

      Cause F6-345, a vehicle in which Probst was a passenger was pulled over for a

      traffic stop on November 23, 2018. The officer smelled marijuana upon

      approaching the vehicle occupied by Probst and the driver. Subsequently,

      officers found marijuana and various Oxycodone pills in the vehicle. Probst

      also had Oxycodone and methamphetamine on his person. The State charged

      Probst under cause number 15D02-1811-F6-440 (Cause F6-440) with Level 6

      felony possession of methamphetamine, Class B misdemeanor possession of

      marijuana, and Class A misdemeanor possession of a controlled substance.


[8]   On June 19, 2019, the State and Probst entered into a plea agreement regarding

      his three pending cases. Probst agreed to plead guilty to Level 6 felony criminal

      confinement under Cause F6-345, Level 6 felony possession of

      methamphetamine under Cause F6-440, and Class A misdemeanor battery

      under Cause CM-865. In exchange, the State dismissed the five remaining

      counts. Sentencing was left open.


[9]   The trial court held a sentencing hearing on July 25, 2019 and took the matter

      under advisement. Thereafter, on August 12, 2019, the trial court sentenced

      Probst as follows: (1) 545 days under Cause F6-345, with no time suspended;

      (2) 365 days under Cause CM-865, with no time suspended and served


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020   Page 4 of 7
       consecutive to Cause F6-345; and (3) 910 days under Cause F6-440, all time

       suspended and served consecutive to the two other causes. Thus, Probst

       essentially received an aggregate sentence of five years with two and one-half of

       those years suspended to probation.


                                           Discussion & Decision


[10]   Probst challenges the sentence imposed by the trial court as inappropriate. We

       may revise a sentence authorized by statute if, after due consideration of the

       trial court’s decision, we find the sentence inappropriate in light of the nature of

       the offense and the character of the offender. Ind. Appellate Rule 7(B).

       Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented and the trial court’s judgment “should

       receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

       2008). The principal role of appellate review is to attempt to “leaven the

       outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

       end of the day turns on “our sense of culpability of the defendant, the severity

       of the crime, the damage done to others, and myriad other factors that come to

       light in a given case.” Id. at 1224. Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The

       burden is on the defendant to persuade us his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020   Page 5 of 7
[11]   For each of his Level 6 felony convictions, Probst faced a sentencing range of

       six months to two and one-half years, with the advisory sentence being one

       year. See Ind. Code § 35-50-2-7(b). He could be sentenced up to one year for

       the Class A misdemeanor. See I.C. § 35-50-3-2. Pursuant to I.C. § 35-50-1-2(e),

       the individual sentences were required to be served consecutively. Thus, the

       maximum aggregate sentence faced by Probst was six years and the minimum

       was two years. The trial court imposed five years and suspended half of that.


[12]   With regard to the nature of the confinement and battery offenses, we observe

       that there were two separate victims. Probst acknowledges on appeal that the

       details of these crimes “depict scary scenarios” where he violently attacked two

       different girlfriends “with his hands and teeth.” Appellant’s Brief at 12 (emphasis

       supplied). We find that the attacks, committed only months apart, were

       particularly disturbing. Moreover, the battery and possession of

       methamphetamine offenses were committed within days of each other and

       while Probst was out of bond following his brutal attack of Boatman. We agree

       with the State that Probst’s offenses over a three-month period show a disregard

       for the law and an indifference to the potential consequences of his actions.

       Further, Probst admitted that even after the most recent offense he continued to

       use methamphetamine daily until he was arrested in early March 2019, on the

       warrant issued under Cause CM-865 on December 3, 2018.


[13]   Considering his character, we acknowledge that he was only eighteen at the

       time of each of his offenses and that he apologized to the victims and accepted

       responsibility. But Probst was not a typical eighteen-year old, as he had worked

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020   Page 6 of 7
       for over two years as a laborer, having dropped out of high school at sixteen,

       and in a short time established a history of serious drug use and violent

       propensities. He also had a juvenile adjudication just prior to him turning

       seventeen which involved him unlawfully (and dangerously) operating a vehicle

       while his passenger shot at a deer out of the vehicle’s window. Probst is indeed

       in need of substance abuse treatment and anger management classes, but as the

       trial court determined, Probst has established himself to be a “risk to

       community safety and is best treated in a facility” and then on probation.

       Transcript at 90.


[14]   We cannot say that Probst’s aggregate five-year sentence, half of which is

       suspended to probation, is inappropriate in light of the nature of the three

       entirely separate offenses he committed and his troubling character.


[15]   Judgment affirmed.


       Robb, J. and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2118 | February 5, 2020   Page 7 of 7
