ATTORNEY FOR APPELLANT                                       ATTORNEYS FOR APPELLEE
Jill M. Acklin                                               Gregory F. Zoeller
Acklin Law Office, LLC                                       Attorney General of Indiana
Westfield, Indiana
                                                             Stephen R. Creason
                                                             Chief Counsel

                                                             Ryan D. Johanningsmeier
                                                             Andrew A. Kobe
                                                             Deputy Attorneys General
                                                             Indianapolis, Indiana
______________________________________________________________________________

                                             In the
                                                                                  Mar 05 2013, 3:45 pm
                             Indiana Supreme Court
                            _________________________________

                                    No. 48S02-1206-CR-350

       KIMBERLY HEATON,                                      Appellant (Defendant),

                                                v.

       STATE OF INDIANA,                              Appellee (Plaintiff).
                            _________________________________

                Appeal from the Madison Superior Court, No. 48D01-0904-FC-61
                            The Honorable Dennis D. Carroll, Judge
                           _________________________________

            On Transfer from the Indiana Court of Appeals, No. 48A02-1104-CR-404
                           _________________________________

                                         March 5, 2013

Dickson, Chief Justice.


       The defendant-appellant, Kimberly Heaton, challenges the trial court's revocation of her
probation and its order that she serve eighteen months of her previously suspended twenty-four
month sentence. Heaton's appeal raises the question of what legal standard is to be applied in a
probation revocation proceeding where the State claims that the probationer committed a new
criminal offense while on probation. We hold that the correct legal standard is the statutorily-
mandated preponderance of the evidence standard.
        On August 3, 2009, the defendant pled guilty to Receiving Stolen Property as a Class D
felony, Ind. Code § 35-43-4-2(b). On September 14, 2009, the trial court sentenced her to thirty
months, with twenty-four months suspended to probation. While serving her probation term, the
defendant was arrested and charged with Theft as a Class D felony, Ind. Code § 35-43-4-2(a).
The State filed a Notice of Violation of Probation alleging five violations of probation condi-
tions. After an evidentiary hearing, the trial court determined that the defendant had committed
four probation violations, including commission of a new criminal offense. The remaining three
violations were technical in nature: (1) failure to keep the probation department informed of her
current address; (2) failure to obtain a substance abuse evaluation; and (3) failure to verify em-
ployment with the probation department. The trial court ordered the defendant to serve eighteen
months of her previously-suspended sentence at the Indiana Department of Correction.


        On appeal, the defendant has challenged the standard of proof used by the trial court in
determining whether the defendant had committed a new criminal offense. The defendant con-
tends that the trial court erred in using the probable cause standard and should have instead used
the preponderance of the evidence standard. The Court of Appeals agreed with the defendant,
reversed the decision of the trial court, and remanded. Heaton v. State, 959 N.E.2d 330, 331
(Ind. Ct. App. 2011). We granted transfer.


        "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). It is within the discre-
tion of the trial court to determine probation conditions and to revoke probation if the conditions
are violated. Id. In appeals from trial court probation violation determinations and sanctions, we
review for abuse of discretion. Id. An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances, id., or when the trial court misinter-
prets the law, see State v. Cozart, 897 N.E.2d 478, 483 (Ind. 2008) (citing Axsom v. Axsom, 565
N.E.2d 1097, 1099 (Ind. Ct. App. 1991) ("An abuse of discretion may also be found when the
trial court misinterprets the law or disregards factors listed in the controlling statute.")).


        Probation revocation is a two-step process. First, the trial court must make a factual de-
termination that a violation of a condition of probation actually occurred. Woods v. State, 892
N.E.2d 637, 640 (Ind. 2008). Second, if a violation is found, then the trial court must determine
the appropriate sanctions for the violation. Id.


       The parties' dispute stems from the proper legal standard for the trial court to apply when
making its factual determination in step one of the two-step process. The defendant contends
that the trial court erred by using the probable cause standard in evaluating whether the defend-
ant actually committed the crime of Theft. Appellant's Br. at 10–11 (citing Tr. at 74 ("[T]o the
extent that this Court only has to make a probable cause determination, that is that a charge was
filed and it is, and it is supported by probable cause, that's clearly the case here.")). The defend-
ant asserts that the trial court should have instead used the preponderance of the evidence stand-
ard. Ind. Code § 35-38-2-3(e) (2008) ("The state must prove the violation by a preponderance of
the evidence."). The State argues, based on prior case law, that "[t]he proper standard for deter-
mining whether a probationer committed a crime is probable cause." Appellee's Trans. Br. at 4.


       The State relies primarily on this Court's decision in Cooper v. State, 917 N.E.2d 667
(Ind. 2009). In Cooper, the State initiated probation revocation proceedings based on domestic
violence charges filed against the defendant. Id. at 669–70. At the probation revocation hearing,
the trial court found that the defendant committed a crime and revoked the defendant's probation.
Id. at 670. Because the defendant in Cooper failed to timely appeal, he forfeited his right to ap-
peal the trial court's order, and thus the only issue properly before the Court was "whether the
trial court erred in denying Cooper's motion to reconsider." Id. at 673. In reviewing the denial
of the motion to reconsider for abuse of discretion, the Court observed that "if the trial court after
a hearing finds that the arrest was reasonable and there is probable cause to believe the defend-
ant violated a criminal law, revocation will be sustained." Id. at 674 (emphasis added) (citing
Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998), trans. denied).


       Cooper appears to rely on a prior, superseded probation revocation statute which stated in
part: "If it shall appear that the defendant has violated the terms of his probation or has been
found guilty of having committed another offense, the court may revoke the probation or the
suspension of sentence and may impose any sentence which might originally have been im-
posed." Ind. Code § 35-7-2-2 (1971). The statute did not expressly provide a legal standard for
courts to make this factual determination, but courts regularly used the probable cause standard
in practice. See, e.g., Hoffa v. State, 267 Ind. 133, 135, 368 N.E.2d 250, 252 (1977) ("[T]he trial
court . . . found that the arrest was reasonable and further found that there was probable cause for
belief that the defendant had violated the criminal law of this state . . . .").1 In 1976, Indiana
Code Section 35-7-2-2 was amended to include a subsection (d), which stated, "The state has the
burden of proving the violation [of a condition of probation] by a preponderance of the evi-
dence." P.L. 148-1976 § 23, 1976 Ind. Acts 718. The language in subsection (d) closely corre-
sponds with the language in subsection (e) of the 2008 version of the statute. Ind. Code § 35-38-
2-3(e) (2008) ("The state must prove the violation by a preponderance of the evidence."). Since
the 1976 amendment, the statute has undergone repeal and reenactment,2 as well as numerous
amendments.3 However, despite these changes, the language in subsection (e), calling for a pro-
bation violation to be proven by a preponderance of the evidence, has remained largely un-
changed since its 1976 revision. Based on this clear, explicit declaration of the legislature, the
correct burden of proof for a trial court to apply in a probation revocation proceeding is the pre-
ponderance of the evidence standard. To the extent that Cooper may be read to permit proof on-
ly by probable cause, it is overruled.4


        Alternatively, the State argues that the trial court did in fact apply the correct legal stand-

        1
          Although Hoffa was decided after the effective date of the amended probation revocation statute
which explicitly required the state to prove a violation of a condition of probation by a preponderance of
the evidence, see P.L. 148-1976 § 23, 1976 Ind. Acts 718, the trial court's probation revocation hearing
had been conducted on March 31, 1976, prior to the effective date of the amended statute. Therefore, the
Hoffa court correctly applied the prior 1975 version of the statute.
        2
          In 1983, Indiana Code Section 35-7-2-2 was repealed by P.L. 311-1983 § 49, 1983 Ind. Acts
1861, and reenacted as Indiana Code Section 35-38-2-3 by P.L. 311-1983 § 3, 1983 Ind. Acts 1861.
        3
          See, e.g., P.L. 340-1977 § 146, 1977 Ind. Acts 1533 (amending subsection (d) to state, in part,
"The state must prove the violation by a preponderance of the evidence."); P.L. 67-1990, § 12, 1990 Ind.
Acts 1555; P.L. 214-1991, § 1, 1991 Ind. Acts 3007; P.L. 240-1991(ss), § 94, 1991 Ind. Acts 3101; P.L.
216-1996, § 15, 1996 Ind. Acts 2677; P.L. 166-2001, § 1, 2001 Ind. Acts 1074; P.L. 98-2004, § 152,
2004 Ind. Acts 1568; P.L. 13-2005, § 1, 2005 Ind. Acts 1328; P.L. 156-2007, § 5, 2007 Ind. Acts 2283;
P.L. 48-2008, § 1, 2008 Ind. Acts 1030; P.L. 106-2010, § 11, 2010 Ind. Acts 1237; P.L. 147-2012, § 10,
2012 Ind. Acts 3242.
        4
          The Court of Appeals noted several other Indiana cases which similarly rely on the out-of-date
probable cause standard. Heaton, 959 N.E.2d at 333 (citing Davis v. State, 916 N.E.2d 736, 740 (Ind. Ct.
App. 2009), trans. denied; Tillberry v. State, 895 N.E.2d 411, 417 (Ind. Ct. App. 2008), trans. not sought;
Weatherly v. State, 564 N.E.2d 350, 352 (Ind. Ct. App. 1990), trans. not sought). To the extent that these
cases conflict with our opinion today, they are likewise overruled.
ard in its determination that the defendant had committed theft while on probation when it stated
that "the Court will find on this evidence that there is a preponderance of the evidence to support
the allegation of theft." Appellee's Br. at 6 (citing Tr. at 40). Although the State admits that the
trial court, when announcing its revocation order, did reference the probable cause standard, it
claims that "[b]ecause the court had correctly found by a preponderance of the evidence that De-
fendant had committed the crime, the court's later statement that it had found that probable cause
existed to show that Defendant had committed the crime was harmless error." Id. 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 ap-
plied the proper standard and decline to find harmless error.


       The State further asserts that the probation revocation should be affirmed because the de-
fendant does not contest the trial court's findings that she had violated two other conditions of
her probation. While it is correct that probation may be revoked on evidence of violation of a
single condition, the selection of an appropriate sanction will depend upon the severity of the de-
fendant's probation violation, which will require a determination of whether the defendant com-
mitted a new criminal offense. Given that the remaining three violations are technical in nature,
the trial court, in its discretion, may decide to continue the probationer on probation without
modification. See Ind. Code § 35-38-2-3(g) (2008). In any event, such determination is better
exercised by the trial court.


       Because it is unclear which standard the trial court used in this instance, we remand the
case to the trial court for reconsideration of whether the defendant violated her probation and if
so, what sanction, if any, is appropriate.


                                             Conclusion


       We vacate the trial court's order finding that the defendant violated her probation and or-
dering her to serve a portion of her previously suspended sentence. This cause is remanded for a
new determination of whether the defendant violated the conditions of her probation by a pre-
ponderance of the evidence pursuant to Indiana Code Section 35-38-2-3(e) (2008) and, if so, the
appropriate sanction for such violation.


Rucker, David, Massa, and Rush, JJ., concur.
