Josh McBride v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 26 2019, 8:33 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
A. David Hutson Curtis T. Hill, Jr.
Hutson Legal Attorney General of Indiana
Jeffersonville, Indiana
George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Josh McBride, November 26, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1223
v. Appeal from the Dubois Circuit
Court
State of Indiana, The Honorable Mark R.
Appellee-Plaintiff. McConnell, Special Judge
Trial Court Cause No.
19C01-1603-F5-192
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1223 | November 26, 2019 Page 1 of 6
Statement of the Case
[1] Josh McBride (“McBride”) appeals the one-year sanction imposed by the trial
court following the revocation of his probation. Concluding that the trial court
did not abuse its discretion, we affirm the sanction imposed by the trial court.
[2] We affirm.
Issue
Whether the trial court abused its discretion by imposing a one-year
probation violation sanction.
Facts
[3] Following a bench trial in December 2017, McBride was convicted of Level 5
felony intimidation and sentenced to four (4) years in the Indiana Department
of Correction, with one (1) year to be served on adult day reporting and three
(3) years suspended to supervised probation. As a condition of his probation,
the trial court ordered that McBride “must not commit another criminal offense
while on probation and shall notify the Probation Department immediately if
[he is] arrested or [has] a criminal charge filed against [him].” (App. Vol. 3 at
230).
[4] Almost one year later, in November 2018, Karena Vonderheide
(“Vonderheide”), McBride’s longtime girlfriend, filed a request for a protective
order against McBride. The trial court granted Vonderheide an ex parte
protective order, which prohibited McBride from having any contact or
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communication with Vonderheide for two years. After McBride was served
with the protective order, he sent Vonderheide several messages via Facebook
Messenger. The messages discussed various subjects such as the parties’
children, McBride’s work, and his desire to obtain his belongings from
Vonderheide’s residence.
[5] In December 2018, the Dubois County probation department filed a petition to
revoke McBride’s probation, alleging that he had committed a new crime. In
March 2019, the trial court held an evidentiary hearing on the petition to revoke
probation. During this hearing, the State argued that McBride had violated
probation by sending messages via Facebook Messenger to Vonderheide in
violation of the protective order. Conversely, McBride argued that “not one
message was sent to Karena Vonderheide at all.” (Tr. 70). Thereafter, the trial
court found that McBride had violated his probation by committing the crime
of invasion of privacy.
[6] At the ensuing disposition hearing, McBride’s probation officer testified that
McBride had “some delusional problems” and that it was established that he
had “some type of mental disorder.” (Tr. 85). McBride then testified that he
had been taking steps to address his mental health issues. Specifically, he
indicated that he was voluntarily seeing a psychologist every two weeks. He
further stated that his doctor had provided him with medication and that the
“medication helps.” (Tr. 89). The trial court revoked McBride’s probation and
ordered him to serve one-year in the Dubois County Security Center. McBride
now appeals.
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Decision
[7] McBride challenges only the one-year sanction imposed by the trial court for his
probation violation. “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 trial court determines the conditions of
probation and may revoke probation if the conditions are violated. Id. After
the trial court has determined that a probationer has violated probation, the trial
court may impose one (1) or more of the following sanctions:
(1) Continue the person on probation, with or without modifying
or enlarging the conditions.
(2) Extend the person’s probationary period for not more than
one (1) 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.
IND. CODE § 35-38-2-3(h). This court has held that a trial court is not required
to balance “aggravating or mitigating circumstances when imposing sentence in
a probation revocation proceeding.” Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct.
App. 2014) (citation omitted), trans. denied. We review a trial court’s decision
regarding the sanction for an abuse of discretion. Puckett v. State, 956 N.E.2d
1182, 1186 (Ind. Ct. App. 2011). An abuse of discretion occurs where the
decision is clearly against the logic and effect of the facts and circumstances. Id.
[8] McBride does not challenge the determination that he violated the terms of his
probation. Rather, his only argument on appeal is that the trial court abused its
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discretion by “not tak[ing] the mitigating effect of [his] mental illness into
account[]” when revoking his probation. (McBride’s Br. 9). McBride relies on
Patterson v. State, 659 N.E.2d 220 (Ind. Ct. App. 1995) to support his assertion.
In Patterson, the probationer presented evidence at the probation revocation
hearing that suggested that he was mentally ill at the time he had committed the
underlying crime on which his probation revocation was based. Id. at 222. The
petitioner claimed that because he could not have possessed the requisite
culpability to commit the underlying crime which formed the basis for
revocation, his probation could not be revoked due to the commission of the
underlying crime. Id. Our court held that “[t]he probationer’s mental state at
the time and under the circumstances of the alleged violation is a factor to be
considered” and that “at a minimum, a probationer’s mental state must be
considered in the dispositional determination of the probation revocation
proceeding.” Id. at 222-23.
[9] McBride’s reliance on Patterson is somewhat misplaced. The probationer in
Patterson alleged that his mental illness prevented him from forming the
requisite intent to commit the crime that was the basis for his probation
revocation allegation. Thus, it was the probationer’s mental state “at the time
and under the circumstances of the alleged violation” that was to be considered.
Id. at 222. Here, McBride did not argue during the revocation hearing that his
mental health issues impaired his culpability to commit the underlying crime
that formed the basis for revocation. While McBride’s mental health was
discussed during the disposition hearing, it was well within the prerogative of
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the court to determine that, under the circumstances of this particular case,
McBride’s alleged mental condition did not excuse or mitigate the probation
violation. Id. at 223. Based on the foregoing, we conclude that the trial court
did not abuse its discretion when it ordered McBride to serve one year of his
previously suspended sentence.
[10] Affirmed.
May, J., and Crone, J., concur.
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