Kory W. Berkhardt, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] After finding that Kory Berkhardt had violated the terms of his probation, the trial court revoked his probation and ordered that he serve the 255-day balance of his previously suspended sentence. Berkhardt argues that (1) the evidence was insufficient to prove that he had violated his probation; (2) his sentence is unlawful because his primary probation mandate was to pay restitution and Indiana Code § 35-38-2-3(g) prohibits revocation of probation for failure to meet a financial obligation unless the failure was reckless, knowing, or intentional; and (3) the trial court abused its discretion in ordering him to execute 255 days of his previously-suspended sentence. Because we disagree with each of Berkhardt's contentions, we affirm.

Facts and Procedural History

[2] On October 21, 2019, Berkhardt pled guilty to Level 5 felony burglary and Class B misdemeanor criminal mischief, and the trial court sentenced him to five years of incarceration with one year suspended to probation. The terms of Berkhardt's probation included the condition that Berkhardt “[r]eport to Court Services staff at the time and in the manner directed.” Appellant's App. Vol. II p. 72. A special condition of Berkhardt's probation was that he pay $800 in restitution to the Family Video store in which he had committed the offenses.

[3] On September 13, 2023, Berkhardt's probation officer, Justin Flint, spoke with Berkhardt on the telephone and the two scheduled an appointment for September 27, 2023. On September 27, Berkhardt failed to report to the probation office, and Flint “did not have any further contact with him after that,” despite his efforts to contact Berkhardt. Tr. p. 23. The same day, the State filed an amended petition to revoke Berkhardt's probation for failing to report to court services staff at the time and in the manner directed.

[4] On February 8, 2024, an initial hearing was held on the petition to revoke. The trial court released Berkhardt on his own recognizance and ordered him to report immediately to probation upon his release. On February 20, the State filed an amended petition to revoke probation, alleging that Berkhardt had violated his probation by being charged with a new offense and by failing to report to probation in the manner directed.

[5] At the fact-finding hearing on July 15, 2024, the State only presented evidence regarding Berkhardt's failure to report to probation. In the five months between his release from incarceration and the fact-finding hearing, Berkhardt had neither reported to probation nor contacted Flint. Berkhardt admitted that he had not reported to probation on September 27, 2023. Berkhardt did testify that he had reported to probation on February 9, 2024, and that, after that date, he had “never tried to show back up again” or contact the probation office. Tr. p. 32. Flint, however, testified that there was no record of Berkhardt having reported to the probation office. At the conclusion of the hearing, the trial court revoked Berkhardt's probation and ordered that he serve the 255-day balance of his previously-suspended sentence.

Discussion and Decision

I. Sufficiency of the Evidence to Prove Violation

[6] Berkhardt contends that the evidence was insufficient to prove that he violated the terms of his probation. “A probation hearing is civil in nature and the State need only prove the alleged violations by a preponderance of the evidence.” Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). “In reviewing the sufficiency of the evidence, we use the same standard as in any other sufficiency question.” Smith v. State, 727 N.E.2d 763, 765 (Ind. Ct. App. 2000). “When the appellant challenges the sufficiency of the factual basis for revocation, we neither reweigh the evidence nor judge the credibility of the witnesses.” Id. “We will consider all the evidence most favorable to supporting the judgment of the trial court without reweighing that evidence or judging the credibility of witnesses.” Cox, 706 N.E.2d at 551. “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.

[7] As an initial matter, Berkhardt admitted at the fact-finding hearing that he had not reported to probation on September 27, 2023, the date of the appointment he had set with Flint. That single admission was sufficient to revoke Berkhardt's probation. See Killebrew v. State, 165 N.E.3d 578, 582 (Ind. Ct. App. 2021) (providing that a trial court may revoke the defendant's probation upon proof of a single violation), trans. denied.

[8] Moreover, in addition to this admission, other evidence established Berkhardt's additional failures to report to probation, which were further violations of the terms of his probation. Berkhardt was ordered to report to probation immediately after his initial hearing. Yet, between his initial hearing and the fact-finding hearing, Berkhardt had neither reported to probation nor contacted Flint, who had telephoned him again and left a voicemail on February 12, 2024. Although Berkhardt testified to the contrary, the trial court chose to credit Flint's testimony over Berkhardt's, which the trial court was entitled to do. See Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind. 2001) (providing that it is the fact-finder's role, not ours, to resolve conflicts in the evidence and decide which witnesses to believe).

[9] As there was sufficient evidence that Berkhardt had failed to report to Court Services staff at the time and in the manner directed on more than one occasion, we cannot say that the trial court abused its discretion in concluding that the revocation was warranted. Berkhardt's arguments to the contrary amount to nothing more than a request to reweigh the evidence, which we will not do. Cox, 706 N.E.2d at 551.

II. Indiana Code § 35-38-2-3(g)

[10] Berkhardt next argues that the trial court's revocation of his probation is unlawful because his “primary probation mandate” was to pay restitution and Indiana Code § 35-38-2-3(g) prohibits revocation on the ground that he failed to pay restitution. Appellant's Br. p. 13. Because the record reveals otherwise, we reject this argument. Indiana Code § 35-38-2-3(g) provides that “[p]robation may not be revoked for failure to comply with conditions of a sentence that imposes financial obligations on the person unless the person recklessly, knowingly, or intentionally fails to pay.” Berkhardt's probation was not revoked for failure to pay restitution; his violation was based on his failure to report to Court Services staff at the time and in the manner directed. At the conclusion of the fact-finding hearing, the trial court stated that “there's overwhelming evidence here that Mr. Flint called you and told you to appear in his office on the 27th of February (sic) of 2023. I haven't heard any rational explanation at all for why you weren't there on that date. The evidence is clear that Mr. Flint told you to be there.” Tr. p. 34. The trial court's determination was clearly based on Berkhardt's failure to appear, not on his apparent failure to pay restitution.

[11] Furthermore, at the initial hearing in which the trial court ordered Berkhardt to check in with his probation officer immediately upon release, the trial court told Berkhardt that he was being released “without any requirement that you pay today because I don't think it's fair to keep you in if you don't have any money, but you better get a job and start chippin’ away at this.” Tr. p. 8. Berkhardt's failure to pay restitution was not the reason that his probation was revoked; thus, Indiana Code § 35-38-2-3(g) does not apply.

III. Sentencing–Abuse of Discretion

[12] Finally, Berkhardt argues that the trial court abused its discretion in ordering him to execute 255 days of his previously-suspended sentence. Probation is a matter of grace left to the trial court's discretion, not a right to which a criminal defendant is entitled. Sanders v. State, 825 N.E.2d 952 (Ind. Ct. App. 2005), trans. denied. The trial court determines the conditions of probation and may revoke probation if a defendant violates any of the conditions. Ind. Code § 35-38-2-3. “Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). “Accordingly, a trial court's sentencing decisions for probation violations are reviewable using the abuse of discretion standard.” Id. “An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances.” Id.

[13] Here, Berkhardt violated his probation on at least two separate occasions when he failed to report to the probation office. He admitted to one of the occasions. Furthermore, Berkhardt failed to even respond to Flint's attempted communications for months, despite admitting that he had his telephone number. Either one of those violations would have justified the trial court's decision to revoke Berkhardt's probation and “[o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing.” Ind. Code § 35-38-2-3(h)(3) (emphasis added). Accordingly, the trial court did not abuse its discretion by ordering Berkhardt to serve the balance of his previously-suspended sentence.

[14] We affirm the judgment of the trial court.

Bradford, Judge.

Judges Bailey and Foley concur. Bailey, J., and Foley, J., concur.