David McDole, Appellant v. State of Indiana, Appellee (2025)

MEMORANDUM DECISION

[1] David McDole appeals the trial court's order revoking his placement on home detention. We affirm.

Facts and Procedural History

[2] In May 2020, McDole and the State entered into a plea agreement pursuant to which McDole agreed to plead guilty to theft of a firearm as a level 6 felony and unlawful possession of a firearm by a serious violent felon as a level 4 felony in cause number 48C06-1910-F4-2555 (“Cause No. 2555”), and intimidation as a level 6 felony in cause number 48C06-2003-F6-805 (“Cause No. 805”). In June 2020, the court sentenced McDole to consecutive terms of eight years with two years suspended to probation in Cause No. 2555 and two years suspended to probation in Cause No. 805.

[3] In October 2023, the State filed a notice of violation in each cause alleging that McDole committed operating a motor vehicle with a schedule I or II controlled substance in the blood, operating while intoxicated endangering a person, and operating a vehicle without financial responsibility. It also alleged in Cause No. 2555 that McDole failed to timely report to probation and verify employment. On December 4, 2023, the State filed amended notices in each cause adding the allegation that McDole tested positive for methamphetamine and cocaine.

[4] On December 8, 2023, the court issued a “Sanctions Order” in both causes stating that McDole admitted that he committed new offenses, failed to timely report, and tested positive as alleged. Appellant's Appendix Volume II at 114, 218. In both causes, the court ordered: “Two (2) years is revoked and ordered executed on Home Detention.” Id. Probation Officer Natalie Griner filed a memorandum stating McDole was placed on electronic monitoring as of December 15, 2023.

[5] On November 27, 2024, the State filed a notice of violation in Cause No. 2555 alleging that on or about November 26, 2024, McDole took “substantial steps toward the commission of the ․ crime[ ] [of] Escape,” on that date he “allowed [his] transmitter to completely die limiting the ability of Home Detention to know [his] location,” his location was unknown, he failed to report to the Home Detention Department on November 25, 2024 as directed, and he failed to pay probation fees. Id. at 129. It filed a notice in Cause No. 805 alleging a violation for “failure to complete executed sentence under [Cause No. 2555] as alleged in the violation filed on 11/27/24.” Id. at 231. On January 2, 2025, the State filed an amended notice in Cause No. 2555 adding the allegations that McDole “charged [his] device on 11/29/24,” on or about December 12, 2024, he took “substantial steps toward the commission of the ․ crime[ ] [of] Escape,” on that date he “allowed [his] transmitter to completely die limiting the ability of Home Detention to know [his] location,” a warrant was issued for his failure to appear on December 20, 2024, his location “was unknown until [he] was arrested by [the] Lapel Police Department on 12/25/24,” and that he committed the new criminal offense of resisting law enforcement on December 25, 2024. Id. at 136. It also filed an amended notice in Cause No. 805 alleging a violation for “failure to complete executed sentence under [Cause No. 2555] as alleged in the violation filed on 01/02/25.” Id. at 237.

[6] The court held an evidentiary hearing at which it heard testimony from Lapel Police Officer Timothy Petty, Officer Noah Nivens, Captain Jonathan Buffington, Probation Officer Natalie Griner, who supervised McDole on home detention, and McDole. Officer Petty testified that, on December 24, 2024, he, along with Officer Nivens and Captain Buffington, went to the address of McDole's mother to serve a warrant on McDole. Officer Petty testified that he spoke with McDole's mother, who indicated that McDole was in the garage. He indicated the officers lifted the garage door and observed “a bunch of pillows in the shape of a person sleeping on the air mattress.” Transcript Volume II at 34. He testified “there was a [ ] door to the right” and the officers announced themselves as law enforcement officers and told McDole to exit. Id.

[7] Officer Petty testified that he again spoke with McDole's mother, she gave the officers “permission to go inside the locked bathroom door,” and the officers gave “several loud verbal commands” for McDole to exit the bathroom. Id. at 35. He testified that McDole “started speaking to us through the door, spouting all kinds of nonsense that we weren't who we said we were, that ․ he wasn't who we said he was,” “he called himself Donnie Whobanger,” and “he just kept spouting just random nonsense.” Id. When asked “how long did you have this sort of standoff position outside the bathroom door,” he answered “[i]t was at least ten (10) or fifteen (15) minutes.” Id. at 35-36. He testified, “we eventually [ ] were able to pry the door open slightly, [ ] and immediately he was standing there inside the bathroom door,” and he and another officer grabbed McDole's arms. Id. at 36. He testified, “we pulled him out, [ ] tried to put his hands behind his back,” “[h]e kept forcefully pulling his arms away from us, [ ] telling us we didn't have a right to ․ take him,” and “we put him on the air mattress, [ ] and then we were able to pull his arms behind his back and detain him.” Id. at 36-37. McDole interrupted, stating “[y]ou're full of sh--” and “[t]here was five of ‘em that snatched me out of the f------ bathroom.” Id. When asked, “did he push against you when you were trying to direct him to the air mattress,” Officer Petty stated “[y]es.” Id. at 37.

[8] Captain Buffington, when asked “did [McDole] appear to [ ] use any force to push or pull away from officers while they were attempting to cuff him,” answered “[y]es.” Id. at 45. Officer Nivens, when asked, “[h]ow long - Between you guys standing there at the door calling for him and him eventually being brought out of the bathroom, do you know approximately that was,” answered “[a]pproximately twenty-five (25), thirty (30) minutes.” Id. at 48. He testified, “[o]nce we got him off the bed, he was still trying to pull away from us.” Id. at 50.

[9] Probation Officer Griner testified that McDole was equipped with an ankle monitor transmitter, that she received an alert at 10:21 p.m. on November 26, 2024, that his monitoring device was “almost ․ or ․ completely dead” and “no longer transmitting [his] location,” that the device had a rechargeable battery, and that it was McDole's responsibility to keep the device charged. Id. at 53. When asked if McDole was “aware that is a condition of his probation,” she replied “[h]e is.” Id. Probation Officer Griner indicated that McDole was “out of contact with [her] office” from that time until “a couple of days later” when she was able to contact him and that she did not know his location during that period. Id. at 54. She testified that he did not report to home detention on November 25, 2024, as required. She stated that he owed approximately $1,403 in fees. She further testified that, on December 12, 2024, McDole's monitoring device “again, died, lost power so we were unable to track his GPS location” and that lasted “[u]ntil he was arrested ․ about twelve (12), thirteen (13) days” later. Id. at 55-56.

[10] McDole testified “I've told ‘em several times․ I've had [ ] two different monitor boxes placed on me,” “[i]t wasn't like I was plugging my thing in, it wasn't working,” “I even had a conversation with one of the other probation officers in the hallway because another guy had the same issue,” and “[i]f I was late on charging it, I still plug my charger in.” Id. at 62. McDole's counsel asked, “on [ ] November 25th, ․ you had failed to report,” the court stated “[h]e already admitted that,” McDole's counsel then asked “and the explanation he had no ride I think is what he said, is that right,” and McDole stated “[y]es.” Id. at 63-64. McDole's counsel stated, “the probation fees that they've alleged that you owe ․ [are] $1,403,” McDole replied “I don't see how they got that number because I was paying all the way up until November, so from November to December.” Id. at 64. With respect to his arrest, he testified “I never heard ‘em until they forced their way into my garage,” “[t]hey forced their way in and then all I see is they're beating on the door and ․ they got green dots and red dots shining on me,” “all I was worried about was what they was going to do when I opened the door, especially with green dots and red dots on me,” and “I was in fear of my life.” Id. at 65-66. On cross-examination, McDole indicated that he recognized that the individuals knocking on the bathroom door were police officers, that he recognized Officer Petty's voice, and that Officer Petty announced himself. He testified: “I unlocked the door. They yanked the door open and yanked me out of there, yanked me out of my shoes, threw me on the floor. Five of ‘em. There was no resisting. How you gonna resist five people that's pinning you down. Are, are you saying I'm stronger than five of ‘em?” Id. at 74.

[11] The court found that the State met its burden of showing by a preponderance of the evidence that McDole violated the terms of his placement. It found the State established that McDole failed to charge his monitoring device on two occasions and admitted that he failed to report. With respect to fees, the court stated, “[y]ou have a disagreement, but you don't present me any evidence” and “[t]he only evidence I have is the ․ $1,403.” Id. at 76. The court stated:

[T]he last contested [allegation] is the Christmas Eve event at your garage․ [B]oth sides agree this was an extended period of time. Both sides agree that they were outside the bathroom door and that you were inside the bathroom door communicating to one another. You agree that they were telling you to come out and you agree that you decided not to come out, and so that's ․ one element of not following [ ] the police officers’ orders. Uh, heard no evidence to suggest, other than you saying, well, I'm not that big. I can't fight five people․ Well, people resist being cuffed all the time, whether they're big, small, or indifferent. And so [ ] there's clear testimony that you pulled away while trying to be cuffed, which ․ meets the technical requirements of resisting law enforcement. [T]here's also the issue of you pushing against them.

Id. at 76-77.

[12] The court indicated it would “move on to sanctions.” Id. at 78. When asked “why did the money fail,” McDole testified “[m]y boss wasn't able to pay me,” “he created a big debt, and I mean I was working, but the money wasn't coming back,” “a person like me just can't go anywhere and get a job,” “I put in several applications,” “I've tried McDonald's, Pizza Hut,” and “I never could get a job there because of my criminal history.” Id. at 79. When asked, “[i]f given the opportunity, what would you do as [ ] far as finding employment,” he answered, “I go above and beyond. I mean I'm not a lazy person. I love to work․ I stayed busy, but being on a monitor, I mean there's a lot of things. I'm a mechanic” and “[s]o being able to move around and work and make money, that's usually what I did to stay busy and keep myself occupied.” Id. at 79-80. He testified “all I've done ․ all my life is construction and mechanic work.” Id. at 80. The court revoked McDole's placement on home detention and ordered that he serve the remainder of his sentences under Cause Nos. 2555 and 805 at the Department of Correction (“DOC”).

Discussion

[13] McDole argues “[t]he sanction orders that imposed home detention gave no notice of having to have a monitoring device.” Appellant's Brief at 13. He asserts “[t]he evidence does not show forcible or violent action against the officers.” Id. at 15. He argues “[t]here was no showing that [he] had the ability to pay the fees,” “[a] failure to report because of an inability to get a ride is not an intentional violation,” and “[t]he decision of full revocation to the DOC for missing one appointment and being unable to pay fees due to employment problems would be against the logic and effect of the facts and circumstances before the trial court.” Id. at 18-19.

[14] For purposes of appellate review, we treat a hearing on a petition to revoke a placement in a community corrections program the same as we do a hearing on a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh'g denied. Both probation and community corrections programs serve as alternatives to commitment to the DOC and both are at the sole discretion of the trial court. Id. Placement on probation or in a community corrections program is a matter of grace and not a right. Id.; see State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015) (“The similarities between the two programs have led to common treatment in appellate review of a trial court's decision to revoke either․”). Our standard of review of an appeal from the revocation of a community corrections placement mirrors that for revocation of probation. Cox, 706 N.E.2d at 551. The State need only prove the alleged violations by a preponderance of the evidence, 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, and if there is substantial evidence of probative value to support the court's conclusion that a defendant has violated any terms of probation, we will affirm its decision to revoke probation. Id. “Proof of a single violation of the conditions of a defendant's probation is sufficient to support a trial court's decision to revoke probation.” Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct. App. 1997).

[15] The Indiana Supreme Court has held that a trial court's sentencing decisions for probation violations are reviewable using the abuse of discretion standard. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The Court 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.” Id. An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances. Id.

[16] The record reveals that McDole was placed on probation in Cause Nos. 2555 and 805, that as a result of new criminal charges, a failure to report, and testing positive for methamphetamine and cocaine, the court issued Sanctions Orders on December 8, 2023, ordering that he be placed on home detention, and that he was placed on electronic monitoring. McDole admitted that he failed to report to the home detention department on November 25, 2024, and indicated that he did not have transportation. Probation Officer Griner testified that McDole owed approximately $1,403 in fees. McDole testified regarding his work history, his willingness to work, and his difficulties finding employment. To the extent McDole argues that the Sanctions Orders did not refer to electronic monitoring or expressly state that he was required to keep the monitoring device charged, he did not present the argument to the trial court and thus has waived the issue. Waiver aside, Probation Officer Griner filed a memorandum indicating McDole was placed on electronic monitoring as of December 15, 2023. She testified that McDole was equipped with an ankle monitor transmitter, he was responsible for keeping the device charged, and he was “aware that is a condition of his probation.” Transcript Volume II at 53. She testified regarding the transmitter losing power, resulting in home detention being unable to locate McDole, on November 26, 2024, and again on December 12, 2024. McDole did not dispute the testimony of Probation Officer Griner that he was responsible for keeping the transmitter charged. Moreover, the State presented evidence establishing by a preponderance of the evidence that McDole committed resisting law enforcement. When officers attempted to serve an arrest warrant, he refused to exit a bathroom, the officers had to pry the door open, he “kept forcefully pulling his arms away from” the officers before he was detained, he “push[ed] against [Officer Petty] when [he was] trying to direct him to the air mattress,” and “[o]nce [the officers] got him off the bed, he was still trying to pull away from [them].” Id. at 36-37, 50. We cannot say the trial court abused its discretion in revoking McDole's placement or its sanction.

[17] For the foregoing reasons, we affirm the trial court.

[18] Affirmed.

Brown, Judge.

Judges Felix and Scheele concur. Felix, J., and Scheele, J., concur.