Jacob Maden v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 2, 2019
• Docket: 19A-CR-505
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 02 2019, 6:16 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Yvette M. LaPlante Curtis T. Hill, Jr. LaPlante LLP Attorney General of Indiana Evansville, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jacob Maden, August 2, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-505 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable Michael J. Cox, Appellee-Plaintiff Magistrate Trial Court Cause Nos. 82C01-1704-F3-2150 82C01-1808-F6-5611

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 1 of 12 [1] Jacob Maden appeals the revocation of his probation, arguing that the trial

court violated his due process rights; simultaneously, Maden appeals the

sentence imposed by the trial court after he pleaded guilty to Level 6 Felony

Escape, arguing that the sentence is inappropriate in light of the nature of the

offense and his character. Finding no violation and the sentence not

inappropriate, we affirm.

Facts [2] The facts and circumstances surrounding this case are difficult to discern. The

following comes from what little information exists in the record.

[3] One evening, A.M. and H.D. met up with seventeen-year-old Maden and J.M.

to purchase a cell phone. Maden and J.M. got into the back seat of H.D.’s car

to complete the transaction. Before the exchange was finalized, Maden lifted

his shirt to reveal what A.M. and H.D. believed to be a gun and pointed it at

H.D. Then, J.M. “wrapped a lanyard around the neck of A.M.” Appellant’s

App. Vol. II p. 8. Maden and J.M. promptly fled the scene with both the money

and the cell phone. With A.M. and H.D.’s assistance, officers from the

Evansville Police Department located and arrested Maden and J.M.

[4] Under Cause Number 82C01-1704-F3-2150 (Cause 2150), on April 11, 2017,

the State charged Maden with two counts of Level 3 felony armed robbery.

Maden was then released on bond, but on August 1, 2017, the State filed a

petition to revoke bond and issued a warrant for Maden’s arrest. Finally, on

Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 2 of 12 August 11, 2017, Maden pleaded guilty as charged in exchange for a three-year

sentencing cap. Then, on September 12, 2017, the trial court sentenced Maden

to three years for each armed robbery count to be served concurrently in the

Division of Youth Services at the Department of Correction (DOC).

[5] On January 23, 2018, Maden filed a petition to modify his sentence so that he

would not be immediately transferred to an adult facility once he turned

eighteen. The trial court granted this petition, and on May 25, 2018, modified

Maden’s sentence to three years of home detention through electronic tracking

with specific conditions: placement with a guardian, submission to health

evaluations, recommended follow-up mental health treatment, required study to

obtain a high school diploma, and no contact with the robbery victims.

[6] On June 14, 2018, the State filed a petition to revoke probation under Cause

2150, alleging that Maden had illegally consumed vodka. Maden admitted to

violating probation and was sentenced to eight days in the Vanderburgh County

Jail. After those eight days, the trial court then placed Maden back under home

detention through electronic monitoring and ordered him to complete 100

hours of community service. On August 8, 2018, the State filed another petition

to revoke probation under Cause 2150, alleging that Maden had removed his

electronic monitoring device. Additionally, under Cause Number 82C01-1808-

F6-5611 (Cause 5611), the State charged Maden with one count of Level 6

felony escape.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 3 of 12 [7] On December 12, 2018, the trial court held a hearing on both the petition to

revoke (Cause 2150) and the escape charge (Cause 5611). At that hearing, the

trial court said the following:

The Court: Were you present when I read everyone their rights?

[Maden]: Yes, ma’am. Can I speak?

The Court: You should wait a minute. Did you understand all those rights?

[Maden]: Yeah, I understand them.

Tr. Vol. II p. 4-5. The trial court then asked Maden if he wanted an attorney for

the hearing and the ensuing proceedings. Maden asked if he could represent

himself, but the trial court advised against this and warned that he would be

held to the same standard as an attorney if he did so. Still, Maden insisted that

he wanted to represent himself. The trial court granted his request and

continued the hearing until January 9, 2019.

[8] At that hearing, Maden appeared pro se along with stand-by counsel as

appointed by the trial court. The State offered a standard one-year executed

agreement for the Level 6 felony escape charge under Cause 5611, which the

trial court denied. As the trial court was about to set the matter for trial, Maden

attempted to plead guilty without an agreement. The trial court swiftly

reminded Maden that he could proceed to a probation revocation hearing and a

trial for Causes 2150 and 5611, respectively, but Maden insisted that “there’s no

way around me beating what I did.” Id. at 12. After confirming multiple times

Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 4 of 12 that Maden wanted to plead guilty, the trial court informed Maden that he

would be admitting that he violated his probation and pleading guilty to the

crime of Level 6 felony escape. Maden agreed to do so.

[9] The trial court then said the following:

The Court: Do you understand that by your plea of guilty, you are admitting the truth of all the facts alleged in the information, and upon entry of such plea the Court will proceed with judgment and sentence?

***

Do you understand the following rights? You’re entitled to a speedy and public trial by court or jury. The State must prove beyond a reasonable doubt you committed the offense charged before you could be convicted of it. You have the right to introduce evidence, and testify if you so desire, however; you cannot be compelled to testify against yourself. The Court will subpoena any witnesses needed for your defense. You have the right to object to the introduction of the evidence and confront and cross examine any witnesses used by the state. If the verdict is against you and you are found guilty, you would have the right to an appeal. If you could not afford an attorney, the Court would appoint one to represent you on that appeal. Do you understand these rights?

Id. at 13-14. Once more, Maden said that he understood his rights and that he

would be forfeiting them by admitting to the violation and pleading guilty. The

trial court then confirmed that Maden was admitting that he took off his

electronic tracking device, though he knew wearing it was a condition of

probation, and that he fled from home detention.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 5 of 12 [10] At Maden’s February 13, 2019, sentencing hearing, the trial court considered

Maden’s delinquency and criminal history, which included detainer, juvenile

detention for multiple delinquency adjudications involving violent felony

battery offenses, resident placement, and the pending charge for escape. The

trial court ultimately revoked Maden’s probation under Cause 2150 and

ordered that he serve the remainder of his previously-suspended sentence in the

DOC. Additionally, Maden was sentenced to 850 days under Cause 5611, with

credit given for 662 days of time served. Maden now appeals.

Discussion and Decision

I. Due Process [11] First, Maden argues that the trial court violated his due process rights by not

advising him of certain rights he would be forfeiting by waiving the probation

violation hearing. Specifically, Maden contends that while the trial court

properly advised him of the rights he was forfeiting by pleading guilty to Level 6

felony escape under Cause 5611, the trial court failed to separately advise him

of the rights he would be forfeiting by admitting that he violated his probation

under Cause 2150.

[12] Whether a defendant was denied due process is a question of law that we

review de novo. NOW Courier, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev.,

871 N.E.2d 384, 387 (Ind. Ct. App. 2007). Though Maden did not object to the

trial court’s alleged failure to advise him of his rights, this Court has held that

Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 6 of 12 “a trial court’s failure to ensure that a probationer who admits to a probation

violation has received the advisements as required . . . constitutes a

fundamental violation of the probationer’s due process rights.” Hilligoss v. State,

45 N.E.3d 1228, 1232 (Ind. Ct. App. 2015). Accordingly, Maden was not

required to object at the trial court level in order to preserve this issue for appeal

since a failure to advise automatically constitutes fundamental error.

[13] Indiana Code section 35-38-2-3(e) states the following:

A person may admit to a violation of probation and waive the right to a probation violation hearing after being offered the opportunity to consult with an attorney. If the person admits to a violation and requests to waive the probation violation hearing, the probation officer shall advise the person that by waiving the right to a probation violation hearing the person forfeits the rights provided in subsection (f).

Those rights include the right to have the State prove the probation violation by

a preponderance of the evidence, the right to have evidence presented in open

court, the right to confront and cross-examine witnesses, and the right to be

represented by counsel. Id. at -3(f).

[14] Maden argues that before he admitted to violating his probation, the trial court

failed to separately advise him of the rights that he would forfeit by not

conducting a probation revocation hearing. However, the record plainly shows

that the trial court took every possible step to inform him about the rights that

he would forfeit by admitting to the violation under Cause 2150 and pleading

guilty under Cause 5611.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 7 of 12 [15] First, at the initial December 12, 2018, hearing, the trial court asked Maden if

he was present when, presumably, other probationers were being read their

rights. Maden responded that he was both present for the advisement of rights

and that “I understand them.” Tr. Vol. II p. 5. Then, the trial court attempted to

determine whether Maden was eligible for a public defender, to which Maden

asked if he could represent himself. The trial court advised Maden to seek

counsel because he would be held to the same standard as an attorney.

Repeatedly, Maden said that he understood and that he still wished to proceed

pro se. See generally id. at 5-8. Still, the trial court asked Maden questions about

his competency, his level of education, and whether it was proper for Maden to

proceed pro se. After advising Maden of “the perils of representing [himself][,]”

id. at 8, the trial court nevertheless appointed stand-by counsel to ensure that

Maden had some representation going forward.

[16] Then, at the January 9, 2019, hearing, before the trial court could set a trial

date, Maden asked if he could plead guilty. The trial court informed Maden of

the initial consequences of pleading guilty without a trial or a probation

revocation hearing and said that “your [Maden’s] choices are, set it for trial or

you can plead guilty without an agreement. You tell me what you want to do

now.” Id. at 12. Once again, Maden maintained that he wished to plead guilty

and admit to the violation without an agreement. Then, the trial court advised

Maden that:

You’re entitled to a speedy and public trial by court or jury. The State must prove beyond a reasonable doubt you committed the offense before charged before you can be convicted of it. You have Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 8 of 12 the right to introduce evidence, and testify if you so desire, however; you cannot be compelled to testify against yourself. The Court will subpoena any witnesses needed for your defense. You have the right to object to the introduction of the evidence and confront and cross examine any witnesses used by the state. If the verdict is against you and you are found guilty, you would have the right to an appeal. If you could not afford an attorney, the Court would appoint one to represent you on that appeal. Do you understand these rights?

Id. at 13-14.

[17] The trial court ordered a combined hearing for Causes 2150 and 5611 because

the charges were intertwined—Maden’s alleged violation of probation also

constituted a separate criminal offense. There was no due process requirement

that Maden receive a wholly separate advisement of rights associated with his

waiver of a probation revocation hearing when he had already been advised of

the rights he was forfeiting by not having a criminal trial. And, as a general

matter, “because probation revocation does not deprive a defendant of his

absolute liberty, but only his conditional liberty, he is not entitled to the full due

process rights afforded a defendant in a criminal proceeding.” Parker v. State,

676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997). It was enough that Maden was

apprised of the rights that he would ultimately forfeit by pleading guilty to Level

6 felony escape and by admitting that he violated a condition of his probation—

namely, taking off his electronic tracking device. And, Maden agreed to try

both matters at the same time and admits that he understood his rights at every

point in in the proceedings, whether it was in a group setting or conducted

individually.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 9 of 12 [18] The trial court clearly advised Maden of all the rights he was waiving pursuant

to section 35-38-2-3(f). It also repeatedly advised Maden of the consequences of

representing himself without an attorney. The trial court was cognizant of the

fact that Maden was eager to both proceed pro se and to plead guilty, so it

safeguarded Maden’s due process rights by appointing stand-by counsel,

confirming that Maden understood the consequences of pleading guilty, and

executing a written acknowledgment of those rights for Maden to sign. Butler v.

State, 951 N.E.2d 255, 260 (Ind. Ct. App. 2011) (holding that a trial court’s

constant reaffirming that defendant understood rights and would be forfeiting

them comported with due process requirements for probation revocation).

Under these circumstances, Maden’s due process rights were not violated, and

the trial court did not commit fundamental error.

II. Appropriateness [19] Next, Maden argues that the sentence imposed by the trial court for Level 6

felony escape is inappropriate in light of the nature of the offense and his

character. Indiana Appellate Rule 7(B) states that a “Court may revise a

sentence . . . if, after due consideration of the trial court’s decision, the Court

finds that the sentence is inappropriate in light of the nature of the offense and

the character of the offender.” The defendant bears the burden of persuading us

that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006). In determining whether the sentence is inappropriate, we will consider

numerous factors such as culpability of the defendant, the severity of the crime,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 10 of 12 the damage done to others, and a “myriad [of] other factors that come to light

in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[20] The maximum sentence for a Level 6 felony escape conviction is two and one-

half years, and the minimum sentence is six months. Ind. Code § 35-50-2-7(b).

The advisory sentence is one year. Id. Here, the trial court sentenced Maden to

850 days.

[21] It is difficult to conduct a complete 7(B) analysis given the lack of information

about the nature of the offense and the character of the offender. From what we

can assess, the trial court sentenced Maden to probation through home

detention, recognizing Maden’s concerns about not wanting to be immediately

placed in an adult facility. Then, the trial court exercised leniency and allowed

Maden to remain on probation after the first violation. Soon thereafter, Maden

deliberately removed his electronic tracking device and fled from home

detention, a clear violation of his probation. Furthermore, Maden has a long

delinquency and criminal history, which includes detainer and juvenile

delinquency adjudications for felony offenses involving battery and violence.

Moreover, while under home detention, Maden twice admitted to violating the

conditions of probation—once by illegally consuming alcohol and again by

removing his electronic monitoring device, leading to a separate criminal

charge. Nothing in the record leads us to conclude that the sentence imposed

was inappropriate.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 11 of 12 [22] In sum, we will not revise Maden’s sentence pursuant to Indiana Appellate

Rule 7(B).

[23] The judgment of the trial court is affirmed.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019 Page 12 of 12