George F. Hauk, IV v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Jan 31 2018, 11:21 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
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
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
George F. Hauk, IV, January 31, 2018
Appellant-Respondent, Court of Appeals Case No.
70A01-1710-CR-2455
v. Appeal from the Rush Superior
Court
State of Indiana, The Honorable Brian D. Hill,
Appellee-Petitioner. Judge
Trial Court Cause No.
70D01-1404-FA-150
Bradford, Judge.
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Case Summary
[1] On January 8, 2015, Appellant-Respondent George F. Hauk IV was sentenced
to eight years, with four years executed on home detention and four years
suspended to probation after he pled guilty to Class B felony dealing in
methamphetamine. On May 15, 2017, Appellee-Petitioner the State of Indiana
(“the State”) filed a petition alleging that Hauk had violated the terms of his
probation by being convicted of Level 3 felony rape and Level 6 felony sexual
battery. Hauk subsequently admitted to the violation. After accepting Hauk’s
admission, the trial court revoked Hauk’s four-year suspended sentence and
ordered that the four-year sentence be served in the Department of Correction
(“DOC”).
[2] On appeal, Hauk contends that the evidence is insufficient to prove that he
violated the terms of his probation. In raising this contention, Hauk concedes
that the State sufficiently proved that he had been convicted of Level 3 felony
rape, but claims that the State failed to prove that the rape occurred while he
was on probation. Concluding otherwise, we affirm.
Facts and Procedural History
[3] On April 1, 2014, the State charged Hauk with Class A felony dealing in
methamphetamine, Class B felony possession of methamphetamine, Class B
felony dealing in methamphetamine, Class D felony possession of
methamphetamine, Class D felony dealing in a legend drug, and Class D felony
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unlawful possession or use of a legend drug or precursor. Hauk subsequently
agreed to plead guilty to Class B felony dealing in methamphetamine. In
exchange for Hauk’s guilty plea, the State agreed to dismiss the remaining
charges and to an eight-year maximum sentence. The trial court accepted
Hauk’s guilty plea on January 8, 2015, and imposed an eight-year sentence with
four years suspended to probation. The trial court also ordered that the
executed portion of Hauk’s sentence would be served on home detention.
[4] On May 15, 2017, the State filed a probation renovation petition. In this
petition, the State alleged that Hauk had violated the terms of his probation by
committing another criminal offense. Specifically, the State alleged that Hauk
“was charged in Rush County Indiana on May 4, 2017 under cause 70C01-
1705-F3-343 [“Cause No. F3-343”] for Rape-Level 3 Felony and Sexual
Battery-Level 6 Felony. The aforementioned charges were committed between
March 1, 2016 and April 15, 2016.” Appellant’s App. Vol. II, p. 69.
[5] The State filed a second probation revocation petition on August 10, 2017. In
this petition, the State alleged that Hauk had violated the terms of his probation
by failing to inform his probation officer that he had been in contact with law
enforcement within twenty-four hours of being charged with rape under Cause
No. F3-343.
[6] On September 25, 2017, the parties appeared before the trial court for a hearing
on the State’s petitions. At that time, Hauk, through counsel, indicated that he
wished to admit the allegation contained in the petition that was filed on May
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15, 2017. After Hauk indicated that he wished to admit to the alleged
probation violation, the following exchange occurred:
[The Court]: Do you now, in fact admit to the allegations
outlined in your Petition for Revocation of Probation filed on or
about May 15th, 2017?
[Hauk]: Yes.
[The Court]: Does the State have a [factual basis] to offer?
[The State]: Yes, your Honor. If this matter were to proceed to
an Adjudicatory hearing, the State would prove by a
preponderance of the evidence that [Hauk] was placed on
probation for a period of thirty, forty-eight months after being
convicted of Dealing in Methamphetamine as a Class “B”
Felony. The State would show that Mr. Hauk, uh, was, one of
the rules of probation was he would not commit another criminal
offense. And that while he was still on probation here on March
1st, uh, through April 15th, sometime in that time-period, uh, Mr.
Hauk, uh, committed the offense of Rape and he was charged
with that on May 4th of 2017 under cause number 70C01-1705-
F3-343. Uh, rape as a Level 3 Felony and Sexual Battery [a]s a
Level 6 Felony. He subsequently had a Jury trial on that and
was convicted of both counts on or about August 23 rd of 2017.
The State would, uh, show that all of those events occurred while
he was still on probation here in Rush County, Indiana.
[The Court]: Mr. Hauk, are those facts true?
[Hauk]: I admit I was convicted at trial. I’m pursuing my
innocence and appealing it.
[The Court]: Court finds the, uh, Defendant to be twenty-one
years of age. Understands the nature of the allegations, uh, the
possible penalties. I’ll find the admission is freely and voluntarily
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given and that there is a factual basis. I’ll accept the admission.
Find the Defendant to have violated probation pursuant to the
allegations contained in that Petition for Revocation of Probation
on May 15th.
Tr. Vol. II, p. 7. The trial court subsequently revoked the four-year previously
suspended portion of Hauk’s sentence and ordered that the four years be served
in the DOC. The trial court further ordered that the four years be served
“consecutive to the executed sentence in [Cause No. F3-343].” Appellant’s
App. Vol. II, p. 84 (emphasis removed from original). This appeal follows.
Discussion and Decision
[7] On appeal, Hauk challenges the revocation of his probation.
Probation is a matter of grace left to trial court discretion, not a
right to which a criminal defendant is entitled. The trial court
determines the conditions of probation and may revoke
probation if the conditions are violated. 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. 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. Accordingly, a trial court’s sentencing
decisions for probation violations are reviewable using the abuse
of discretion standard. An abuse of discretion occurs where 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) (internal citations omitted).
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[8] In challenging the revocation of his probation, Hauk contends that the State
failed to present sufficient evidence to prove that he violated the terms of his
probation. As is stated above, Hauk concedes that the State sufficiently proved
that he had been convicted of Level 3 felony rape, but claims that the State
“presented no evidence to show that the rape occurred” while he was on
probation. Appellant’s Br. p. 9.
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 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. When, as here, the alleged probation
violation is the commission of a new crime, the State does not
need to show that the probationer was convicted of a new crime.
Richeson v. State, 648 N.E.2d 384, 389 (Ind. Ct. App. 1995), trans.
denied. The trial court only needs to find that there was probable
cause to believe that the defendant violated a criminal law. Id.Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006).
[9] The Indiana Supreme Court has held that probation revocation is a two-step
process. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). “First, the court must
make a factual determination that a violation of probation actually occurred. If
a violation a proven, then the trial court must determine if the violation
warrants revocation of the probation.” Id. When a probationer admits to the
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violation, the first step is satisfied and the trial court may move to the second
step and determine whether the violation warrants revocation of the
probationer’s probation. Id.[10] In this case, Hauk admitted that he had been convicted of a new crime, i.e.,
rape. While evidence of a conviction is not necessary to prove that a
probationer committed a new crime, we conclude that evidence of a conviction
is sufficient to prove that there was probable cause to believe that the
probationer violated a criminal law. See Whatley, 847 N.E.2d at 1010(providing that the State is not required to show that a probationer has been
convicted of a new crime, but only that there was probable cause to believe the
probationer violated a criminal law). As such, we further conclude that the trial
court could rely on Hauk’s admission that he had been convicted of rape in
finding that Hauk had violated the terms of his probation. Therefore, the fact
that Hauk also indicated that he was “pursuing his innocence and appealing
it[,]” Tr. Vol. II, p. 7, did not invalidate his admission.
[11] Further, the factual basis presented by the State clearly indicated that the new
offense of which Hauk had been convicted of committing, i.e., the rape,
occurred while Hauk was on probation in the instant case. Hauk did not
dispute this fact when he admitted to the violation. As such, we conclude that
Hauk’s contention that the State failed to present sufficient evidence to prove
that he committed the rape while on probation is without merit.
[12] The judgment of the trial court is affirmed.
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Robb, J., and Crone, J., concur.
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