Christian Duckworth v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 24, 2016
• Docket: 20A03-1603-CR-695
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 24 2016, 10:15 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Peter D. Todd Gregory F. Zoeller Elkhart, Indiana Attorney General of Indiana

Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christian Duckworth, August 24, 2016 Appellant-Defendant, Court of Appeals Cause No. 20A03-1603-CR-695 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Stephen R. Appellee-Plaintiff. Bowers, Judge Trial Court Cause No. 20D02-1505-F4-21

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-695 | August 24, 2016 Page 1 of 3 Case Summary [1] Christian Duckworth appeals the revocation of his probation. We dismiss.

Issue [2] Duckworth raises one issue, which we restate as whether he was properly

advised of his right to counsel.

Facts [3] In 2015, Duckworth pled guilty to Level 4 felony burglary, and he was

sentenced to five years with one and one-half years in community corrections

and three and one-half years suspended to probation. A notice of violation of

community corrections was filed in November 2015, and Duckworth admitted

to violating the terms of his placement. The trial court ordered him to serve

thirty days in jail and return to community corrections. Another notice of

violation was filed in December 2015, and Duckworth again admitted the

violation. The trial court returned him to community corrections.

[4] In February 2016, a third violation was filed, alleging that Duckworth had used

methamphetamine, marijuana, and amphetamine. At the initial hearing,

Duckworth told the trial court that he would hire counsel, but at the March

2016 hearing regarding his violation, Duckworth proceeded pro se. Duckworth

admitted that he had used drugs on multiple occasions, including

methamphetamine, amphetamine, and marijuana, and that he had failed

multiple drug tests. The trial court ordered Duckworth to serve the balance of

his sentence in the Department of Correction. Duckworth now appeals. Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-695 | August 24, 2016 Page 2 of 3 Analysis [5] Relying on Hopper v. State, 934 N.E.2d 1086 (Ind. 2010), reh’g granted, 957

N.E.2d 613 (Ind. 2011), Duckworth argues that he did not knowingly,

voluntarily, and intelligently waive his right to counsel. However, we must first

address the State’s argument that Duckworth’s appeal should be dismissed

because the proper way to challenge the revocation of his probation is through a

post-conviction relief proceeding, and not a direct appeal, which Duckworth

employs in this case. We have held that a defendant who admits to a probation

violation must challenge the revocation of probation via post-conviction relief

petition and not via direct appeal. Huffman v. State, 822 N.E.2d 656, 660 (Ind.

Ct. App. 2005). Indeed, Indiana Post-Conviction Rule 1(1)(a)(5) specifically

allows a defendant to allege that his or her probation was “unlawfully revoked.”

As in Huffman, Duckworth admitted to violating his probation and cannot

challenge the revocation on direct appeal. This issue is more properly presented

by way of a petition for post-conviction relief.

Conclusion [6] Duckworth cannot challenge the revocation of his probation on direct appeal

given his admission that he violated his probation. We dismiss.

[7] Dismissed.

Riley, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A03-1603-CR-695 | August 24, 2016 Page 3 of 3