Nicholas M. Guenther, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Nicholas M. Guenther (“Guenther”) appeals from the trial court's order revoking his probation and ordering him to serve his previously suspended sentence. Guenther raises the following restated and consolidated issue for our review: whether the trial court abused its discretion when it revoked his probation. We affirm.

Facts and Procedural History

[2] On March 1, 2013, the State charged Guenther with Class B felony burglary under cause number 64D05-1303-FB-2007 (“FB-2007”) and with Class B felony burglary, Class B felony unlawful possession of a firearm by a serious violent felon, and two counts of Class D felony theft under cause number 64D05-1303-FB-2008 (“FB-2008”). Guenther entered into a plea agreement with the State under both cause numbers in which he agreed to plead guilty to two counts of Class B felony burglary, and in exchange, the State agreed to dismiss the remaining counts. The parties agreed that Guenther would be sentenced to eleven years in the Indiana Department of Correction (“the DOC”) with four years suspended to probation for each count and that the sentences would be served consecutively. On October 22, 2014, the trial court sentenced Guenther consistent with the plea agreement.

[3] On May 5, 2020, the trial court modified Guenther's sentence based on the Covid-19 pandemic and ordered him released from the DOC. The trial court ordered that the remainder of his executed time be suspended “so that he [could] begin serving his work release” under cause number 46D01-1301-FB-30 (“FB-30”) in Porter County. Appellant's App. Vol. II p. 82. On June 6, 2023, the probation department filed its first petition to revoke Guenther's probation under FB-2007 and FB-2008. The petition alleged that Guenther failed to meet his financial obligations by failing to pay his probation user fees, tested positive for illegal substances on two occasions, and engaged in criminal conduct by being charged with Class A misdemeanor theft. On April 9, 2024, Guenther admitted the allegations contained in the petition, and the trial court placed him back on probation, ordering him to “return and complete probation as previously ordered.” Id. at 128.

[4] On July 18, 2024, the probation department filed its second petition to revoke Guenther's probation under FB-2007 and FB-2008. The petition alleged that he violated the following condition:

11. LAWS AND CONDUCT: I shall comply with all Municipal, County, State and Federal Laws, Ordinances and Orders, and I shall conduct myself as a good citizen. If arrested, or charged with a crime, I shall report this fact to my Probation Officer their next working day. An arrest is considered a violation of Probation, and a Petition will be filed with the Court

Id. at 131. The petition further stated: “On July 12, 2024, this Officer learned through Odyssey court records that the defendant had engaged in criminal conduct by the nature of a new charge of Failure to Return to Lawful Detention, Level 6 Felony having been filed against him under cause number 46C01-2407-F6-000895.” Id. The petition attached an incident report that stated that Guenther had left his work release facility at 6:00 a.m. on July 5, 2024, to go to work and did not return as required that evening. An arrest warrant was issued by the trial court, and on July 27, Guenther was arrested in California. He was transported back to Indiana and arrived on August 12.

[5] An evidentiary hearing on the second petition commenced on November 18, 2025. Probation officer Rory Monroe (“Monroe”) testified that, as a condition of probation, Guenther was required to notify his probation officer by the next working day if he was arrested or charged with a crime. Monroe found out Guenther was charged under cause number 46C01-2407-F6-895 with Level 6 felony failure to return to lawful detention in LaPorte County about a week after the charges were filed. Monroe testified that Guenther never contacted the probation office to notify the office that he had been charged with a new crime and that Guenther never contacted the probation office to notify the office that he had been arrested.

[6] Guenther testified that he did not know that new charges had been filed against him in LaPorte County for failing to return to the work release facility prior to being taken into custody. He stated that he was arrested in California on July 27, 2024, and that he did not tell the probation department about being arrested. Guenther testified that, on the date he failed to return to work release, he thought he had completed his time on work release, so he left the facility and traveled to California to enter a drug treatment facility. He admitted that no one from work release ever told him that he had completed his time at the work release facility and was free to leave nor did he have a discharge hearing prior to him leaving the facility. Guenther also stated that he left his personal items at the work release facility when he left for California.

[7] The trial court recessed the hearing to allow Guenther time to gather evidence from his LaPorte County case that he contended would establish that his work release sentence was complete, and he was not legally required to remain there on the day he left. On December 4, 2025, the trial court reconvened the evidentiary hearing, and Guenther presented documents from his LaPorte County community corrections sentence under FB-30. He argued that the order allocating credit time and the order closing FB-30 established that he was no longer serving his sentence for that case on July 5, 2024, when he left the work release facility. The State argued that the credit time order was incorrect because there were overlaps in the time Guenther spent incarcerated on his various cases. The State further argued that whether Guenther's credit time was accurate was of no moment because the rules of probation “are very specific that if you're arrested or charged with a crime, which he was, [he] shall report this to [his] probation officer the next working day[,]” and Guenther “never reported to his probation officer that he had been arrested or charged at any point in time.” Tr. Vol. II p. 113.

[8] On December 11, 2025, the trial court issued its order on the second petition to revoke probation, where it found that the lawfulness of Guenther's detention and credit time were not dispositive because, under the rules of probation, Guenther was required to report “any arrest and/or charge to the probation department[,]” which he failed to do. Appellant's App. Vol. II p. 164 (emphasis in original). It further found that the State had met its burden by a preponderance of the evidence that Guenther “failed [to] report [his] arrest and/or charges in LaPorte County based upon the testimony of ․ Monroe and [Guenther's] own admission.” Id. Additionally, the trial court did not “find [Guenther's] testimony that he was unable to notify probation of the arrest from jail credible.” Id. The trial court granted the petition to revoke Guenther's probation and ordered that he serve the entirety of previously suspended sentence in the DOC. Guenther now appeals.

Discussion and Decision

[9] Guenther argues on appeal that the trial court abused its discretion when it revoked his probation. “Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.” Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). We review a trial court's probation revocation decision for an abuse of discretion, which “occurs ‘where the decision is clearly against the logic and effect of the facts and circumstances.’ ” Id. (quoting Prewitt, 878 N.E.2d at 188). “A probation hearing is civil in nature, and the State need only prove the alleged violations by a preponderance of the evidence.” Id. (citing Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999)). A trial court may revoke a person's probation for a single violation. Hammann v. State, 210 N.E.3d 823, 832 (Ind. Ct. App. 2023) (quoting Killebrew v. State, 165 N.E.3d 578, 582 (Ind. Ct. App. 2021), trans. denied), trans. denied.

[10] When determining whether the evidence was sufficient in probation revocation proceedings, “we consider only the evidence most favorable to the judgment—without regard to weight or credibility—and will affirm if ‘there is substantial evidence of probative value to support the trial court's conclusion that a probationer has violated any condition of probation.’ ” Rosenbourgh v. State, 268 N.E.3d 1255, 1265 (Ind. Ct. App. 2025) (quoting Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014)).

[11] Guenther argues that the State presented insufficient evidence to support the trial court's decision to revoke his probation because it did not prove by a preponderance of the evidence that he failed to report his arrest and/or his new charges in LaPorte County the next working day as required. He argues that no evidence was presented that he had the ability to notify his probation officer of the new charge once he learned of it. He claims that he was unaware of the charge until he was arrested and could not notify probation because he was incarcerated in California when he learned of the charge.

[12] Citing to May v. State, 58 N.E.3d 204 (Ind. Ct. App. 2016), Guenther asserts that it was unreasonable for the trial court to revoke his probation on the grounds that he did not inform his probation officer of the new charge because he had a lack of volition. In May, the defendant was released from the DOC to parole instead of probation after serving his sentence, and although he complied with his parole terms, he failed to submit to monthly drug tests, which was a condition of his probation. 58 N.E.3d at 205–06. The trial court found that he violated his probation and sentenced him to serve the remainder of his suspended sentence. Id. at 206. On appeal, this court found that, although the defendant violated his probation by not submitting to monthly drug tests, the revocation of his probation was not warranted because it was reasonable for the defendant not to report to probation before his release from parole, given that the DOC placed him on parole and informed him that he was not on probation. Id. at 207. His violation therefore demonstrated a lack of volition because the defendant was reasonably confused about his status due to being placed on parole and complying with its terms, and we concluded that the trial court abused its discretion in revoking the defendant's probation. Id.

[13] Here, no such lack of volition was shown, and it was not unreasonable for the trial court to revoke Guenther's probation. As a condition of his probation, Guenther agreed to notify probation if he was arrested or charged with a new crime by the next working day. At the hearing, Guenther's probation officer testified that Guenther never contacted the probation office to notify them that he had been charged with a new crime and that he had been arrested. Further, Guenther admitted that he did not contact his probation officer or any other authority when he was arrested in California. Although Guenther asserted that he was unable to notify his probation officer of his arrest from jail, the trial court did not find such an assertion to be credible as there was no evidence to support this inability beyond Guenther's own testimony. We, therefore, conclude that there was substantial evidence of probative value to support the trial court's conclusion that Guenther violated his probation by failing to report his arrest and new criminal charge to the probation department by the next working day as required by the conditions of his probation.

[14] Guenther also challenges the revocation of his probation by asserting that his due process rights were violated because he did not know about the new criminal charge until he was arrested and did not have the ability to contact his probation officer once he was arrested. However, we note that Guenther has waived this assertion for appeal. “Due process rights are subject to waiver, and claims are generally waived if raised for the first time on appeal.” Terpstra v. State, 138 N.E.3d 278, 285–86 (Ind. Ct. App. 2019) (quoting Pigg v. State, 929 N.E.2d 799, 803 (Ind. Ct. App. 2010), trans. denied), trans. denied. The record reveals that Guenther never raised a due process objection at trial, and he does not argue that the alleged violations of his due process rights constituted fundamental error. Thus, we conclude that Guenther has waived his due process claim.

[15] Therefore, the trial court did not abuse its discretion by revoking Guenther's probation.

[16] Affirmed.

Foley, Judge.

Vaidik, J., and Altice, J., concur.