Cooper v. State

894 N.E.2d 993, 2008 Ind. App. LEXIS 2162, 2008 WL 4456222

Opinions

OPINION

MAY, Judge.

Cornelius Cooper’s probation was revoked after a hearing at which the trial court did not receive evidence. He presents one issue on appeal: whether the trial court erred in denying his motion to reconsider.

We reverse and remand for a new probation revocation hearing.

FACTS AND PROCEDURAL HISTORY

On December 10, 2003, Cooper pled guilty to dealing in cocaine, a class B felony,¹ and possession of cocaine and a firearm, a class C felony.² The plea agreement provided Cooper would be sentenced to eight years executed, twelve years suspended and two years probation.

On April 24, 2007, the trial court received a notice of probation violation after Cooper was arrested for domestic violence. At a hearing on May 10, 2007, the State offered Cooper a nine-year sentence if he would admit the probation violation. Cooper maintained his innocence and did not accept the offer. The trial court then revoked Cooper’s probation based on a probable cause affidavit. It did not receive evidence. Cooper was ordered to serve the remainder of his twelve year suspended sentence.

At the hearing, Cooper asked the court what would happen if he was not convicted of the new charges, and the judge said, “Then you will probably go back on probation.” (Tr. at 8.) Cooper’s own counsel told him “Now if later on it goes to trial and you’re found not guilty ... then [the judge will] probably let you back out but if that doesn’t happen then you’re looking at twelve years.” (Id. at 6-7.)

Cooper did not appeal the probation revocation. The charges leading to the probation revocation were later dropped, and Cooper asked the court to reconsider the probation revocation. The court treated a subsequent hearing as one on a motion to reconsider and denied Cooper’s motion.

DISCUSSION AND DECISION

The State argues Cooper is barred from challenging his probation revocation because he did not timely appeal that order. He did not bring a timely appeal, but we have inherent power to hear it.

[The Supreme Court] has inherent discretionary power to entertain an appeal after the time allowed has expired. The Court of Appeals also has this power. However an appeal under such conditions is not a matter of right and will not be permitted in every situation. This Court will exercise such discretion only in rare and exceptional cases, such as in matters of great public interest, or where extraordinary circumstances exist.

Lugar v. State ex. rel. Lee, 270 Ind. 45, 46-47, 383 N.E.2d 287, 289 (1978) (internal quotations omitted).³

This ease qualifies. This is a matter of great public interest, as a trial court may not revoke probation without a hearing that provides due process. These facts are extraordinary because the trial judge indicated to Cooper he would go back on probation if he was not convicted of the charges on which the probation revocation was based. (Tr. at 8.) The record does not reflect the court advised Cooper of his right to appeal. We accordingly choose to exercise our discretionary power to hear this late appeal.

“Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. The trial court determines the conditions of probation and may revoke probation if the conditions are violated.” Prewitt v. State, 878 N.E.2d 184, 187 (Ind.2007). The State may not revoke probation at its discretion, as it involves a person’s liberty. Parker v. State, 676 N.E.2d 1083, 1085 (Ind.Ct.App.1997). Because probation involves liberty interests, a person is entitled to “some procedural due process.” Id. The individual is not entitled to full due process, but is entitled to:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).⁴ Even a probationer who admits a violation must be given an opportunity to offer mitigating evidence suggesting the violation does not warrant revocation. Woods v. State, 892 N.E.2d 637, 640 (Ind.2008).⁵

Cooper did not object when his probation was revoked without an eviden-tiary hearing. Cooper asked at the revocation hearing what would happen if the charges were dropped, but he did not object on the grounds the court did not receive evidence at the hearing. If an issue is not objected to at trial, it may not be raised on appeal. Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994). “However, we may bypass an error that a party procedurally defaults when we believe that the error is plain or fundamental. To qualify as ‘fundamental error,’ the error must be a substantial blatant violation of basic principles rendering the trial unfair to the defendant.” Id. (quoting Hart v. State, 578 N.E.2d 336, 337 (Ind.1991)).

Deprivation of due process is fundamental error. Goodwin v. State, 783 N.E.2d 686, 687 (Ind.2003) (defendant’s friends’ testimony did not fall under fundamental error exception because it did not amount to a deprivation of fundamental due process); Wilson v. State, 514 N.E.2d 282 (Ind.1987) (prosecutor was not permitted to use defendant’s post-Miranda silence to prove his sanity). Because Cooper maintained his innocence, the lack of a probation revocation hearing that provided due process falls under the fundamental error exception.

Cooper was entitled to due process before his probation was revoked.⁶ Cooper should have been given the opportunity to confront and cross-examine witnesses before the order was made. See Pope v. State, 853 N.E.2d 970, 973 (Ind.Ct.App.2006) (Pope was wrongfully denied a hearing and second drug test; her agreement that the decision to revoke her home detention would be made by the Community Corrections program did not indicate she “intended thereby to waive all of her due process rights.”). And cf. Parker, 676 N.E.2d at 1085 (defendant’s due process rights were not violated when no evidence was presented, because his attorney admitted to the violation on his behalf).

We find Cooper is entitled to a probation revocation hearing because the court deprived Cooper of his right to due process. We reverse the trial court’s denial of the motion to reconsider and remand for a probation revocation hearing.

Reversed and remanded.

MATHIAS, J., concurs. VAIDIK, J., concurs in result, with opinion.

Footnotes

1

. Ind.Code § 35-50-2-4.

2

. Ind.Code § 35-48-4-6(b)(l)(B).

3

. In Lugar, our Supreme Court cited Costanzi v. Ryan, 174 Ind.App. 454, 458, 368 N.E.2d 12, 15 (1977), where we granted a late “appeal by grace.” We noted the definition of the phrase “of grace”: " 'A term applied to any permission or license granted to a party in the course of a judicial proceeding which is not claimable as a matter of course or of right, but is allowed by the favor or indulgence of the court.' " Id. n. 1, 368 N.E.2d at 15 n. 1 (quoting Black’s Law Dictionary 1232 (4th ed.1968)).

In Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 195 n. 2 (Ind.Ct.App.2004), we found Lugar "inapposite” because Allstate was not asking us to overlook its failure to timely file an appeal. Here, by contrast, Cooper is doing exactly that. In Scroghan we questioned, but did not address, the continuing viability of Lugar after Claywell v. Review Bd., 643 N.E.2d 330 (Ind.1994). The Claywell Court acknowledged our inherent right to hear a late appeal, id. at 331, but determined that when the appeal was brought pursuant to an appellate rule authorizing our review of decisions from certain administrative agencies, "perfecting a timely appeal [is] a jurisdictional matter.” Id. at 330. It held this court therefore properly declined to accept Clay-well’s untimely appeal.

4

. The State does not explicitly acknowledge Cooper did not have all these due process protections at his May 10 hearing. Rather, it characterizes the May 10 proceeding as follows: "At a hearing held on May 10, 2007, the trial court found [Cooper] had violated his probation, revoked that probation, and ordered [Cooper] to serve his previously-suspended twelve-year sentence.” (Br. of Appel-lee at 2.) It then goes on to assert "the propriety of that hearing is simply not before this Court[.]” (Id. at 4.)

5

. In Woods our Supreme Court found the trial court erred because it did not let Woods explain his violation at his probation revocation hearing, but it affirmed because Woods did not make an offer of proof. That result suggests Woods, unlike Cooper, had an evidentia-ry hearing; a "trial court ruling excluding evidence ” may not be challenged on appeal unless "the substance of the evidence was made known to the court by a proper offer of proof[.]” Lashbrook v. State, 762 N.E.2d 756, 758 (Ind.2002) (emphasis supplied).

6

. The hearing on the motion to reconsider was not a remedy for the deprivation of due process because there the burden of proof was shifted from the State to Cooper.