MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                               FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Jul 18 2018, 10:18 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
Gregory L. Fumarolo                                       Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Alex P. Bice,                                            July 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-124
        v.                                               Appeal from the
                                                         Allen Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Samuel Keirns, Magistrate
                                                         Trial Court Cause No.
                                                         02D05-1104-FC-108



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-124 | July 18, 2018                     Page 1 of 8
[1]   After failing to attend required counseling classes, Alex P. Bice’s (“Bice”)

      probation was revoked, and the trial court sentenced him to the Indiana

      Department of Correction (“the DOC”) for the remainder of his previously-

      suspended sentence. Bice now appeals and raises the following restated issues:


              I.       Whether the evidence was sufficient to support the
                       revocation of Bice’s probation; and


              II.      Whether the trial court abused its discretion in its
                       sentencing decision upon finding that Bice violated his
                       probation.


[2]   We affirm.


                                  Facts and Procedural History
[3]   After cashing two forged checks made payable to himself totaling $1,850, Bice

      was charged on April 25, 2011, with two counts of forgery and two counts of

      receiving stolen property. He pleaded guilty to a single count of forgery and, by

      agreement, was ordered to serve a six-year sentence with four years suspended

      to probation. Bice was ordered as a condition of probation to attend counseling

      programs.


[4]   On June 15, 2014, the State filed a petition to revoke Bice’s probation, alleging

      that he had committed Level 6 felony domestic battery, Level 6 felony

      strangulation, and Class A misdemeanor interference with the reporting of a

      crime. Bice admitted to these probation violations, and the trial court modified

      his sentence to one year executed at the DOC, followed by five years of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-124 | July 18, 2018   Page 2 of 8
      probation. Because Bice was inconsistent with reporting and paying probation

      fees, on July 20, 2017, his probation officer had Bice sign a document called

      “Notice to Appear,” which put Bice on notice that a petition to revoke

      probation was being contemplated due to his “[f]ailure to attend/complete

      counseling” and his “[f]ailure to pay fees and restitution in a timely manner.”

      Appellant’s App. Vol. II at 66. An informal hearing was held on July 28, 2017, at

      which Bice agreed to pay fees and to enroll in a counseling program. Id. at 72.


[5]   During his probation, Bice was referred to Allen County Community

      Corrections (the coordinating program for counseling classes) five times, but

      never fully completed any program. Id. He was scheduled for an orientation

      appointment into the Marketplace Treatment counseling program on

      September 5, 2017, but rescheduled it for September 12, 2017. Tr. Vol. 2 at 15.

      On this rescheduled date, Bice emailed the class coordinator forty-five minutes

      before his appointment stating that he had to go to work and asked to

      reschedule. Id. He rescheduled for September 19, 2017. Id. at 15-16.

      Approximately an hour before this rescheduled meeting, Bice sent the

      coordinator an email stating that he had car problems and asked to reschedule

      again. Id. Bice finally attended the orientation on September 26, 2017 and was

      scheduled to start classes on October 11, 2017. Id. at 16.


[6]   The Allen County Community Corrections Program’s attendance policy, with

      which Bice agreed to comply, mandates that no attendee may miss two

      consecutive class sessions “without notification and permission from [the]

      facilitator.” State’s Ex. 1. Bice missed the first class on October 11, 2017 and

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-124 | July 18, 2018   Page 3 of 8
      sent an email just as the class was ending that he was at the hospital with his

      sister who was having a baby. Tr. Vol. 2 at 17. The next class was set for the

      next day. Bice did not attend this class either, although he stated in an email

      sent the previous day that he would be able to attend. Id. at 18-19. The third

      class was set for October 13, 2017, and Bice did not attend this class, leaving a

      voicemail that he would not be attending. Id. at 18. He had no prior

      permission to miss these classes. Id.


[7]   The State filed a petition to revoke Bice’s probation, alleging that he had failed

      to attend or complete counseling and had not paid required fees and restitution.

      Appellant’s App. Vol. II at 67. Bice was found to have violated his probation by

      the trial court. The trial court ordered Bice’s suspended sentence executed at

      the DOC. Id. at 84. The trial court amended this order on December 21, 2017,

      allowing Bice to serve the sentence on work release. Id. at 90. Bice now

      appeals.


                                     Discussion and Decision
[8]   Bice challenges the sufficiency of the evidence to support the revocation of his

      probation and contends that the trial court abused its discretion when it ordered

      him to serve the remainder of his previously-suspended sentence at the DOC.

      “‘Probation is a matter of grace left to trial court discretion, not a right to which

      a criminal defendant is entitled.’” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind.

      Ct. App. 2014) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). “The

      trial court determines the conditions of probation and may revoke probation if


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-124 | July 18, 2018   Page 4 of 8
       the conditions are violated.” Id.; see also Ind. Code § 35-38-2-3(a). “Once a trial

       court has exercised its grace by ordering probation rather than incarceration,

       the judge should have considerable leeway in deciding how to proceed.”

       Prewitt, 878 N.E.2d at 188. “If this discretion were not afforded to trial courts,

       and sentences were scrutinized too severely on appeal, trial judges might be less

       inclined to order probation to future defendants.” Id. Accordingly, we review a

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

       Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of discretion

       occurs where the decision is clearly against the logic and effect of the facts and

       circumstances or when the trial court misinterprets the law.” Jackson, 6 N.E.3d

       at 1042.


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

       a factual determination that a violation of a condition of probation actually

       occurred.” Id. (citing 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.


                                       I. Probation Revocation
[10]   On appeal, Bice contends that the evidence was not sufficient to support the

       revocation of his probation. A probation revocation hearing is in the nature of

       a civil proceeding. Marsh v. State, 818 N.E.2d 143, 148 (Ind. Ct. App. 2004).

       Therefore, an alleged violation of probation only has to be proven by a

       preponderance of the evidence. Id. When we review the determination that a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-124 | July 18, 2018   Page 5 of 8
       probation violation has occurred, we neither reweigh the evidence nor reassess

       witness credibility. Id. “Instead, we look at the evidence most favorable to the

       probation court's judgment and determine whether there is substantial evidence

       of probative value supporting revocation. If so, we will affirm.” Id. We

       consider only the evidence most favorable to the verdict and the reasonable

       inferences that can be drawn from that evidence. Fuentes v. State, 10 N.E.3d 68,

       75 (Ind. Ct. App. 2014), trans. denied.


[11]   Bice contends that the evidence presented by the State at his trial was not

       sufficient to support the revocation of his probation. Bice agrees that he was

       ordered to complete the Marketplace Treatment Plan and that he signed an

       agreement which provided that he could not miss two consecutive sessions

       unless he notified and received permission from the program facilitator. He

       claims that the emails he sent to the facilitator, explaining his absence was due

       to a family emergency in Indianapolis, constituted adequate requests for

       permission to miss the sessions held in Fort Wayne. We disagree.


[12]   Bice admitted that he was aware that the Marketplace Treatment Plan was a

       part of being on probation and that it was important for him to complete the

       counseling program. Tr. Vol. 2 at 26. Bice also admitted that he was aware that

       if he did not complete Marketplace Treatment Plan, he would face going back

       to prison. Id. Bice acknowledged that he signed a document which stated that

       if he was going to miss two consecutive sessions, he needed to notify his

       facilitator and obtain her permission. Id. at 27. Bice conceded that he did not

       have permission from his facilitator to miss two consecutive sessions and that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-124 | July 18, 2018   Page 6 of 8
       he did not complete the Marketplace Treatment Plan. Therefore, sufficient

       evidence was presented to support revocation of Bice’s probation.


                                 II. Revocation of Entire Sentence

[13]   Bice also argues that the trial court abused its discretion when it ordered him to

       serve the remainder of his previously-suspended five-year sentence. “We

       review a trial court’s sentencing decision in a probation revocation proceeding

       for an abuse of discretion.” Johnson v. State, 62 N.E.3d 1224, 1229-30 (Ind. Ct.

       App. 2016). “An abuse of discretion occurs if the trial court’s decision is

       against the logic and effect of the facts and circumstances before the court.” Id.


[14]   If a defendant is found to have violated his or her probation, a trial court may

       impose one or more of the following: (1) continue the defendant on probation;

       (2) extend the probationary period for not more than one year beyond the

       original period; (3) order all or part of a previously suspended sentence to be

       executed. Ind. Code § 35-38-2-3(h).


[15]   Bice contends that, even if the trial court was correct that he violated his

       probation as charged, the trial court abused its discretion by ordering the

       execution of the entire five-year sentence that had been suspended on October

       30, 2014. Bice argues that he was not attempting to avoid or defy the

       requirements of his probation, claiming that he made attempts to notify

       Marketplace Treatment personnel that he would not be able to attend those two

       consecutive sessions and the reasons why he could not attend those two

       consecutive sessions. However, we find that, based on the record before us, the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-124 | July 18, 2018   Page 7 of 8
       trial court did not abuse its discretion when it ordered Bice to serve the

       remainder of this previously-suspended five-year sentence at the DOC.


[16]   Here, Karen Lasocha (“Lasocha”), Allen County Corrections Program Section

       Chief, testified that Bice called her and left a voicemail on September 5, 2017,

       stating that he wanted to reschedule the Marketplace Treatment orientation. Id.

       at 15. On September 12, 2017, Bice emailed Lasocha forty-five minutes before

       his appointment and stated that he had to work and needed to reschedule again.

       Id. The appointment was then rescheduled for September 19, 2017. Id. On

       September 19, 2017, Lasocha testified that Bice emailed her about an hour

       before orientation, stating that he had broken a fan belt in his car and wanted to

       know if he could reschedule. Id. at 16. On September 26, 2017, Bice was

       supposed to attend orientation at 9:45 a.m. Id. Instead, Bice emailed his

       probation officer and stated that he was with his stepdad and asked if he could

       attend the evening orientation which he received approval to do. Id. Following

       his orientation, Bice was supposed to start the Marketplace Treatment classes,

       which he failed to complete. Id. Because Bice displayed a history of repeatedly

       rescheduling his appointments with Marketplace Treatment and failed to

       complete the program as required by the terms of his probation, the trial court

       did not abuse its discretion by ordering him to serve the remainder of his

       previously-suspended five-year sentence at the DOC.


[17]   Affirmed.


       Baker, J., and Bradford, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-124 | July 18, 2018   Page 8 of 8
