MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Oct 30 2019, 9:58 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Haas,                                             October 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1275
        v.                                               Appeal from the Ripley Circuit
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Sharp,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause No.
                                                         69C01-1402-FB-2



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019                   Page 1 of 6
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Joshua Haas (Haas), appeals the trial court’s Order,

      revoking his probation and imposing the balance of his previously suspended

      sentence.


[2]   We affirm.


                                                    ISSUE
[3]   Haas presents this court with one issue on appeal, which we restate as:

      Whether the trial court abused its discretion by revoking the balance of his

      previously suspended sentence following his admission to having violated the

      conditions of his probation.


                           FACTS AND PROCEDURAL HISTORY

[4]   At some point between February 2014, and October 2014, in Ripley County,

      Indiana, the State filed an Information, charging Haas with one Count of Class

      B felony burglary, five Counts of Class C felony burglary, two Counts of Class

      D felony theft, one Count of Class D felony receiving stolen property, one

      Count of Class B misdemeanor, and alleged that Haas was an habitual

      offender. On June 30, 2015, Haas pleaded guilty to two Counts of burglary,

      Class C felonies. The trial court subsequently sentenced Haas to the

      Department of Correction (DOC) for consecutive terms of six years on one

      Count and four years with two years suspended to probation on the other

      Count.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019   Page 2 of 6
[5]   On August 14, 2018, Haas was released from the DOC. Haas’ “parole was

      transferred to Ohio.” (Appellant’s App. Vol. II, p. 76). “In an attempt to

      transfer [Haas’] Ripley County Probation to Ohio[,] an Interstate Transfer

      appointment” was scheduled with probation officer Cody Tillison (Tillison) on

      September 24, 2018 at 10:00 a.m. (Appellant’s App. Vol. II, p. 76). That

      meeting was to take place at the Ripley County Probation Department

      (Probation Department). Haas was absent at that meeting. A “second

      Interstate Transfer appointment was scheduled with [probation officer] Tillison

      on November 13, 2018 at 11:00 [a.m.]” (Appellant’s App. Vol. II, p. 76). Haas

      also failed to attend that meeting. On November 14, 2018, the Probation

      Department sent Haas a “Final Notice Failure to Appear Letter” directing him

      to appear for an “appointment on November 28, 2018 at 1:00 [p.m.]”

      (Appellant’s App. Vol. II, p. 76). Haas did not show up for that meeting and

      was absent at another probation meeting on December 26, 2018.


[6]   On December 27, 2018, the probation department filed a notice of probation

      violation and requested that a warrant be issued for Haas’ arrest since he was

      missing his appointments with the probation department. A warrant was

      issued, and Haas was arrested in Ohio on March 20, 2019.


[7]   On May 8, 2019, the trial court conducted a probation revocation hearing.

      Haas admitted to missing his Interstate Transfer appointments with probation

      officer Tillison, and three of his meetings with his assigned probation officer,

      Justin Lynette (Lynette). At the conclusion of the hearing, the trial court



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019   Page 3 of 6
       revoked Haas’ probation, and ordered him to serve the balance of his previously

       suspended sentence in the DOC.


[8]    Haas now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[9]    Haas appeals the trial court’s Order, revoking his probation and imposing the

       balance of his previously suspended sentence. “Probation is a matter of grace

       left to the trial court’s discretion, not a right to which a criminal defendant is

       entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). It is within the

       discretion of the trial court to determine probation conditions and to revoke

       probation if these conditions are violated. Id. We review the appeal from a

       trial court’s probation determination and sanction for an abuse of discretion.

       See id. An abuse of discretion occurs when the decision is clearly against the

       logic and effect of the facts and circumstances. Smith v. State, 963 N.E.2d 1110,

       1112 (Ind. 2012). A probation hearing is civil in nature and the State need only

       prove the alleged violation by a preponderance of the evidence. Id.


[10]   Probation revocation is a two-step process. First, the trial court must make a

       factual determination that a violation of a condition has actually occurred.

       Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. If a

       violation is proven, then the trial court must determine if the violation warrants

       revocation of the probation. Id. However, where, as here, a probationer admits

       to the violations, the trial court can proceed immediately to the second step of

       the inquiry and determine whether the violation warrants revocation. Id. In

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019   Page 4 of 6
       determining whether the violation warrants revocation, the probationer must be

       given an opportunity to present evidence that explains and mitigates his

       violation. See id. Once a violation has been found and revocation of probation

       is warranted, the trial court may impose one 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 year beyond the original probationary period; or (3) order execution of all

       or part of the sentence that was suspended at the time of initial sentencing. See

       Ind. Code § 35-38-2-3(h).


[11]   The record shows that on September 24 and November 13, 2018, Haas failed to

       appear at two meetings to discuss the transfer of his probation to Ohio with

       probation officer Tillison. Then on November 13, and 28, 2018, and December

       26, 2018, Haas failed to appear for meetings with his assigned probation officer,

       Lynette. At the fact-finding hearing, while Haas admitted to not showing up

       for his probation meetings, he also attempted to mitigate his nonattendance by

       offering several unsubstantiated excuses. Haas first claimed that he had a full-

       time job in Ohio that prevented him from attending all of his appointments with

       the Probation Department. Haas additionally claimed that he had no valid

       driver’s license; therefore, he could not drive to his probation meetings. In his

       brief, Haas concedes that while he violated the terms of his probation by

       missing several of his appointments, his “violation was not intentional but the

       result of his economic and transportation circumstances.” (Appellant’s Br. p.

       11).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019   Page 5 of 6
[12]   Haas fails to show that the trial court’s decision to revoke his probation was

       against the logic and effect of the facts and circumstances. Out of eight

       meetings with the probation department, Haas missed five. As the trial court

       stated, “probation is rendered completely ineffective when an individual fails to

       appear.” (Tr. p. 27). Here, the State met its burden of proving by a

       preponderance of the evidence that Haas violated the terms of his probation by

       failing to show up for his probation meetings; therefore, we hold that the trial

       court did not abuse its discretion by revoking Haas’ probation and ordering

       Haas to serve the balance of his previously suspended sentence.


                                             CONCLUSION
[13]   In sum, we conclude that the trial court did not abuse its discretion by revoking

       Haas’ probation. Accordingly, we affirm the trial court’s Order that Haas serve

       the balance of his previously suspended sentence.


[14]   Affirmed.


[15]   Vaidik, C. J. and Bradford, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1275 | October 30, 2019   Page 6 of 6
