Dustin W. Bass v. State of Indiana (mem. dec.) , 121 N.E.3d 140 ( 2019 )

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.
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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
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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.
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[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,
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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
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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
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