MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
                                                                   Feb 20 2019, 8:51 am
regarded as precedent or cited before any
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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Angela N. Sanchez
                                                         Assistant Section Chief, Criminal
                                                         Appeals

                                                         Erik J. Bryant
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew Hostetler,                                       February 20, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-265
        v.                                               Appeal from the Ripley Superior
                                                         Court
State of Indiana,                                        The Honorable Jeffrey Sharp,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         69D01-1603-F6-62



Darden, Senior Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-265 | February 20, 2019            Page 1 of 7
                                          Statement of the Case
[1]   Appellant Matthew Hostetler appeals the trial court’s imposition of a portion of

      his previously suspended sentence following his admission to violating his

      probation. We affirm.


                                                     Issue
[2]   Hostetler presents one issue for our review, which we restate as: whether the

      trial court abused its discretion by ordering him to serve a portion of his

      previously suspended sentence.


                                   Facts and Procedural History
[3]   On August 9, 2016, Hostetler pleaded guilty to battery with moderate bodily

      injury as a Level 6 felony resulting from his attack on his step-father while
                                  1
      armed with a knife. The trial court sentenced him to 910 days with 545 days

      suspended to probation. The terms of Hostetler’s probation prohibited him

      from committing another criminal offense.


[4]   On November 2, 2017, the State filed a petition alleging Hostetler had violated

      his probation by committing a new criminal offense, specifically escape as a

      Level 6 felony. At a hearing on the State’s petition on January 17, 2018,




      1
          Ind. Code § 35-42-2-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-265 | February 20, 2019   Page 2 of 7
      Hostetler admitted the violation. The court then ordered him to serve 365 days

      of his suspended sentence and terminated his probation. This appeal ensued.


                                   Discussion and Decision
[5]   Hostetler contends the trial court abused its discretion when, upon revoking his

      probation, it ordered him to serve a portion of his previously suspended

      sentence. A defendant is not entitled to serve a sentence on probation; rather,

      such placement is a matter of grace and a conditional liberty that is a favor, not

      a right. Davis v. State, 743 N.E.2d 793, 794 (Ind. Ct. App. 2001), trans denied.

      Further, probation is a criminal sanction for which a convicted defendant

      specifically agrees to accept conditions upon his behavior in lieu of

      imprisonment. Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013),

      trans. denied. These restrictions are designed to ensure that the probation serves

      as a period of genuine rehabilitation and that the public is not harmed by a

      probationer living within the community. Jones v. State, 838 N.E.2d 1146, 1148

      (Ind. Ct. App. 2005).


[6]   At the time of Hostetler’s violation, Indiana Code section 35-38-2-3(h) (2015)

      provided that if the court finds a violation of a condition of probation, it may:

      (1) continue the person on probation, with or without modifying the conditions;

      (2) extend the person’s probationary period for not more than one year; and/or

      (3) order execution of all or part of the sentence that was suspended at the time of initial

      sentencing. (Emphasis added). A trial court’s sentencing decisions for probation

      violations are reviewed for an abuse of discretion. Wilkerson v. State, 918


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-265 | February 20, 2019    Page 3 of 7
       N.E.2d 458, 464 (Ind. Ct. App. 2009). An abuse of discretion occurs when the

       decision is clearly against the logic and effect of the facts and circumstances.

       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).


[7]    We begin with the incidents leading up to the present violation. Hostetler had

       been living with his mother’s ex-husband when the two men got into an

       argument. His mother’s ex-husband threatened to kick him out so, “in fear of

       being homeless,” Hostetler “basically panicked and started a house fire.” Tr.

       Vol. 2, p. 8. Based on this incident, he was charged with arson.


[8]    While Hostetler was out on bond for his arson charge, he attacked his step-

       father with a knife and was charged with battery with moderate bodily injury,

       the underlying charge in this case.


[9]    Hostetler was subsequently convicted of the arson and sentenced to five years of

       probation served on house arrest. While he was on house arrest, he cut off his

       ankle bracelet because he was “about to get evicted and [he] panicked.” Id. at

       7. Hostetler was charged with the offense of escape in a new cause, and the

       State also filed a petition to revoke his probation in this cause. He was

       convicted of the escape charge and was sentenced to 730 days, suspended to

       probation.


[10]   In his brief to this Court, Hostetler asserts that several mitigating factors

       warrant a more lenient sentence. These factors include his acceptance of

       responsibility which saved the State time and money, the fact that his violation



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-265 | February 20, 2019   Page 4 of 7
       was a relatively minor one, the existence of his mental health condition, and his

       work history.


[11]   When imposing a sentence in a probation revocation proceeding, the trial court

       is not required to consider mitigating circumstances, with one exception: the

       probationer’s mental state. Patterson v. State, 659 N.E.2d 220, 222-23 n.2 (Ind.

       Ct. App. 1995). Specifically, it is the probationer’s mental state “at the time

       and under the circumstances of the alleged violation” that is to be considered.

       Id. at 222. Nevertheless, while the trial court is obligated in a revocation

       proceeding to consider evidence of a defendant’s mental disease or defect as a

       factor in its dispositional determination, that evidence is not dispositive of a

       case. Id. at 222-23. Rather, it is well within the prerogative of the court to

       determine that, under the circumstances of a particular case, the defendant’s

       alleged mental condition does not excuse or mitigate the probation violation.

       Id. at 223.


[12]   At the hearing, Hostetler asked the court to consider that he pleaded guilty but

       mentally ill to the arson charge “because [he] was off of [his] medication when

       the fire happened.” Tr. Vol. 2, p. 9. He also stated that he had been receiving

       treatment since his placement on house arrest. This information showed the

       trial court only that Hostetler’s alleged mental condition had an effect on his

       behavior at the time he committed arson. The violation at issue here is the escape

       charge. Thus, with regard to Hostetler’ mental state at the time he committed

       escape, this information shows, at most, that he was receiving treatment.

       Therefore, Hostetler’s statements at the revocation hearing that he was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-265 | February 20, 2019   Page 5 of 7
       receiving treatment at the time he violated his probation by committing the

       offense of escape were not so conclusive as to compel the court to find that the

       probation violation was excused or mitigated by his alleged mental condition.


[13]   In addition, Hostetler appears to invoke Indiana Appellate Rule 7(B) by arguing

       that the court’s imposition of 365 days of his previously suspended sentence is

       error “in light of the nature of the violation and the status of the offender.”

       Appellant’s Br. p. 4. Rule 7(B) review and revision of sentences, however, does

       not apply to sanctions imposed in probation revocation proceedings. Prewitt,

       878 N.E.2d at 188 (whether court’s sanction is inappropriate in light of nature

       of offense and character of offender “is not the correct standard to apply when

       reviewing a sentence imposed for a probation violation”).


[14]   At the time of disposition, Hostetler was only twenty years old. Yet at this

       relatively young age, he had already accumulated convictions of arson, battery

       with moderate bodily injury, and escape. He committed the battery while out

       on bond on the arson charge, and he committed the escape while on probation

       for the battery. Moreover, he claims his probation violation was minor and that

       he simply “was not where he was supposed to be.” Appellant’s Br. p. 10.

       However, he testified at his revocation hearing that he cut off his ankle bracelet

       and was missing from house arrest until he was apprehended the following

       afternoon.


[15]   Hostetler has demonstrated his unwillingness to comply with the conditions of

       his probation and to take advantage of the opportunities for alternatives to


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-265 | February 20, 2019   Page 6 of 7
       incarceration afforded him by the trial court. Here, the trial court graciously

       ordered him to serve only a portion of his previously suspended sentence and

       closed out his probation early. We find no error.


                                                Conclusion
[16]   For the reasons stated, we conclude the trial court properly exercised its

       discretion in ordering Hostetler to serve a portion of his previously suspended

       sentence upon revocation of his probation in this matter.


[17]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-265 | February 20, 2019   Page 7 of 7
