MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 16 2018, 9:34 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Clifford M. Davenport Curtis T. Hill, Jr.
Davenport Law Offices Attorney General of Indiana
Anderson, Indiana
Ellen H. Meilaender
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dustin Bass, August 16, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-32
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Thomas Newman,
Appellee-Plaintiff. Jr., Judge
Trial Court Cause No.
48C03-1603-F5-558
Mathias, Judge.
[1] The Madison Circuit Court revoked Dustin Bass’s (“Bass”) probation and
ordered him to serve the remainder of his suspended sentence in the Indiana
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Department of Correction (“DOC”). Bass appeals and raises two issues for our
review, which we restate as:
I. Whether there was sufficient evidence to support the
revocation of Bass’s probation; and
II. Whether the trial court abused its discretion when it
revoked Bass’s probation and ordered him to serve the
remainder of his suspended sentence in the DOC.
We affirm.
Facts and Procedural History
[2] On March 16, 2016, Bass was charged with Level 5 felony operating a motor
vehicle after his driving privileges were forfeited for life, Level 6 felony
possession of a narcotic drug, and Class C misdemeanor possession of
paraphernalia. On April 17, 2016, Bass accepted the State’s plea agreement
which provided, in part:
At the time of taking of the guilty plea, and again at the time of
the Defendant’s sentencing, the State will recommend as to the
sentence to be imposed as follows:
The total executed time shall be capped at five (5) years.
All other terms and conditions of the sentencing and probation
are to be set by the Court.
As a further condition of this agreement, the Defendant
understands that the State specifically reserves the right to
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unilaterally rescind, revoke and withdraw from this agreement in
the event the Defendant commits, or is charged with the
commission of, another criminal offense, or in the event the
Defendant commits a violation of a term or condition of bond,
prior to the time of sentencing in this cause.
Appellant’s App. p. 33 (emphasis in original).
[3] At the dispositional hearing on April 26, 2016, the court read the plea
agreement on the record, and Bass pleaded guilty to all three counts. The court
scheduled a sentencing hearing on May 2, 2016, which was continued to June
1, 2016.
[4] At the June 1 sentencing hearing, Bass testified regarding his mental health
issues. He stated that his “mental state was not in like I wasn’t in a good place.
I was, it’s really hard to explain it, just, [], it wasn’t good.” Tr. p. 21. Bass
testified that his thoughts were “irrational” and “erratic” and “the people
around [him] recognized it before [he] did and [], [he] trust[ed] them.” Id. Bass
stated that he attempted to get help from the Anderson Psychiatric Center, but
six days after going to get help, he got arrested and has been in jail since. Id.
[5] The court asked Bass if he understood that “if the court would place [him] in
Mental Health Court with the condition that [he] successfully complete Mental
Health Court, [and] if [he didn’t] do that, then, [he would have] big problems to
deal with.” Id. at 21–22. Bass answered in the affirmative and stated that he was
ready to begin the program. The court referred Bass to the Madison County
Mental Health Court and stated, “[s]entencing and sanctions in this case [are]
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hereby suspended or delayed withheld until [Bass] has successfully complete[d]
or does not complete Mental Health Court.” Id. at 27–28.
[6] At a July 12, 2016 review hearing, the court stated that Bass “was released to go
to [Stepping] Stones [Facility,]” “had relapsed on cocaine[,]” and “checked
himself in over at Community North.” Tr. p. 29. Accordingly, the court found
that Bass was not compliant with his drug screens, case management,
treatment, or anything of that nature. Id. The State requested the court issue a
warrant, and the court showed “a warrant issued [] for Mr. Bass[,]” and stated,
“[h]e’ll be held without bond per further order of the Court.” Id.
[7] Another review hearing was held on August 29, 2017, where Bass testified that
he has been in jail because he “made a bad judgment call.” Tr. p. 30. The court
questioned Bass about whether he was under the influence of drugs at his last
hearing, and Bass lied to the court stating that he was not on drugs. After the
court attempted to get Bass to be truthful, the court said, “I’ll talk to you at
some point when you decide you want to be honest with [the court].” Id. at 33.
The court scheduled a review hearing for September 6, 2017.
[8] At the September 6 hearing, Bass admitted that he had lied to the court about
using drugs and stated that he lied because he was “disappointed in [himself],”
id. at 34, and that “we make mistakes.” Id. at 35. The court acknowledged that
“people do make mistakes. We all make mistakes.” Id. But the court stated that
it did not understand why Bass had lied about relapsing, specifically because
he’s “got [a] case manager that’s working hard for [him,]” and “[he’s] got a
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team that’s working hard for [him].” Id. at 36–37. The court took the issue
under advisement and told Bass that the court would notify him of its decision.
[9] However, on September 21, 2017, Bass’s case manager filed a request to
terminate Bass from the Madison County Problem Solving Court. Appellant’s
App. p. 65. On October 30, 2017, the court ordered Bass to live at Stepping
Stones Facility and have the facility monitor all of his medications and ordered
Bass to comply with all of the State mental health therapist’s recommendations.
Id. at 80. The order further provided that Bass “[f]ind/[m]aintain employment
of 20 hours per week, and provide written verification in the form of check
stubs and/or time cards for all hours worked.” Id. at 83.
[10] On November 9, 2017, Bass’s probation officer filed a notice of violation of
suspended sentence. The notice stated in pertinent part:
3. That you violated the conditions of your suspended sentence
as follows:
a) Failure to keep Probation Department informed of
address;
b) Failure to comply with treatment recommendations,
and provide written verification of successful
completion of said program to the Probation
Department;
c) Failure to maintain employment and/or verify
employment to the Probation Department;
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d) Failure to reside at Stepping Stones as ordered by
the Court.
Appellant’s App. p. 85.
[11] On December 13, 2017, an evidentiary hearing was held where Bass argued
that he did keep the Probation Department informed about his address. He
testified that he was told he had to leave Stepping Stones to attend in-home
detention in Marion County, and he “thought the transfer had already been put
through for [him] to go to do Marion County in-home here in Anderson where
[he] could just go back and forth.” Tr. p. 87. Bass stated that he was told to stay
at “[t]he Wheeler Mission [in Marion County] until an emergency transfer or
transfer went through.” Id. at 88. Bass further admitted that he stayed at the
Wheeler Mission for “one day until [he] noticed all the drugs and drug addicts
that were doing everything they were doing. So, [he] got a hotel room.” Id. at
89. Bass stated that he paid for a hotel room for “close to three weeks” before
he was picked up on a probation violation warrant. Id. He testified that his
“debit card was stolen [by] a neighbor that borrowed a couple of cigarettes from
[him] and so, [he] filed a police report, so [he] could dispute the transactions
with [his] bank.” Id. Bass testified that he was then arrested and placed in the
Marion County Jail, and he was later transferred to Madison County Jail to
await his hearing. Id. at 90.
[12] During closing arguments, the State argued, “it’s clear [] from the evidence
presented here today that there was a twenty-five (25) day period where [Bass]
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had no contact with [his probation officer or doctor] and that clearly violates
the sections that were described” in Bass’s probation conditions. Id. at 98. The
State further argued that “based on [Bass’s] long criminal history and his
continuing not to do what he is suppose[d] to do” the State recommended “that
his sentence be revoked and [the court] send him to the [DOC]. Id. at 100.1
[13] At the conclusion of the hearing, the court found by a preponderance of the
evidence that “the defendant violated the conditions of his suspended sentence
by failing to keep Probation informed of his address[,] failing to comply with
treatment program[,] failing to maintain employment[,] and failing to reside at
Stepping Stones as order[ed] by the Court.” Id. at 14. The trial court ordered
Bass to serve the remainder of his previously suspended sentence in the DOC.
Bass now appeals.
Discussion and Decision
[14] “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). “Probation is a criminal sanction wherein a convicted defendant
specifically agrees to accept conditions upon his behavior in lieu of
imprisonment.” McCarty v. State, 94 N.E.3d 350, 352 (Ind. Ct. App. 2018)
(quoting Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans.
1
Bass’s Presentence Investigation Report shows that Bass’s criminal history began in 1994 and is quite
extensive and consists of over twenty convictions. See Appellant’s App. pp. 38–44.
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denied). “The decision to grant probation is a matter within the sound discretion
of the trial court.” Seals v. State, 700 N.E.2d 1189, 1190 (Ind. Ct. App. 1998).
“An abuse of discretion occurs when the decision is clearly against the logic and
effect of the facts and circumstances before it, or the reasonable, probable, and
actual deductions to be drawn therefrom.” McCarty, 94 N.E.3d at 353. “The
court determines the conditions of probation and may revoke probation if the
conditions are violated.” Seals, 700 N.E.2d at 1190. A probation revocation
hearing is in the nature of a civil proceeding, and therefore, a violation need
only be proven by a preponderance of the evidence. Thornton v. State, 792
N.E.2d 94, 96 (Ind. Ct. App. 2003).
[15] Upon review of the trial court’s decision to revoke probation, we will consider
only the evidence most favorable to supporting the trial court’s judgment
without reweighing that evidence or judging the credibility of witnesses. Cox v.
State, 706 N.E.2d 547, 551 (Ind. 1999). If there is substantial evidence of
probative value to support the trial court’s conclusion that a defendant has
violated any terms of probation, we will affirm its decision to revoke probation.
Id.
I. Sufficiency of Evidence
[16] Bass argues that the State presented insufficient evidence to prove that he
violated the terms of his probation. Specifically, Bass argues that the witnesses
who testified at his revocation hearing made contradictory statements, and thus
“the trial court’[s] decision was [not] supported by sufficient evidence of
probative value.” Appellant’s Br. at 22.
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[17] Bass’s argument is simply a request to reweigh the evidence and judge the
credibility of the witnesses, which we will not do. The testimony from Bass’s
probation officer, mental health care providers, and counsel are sufficient to
permit the trial court to conclude that Bass violated the terms of his probation.
Bass’s probation officer stated that he received a phone call informing him that
Bass was no longer residing at Stepping Stones and had not returned. Tr. p. 74.
Bass lived in a hotel in Marion County for approximately three weeks and did
not keep his probation officer informed of his whereabouts. And Bass’s mental
health therapist stated that she had not had any contact with Bass between
November 2 and December 4. Id. at 83–84.
[18] The State, needing to only prove that one violation occurred, established that
Bass violated the terms of his probation on multiple occasions. Therefore, the
State introduced more than sufficient evidence to support the trial court’s
revocation of Bass’s probation.
II. Abuse of Discretion
[19] Bass next argues that the trial court abused its discretion when it ordered Bass
to serve the remainder of his suspended sentence in the DOC because “if [he]
violated the terms of his probation, it was not intentional.” Appellant’s Br. at
23. We disagree.
[20] Indiana Code section 35-38-2-3(g) provides in pertinent part that:
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If the court finds that the person has violated a condition at any
time before termination of the period, and the petition to revoke
is filed within the probationary period, the court may []:
(1) Continue the person on probation, with or without
modifying or enlarging the conditions; [and/or]
***
(3) Order execution of the sentence that was suspended at
the time of initial sentencing.
[21] Here, the court found by a preponderance of the evidence that Bass violated the
terms of his probation, but Bass nonetheless argues that the trial court abused its
discretion with it ordered that he serve the remainder of his suspended sentence.
[22] The State and the trial court were compassionate and lenient with Bass. They
allowed Bass to receive medical treatment for his mental health, but he failed to
comply with his therapist’s recommendations. In lieu of incarceration, Bass was
given the opportunity to participate in multiple programs to rehabilitate himself.
The trial court gave Bass multiple chances after he repeatedly violated the terms
of his probation before revocation. For these reasons, we conclude that the trial
court did not abuse its discretion when it ordered Bass to serve the remainder of
his previously suspended sentence in the DOC.
Conclusion
[23] For all of these reasons, we conclude that there was sufficient evidence to prove
Bass violated the terms of his probation, and the trial court did not abuse its
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discretion in revoking Bass’s probation and ordering him serve the remainder of
his previously suspended sentence. Accordingly, we affirm.
Bailey, J., and Bradford, J., concur.
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