Jason M. Horn 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, 8:52 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
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Courtney L. Abshire
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason M. Horn, November 26, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1490
v. Appeal from the Fayette Circuit
Court
State of Indiana, The Honorable J. Steven Cox,
Appellee-Plaintiff Special Judge
Trial Court Cause No.
21C01-1210-FC-813
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1490 | November 26, 2019 Page 1 of 5
Case Summary
[1] Jason M. Horn appeals the revocation of his probation. He asserts that the trial
court abused its discretion in revoking his probation and ordering the execution
of the remainder of his originally suspended sentence. Finding no abuse of
discretion, we affirm.
Facts and Procedural History
[2] In 2014, Horn pled guilty to class C felony burglary and class D felony theft.
Pursuant to the plea agreement, Horn’s sentence was fixed at a total of seven
years, with three years executed and four years suspended to probation. As
conditions of his probation, Horn was prohibited from committing another
criminal offense or from using alcohol and drugs, unless prescribed by a
physician. Horn began serving his probationary term in February 2017.
[3] On August 1, 2017, Horn was charged with class C misdemeanor possession of
paraphernalia. He subsequently failed five urine drug screens between August
27 and October 13, 2017. The State filed a petition to revoke probation, and
also issued an arrest warrant that was finally served on July 24, 2018. On that
date, the State charged Horn with level 5 felony dealing in a narcotic drug.
Horn was subsequently convicted of class A misdemeanor possession of a
controlled substance.
[4] A probation revocation hearing was held on May 29, 2019. Horn requested
that his probation simply be extended by one additional year, rather than being
revoked in its entirety. He claimed to be taking care of his sick father and to be
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1490 | November 26, 2019 Page 2 of 5
gainfully employed. However, Horn’s probation officer testified that when he
checked on Horn’s employment status, he was informed that Horn had been
terminated several weeks prior. At the conclusion of the hearing, the trial court
concluded that the State had demonstrated by a preponderance of the evidence
that Horn had violated his probation. The court further concluded that a
suspended sentence was no longer appropriate. The court reasoned that,
among other things, Horn’s behavior that resulted in the dealing in a narcotic
drug charge “points out vividly” that Horn “had no real concern for the place
and time in which he got himself” which demonstrated that “probation means
less to him [than] the court would hope it would mean to anyone on
probation.” Tr. Vol. 1 at 26. Accordingly, the trial court revoked Horn’s
probation and ordered executed the remainder of his previously suspended
sentence. This appeal ensued.
Discussion and Decision
[5] “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). We review probation violation determinations and sanctions for an
abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). An abuse
of discretion occurs where the trial court’s decision is clearly against the logic
and effect of the facts and circumstances, or when the trial court misinterprets
the law. Id. As with other sufficiency issues, upon review of a trial court’s
probation revocation determination, we neither reweigh the evidence nor judge
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1490 | November 26, 2019 Page 3 of 5
the credibility of witnesses. Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App.
2011), trans. denied (2012).
[6] Probation revocation is a two-step process. First, the trial court must make a
factual determination that, by a preponderance of the evidence, a violation of a
condition of probation occurred. Woods v. State, 892 N.E.2d 637, 640 (Ind.
2008). Second, the court must determine if the violation warrants revocation of
probation. Id. During the second step, a probationer must be given an
opportunity to offer mitigating evidence suggesting the violation does not
warrant revocation. Id. Once a violation has been found and revocation of
probation is warranted, the trial court may impose one 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 year beyond the original probationary period; or (3) order
execution of all or part of the sentence that was suspended at the time of initial
sentencing. See Ind. Code § 35-38-2-3(h).
[7] Horn concedes that the State met its burden to prove that he violated one or
more conditions of his probation. However, he asserts that he presented ample
mitigating evidence to prove that the violations did not warrant revocation of
his probation and imposition of the remainder of his previously suspended
sentence. While probationers indeed must be given the opportunity to present
mitigating evidence, the trial court is not obligated to balance aggravating and
mitigating factors when deciding whether to revoke probation and in imposing
a sentence. Porter v. State, 117 N.E.3d 673, 675 (Ind. Ct. App. 2018).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1490 | November 26, 2019 Page 4 of 5
Moreover, it is well settled that a single violation of a condition of probation is
sufficient to permit the trial court to revoke probation. Pierce v. State, 44 N.E.3d
752, 755 (Ind. Ct. App. 2015).
[8] Here, while he was on probation for two felony offenses, Horn failed urine drug
screens, was charged with multiple new crimes, and was convicted of one new
crime. The record is clear that the trial court considered, but was not persuaded
by, Horn’s proffered mitigating evidence regarding his ongoing drug addiction,
his employment, and his caretaking duties for his sick father. Indeed, there was
conflicting evidence as to the credibility of some of that evidence. The entirety
of Horn’s argument on appeal is simply a request that we reweigh the evidence
in his favor, which we may not do. The trial court’s determination that Horn’s
probation violations warranted revocation is not against the logic and effect of
the facts and circumstances before it. The trial court did not abuse its discretion
in revoking Horn’s probation and ordering execution of his previously
suspended sentence.
[9] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1490 | November 26, 2019 Page 5 of 5