MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Nov 15 2016, 5:51 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
John T. Wilson                                          Gregory F. Zoeller
Anderson, Indiana                                       Attorney General of Indiana

                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Charles J. Bise,                                        November 15, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        33A04-1604-CR-885
        v.                                              Appeal from the Henry Circuit
                                                        Court
State of Indiana,                                       The Honorable Mary G. Willis,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        33C01-0704-MR-1



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-885 | November 15, 2016   Page 1 of 8
[1]   Charles J. Bise appeals the revocation of his probation. Bise questions whether

      the trial court used the correct evidentiary standard in finding he committed a

      new criminal offense. Bise also questions whether the trial court abused its

      discretion when it ordered him to serve the rest of his sentence in prison. We

      affirm.



                                Facts and Procedural History
[2]   On May 1, 2009, Bise pled guilty to voluntary manslaughter, a Class B felony, 1

      and battery, a Class C felony. 2 On May 18, 2009, the trial court sentenced Bise

      to sixteen years executed and ten years suspended. On November 9, 2015, Bise

      began serving his probation.


[3]   On February 16, 2016, a New Castle Police Department Patrolman, Officer

      Eric Jackson, was working as a security officer at Henry County Hospital. The

      hospital front desk contacted him by radio requesting he go to the emergency

      room to deal with disorderly conduct. There, Officer Jackson met with an

      emergency room nurse who explained Bise battered her after he was brought in

      by ambulance. Officer Jackson observed a bruise forming on the nurse’s arm

      between her elbow and wrist.




      1
          Ind. Code § 35-42-1-3(2) (1997).
      2
          Ind. Code § 35-42-2-1(a)(3) (2005).


      Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-885 | November 15, 2016   Page 2 of 8
[4]   Officer Jackson then entered the trauma room where Bise had been placed to

      speak with him. Bise became belligerent, slurred his words, smelled of alcohol,

      and yelled at Officer Jackson. Officer Jackson stepped out of Bise’s room,

      hoping Bise would calm down, but Bise continued to be belligerent and started

      to curse at Officer Jackson. Officer Jackson told Bise that, if he continued to

      yell, he would be arrested. Bise continued to yell and draw the attention of

      other patients in the emergency room.


[5]   Officer Jackson decided to arrest Bise for battery and disorderly conduct, and

      he requested medical clearance to incarcerate Bise. Bise then attempted to hit

      another nurse, but Officer Jackson restrained him. Finally, Bise then

      threatened to kill Officer Jackson. Officer Jackson arrested Bise.


[6]   The State charged Bise with Level 6 felony intimidation, 3 Class A misdemeanor

      battery, 4 and Class B misdemeanor disorderly conduct. 5 The State also filed a

      petition to revoke Bise’s probation for his 2009 convictions. After an

      evidentiary hearing, the trial court found Bise violated his probation. Bise

      requested the court not send him to prison because of his health issues. The

      court ordered Bise to serve the rest of his sentence in the Indiana Department of

      Correction.




      3
          Ind. Code § 35-45-2-1(a)(2)(b)(1)(B)(i) (2014).
      4
          Ind. Code § 35-42-2-1(b)(1)(c) (2014).
      5
          Ind. Code § 35-45-1-3(a)(2) (2014).


      Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-885 | November 15, 2016   Page 3 of 8
                                Discussion and Decision
                                       I. Probation Violation
[7]   “Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

      2007). The court sets the conditions of probation and has discretion to

      determine whether probation has been violated. Id. The State must prove a

      probation violation by a preponderance of the evidence. Ind. Code § 35-38-2-

      3(f) (2015).


[8]   When determining whether Bise violated his probation, the trial court said:


              The Court is going to find that based on the preponderance of the
              evidence that the Defendant has violated terms and conditions of
              probation. There is evidence that he has abused alcohol while on
              probation and was arrested with probable cause although that
              case is not resolved and there is probable cause evidence for the
              arrest which would be violations of probation.


      (Tr. at 20.) Probable cause for an arrest and preponderance of the evidence for

      a probation revocation are two separate entities. Teague v. State, 891 N.E.2d

      1121, 1128 (Ind. Ct. App. 2008) (reasonable suspicion is less than probable

      cause and considerably less than the preponderance standard). Bise contends

      we should reverse because the trial court used the wrong evidentiary standard to

      determine whether he committed a violation of probation.




      Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-885 | November 15, 2016   Page 4 of 8
[9]    Bise argues the outcome here should be controlled by the rationale in Heaton v.

       State, 984 N.E.2d 614 (Ind. 2013). Heaton was unable to attend her scheduled

       probation revocation hearing due to pregnancy complications, but she testified

       a week later at a second hearing. Heaton v. State, 959 N.E.2d 330, 331 (Ind. Ct.

       App. 2011), trans. granted, 984 N.E.2d 614 (Ind. 2013). After the first

       evidentiary hearing, the trial court found Heaton committed a new crime by a

       preponderance of the evidence. Id. at 333. However, upon completion of

       Heaton’s testimony at the second hearing, the trial court stated there was

       probable cause to support the allegation of the new crime and failed to mention

       the preponderance standard. Id. Heaton appealed and argued the trial court

       used the wrong burden of proof when deciding whether she violated probation.

       Heaton, 984 N.E.2d at 615. Our Indiana Supreme Court held: “Because the

       record is unclear as to which standard the trial court actually applied in

       determining whether the defendant had committed a new criminal offense, we

       cannot be assured that the trial court applied the proper standard and decline to

       find harmless error.” Id. at 618.


[10]   The facts here are distinguishable because of key timing differences between the

       statements of the trial judge in Heaton and the trial judge here. In Heaton, there

       were two separate evidentiary hearings, and the trial judge mentioned only the

       probable cause standard after the second hearing. 984 N.E.2d at 618. Here,

       there was only one evidentiary hearing, and the trial judge explicitly stated:

       Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-885 | November 15, 2016   Page 5 of 8
       “The Court is going to find that based on the preponderance of the evidence

       that the Defendant has violated terms and conditions of probation.” (Tr. at 17).

       While the court’s statements regarding Bise’s commission of new crimes

       indicate the court used the wrong standard, the court made clear it used the

       preponderance standard in finding Bise abused alcohol and revoking his

       probation. Therefore, the court’s finding of the new crimes by the wrong

       evidentiary burden to support revocation of probation was harmless. See

       Menifee v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992) (although there was

       not sufficient evidence supporting every alleged probation violation, the State

       needs only prove one violation, which it did), clarified on other grounds and reh’g

       denied, 605 N.E.2d 1207 (1993).


                                                II. Sanction
[11]   We use an abuse of discretion standard when we review the sanction a trial

       court imposes following a probation violation. Prewitt, 878 N.E.2d at 188.

       There is an abuse of discretion if the trial court’s decision is “clearly against the

       logic and effect of the facts and circumstances.” Id. An abuse of discretion can

       also occur if the trial court misconstrues the law. Heaton, 984 N.E.2d at 616.


[12]   Bise argues the court abused its discretion by sending him to prison because he

       has health issues. A defendant’s deteriorating health can be considered among

       the totality of circumstances when determining whether to revoke probation.


       Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-885 | November 15, 2016   Page 6 of 8
       Ripps v. State, 968 N.E.2d 323, 328 (Ind. Ct. App. 2012). Bise’s problems do

       not, however, lead us to believe the court abused its discretion.


[13]   When revoking Bise’s probation and imposing a sanction, the court said:


                  The Court is aware of Mr. Bise’s medical conditions as relayed to
                  the Court. I think some information has been supplied by the
                  probation department and some information was supplied from
                  the jail and that has been distributed by counsel. . . . My concern
                  is that our Henry County Jail is not adequately equipped to
                  address Mr. Bise’s medical conditions and that placement for
                  him at this time without delay would be the Department of
                  Corrections. They may be able to work with the VA hospital for
                  any temporary releases that would allow treatment as he
                  becomes eligible for those. I know there are some future
                  appointments for medical treatments and [sic] would be better
                  equipped in the Department of Correction facility to address
                  those.


       (Tr. at 17-18.)


[14]   In addition to finding Bise violated probation by abusing alcohol, the trial court

       also found there was probable cause to believe Bise committed intimidation, 6

       battery, 7 and disorderly conduct. 8 Bise’s deteriorating health does not outweigh

       the facts that, while intoxicated, he battered one nurse, attempted to batter




       6
           Ind. Code § 35-45-2-1(a)(2)(b)(1)(B)(i) (2014).
       7
           Ind. Code § 35-42-2-1(b)(1)(c) (2014).
       8
           Ind. Code § 35-45-1-3(a)(2) (2014).


       Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-885 | November 15, 2016   Page 7 of 8
       another nurse, and threatened to kill a police officer while on probation

       following a conviction of voluntary manslaughter. The trial court considered

       his health issues and decided the Department of Correction was the facility best

       equipped to treat him. Furthermore, the probation violation occurred just over

       three months after Bise’s release from the Department of Correction. The trial

       court did not abuse its discretion when it imposed Bise’s suspended sentence

       after his violent outbreak at the hospital. See generally Patterson v. State, 659

       N.E.2d 220, 223 (Ind. Ct. App. 1995) (affirming the trial court’s decision to

       revoke probation even though defendant had a mental health disease).



                                              Conclusion
[15]   The trial court properly found by a preponderance of the evidence that Bise

       violated probation by abusing alcohol, and it did not abuse its discretion by

       ordering him to serve the rest of his sentence in prison. We accordingly affirm.


[16]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A04-1604-CR-885 | November 15, 2016   Page 8 of 8
