MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                Jan 12 2016, 8:26 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna Weissmann                                         Gregory F. Zoeller
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA


Jeremy McCool,                                           January 12, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         15A01-1505-CR-336
        v.                                               Appeal from the
                                                         Dearborn Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Sally A. McLaughlin, Judge
                                                         Trial Court Cause No.
                                                         15D02-1008-FD-172



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016      Page 1 of 6
[1]   Jeremy McCool appeals following the revocation of his probation, contending

      that the trial court abused its discretion when it imposed his previously

      suspended 180-day sentence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   McCool pleaded guilty pursuant to a negotiated plea agreement, under Cause

      Number 15D02-1008-FD-172 (“the instant action”), to having committed one

      count of Class A misdemeanor intimidation 1 and one count of Class B

      misdemeanor harassment on July 17, 2010. The trial court accepted his guilty

      plea and, on February 3, 2011, sentenced him to a term of 365 days and 180

      days, respectively, suspended to probation. The trial court ordered the

      suspended sentences to run concurrent with each other, for an aggregate term of

      365 days, but consecutive to his suspended sentence for a 2009 Class B felony

      conviction in another county. “McCool’s probation term wasn’t due to end

      until February 25, 2027.” Appellant’s Br. at 2.


[4]   The conditions of probation for the instant action prohibited McCool from

      committing a new criminal offense and from possessing or using lethal weapons

      that could be used in the commission of a crime. Appellant’s App. at 28, 33.

      “On March 3, 2015, [McCool] was found guilty of Possession of a Firearm after




      1
       McCool was initially charged with intimidation as a Class D felony, but negotiated that count down to a
      Class A misdemeanor. Appellant’s App. at 9

      Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016          Page 2 of 6
      Having Been Barred from Possession of a Firearm, a Level 4 Felony[,] under

      15C01-1411-F4-59 [(“Cause 59”)].”2 Id. at 38. On March 10, 2015, the State

      filed a Request for Probation Violation Hearing, contending that his conviction

      under Cause 59 was a violation of his probation under the instant action. Id.


[5]   On March 24, 2015, the probation revocation court (“probation court”)

      conducted a fact-finding hearing. During that hearing, the State introduced an

      exhibit pertaining to McCool’s conviction under Cause 59, which consisted of a

      “certified copy, Judgment of Conviction, and jury entry for March 2nd and 3rd

      along with a signed guilty verdict form, the unsigned not guilty form, Warrant,

      Charging Information, [and] Probable Cause Affidavit[.]” Tr. at 9. At the

      State’s request, the probation court took judicial notice of the Cause 59

      proceedings, sentencing order, and judgment of conviction. Id. at 10. Based on

      this evidence, the probation court found by a preponderance of the evidence

      that McCool had violated the terms of his probation.


[6]   About two weeks later, the probation court, noting the prior criminal history set

      forth in McCool’s presentence investigation report (“PSI”), sentenced him to

      serve 180 days of his previously-suspended with no credit time.3 The probation




      2
       In Cause 59, McCool was sentenced to the maximum term of twelve years for the Level 4 conviction and
      appealed. On appeal, McCool did not appeal his conviction, but only his sentence. A panel of this court
      affirmed McCool’s sentence, finding that the trial court did not abuse its discretion in entering the sentence
      and that the sentence was not inappropriate in light of the nature of the offense and the character of the
      offender. McCool v. State, No.15A05-1505-CR-331 (Ind. Ct. App. Dec. 8, 2015).
      3
       The State filed to revoke McCool’s suspended sentence on both the harassment and intimidation
      convictions. The probation court found “there was a probation violation.” Tr. at 11. In the Order Granting
      Petition to Revoke Probation, the probation court referenced only the 180-day suspended sentence for the

      Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016               Page 3 of 6
      court ordered the sentence to run consecutive to McCool’s executed sentence in

      Cause 59 and stated that McCool’s “probation will be terminated upon

      completion of sentence.” Id. at 13. McCool now appeals.


                                      Discussion and Decision
[7]   Probation is a matter of grace left to the trial court’s discretion, not a right to

      which a 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 conditions are violated. Id. (citing Ind. Code. § 35-38-2-3). A

      probation revocation hearing is in the nature of a civil proceeding, accordingly,

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

      the evidence. Cain v. State, 30 N.E.3d 728, 732 (Ind. Ct. App. 2015), trans.

      denied.


[8]   Probation revocation is a two-step process. Alford v. State, 965 N.E.2d 133, 134

      (Ind. App. 2012), trans. denied. First, the trial court must make a factual

      determination that a violation of a condition of probation has occurred. Id.

      Second, the trial court must determine whether the violation warrants

      revocation. Id. at 135. Upon the revocation of probation, a 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




      Class B misdemeanor harassment conviction. Appellant’s App. at 46. The record before us makes no specific
      reference to the resolution of the 365-day suspended sentence imposed for the Class A misdemeanor
      intimidation conviction.

      Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016         Page 4 of 6
       person’s probationary period for not more than one year beyond the original

       probationary period; (3) order execution of all or part of the sentence that was

       suspended at the time of initial sentencing. Id.; I.C. § 35-38-2-3(h). We review

       a trial court’s sentencing decisions on probation violations for an abuse of

       discretion. Alford, 965 N.E.2d at 135. An abuse of discretion occurs where the

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


[9]    McCool’s sole argument on appeal is that the trial court abused its discretion

       when it revoked his entire 180-day suspended sentence. Appellant’s Br. at 3.

       McCool cites to his mental health and lack of education, which he claims are

       not of his own making, and argues that the trial court should have taken these

       factors into consideration to fashion the appropriate remedy. Id. at 6. McCool

       also contends that he is “already paying a hefty price for his illegal act [of

       possessing a firearm], which harmed no one.” Id. We disagree.


[10]   While McCool is, indeed, serving a twelve-year executed sentence for his

       firearm conviction under Cause 59, he has never served a day in jail in

       connection with his convictions for Class A misdemeanor intimidation and

       Class B misdemeanor harassment under the instant action—crimes that he

       committed against two separate victims. Instead, the trial court granted

       McCool the grace of an aggregate 365-day sentence suspended to probation for

       his conviction under the instant action. McCool’s probation was revoked only

       after he was convicted of the firearm offense under Cause 59, which was a new

       criminal offense. During sentencing for the probation violation, the probation

       court took judicial notice of McCool’s “prior criminal history that is addressed

       Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016   Page 5 of 6
in the [PSI] from [Cause 59],” a history that included juvenile delinquency

adjudications, and convictions for a Class B felony as well as numerous Class A

and Class B misdemeanors. Appellant’s App. at 66-69. A sentence of 180 days

executed is not clearly against the logic and effect of the facts and

circumstances. The trial court did not abuse its discretion when it sentenced

McCool to 180 days executed, after finding that he violated the terms of his

probation by committing a new criminal offense.


Affirmed.


MATHIAS, J., and BROWN, J., concur.




Court of Appeals of Indiana | Memorandum Decision 15A01-1505-CR-336 | January 12, 2016   Page 6 of 6
