Cole Hornsby v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 29 2020, 8:35 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer A. Joas Curtis T. Hill, Jr.
Madison, Indiana Attorney General of Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cole Hornsby, June 29, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-85
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff. Humphrey, Judge
Trial Court Cause No.
15C01-1804-F5-30
Brown, Judge.
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[1] Cole Hornsby appeals his sentence following the revocation of his probation.
We affirm.
Facts and Procedural History
[2] On April 18, 2018, the State charged Hornsby with: Count I, carrying a
handgun without a license on or in school property as a level 5 felony; Count II,
maintaining a common nuisance as a level 6 felony; and Count III, possession
of marijuana as a class B misdemeanor. On February 1, 2019, the court
approved a plea agreement in which Hornsby pled guilty to Count I, carrying a
handgun without a license as a level 5 felony, and the State agreed to dismiss
the remaining counts as well as cause number 15D02-1901-CM-29 and
recommend a sentence of four years with three years and ninety-five days
suspended. The plea agreement provided that Hornsby shall obey all
conditions of probation attached as Exhibit A, which provided in part: “You
must not commit another criminal offense. If you do commit another criminal
offense, your probation may be revoked.” Appellant’s Appendix Volume II at
52. The court accepted the plea agreement, sentenced Hornsby to the
Department of Correction for four years with three years and ninety-five days
suspended, and ordered that he shall obey all conditions of probation set forth
in Exhibit A attached to the plea agreement.
[3] On September 13, 2019, a probation officer filed a Request for Probation
Violation Hearing alleging Hornsby committed a new criminal offense,
invasion of privacy as a class A misdemeanor on or about June 23, 2019. On
November 21, 2019, the probation officer filed an Amended Request for
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Probation Violation Hearing alleging Hornsby committed another criminal
offense of invasion of privacy as a class A misdemeanor on or about September
12, 2019.
[4] On November 25, 2019, the court held a hearing, and the prosecutor stated that
the request for probation violation hearing should state Hornsby committed
invasion of privacy on October 12, 2019, instead of September 12, 2019. The
court admitted a protective order dated February 28, 2019, indicating it expired
on February 8, 2021, and prohibiting Hornsby from harassing, annoying,
telephoning, contacting, or directly or indirectly communicating with Lindsay
Packer. Dearborn County Sheriff’s Deputy Craig Elliott testified he received a
complaint from Packer that she was at a bar in Harrison, Ohio, noticed
Hornsby at the same bar, and received a text message the next day on June 23,
2019, that was a “third-party communication from Mr. Hornsby that identified
them self [sic] to be an Ian Hornsby,” who Deputy Elliott learned was
Hornsby’s cousin. Transcript Volume II at 10. The text message states:
Hey this is Ian Hornsby, and [I] just wanted to let you know that
[C]ole said if you don’t drop the protective order by the end of
the week, he’s going to hire a lawyer and take you to court over
it. He said he’ll leave you completely alone, but the protective
order will be dropped one way or another, because it’s
completely unnecessary.
State’s Exhibit 3. Deputy Elliott indicated he spoke with Ian who told him that
he was with Hornsby on the 22nd, denied sending the message to Packer, and
stated he had no idea who Packer was. Deputy Elliott completed a probable
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cause affidavit related to the charge of invasion of privacy which stated in part:
“Your [affiant] was told by Packer that she and Hornsby had never been in a
relationship and that she was just being followed and stalked by Hornsby. Your
affiant read reports that stated previously Packer had to be escorted through
school because she was in fear of Hornsby.” State’s Exhibit 1. He testified that
Packer disclosed that she believed Hornsby communicated with her since the
filing of the charge in a text message on October 12th that stated: “Jesus
Christ.” Transcript Volume II at 16-17; State’s Exhibit 4. Hornsby’s counsel
indicated that Hornsby would admit that he sent this message.
[5] Packer testified she knew Hornsby from high school but was not his friend and
that he had nonconsensual contact with her in the form of phone calls and
appearing at places where she was located. She indicated she told Hornsby to
leave her alone plenty of times, but he continued to contact her and changed his
number so he could continue to contact her. She testified “it started about in
2016 in high school” during her junior year and Hornsby would say “weird
things” to her which made her feel uncomfortable. Transcript Volume II at 27.
When asked by the court if she was telling it that “this has gone on for almost
three years,” Packer answered affirmatively. Id. When asked what she meant
by “weird things,” she stated that Hornsby called her a “bad b----” and an
“effing b----,” screamed at her, and tripped her in the hallway. Id. On
November 27, 2019, the court resumed the hearing and found that the State had
presented sufficient evidence to prove the allegations of the petition.
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[6] On December 4, 2019, the court held a sentencing hearing. Hornsby’s father
stated that Hornsby was very intelligent and he was, at one point, concerned his
son was using drugs, but Hornsby “turned out to be clean.” Id. at 44. Hornsby
said: “I would just like to say to the victim that I love her, and I apologize if I
was ever offensive or caused you to be uncomfortable.” Id. at 46. Probation
Officer Jennifer Benson testified that Hornsby’s brother called her on September
13th and told her that Hornsby was “saying crazy things,” wanted his guns,
argued with him, and Hornsby “had hurt the cat and killed the cat.” Id. at 48.
Packer’s mother testified regarding Hornsby’s behavior and her and her
husband’s concern for Packer’s safety. The prosecutor read a letter from Packer
which stated in part:
Since the protective order, he has shown up where I’m at, texted
me in a way that I perceived as threatening, and he even texted
me from the jail. I just really want to live my life without
worrying about him being around every corner. I have lived in
fear and so has my family.
Id. at 57. When asked by the court for argument, Hornsby’s counsel stated:
“Your Honor, there’s a long history that we’ve heard. However, to remind the
Court that there’s two particular issues with regards to probation, and we’d like
the Court to keep that in mind.” Id. at 58.
[7] The court stated that “there’s lots of disturbing things about what I’ve heard
here today and on previous occasions,” it “heard evidence here today of this
obsessive behavior, compulsive obsessive behavior,” it “observed Mr. Hornsby
smiling and snickering as [Packer] was testifying in the courtroom,” and “[t]he
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other thing that may be most disturbing of all is that when given the
opportunity, it is his right to have the statement of allocution, he made it, and
in spite of all these things, he says, ‘I love her.’” Id. at 61-65.
[8] The court ordered that the remaining suspended sentence be revoked. The
court’s order states in part:
Among the circumstances considered by the Court in making this
decision are the following:
1. The Defendant is on probation for possessing a firearm on
school property.
2. That Defendant carried on an obsessive and continuous
pattern of unwanted contact toward the victim over a period of
years. This included, while the victim and Defendant were
attending high school together. Contact continued and included
up to 80 attempted telephone contacts while Defendant was
incarcerated at the Dearborn County Law Enforcement Center.
Defendant attempted personal contact. Defendant even
attempted contact during the pendency of this case.
3. The fact that Defendant used threatening language in a text
message to the victim indicating that “. . . the protective order
will be dropped one way or another . . .”.
4. Court considers the letter submitted to the Court on or about
September 13, 2019, shortly before the probation violation was
filed in this case. In this letter, Defendant demanded that the
Court return his firearms to him in spite of his Felony conviction
and the Court’s previous order. Considering this letter in the
context of Defendant’s obsessive behavior and other evidence
regarding his desire to obtain firearms, the Court finds this is an
indication of extreme danger.
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5. Court also considers Defendant’s statement of allocution.
Defendant used this statement to express a “love” for the victim,
which further confirms his obsessive behavior.
6. Court also considers Defendant’s behavior during victim’s
testimony at the Fact-Finding Hearing, in which the court
observed him smiling and laughing.
7. Based upon these facts and circumstances, and other evidence
presented at the Fact-Finding Hearing, the Court finds that the
Defendant has deliberately violated his terms and conditions of
probation, that he has no intention of following rules and
conditions of probation and that he poses an extreme danger to
the victim and to the community.
Appellant’s Appendix Volume II at 65-66.
Discussion
[9] Hornsby concedes that he violated his probation by committing an additional
criminal offense but asserts his violation did not warrant a revocation of his
entire suspended sentence. He asserts that he was not on probation for
“anything having to do with” Packer, he was only nineteen years old when he
violated his probation, and reports from his father and brother that his behavior
was unexpected suggests he was exhibiting mental health issues. Appellant’s
Brief at 11. The State contends that Hornsby waived any argument regarding
his mental health because he did not raise it below and the trial court was well
within its discretion to revoke the balance of his sentence because he committed
two new criminal offenses while on probation and presented a danger to Packer
and the community.
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[10] Ind. Code § 35-38-2-3(h), which sets forth a trial court’s sentencing options if
the court finds a probation violation, provides:
(h) 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
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.
[11] We review trial court probation violation determinations and sanctions for an
abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (citing
Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). The Indiana Supreme Court
has explained that “[o]nce a trial court has exercised its grace by ordering
probation rather than incarceration, the judge should have considerable leeway
in deciding how to proceed” and that “[i]f 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.” Prewitt, 878
N.E.2d at 188. An abuse of discretion occurs where the decision is clearly
against the logic and effect of the facts and circumstances. Id.
[12] The record reveals that the court initially sentenced Hornsby for carrying a
handgun without a license as a level 5 felony to four years with three years and
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ninety-five days suspended. The evidence indicates Hornsby violated the
protective order and committed invasion of privacy in June 2019 and again in
October 2019. We note that Hornsby’s communication with Parker in October
2019 occurred after the initial Request for Probation Violation Hearing was
filed on September 13, 2019. Given the circumstances and in light of the
record, we cannot say that the trial court abused its discretion in revoking
Hornsby’s probation and ordering that he serve the remainder of his previously-
suspended sentence.
[13] Affirmed.
Najam, J., and Kirsch, J., concur.
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