MCCUBBINS v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] The trial court found Angela McCubbins violated her probation conditions in two cases and ordered her to serve her previously suspended sentences in the Indiana Department of Correction (“DOC”). McCubbins appeals, raising two issues: (1) Did the trial court abuse its discretion in finding she violated her probation? and (2) Did the trial court abuse its discretion in imposing a sanction? We dismiss McCubbins’ challenge to the probation violation finding, affirm the sanction imposed by the trial court, and remand for correction of the dispositional orders and abstracts of judgment.

Facts and Procedural History

[2] In June 2022, McCubbins pleaded guilty to conspiracy to deal in methamphetamine and was sentenced to 720 days at the Indiana Department of Correction (“DOC”) with 715 days suspended to probation. On the same day, McCubbins pleaded guilty to theft and was sentenced to 180 days, all suspended to probation. The trial court ordered the sentences to be served consecutively. Among the conditions of probation were that McCubbins not commit any criminal act; not use, possess, or consume any illegal drugs or controlled substances; and submit to any drug screen test at any time at the request of the probation department.

[3] In October 2023, the probation department petitioned to revoke McCubbins’ probation in these two cases, alleging McCubbins was in violation of conditions of her probation because she had been charged with Level 6 theft on October 4, 2023. See Appellant's App. Vol. 2 at 66, 127.

[4] At a fact-finding hearing in April 2024, McCubbins’ counsel informed the court McCubbins was “willing to admit to violating the terms of her probation under both ․ cause numbers. And then I believe we're going to have an open disposition.” Tr. Vol. 2 at 11. The following exchange then occurred:

[Defense counsel]: At this time, the Defendant would move to admit that she violated the terms of her probation by receiving new criminal charges[.]

The Court: Ms. McCubbins, do you join in your attorney's motion for you to admit that you violated the conditions of your probation?

[McCubbins]: Yes.

The Court: And State, submit a factual basis?

[State]: ․ Ms. McCubbins, is it true that on or about October 4, 2023, in Decatur County, State of Indiana, you were charged with a new count of theft as a Level 6 felony, is that true?

[McCubbins]: Yeah. Yes.

[State]: No further factual basis, Your Honor.

* * *

The Court: I'm going to accept the admission of any violation or conditions of probation based on her admission today. Find her to be in violation.

Id. at 12–13. The trial court also issued written orders accepting McCubbins’ “admission to being in violation of the conditions of probation” and finding her “to be in violation based on the admission.” Appellant's App. Vol. 2 at 73, 133.

[5] On May 23, 2024, the parties appeared for the dispositional hearing. McCubbins and two of her caregivers testified about McCubbins’ many health issues, including anemia, cerebral hypoxia, edema, lupus, and a blood disorder. She is wheelchair-bound; takes at least twenty medications regularly; and sees multiple specialists, including an oncologist, nephrologist, and rheumatologist. The theft charge that precipitated the probation revocation proceedings arose from McCubbins’ alleged theft of items from Walmart. McCubbins testified, “[T]hat day, it was just a mistake.” Tr. Vol. 2 at 37–38. When asked if she was “saying somebody else was responsible for that,” she replied, “No. I – no I'm not saying that ․ I'm sure I was [responsible].” Id. at 39. She explained, “I went to scan [an item] and it wouldn't scan. So the tag was yellow. It didn't even belong on there. I took that tag off, but I wasn't switching them[.]” Id. At the State's request, the trial court continued the dispositional hearing to August 19.

[6] On August 16 and 19, the State filed supplemental petitions for revocation alleging McCubbins had been charged with three counts of possession of drugs, provided a diluted or altered urine sample, tested positive for illegal drugs, and failed to provide proof of substance abuse treatment.

[7] The dispositional hearing resumed on August 19. A probation officer testified about the new allegations. He observed every time he pressed McCubbins about an issue, “whether that be a condition of probation or obtaining some sort of sample, [she gets] instantly sick. But ․ if it's smooth sailing per say [sic], then she presents perfectly fine.” Id. at 47. He did not believe McCubbins would benefit from continued supervision. The State recommended McCubbins’ previously suspended sentences be executed in the DOC “and they should be able to help her with her medical circumstance there.” Id. at 52. The State also moved to dismiss the supplemental petitions. McCubbins asked to be continued on probation, noting she was “being really remorseful and apologetic to the Court” and although her violations were serious, “the violations themselves weren't anything that caused additional harm to the public.” Id. at 53. She also provided documents dated August 19 showing she had enrolled in outpatient substance use treatment.

[8] The trial court revoked McCubbins’ probation, ordered her to execute the balance of her previously suspended sentences in the DOC, and terminated her probation as unsuccessful.¹

Standard of Review

[9] McCubbins challenges the sufficiency of the evidence that she violated a condition of probation. She also challenges the sanction imposed by the trial court. Probation revocation is a two-step process. First, the trial court must make a factual determination that a violation of a condition of probation occurred. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). Second, if a violation is found, then the trial court must determine the appropriate sanction for the violation. Id.

[10] “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” and “[i]f this discretion were not afforded to trial courts and [sanctions] were scrutinized too severely on appeal, trial judges might be less inclined to order probation to future defendants.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). Therefore, we review trial court probation violation and sanctions determinations for abuse of discretion. Heaton, 984 N.E.2d at 616. We consider only the evidence most favorable to the judgment, and we do not reweigh the evidence or judge the credibility of the witnesses. Woods v. State, 892 N.E.2d 637, 639 (Ind. 2008).

McCubbins may not challenge on direct appeal the sufficiency of the factual basis supporting revocation of her probation.

[11] McCubbins claims the trial court failed to establish a proper factual basis for her admission and therefore, her admission was insufficient as a matter of law to allow revocation of her probation. Specifically, she asserts she admitted only that she was charged with theft, not that she committed theft. The mere filing of a criminal charge does not warrant revocation of probation. Martin v. State, 813 N.E.2d 388, 391 (Ind. Ct. App. 2004). Rather, to revoke probation when the State alleges a defendant violated her probation by committing a new criminal offense, there must be evidence proving by a preponderance of the evidence that she committed the offense. Heaton, 984 N.E.2d at 616–17 (noting the correct burden of proof in a probation revocation proceeding is preponderance of the evidence, a greater burden than probable cause to file a charge).

[12] But the State contends McCubbins cannot challenge the factual basis for her admission on direct appeal, and we agree. Our Supreme Court has held criminal defendants may not challenge the validity of the factual basis for a guilty plea in a direct appeal but must instead pursue relief through post-conviction proceedings. Tumulty v. State, 666 N.E.2d 394, 395–96 (Ind. 1996). The Court then extended that rule to juveniles who admit to delinquency allegations, holding they must first seek relief through Trial Rule 60(B). J.W. v. State, 113 N.E.3d 1202, 1208 (Ind. 2019). These decisions were based in part on the need for factual development of claims, the interest in finality of judgments, and the parties’ freedom to settle their disputes. Id. at 1206. Based on this Supreme Court precedent and the similar interests involved in probation revocation proceedings, our Court has held a probationer likewise may not challenge on direct appeal a finding she violated the conditions of probation after admitting a violation. Kirkland v. State, 176 N.E.3d 986, 988–89 (Ind. Ct. App. 2021), trans. not sought; see also Huffman v. State, 822 N.E.2d 656, 660 (Ind. Ct. App. 2005) (holding the same, but decided prior to J.W.). Rather than pursuing a direct appeal, a probationer who admits to a violation must seek post-conviction relief. See Kirkland, 176 N.E.3d at 988–89 (citing Post-Conviction Rule 1(1)(a)(5), which states post-conviction relief is available to any person who has been convicted and who asserts her probation was unlawfully revoked).

[13] McCubbins admitted she violated the conditions of her probation. She now claims the admission and ensuing revocation were not supported by a sufficient factual basis. This claim must be pursued through post-conviction relief. Accordingly, we conclude McCubbins’ argument on direct appeal is not properly before us and dismiss without prejudice this portion of the appeal.²

The trial court did not abuse its discretion in the sanction it imposed.

[14] Regarding McCubbins’ challenge to the sanction imposed by the trial court, Indiana Code section 35-38-2-3(h) states the court may impose one or more of the following sanctions upon finding a violation: “(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.” Here, the trial court ordered execution of the entirety of McCubbins’ previously suspended sentences.

[15] McCubbins points to the evidence of her “extremely poor health” and asserts the trial court abused its discretion in ordering her to execute her revoked sentence in the DOC. Appellant's Br. at 8. There is substantial evidence in the record of McCubbins’ many health conditions. But there is also evidence she uses those conditions to evade accountability. A probation officer testified that McCubbins presents differently depending on whether things are “smooth sailing” or her behavior is being challenged. See Tr. Vol. 2 at 46 (probation officer testifying he told her he smelled alcohol and wanted to take a breath sample and “she instantly out of nowhere started to get sick”). The dispositional hearing was continued for three months, a time McCubbins could have used to show incarceration was not an appropriate or necessary sanction. Instead, McCubbins had positive drug screens and was alleged to be in possession of illegal drugs during this time. She sought treatment, but only in the eleventh hour, and had not yet begun treatment at the time the trial court imposed a sanction.

[16] At the dispositional hearing, McCubbins advocated to be continued on probation. Now she urges us to modify the sanction to house arrest. But the imposition of an alternative to incarceration is a matter of grace left to the trial court. Comer v. State, 936 N.E.2d 1266, 1269 (Ind. Ct. App. 2010), trans. denied.

[17] In sum, under the circumstances presented, we cannot say the trial court abused its discretion in ordering McCubbins to serve her previously suspended sentences in the DOC.

Conclusion

[18] We dismiss McCubbins’ challenge to the probation violation finding, affirm the sanction imposed by the trial court, and remand with instructions for the trial court to correct its dispositional orders and abstracts of judgment.

[19] Affirmed in part, dismissed in part, and remanded.

FOOTNOTES

1.   The trial court's written dispositional orders and abstracts of judgment do not reflect what actually transpired here. McCubbins admitted a violation of probation at the fact-finding hearing based on a new criminal charge and in its orders following that hearing, the trial court found McCubbins “to be in violation based on the admission.” Appellant's App. Vol. 2 at 73, 133. The trial court's orders following the dispositional hearing, however, say the trial court found a violation after taking evidence and hearing testimony. See id. at 97, 155. And the abstracts of judgment say probation was revoked because of “Technical Violations – Drug Screens.” Id. at 95, 156. The drug screen allegations were made in the supplemental petitions to revoke, for which McCubbins never received an initial hearing and which were dismissed by the State at the dispositional hearing. We therefore remand for correction of the dispositional orders and abstracts of judgment to align with the fact-finding orders and caution the trial court to take care that its orders accurately reflect the proceedings and do not conflict with one another.

2.   McCubbins claims in her reply brief that “the State and the trial court in Decatur County are repeatedly revoking probation when probationers are arrested and charged with a new offense” and “[t]his is clear error that should be corrected on direct appeal in the interests of justice and judicial resources.” Appellant's Reply Br. at 4. We cannot speak to the repeated nature of this process, but we note that in this case, not committing a criminal act was a condition of McCubbins’ probation, whereas the petition to revoke alleges she “receiv[ed] new criminal charges” and the factual basis supplied at the fact-finding hearing was that McCubbins was charged with a new count. Appellant's App. Vol. 2 at 66, 127; see also id. at 59, Tr. Vol. 2 at 12 (emphases added). Be that as it may, McCubbins admitted to the allegation in the petition to revoke, agreed to proceed to disposition, and did not raise this issue to the trial court. We cannot grant McCubbins the relief she seeks on direct appeal, but we do encourage all system stakeholders to ensure their procedures align with legal requirements.

Kenworthy, Judge.

Mathias, J., and Brown, J., concur.