Joseph Hoffman, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2022)

MEMORANDUM DECISION

STATEMENT OF THE CASE

[1] Appellant-Defendant, Joseph Hoffman (Hoffman), appeals the trial court's revocation of his probation.

[2] We affirm.

ISSUE

[3] Hoffman presents this court with one issue on appeal which we restate as: Whether the trial court abused its discretion by revoking Hoffman's suspended sentence and ordering him to serve his previously suspended sentence.

FACTS AND PROCEDURAL HISTORY

[4] On July 21, 2020, the State filed an Information, charging Hoffman with Level 5 felony intimidation with a deadly weapon; Level 6 felony criminal recklessness while armed with a deadly weapon; Level 6 felony battery by bodily waste; and Class A misdemeanor domestic battery. During the commission of the underlying offenses, Hoffman was under the influence of alcohol. On August 31, 2020, under the terms of a negotiated agreement, Hoffman agreed to plead guilty to Level 6 felony criminal recklessness while armed with a deadly weapon, and the State agreed to dismiss all the other Counts. As per the plea agreement, the trial court sentenced Hoffman to 910 days to be served in the Department of Correction (DOC) with 826 days suspended to probation. Part of Hoffman's probationary terms barred him from consuming alcoholic beverages.

[5] On July 13, 2021, Hoffman met with his probation officer, Jennifer Benson (Benson). At the meeting, Benson and Hoffman discussed the terms and conditions of Hoffman's probation, and Benson made a referral for Hoffman to Community Mental Health Center based on Hoffman's statements that alcohol “gets him in trouble” and because he was under the influence of alcohol when he committed the underlying offense. (Transcript Vol. I, p. 16). On September 2, 2021, Hoffman tested positive for alcohol. Benson advised Hoffman that a second positive alcohol screen would lead to a probation violation being filed. On October 5, 2021, Hoffman again tested positive for alcohol. In addition, Benson discovered that Hoffman had failed to complete a substance abuse assessment as she had ordered.

[6] On October 28, 2021, the State filed a petition to revoke Hoffman's probation, alleging that he had tested positive for alcohol on two separate occasions and that he had also failed to submit to a substance abuse assessment. The trial court held a hearing on the probation violation on December 14, 2021, and the State presented evidence of Hoffman's positive alcohol screens and his failure to complete the substance abuse assessment. The trial court then continued the hearing to March 15, 2021. Hoffman's conduct at the second hearing was discourteous. At the start of the hearing, Hoffman asked if he could “get a continuance and get a new [ ] public defender or something.” (Tr. Vol. I, p. 4). When the trial court inquired as to the basis of his request, Hoffman stated that he “just want[ed] to fire” his attorney and “get somebody new.” (Tr. Vol. II, p. 5). With no valid reason to terminate his attorney, the trial court denied Hoffmann's request for continuance. At that point, Hoffman became upset and insulted the trial court by stating, “I'm going to trial, so fuck you.” (Tr. Vol. II, p. 5). The trial court reprimanded Hoffman for his foul language, and Hoffman responded with “[f]uck you.” (Tr. Vol. II, p. 6). At that point, the trial court found Hoffman in direct contempt and ordered him to serve 90 days, to be served consecutively to any sentence imposed if he were found in violation of his probation. At the close of the probation revocation hearing, the trial court expressed the following:

the allegations in paragraph three of the amended petition which have been proven by the State of Indiana by a preponderance of the evidence and, quite frankly, I think proven beyond a reasonable doubt. The [c]ourt finds - - I suppose it could be argued, ‘well it's not a big deal, it's just alcohol’. Well, that's not the case with [ ] Hoffman because I look at the underlying crime that this was based upon which involved alcohol and the seriousness of that offense. And when [ ] Hoffman consumes alcoholic beverages while on probation it's a big deal because it obviously raises the possibility of significant behavioral problems and new criminal offenses. And I also have listened to the criminal history that's been outlined here today which I find is significant. And I also considered his behavior here today, an absolutely baseless claim of - - demand that he get[s] a new lawyer when nothing has been cited of anything of consequence that his attorney has done wrong except tried to defend him and given the opportunity to provide a basis provided nothing. And then to, uh - - on two occasions after being warned - - first time just warned by the [c]ourt, to direct the [c]ourt, ‘fuck you’ and then after being warned and given an opportunity to apologize, again looks at the [c]ourt and says, ‘fuck you’. That tells me something about how [ ] Hoffman's going to do with future probation and his likelihood of obeying orders of the [c]ourt and turning his life around, which needs to be done. He has no respect, obviously, for the [c]ourt[,] for probation or anything else. Therefore, here's how the [c]ourt is going to handle this: I am going to order that the remaining suspended sentence of eight hundred and twenty-six days will be revoked.

(Tr. Vol. II, pp. 13-14).

[7] Hoffman now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[8] Hoffman argues that the trial court abused its discretion when it ordered him to serve the balance of his suspended sentence after he violated his probation. Probation is a matter of grace left to the trial court's discretion, not a right to which a criminal defendant is entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court determines the conditions of probation and may revoke probation if the probationer violates those conditions. Id. We review a trial court's probation violation determination using an abuse of discretion standard. Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014). An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Prewitt, 878 N.E.2d at 188. “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 the witnesses.” Holmes v. State, 923 N.E.2d 479, 483 (Ind. Ct. App. 2010) (citation omitted).

[9] Probation revocation is a two-step process. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). First, the trial court must make a factual determination that a violation of a condition of probation actually occurred. Id. Second, if a violation is found, the trial court determines whether the violation warrants revocation. Id. Because a probation revocation proceeding is civil in nature, the State need only prove the alleged probation violation by a preponderance of the evidence. Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). Proof of a single violation is sufficient to permit a trial court to revoke probation. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans. denied.

[10] Hoffman does not contest that he violated the terms of his probation, instead, he argues that his violations were merely “technical” and asserts that they were not severe enough to justify the revocation of his entire suspended sentence. (Appellant's Br. p. 10). We do not consider his violations to be simply technical in nature. As part of Hoffman's plea agreement, he consented to probation and to any penalties or consequences associated with violating his probation. By drinking alcohol and failing to complete a substance abuse assessment, Hoffman demonstrated disdain for the law and that he was uninterested in complying with the agreement he signed. See Overstreet v. State, 136 N.E.3d 260, 264 (Ind. Ct. App. 2019) (finding that Overstreet's three positive drug screens were hardly mere technical violations of his probation).

[11] Hoffman claims that besides his minor violations, he “did not commit any new offenses or otherwise violate the law.” (Appellant's Br. p. 10). In deciding that Hoffman's sentence should be revoked in its entirety, the trial court also considered Hoffman's behavior at the revocation hearing for which he was found in contempt for using profane language and for exhibiting disdain for the court. See Wilson v. State, 988 N.E.2d 1211, 1218-19 (Ind. Ct. App. 2013) (“Contempt of court involves disobedience which undermines the court's authority, justice and dignity. The trial court has inherent power to maintain its dignity, secure obedience to its process and rules, rebuke interference with the conduct of its business, and punish unseemly behavior.”). Along with his violations, the trial court deemed Hoffman's behavior at the revocation hearing to indicate that he would not comply with probationary terms or court orders in a less restrictive setting and that placement in the DOC was appropriate. Based on the record before us, we conclude that the trial court did not abuse its discretion by ordering Hoffman to serve his previously suspended sentence.

CONCLUSION

[12] In sum, we conclude that the trial court did not abuse its discretion by revoking Hoffman's probation. Accordingly, we affirm the trial court's Order that Hoffman serve the balance of his previously suspended sentence.

[13] Affirmed.

Riley, Judge

[14] Bailey, J. and Vaidik, J. concur