Court of Appeals of Indiana | Memorandum Decision 73A01

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### MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT

Amanda O. Blackketter

Blackketter Law, LLC

Shelbyville, Indiana A TTORNEYS FOR A PPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl M. Scharnberg

Deputy Attorney General

Indianapolis, Indiana



### I N T H E



# COURT OF APPEALS OF INDIANA

Ryan A. Kish,

Appellant

- Defendant,

v.



### State of Indiana,

Appellee

- Plaintiff. January 20, 2016

Court of Appeals Cause No.

73A01

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- CR

- 450

Appeal from the Shelby Superior

Court

The Honorable David N. Riggins,

Judge

Trial Court Cause No.

73D02

- 1308

- FC

- 72

Barnes, Judge.Court of Appeals of Indiana | Memorandum Decision 73A01

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### Case Summary

[1] Ryan Kish appeals the revocation of his probation and the sentence imposed by

the trial court. We affirm.



### Issues

[2] Kish raises three issues, which we restate as:

I. whether the trial court properly denied his

request for a continuance;

II. whether he was denied due process during the

probation revocation hearing; and

III. whether his sentence was proper.



### Facts

[3] In October 2013, Kish pled guilty to Class C felony battery causing serious

bodily injury after a physical fight with his girlfriend. Kish was sentenced to

four years, with two years executed and two years suspended to probation. As

part of his probation, Kish was ordered to complete an anger management

program and to successfully complete fifty hours of community service work.

[4] On March 24, 2015, a petition to revoke Kish’s probation was filed and alleged

that Kish failed to complete an anger management program and his community

service hours. At an April 9, 2015 initial hearing, Kish denied the allegation,

and the matter was set for a fact

- finding hearing on April 23, 2015. During the

initial hearing, Kish indicated that he had already hired attorney Jack Tagget.Court of Appeals of Indiana | Memorandum Decision 73A01

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- 450 | January 20, 2016 Page 3 of 9 [5] On April 23, 2015, attorney Jeffrey Bate entered an appearance and was present

at the hearing. Bate requested a continuance because he was “newly hired.”

Tr. p. 10. The trial court rejected the request, observing, “it’s pretty simple

real ly. I mean it’s a matter of him not doing the anger management and not

doing community service hours. So, if he wants to admit I’ll set it for

disposition. Otherwise, I’d just as soon do it today and be done with it.” Id.

Bate indicated that Kish would admit to the allegations. Kish, however, said he

was not sure about admitting to the allegations, and a fact

- finding hearing was

held.

[6] During the hearing, the trial court questioned Deanna Holder, Kish’s probation

officer, about the allegations. She stated that Kish had been on probation for

over a year and had been kicked out of the anger management classes for losing

his job. She explained that Kish was to complete the anger management classes

before starting community service. She testified that the anger management

classes should have been finished six months ago and that Kish had received a

tax refund of over $3,000.00 but did not use that money to pay for the classes.

[7] Kish also testified at the hearing. When his attorney asked Kish if he agreed

with the probation officer’s testimony, he replied, “Yeah, somewhat.” Id. at 15.

He explained that he lost his job, could not pay the fees, and was suspended

from the program. Kish said he had sixteen to eighteen weeks left of a twenty

six week program. He indicated that he used a portion of his tax refund to pay

a $250.00 fee and was only allowed to pay for one week of classes in advance.

Kish was then questioned by the trial court about why he lost his job, and KishCourt of Appeals of Indiana | Memorandum Decision 73A01

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- 450 | January 20, 2016 Page 4 of 9 explained that someone had accused him of intimidating him or her. The trial

court then questioned Kish about his efforts to get a job. When questioned by

the trial court about what he did with the remainder of his tax refund, Kish

stated that he bought a van for his girlfriend and that it was wrecked a week

later. The prosecutor then questioned Kish about when he started probation

and the underlying conviction.

[8] The trial court found that Kish violated probation by not completing anger

management classes. The trial court did not find that Kish failed to complete

community service. The trial court stated, “I find he had the opportunity to

complete anger management, did not complete anger management.” Id. at 23.

[9] The trial court ordered Kish to serve a year of his suspended sentence and to

serve the remainder on probation. The trial court explained, “I just don’t know

what else to do with you. All right? So I’m trying to change your behavior.

When you get out, you know, redouble your efforts to find a job.” Id. at 27.

Kish now appeals.



### Analysis

I. Continuance

[10] Kish argues the trial court erred in denying his request for a continuance of the

fact

- finding hearing. Whether to grant a continuance lies within the trial court’s

sound discretion when the motion is not based upon statutory grounds. Warner

v. State

, 773 N.E.2d 239, 247 (Ind. 2002)

. “ There is a strong presumption that

the trial court properly exercised its discretion. ” Id.Court of Appeals of Indiana | Memorandum Decision 73A01

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- 450 | January 20, 2016 Page 5 of 9 [11] Kish contends a continuance should have been granted because only a short

period of time had passed since the petition to revoke his probation was filed, his

attorney had just been hired, and it is customary for defense counsel to

attempt to resolve the case with the prosecutor. Kish, however, fails to show

that the denial of his request prejudiced him where, as the trial court pointed

out, the allegation

— that he had not completed an anger management

program

—was relatively straightforward. Kish does not suggest what defenses

would have been found and used had defense counsel been given more time to

prepare. Further, although the record shows that defense counsel had

contacted the prosecutor, there is no indication that they had discussed an

agreed resolution of the matter. Finally, at the fact

- finding hearing, Kish’s

attorney cross

- examined witnesses, and Kish was able to testify in support of his

defense. Accordingly, Kish has not shown that the trial court abused its

discretion in denying the motion for a continuance.

[12] Kish also claims that the trial court erred by holding the dispositional hearing

immediately following the fact

- finding hearing. He claims that, because the trial

court had offered to reset the matter for disposition if Kish admitted to the

allegations, it was penalizing him for not admitting to the allegation. Although

there was some confusion on this issue, when the trial court explained that they

would resolve the matter that day, defense counsel did not object. Instead,

defense counsel made an argument as to why Kish should be given another

opportunity to complete the anger management classes. Kish does not explain

how additional time would have changed the outcome of the disposition.Court of Appeals of Indiana | Memorandum Decision 73A01

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- 450 | January 20, 2016 Page 6 of 9 Accordingly, he has not shown that the trial court erred in conducting the

dispositional hearing immediately following the fact

- finding hearing.



### II. Due Process

[13] Kish argues he was denied due process during the fact

- finding hearing.

Although the Fourteenth Amendment ’ s Due Process Clause applies to

probation revocation proceedings, because a probation revocation proceeding is

in the nature of a civil action, it is not to be equated with an adversarial

criminal proceeding. McCauley v. State

, 22 N.E.3d 743, 748 (Ind. Ct. App.

2014), trans. denied

. A probationer is entitled to some, but not all, of the rights

afforded to a criminal defendant, and the due process applicable in a probation

revocation proceeding allows for procedures that are more flexible than in a

criminal prosecution. Id.

A probationer is entitled to (a) a written notice of the claimed

violations, (b) disclosure of the evidence against him or her, (c)

the opportunity to be heard in person and present witnesses and

evidence, (d) the right to confront and cross

- examine witnesses,

(e) a neutral and detached hearing body, and (f) a written

statement by the factfinder regarding the evidence relied upon

and reason for revocation.

Id.

[14] Kish argues he was denied a neutral and detached hearing body because the trial

court denied his request for a continuance, offered to postpone the dispositional

hearing if Kish admitted to the allegations, and questioned the

probation officer and Kish during the hearing. We have already concluded thatCourt of Appeals of Indiana | Memorandum Decision 73A01

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- 450 | January 20, 2016 Page 7 of 9 the trial court did not err in denying Kis h’s request for a continuance. Further,

the trial court’s assessment of the allegation as “pretty simple really” and

inquiry into whether Kish was going to admit to the violation is a reflection of

the relatively straightforward allegation. Tr. p. 10. It does not suggest that the

trial court “began the hearing with the preconceived belief that Kish had

violated his probation” as Kish suggests. Appellant’s Br. p. 11.

[15] Regarding the questioning of witnesses by the trial court, although we do not

endorse this manner of questioning, under these circumstances, we cannot say

that Kish was denied due process. During the hearing Kish was represented by

counsel, who did not object to the trial court’s questioning of the probation

officer or Kish. Further, Kish was given an opportunity to explain why he had

not completed the classes and what he used the tax refund money for. Finally,

the trial court found that Kish violated the term of probation requiring him to

complete anger management classes and did not violate the term of probation

requiring him to complete community service. Thus, given the relative ly

straightforward nature of the allegation, the fact that Kish was represented by

counsel and given an opportunity to explain his failure to complete the classes,

and the trial court’s finding that one of the allegations was not proven, we

cannot say that Kish was denied due process.



### III. Disposition

[16] Kish contends that the trial court abused its discretion by revoking his probation

and ordering him to serve a year of his previously

- suspended sentence because

he could not pay for the anger management classes. “ As provided by Indiana ’ sCourt of Appeals of Indiana | Memorandum Decision 73A01

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- 450 | January 20, 2016 Page 8 of 9 statutory scheme, probation may be revoked for violation of a probation

condition but, for violations of financial conditions, only if the probationer

recklessly, knowingly, or intentionally fails to pay.” Runyon v. State

, 939

N.E.2d 613, 616 (Ind. 2010) (referencing Ind. Code § 35

- 38

- 2

- 3 (g), which

provides, “ Probation 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”).

[17] Here, to the extent Kish’s failure to complete the anger management courses

was based on his purported inability to pay, the evidence showed that Kish,

who was on probation following a battery conviction, lost his job because of

allegations that he intimidated a coworker. Further, after receiving more than

$3,000.00 in the form of a tax refund, Kish paid the fees he owed for the anger

management program and for one week of classes, showing that he knew he

needed to pay for the classes. Even if he was only allowed to pay ahead for one

week, he used the remainder of the tax refund to buy his girlfriend a van, which

was wrecked within a week. This evidence shows that Kish recklessly failed to

pay for his anger management courses by making the conscious choice not to do

so.

[18] Indiana Code Section 35

- 38

- 2

- 3(m) provides, “ Failure to pay fines or costs

(including fees) required as a condition of probation may not be the sole basis

for commitment to the department of correction. ” Kish claims that he was

improperly committed to the Department of Correction solely for his failure to

pay. However, Kish failed to complete classes despite having the ability to payCourt of Appeals of Indiana | Memorandum Decision 73A01

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- 450 | January 20, 2016 Page 9 of 9 for them after receiving a tax refund. In revoking Kish’s probation

, the trial

court acknowledged the offense for which he was convicted, battery, and the

importance of Kish completing the anger management classes. The trial court

also crafted the sentence so that, upon Kish’s release

, he would still be on

probation and would be required to complete the classes. The trial court did

not abuse its discretion in ordering Kish to serve one year of his suspended

sentence.



### Conclusion

[19] The trial court did not err in revoking Kish’s probation or ordering him to serve

a portion of his suspended sentence. We affirm.

[20] Affirmed.

Robb, J., and Altice, J., concur.