MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jan 23 2019, 9:20 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Clifford M. Davenport                                    Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         J. T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dustin W. Bass,                                          January 23, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1229
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Thomas Newman,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C03-1412-F5-2089



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1229 | January 23, 2019                Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Dustin W. Bass (Bass), appeals the trial court’s

      revocation of his probation and imposition of sentence.


[2]   We affirm.


                                                   ISSUES
[3]   Bass presents this court with two issues on appeal which we restate as follows:


          (1) Whether the State presented sufficient evidence to establish Bass’

              violation of the terms of his probation by a preponderance of the

              evidence; and

          (2) Whether the trial court abused its discretion by revoking Bass’ suspended

              sentence and ordering his previously-suspended sentence to be served at

              the Department of Correction (DOC).


                      FACTS AND PROCEDURAL HISTORY
[4]   On December 1, 2014, the State filed an Information, charging Bass with

      operating a motor vehicle after forfeiture of license for life, a Level 5 felony. On

      March 24, 2016, the Madison County Probation Department filed a violation of

      executed sentence, alleging that Bass had committed several new offenses while

      serving his probation. The State charged Bass with these new offenses under

      Cause 48C03-1603-F5-000558 (Cause 558). Bass admitted to having violated

      the conditions of his probation in the instant Cause and the trial court placed

      him in the Madison County Problem Solving Court after the sanctions hearing

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1229 | January 23, 2019   Page 2 of 8
      on May 2, 2016. Bass was ordered to undergo a mental health evaluation and

      the parties entered an agreement for entry into the Mental Health Court on

      June 15, 2016. The trial court deferred further sanctions in the instant Cause as

      well as sentencing in Cause 558 to give Bass an opportunity to successfully

      complete Mental Health Court.


[5]   After Bass failed to appear for a review hearing on July 12, 2016 and had

      incurred multiple program violations, the trial court issued a warrant for his

      arrest and ordered Bass into custody until space was available with work

      release. At numerous subsequent review hearings held between September 21,

      2016 and August 16, 2017, Bass was found to be in compliance with the

      programs of the Problem Solving Court and the Mental Health Court.


[6]   On September 21, 2017, the State filed a termination request of the Mental

      Health Court requirements, alleging that Bass had failed to abstain from the use

      of illicit drugs and had failed to report. At the hearing on October 16, 2017,

      Bass admitted to using K2, otherwise known as Spice. At that hearing, Katie

      McCoy (McCoy), Bass’ case manager at the Problem Solving Court, testified

      that despite the completion of some program courses, Bass continued to violate

      the program rules and he was dishonest and deceptive, having denied his use of

      Spice during initial questioning. It was McCoy’s position that Bass was “not

      ready to commit to a recovery based lifestyle at this time.” (Transcript p. 61).

      At the conclusion of the hearing, the trial court ordered Bass terminated from

      the Problem Solving Court and ordered a substance abuse evaluation and a

      psychological evaluation.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1229 | January 23, 2019   Page 3 of 8
[7]   On October 30, 2017, Bass pled guilty to operating a motor vehicle after

      forfeiture of license for life, a Level 5 felony; possession of a narcotic drug, a

      Level 6 felony; and possession of paraphernalia, a Class C misdemeanor in

      Cause 558. The trial court sentenced Bass to an aggregate sentence of five

      years, suspended to probation. During the sanctions hearing in the instant

      Cause, Bass was placed on probation for two years and five months, to be

      served consecutively to his sentence in Cause 558. His probation conditions

      included residing at Stepping Stones, monitoring of all medications, and

      compliance with the recommendations of his psychiatric care provider, Maxine

      Cook (Cook).


[8]   On November 9, 2017, the probation department filed a notice of violations of

      probation. During the evidentiary hearing on December 13, 2017, the State

      alleged that Bass had neglected to inform the probation department of his

      changed address, had failed to comply with Cook’s recommendations, had

      failed to maintain employment for at least 20 hours per week, and failed to

      reside at Stepping Stones where his medications would be monitored. Tim

      Warrum (Warrum), Bass’ probation officer, testified that he had learned on

      November 29, 2017, that Bass had been placed on in-home detention in a

      Marion County case. In fact, Bass, while placed on in-home detention in

      Marion County, went to the Wheeler Mission on November 2, 2017, after only

      one day’s residency at Stepping Stones where he had been ordered to reside.

      The trial court concluded that Bass had violated the conditions of his probation

      by leaving Stepping Stones, where his medications would have been monitored,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1229 | January 23, 2019   Page 4 of 8
       by failing to keep the probation department informed of his address, by failing

       to maintain employment, and by failing to comply with his treatment program.

       The trial court revoked his probation and ordered his previously-suspended

       sentence to be served at the DOC.


[9]    Bass now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
                                         I. Sufficiency of the Evidence


[10]   Bass contends that the State failed to establish sufficient evidence that he

       violated his probation. Probation is a matter of grace left to the trial court’s

       sound discretion, not a right to which a criminal defendant is entitled. Prewitt v.

       State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the

       conditions of probation and may revoke probation if the probationer violates

       those conditions. Id. We review a trial court’s probation violation

       determination using an abuse of discretion standard. Jackson v. State, 6 N.E.3d

       1040, 1042 (Ind. Ct. App. 2014). An abuse of discretion occurs where the trial

       court’s decision is clearly against the logic and effect of the facts and

       circumstances before it or where the trial court misinterprets the law. Id. In

       determining whether a trial court has abused its discretion, we neither reweigh

       evidence nor judge witness credibility. Ripps v. State, 968 N.E.2d 323, 326 (Ind.

       Ct. App. 2014). Instead, we consider conflicting evidence in the light most

       favorable to the trial court’s ruling. Id.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1229 | January 23, 2019   Page 5 of 8
[11]   Probation revocation is a two-step process, wherein the trial court first makes a

       factual determination as to whether the probationer violated the terms of his

       probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Then, if a violation

       is found, the court determines whether the violation warrants revocation. Id.

       Because a probation revocation proceeding is civil in nature, the State need only

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

       Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). Proof of a single

       violation is sufficient to permit a trial court to revoke probation. Beeler v. State,

       959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans. denied.


[12]   During the evidentiary hearing, the State presented the testimony of Warrum,

       who stated that he had reviewed the terms of probation with Bass. “[A] little

       over a week after he was on probation,” Warrum filed a notice of probation

       violation, alleging that Bass had failed to reside at Stepping Stones, where his

       medications would be monitored, to keep the probation department informed of

       his address, to maintain employment, and to comply with his treatment

       program. (Tr. p. 83).


[13]   Although Bass admitted that he left Stepping Stones on November 2, 2017 after

       only residing there one day, he maintains that he contacted Marion County

       probation about in-home detention at the direction of Warrum and was

       subsequently placed on home detention in Marion County. Nonetheless, on

       redirect, Warrum testified that he was unaware of a Marion County case until

       he was contacted by a Marion County Officer on November 29, 2017 informing

       him that Bass was in the Marion County Detention Center. In essence, Bass is

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1229 | January 23, 2019   Page 6 of 8
       now requesting this court to reweigh the evidence and the credibility of the

       witnesses; an invitation which we decline. See Ripps, 968 N.E.2d at 326.

       Therefore, we find that the State presented substantial evidence of probative

       value in support of its allegation. See Beeler, 959 N.E.2d at 830 (proof of a single

       violation is sufficient to permit a trial court to revoke probation), trans. denied.


                                                   II. Sentence


[14]   Bass also maintains that the trial court abused its discretion when it remanded

       him to the DOC for the remainder of his previously-suspended sentence. We

       review the trial court’s decision on sanctions for probation violations for an

       abuse of discretion. Prewitt, 879 N.E.2d at 188. Contending that he did not

       intentionally violate his terms of probation, Bass requests this court to reverse

       the trial court’s sentence and to allow him to continue on probation.


[15]   Having concluded that Bass committed a probation violation, the trial court

       could impose one or more of the following sanctions: (1) continue Bass’

       probation, with or without modifying or enlarging the conditions; (2) extend his

       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 the initial sentencing. Ind. Code § 35-38-2-3(h).

       Pursuant to the statute, the trial court chose to order the execution of all of

       Bass’ previously-suspended term.


[16]   The instant probation violation is not the only violation of record in the

       underlying Cause. Bass was first violated when he committed the offenses in

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1229 | January 23, 2019   Page 7 of 8
       Cause 558. As a grace and incentive, the trial court deferred sanctions in the

       instant Cause and sentencing in Cause 558 to give Bass an opportunity to

       successfully complete programs at the Mental Health Court. Nevertheless,

       instead of availing himself of the offered opportunity, Bass was terminated

       because he admitted to using Spice, besides several other violations. McCoy,

       Bass’ case manager at the time, testified that despite the completion of some

       program courses, Bass was dishonest and deceptive, and “not ready to commit

       to a recovery based lifestyle at this time.” (Tr. p. 61). Again, during the instant

       violation, he refused to take responsibility, instead alleging that he accidentally

       violated his terms of probation at the instigation of Warrum who told him to

       contact Marion County. In light of the accumulated evidence, there is little

       reason to believe that Bass will discontinue this pattern absent incarceration.

       Accordingly, we find no abuse of discretion in the trial court’s choice of

       sanction.


                                             CONCLUSION
[17]   Based on the foregoing, we hold that the trial court did not abused its discretion

       in revoking Bass’ probation and imposing his previously-suspended sentence.


[18]   Affirmed.


[19]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1229 | January 23, 2019   Page 8 of 8
