MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 15 2016, 5:51 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
John T. Wilson Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles J. Bise, November 15, 2016
Appellant-Defendant, Court of Appeals Case No.
33A04-1604-CR-885
v. Appeal from the Henry Circuit
Court
State of Indiana, The Honorable Mary G. Willis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
33C01-0704-MR-1
May, Judge.
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[1] Charles J. Bise appeals the revocation of his probation. Bise questions whether
the trial court used the correct evidentiary standard in finding he committed a
new criminal offense. Bise also questions whether the trial court abused its
discretion when it ordered him to serve the rest of his sentence in prison. We
affirm.
Facts and Procedural History
[2] On May 1, 2009, Bise pled guilty to voluntary manslaughter, a Class B felony, 1
and battery, a Class C felony. 2 On May 18, 2009, the trial court sentenced Bise
to sixteen years executed and ten years suspended. On November 9, 2015, Bise
began serving his probation.
[3] On February 16, 2016, a New Castle Police Department Patrolman, Officer
Eric Jackson, was working as a security officer at Henry County Hospital. The
hospital front desk contacted him by radio requesting he go to the emergency
room to deal with disorderly conduct. There, Officer Jackson met with an
emergency room nurse who explained Bise battered her after he was brought in
by ambulance. Officer Jackson observed a bruise forming on the nurse’s arm
between her elbow and wrist.
1
Ind. Code § 35-42-1-3(2) (1997).
2
Ind. Code § 35-42-2-1(a)(3) (2005).
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[4] Officer Jackson then entered the trauma room where Bise had been placed to
speak with him. Bise became belligerent, slurred his words, smelled of alcohol,
and yelled at Officer Jackson. Officer Jackson stepped out of Bise’s room,
hoping Bise would calm down, but Bise continued to be belligerent and started
to curse at Officer Jackson. Officer Jackson told Bise that, if he continued to
yell, he would be arrested. Bise continued to yell and draw the attention of
other patients in the emergency room.
[5] Officer Jackson decided to arrest Bise for battery and disorderly conduct, and
he requested medical clearance to incarcerate Bise. Bise then attempted to hit
another nurse, but Officer Jackson restrained him. Finally, Bise then
threatened to kill Officer Jackson. Officer Jackson arrested Bise.
[6] The State charged Bise with Level 6 felony intimidation, 3 Class A misdemeanor
battery, 4 and Class B misdemeanor disorderly conduct. 5 The State also filed a
petition to revoke Bise’s probation for his 2009 convictions. After an
evidentiary hearing, the trial court found Bise violated his probation. Bise
requested the court not send him to prison because of his health issues. The
court ordered Bise to serve the rest of his sentence in the Indiana Department of
Correction.
3
Ind. Code § 35-45-2-1(a)(2)(b)(1)(B)(i) (2014).
4
Ind. Code § 35-42-2-1(b)(1)(c) (2014).
5
Ind. Code § 35-45-1-3(a)(2) (2014).
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Discussion and Decision
I. Probation Violation
[7] “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). The court sets the conditions of probation and has discretion to
determine whether probation has been violated. Id. The State must prove a
probation violation by a preponderance of the evidence. Ind. Code § 35-38-2-
3(f) (2015).
[8] When determining whether Bise violated his probation, the trial court said:
The Court is going to find that based on the preponderance of the
evidence that the Defendant has violated terms and conditions of
probation. There is evidence that he has abused alcohol while on
probation and was arrested with probable cause although that
case is not resolved and there is probable cause evidence for the
arrest which would be violations of probation.
(Tr. at 20.) Probable cause for an arrest and preponderance of the evidence for
a probation revocation are two separate entities. Teague v. State, 891 N.E.2d
1121, 1128 (Ind. Ct. App. 2008) (reasonable suspicion is less than probable
cause and considerably less than the preponderance standard). Bise contends
we should reverse because the trial court used the wrong evidentiary standard to
determine whether he committed a violation of probation.
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[9] Bise argues the outcome here should be controlled by the rationale in Heaton v.
State, 984 N.E.2d 614 (Ind. 2013). Heaton was unable to attend her scheduled
probation revocation hearing due to pregnancy complications, but she testified
a week later at a second hearing. Heaton v. State, 959 N.E.2d 330, 331 (Ind. Ct.
App. 2011), trans. granted, 984 N.E.2d 614 (Ind. 2013). After the first
evidentiary hearing, the trial court found Heaton committed a new crime by a
preponderance of the evidence. Id. at 333. However, upon completion of
Heaton’s testimony at the second hearing, the trial court stated there was
probable cause to support the allegation of the new crime and failed to mention
the preponderance standard. Id. Heaton appealed and argued the trial court
used the wrong burden of proof when deciding whether she violated probation.
Heaton, 984 N.E.2d at 615. Our Indiana Supreme Court held: “Because the
record is unclear as to which standard the trial court actually applied in
determining whether the defendant had committed a new criminal offense, we
cannot be assured that the trial court applied the proper standard and decline to
find harmless error.” Id. at 618.
[10] The facts here are distinguishable because of key timing differences between the
statements of the trial judge in Heaton and the trial judge here. In Heaton, there
were two separate evidentiary hearings, and the trial judge mentioned only the
probable cause standard after the second hearing. 984 N.E.2d at 618. Here,
there was only one evidentiary hearing, and the trial judge explicitly stated:
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“The Court is going to find that based on the preponderance of the evidence
that the Defendant has violated terms and conditions of probation.” (Tr. at 17).
While the court’s statements regarding Bise’s commission of new crimes
indicate the court used the wrong standard, the court made clear it used the
preponderance standard in finding Bise abused alcohol and revoking his
probation. Therefore, the court’s finding of the new crimes by the wrong
evidentiary burden to support revocation of probation was harmless. See
Menifee v. State, 600 N.E.2d 967, 970 (Ind. Ct. App. 1992) (although there was
not sufficient evidence supporting every alleged probation violation, the State
needs only prove one violation, which it did), clarified on other grounds and reh’g
denied, 605 N.E.2d 1207 (1993).
II. Sanction
[11] We use an abuse of discretion standard when we review the sanction a trial
court imposes following a probation violation. Prewitt, 878 N.E.2d at 188.
There is an abuse of discretion if the trial court’s decision is “clearly against the
logic and effect of the facts and circumstances.” Id. An abuse of discretion can
also occur if the trial court misconstrues the law. Heaton, 984 N.E.2d at 616.
[12] Bise argues the court abused its discretion by sending him to prison because he
has health issues. A defendant’s deteriorating health can be considered among
the totality of circumstances when determining whether to revoke probation.
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Ripps v. State, 968 N.E.2d 323, 328 (Ind. Ct. App. 2012). Bise’s problems do
not, however, lead us to believe the court abused its discretion.
[13] When revoking Bise’s probation and imposing a sanction, the court said:
The Court is aware of Mr. Bise’s medical conditions as relayed to
the Court. I think some information has been supplied by the
probation department and some information was supplied from
the jail and that has been distributed by counsel. . . . My concern
is that our Henry County Jail is not adequately equipped to
address Mr. Bise’s medical conditions and that placement for
him at this time without delay would be the Department of
Corrections. They may be able to work with the VA hospital for
any temporary releases that would allow treatment as he
becomes eligible for those. I know there are some future
appointments for medical treatments and [sic] would be better
equipped in the Department of Correction facility to address
those.
(Tr. at 17-18.)
[14] In addition to finding Bise violated probation by abusing alcohol, the trial court
also found there was probable cause to believe Bise committed intimidation, 6
battery, 7 and disorderly conduct. 8 Bise’s deteriorating health does not outweigh
the facts that, while intoxicated, he battered one nurse, attempted to batter
6
Ind. Code § 35-45-2-1(a)(2)(b)(1)(B)(i) (2014).
7
Ind. Code § 35-42-2-1(b)(1)(c) (2014).
8
Ind. Code § 35-45-1-3(a)(2) (2014).
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another nurse, and threatened to kill a police officer while on probation
following a conviction of voluntary manslaughter. The trial court considered
his health issues and decided the Department of Correction was the facility best
equipped to treat him. Furthermore, the probation violation occurred just over
three months after Bise’s release from the Department of Correction. The trial
court did not abuse its discretion when it imposed Bise’s suspended sentence
after his violent outbreak at the hospital. See generally Patterson v. State, 659
N.E.2d 220, 223 (Ind. Ct. App. 1995) (affirming the trial court’s decision to
revoke probation even though defendant had a mental health disease).
Conclusion
[15] The trial court properly found by a preponderance of the evidence that Bise
violated probation by abusing alcohol, and it did not abuse its discretion by
ordering him to serve the rest of his sentence in prison. We accordingly affirm.
[16] Affirmed.
Kirsch, J., and Crone, J., concur.
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