MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Nov 26 2019, 8:52 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana
                                                        Courtney L. Abshire
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Jason M. Horn,                                          November 26, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1490
        v.                                              Appeal from the Fayette Circuit
                                                        Court
State of Indiana,                                       The Honorable J. Steven Cox,
Appellee-Plaintiff                                      Special Judge
                                                        Trial Court Cause No.
                                                        21C01-1210-FC-813



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1490 | November 26, 2019                  Page 1 of 5
                                             Case Summary
[1]   Jason M. Horn appeals the revocation of his probation. He asserts that the trial

      court abused its discretion in revoking his probation and ordering the execution

      of the remainder of his originally suspended sentence. Finding no abuse of

      discretion, we affirm.


                                 Facts and Procedural History
[2]   In 2014, Horn pled guilty to class C felony burglary and class D felony theft.

      Pursuant to the plea agreement, Horn’s sentence was fixed at a total of seven

      years, with three years executed and four years suspended to probation. As

      conditions of his probation, Horn was prohibited from committing another

      criminal offense or from using alcohol and drugs, unless prescribed by a

      physician. Horn began serving his probationary term in February 2017.


[3]   On August 1, 2017, Horn was charged with class C misdemeanor possession of

      paraphernalia. He subsequently failed five urine drug screens between August

      27 and October 13, 2017. The State filed a petition to revoke probation, and

      also issued an arrest warrant that was finally served on July 24, 2018. On that

      date, the State charged Horn with level 5 felony dealing in a narcotic drug.

      Horn was subsequently convicted of class A misdemeanor possession of a

      controlled substance.


[4]   A probation revocation hearing was held on May 29, 2019. Horn requested

      that his probation simply be extended by one additional year, rather than being

      revoked in its entirety. He claimed to be taking care of his sick father and to be

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1490 | November 26, 2019   Page 2 of 5
      gainfully employed. However, Horn’s probation officer testified that when he

      checked on Horn’s employment status, he was informed that Horn had been

      terminated several weeks prior. At the conclusion of the hearing, the trial court

      concluded that the State had demonstrated by a preponderance of the evidence

      that Horn had violated his probation. The court further concluded that a

      suspended sentence was no longer appropriate. The court reasoned that,

      among other things, Horn’s behavior that resulted in the dealing in a narcotic

      drug charge “points out vividly” that Horn “had no real concern for the place

      and time in which he got himself” which demonstrated that “probation means

      less to him [than] the court would hope it would mean to anyone on

      probation.” Tr. Vol. 1 at 26. Accordingly, the trial court revoked Horn’s

      probation and ordered executed the remainder of his previously suspended

      sentence. This appeal ensued.


                                     Discussion and Decision
[5]   “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). We review probation violation determinations and sanctions for an

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

      of discretion occurs where the trial court’s decision is clearly against the logic

      and effect of the facts and circumstances, or when the trial court misinterprets

      the law. Id. As with other sufficiency issues, upon review of a trial court’s

      probation revocation determination, we neither reweigh the evidence nor judge



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1490 | November 26, 2019   Page 3 of 5
      the credibility of witnesses. Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App.

      2011), trans. denied (2012).


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

      factual determination that, by a preponderance of the evidence, a violation of a

      condition of probation occurred. Woods v. State, 892 N.E.2d 637, 640 (Ind.

      2008). Second, the court must determine if the violation warrants revocation of

      probation. Id. During the second step, a probationer must be given an

      opportunity to offer mitigating evidence suggesting the violation does not

      warrant revocation. 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).


[7]   Horn concedes that the State met its burden to prove that he violated one or

      more conditions of his probation. However, he asserts that he presented ample

      mitigating evidence to prove that the violations did not warrant revocation of

      his probation and imposition of the remainder of his previously suspended

      sentence. While probationers indeed must be given the opportunity to present

      mitigating evidence, the trial court is not obligated to balance aggravating and

      mitigating factors when deciding whether to revoke probation and in imposing

      a sentence. Porter v. State, 117 N.E.3d 673, 675 (Ind. Ct. App. 2018).

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1490 | November 26, 2019   Page 4 of 5
      Moreover, it is well settled that a single violation of a condition of probation is

      sufficient to permit the trial court to revoke probation. Pierce v. State, 44 N.E.3d

      752, 755 (Ind. Ct. App. 2015).


[8]   Here, while he was on probation for two felony offenses, Horn failed urine drug

      screens, was charged with multiple new crimes, and was convicted of one new

      crime. The record is clear that the trial court considered, but was not persuaded

      by, Horn’s proffered mitigating evidence regarding his ongoing drug addiction,

      his employment, and his caretaking duties for his sick father. Indeed, there was

      conflicting evidence as to the credibility of some of that evidence. The entirety

      of Horn’s argument on appeal is simply a request that we reweigh the evidence

      in his favor, which we may not do. The trial court’s determination that Horn’s

      probation violations warranted revocation is not against the logic and effect of

      the facts and circumstances before it. The trial court did not abuse its discretion

      in revoking Horn’s probation and ordering execution of his previously

      suspended sentence.


[9]   Affirmed.


      May, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1490 | November 26, 2019   Page 5 of 5
