MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 21 2019, 7:58 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE John S. Terry Curtis T. Hill, Jr. Daniel J. Pfleging Attorney General of Indiana Cate, Terry & Gookins LLC Carmel, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kenneth Lamar Scott, June 21, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-29 v. Appeal from the Hamilton Circuit Court State of Indiana, The Honorable Paul A. Felix, Appellee-Plaintiff. Judge
Trial Court Cause No. 29C01-1506-F5-5083
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019 Page 1 of 6 Case Summary [1] On April 9, 2018, Kenneth Lamar Scott was placed on probation following his
2015 conviction for Level 5 felony robbery. Within approximately five months
of his being placed on probation, the State alleged, in two separate filings, that
Scott had violated the terms of his probation. Although Scott initially indicated
that he intended to hire counsel, counsel was appointed to represent him on
September 13, 2018. One week later, the trial court conducted an evidentiary
hearing, during which Scott, by counsel, indicated that he was ready to proceed
and that he intended to admit to some of the alleged violations. After accepting
Scott’s admissions, the trial court revoked his probation and ordered that he
serve 580 days of his previously-suspended sentence. On appeal, Scott contends
that the trial court denied him due process by failing to ascertain whether he
had had an opportunity to discuss the case with his counsel prior to entering his
admissions. Because the record clearly indicates that Scott both had the
opportunity to and did discuss his case with counsel, we cannot say that the
trial court denied Scott due process by accepting his admissions. We therefore
affirm.
Facts and Procedural History [2] On June 8, 2015, Scott robbed a CVS store and threatened to shoot a CVS
employee. On July 30, 2015, Scott pled guilty to Level 5 felony robbery. He
was subsequently sentenced to a term of six years with four years executed, two
years suspended, and one year on probation. Among the terms of his
Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019 Page 2 of 6 probation, Scott was required to report to the probation department as directed;
cooperate with and truthfully answer all reasonable inquiries of his probation
officer; refrain from consuming or possessing any illegal drug, unless he had a
valid prescription; submit to drug and alcohol testing when ordered by the
probation department; and comply with and satisfactorily complete “all
education and/or treatment programs reasonably related to [his]
rehabilitation.” Appellant’s App. Vol. II p. 21. Scott began serving his
probation on April 9, 2018.
[3] On June 15, 2018, the State filed an allegation of probation violation (“the First
Information”), alleging that Scott had violated the terms of his probation by
being dishonest with his probation officer regarding his use of illegal drugs and
testing positive for morphine, oxycodone, oxymorphone, and nor-
buprenorphine. The trial court conducted an initial hearing on the First
Information on August 16, 2018. During this hearing, the trial court informed
Scott that he had the “right to have an attorney represent [him] in these
matters” and Scott indicated that he intended to hire an attorney. Tr. Vol. II p.
4. The trial court scheduled the matter for a fact-finding hearing on September
20, 2018.
[4] On September 10, 2018, the State filed a second allegation of a probation
violation (“the Second Information”), alleging that Scott had violated the terms
of his probation by failing to report to his probation officer; being dishonest
with his probation officer regarding his drug use; testing positive for cocaine,
codeine, morphine, oxycodone, oxymorphone, buprenorphine, and nor-
Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019 Page 3 of 6 buprenorphine; and failing to provide documentation indicating that he had
participated in the court-ordered substance abuse assessment. The trial court
conducted an initial hearing on the Second Information on September 13, 2018.
During this hearing, the trial court again told Scott that he had the right to have
an attorney represent him and asked Scott “[s]o do you want an attorney to
represent you on both of these allegations, in all [of] these allegations?” Tr.
Vol. II p. 17. Scott responded, “Yeah.” Tr. Vol. II p. 17. The trial court
appointed counsel, stating:
I will reappoint[1] [counsel] to represent you on these matters. Because I have appointed him I will enter a denial on these, on all these allegations today. We’ll go ahead and schedule the fact- finding for next week. The First Information is set for next week. We’ll just leave it set and give [counsel] an opportunity to talk to Mr. Scott.
Tr. Vol. II p. 18.
[5] Prior to the beginning of the September 20, 2018 evidentiary hearing, the trial
court informed the parties that “there was no pressure to go forward with the
fact-finding hearing” on that date. Appellant’s App. Vol. II p. 38–39 (internal
quotation marks omitted). The trial court also noted on the record that
And we set the fact-finding on the First Information for today’s date, and then since the second one happened just prior to the fact-finding date, we went ahead and consolidated them. But
1 The trial court appointed the same individual to represent Scott who had represented him in the underlying criminal proceedings.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019 Page 4 of 6 please don’t feel like you’re under any pressure to actually do a fact-finding on the Second [Information] anyway today. And if you want to continue both, then I’ll understand that as well.
Tr. Vol. II pp. 21–22. Despite the trial court’s offer to continue the evidentiary
hearing, Scott’s counsel indicated that they wished to proceed because “Mr.
Scott is actually anxious to get these resolved.” Tr. Vol. II p. 22. Scott then
admitted to all of the violations included in the First Information and most of
the violations included in the Second Information. The State indicated that it
was satisfied with Scott’s admissions and that it was prepared to “just go on the
ones that he’s going to admit.” Tr. Vol. II p. 22. The trial court accepted
Scott’s admissions, revoked his probation, and ordered that he serve 580 days of
his previously-suspended sentence. Scott subsequently filed a motion to correct
error, which was denied by the trial court.
Discussion and Decision [6] Scott contends that the trial court denied him due process by failing to ascertain
whether he had had the opportunity to consult with an attorney prior to
accepting his admission to the probation violations. In support, Scott cites to
Indiana Code section 35-38-2-3(e) which reads, in relevant part, that “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
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 21 2019, 7:58 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE John S. Terry Curtis T. Hill, Jr. Daniel J. Pfleging Attorney General of Indiana Cate, Terry & Gookins LLC Carmel, Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kenneth Lamar Scott, June 21, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-29 v. Appeal from the Hamilton Circuit Court State of Indiana, The Honorable Paul A. Felix, Appellee-Plaintiff. Judge
Trial Court Cause No. 29C01-1506-F5-5083
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019 Page 1 of 6 Case Summary [1] On April 9, 2018, Kenneth Lamar Scott was placed on probation following his
2015 conviction for Level 5 felony robbery. Within approximately five months
of his being placed on probation, the State alleged, in two separate filings, that
Scott had violated the terms of his probation. Although Scott initially indicated
that he intended to hire counsel, counsel was appointed to represent him on
September 13, 2018. One week later, the trial court conducted an evidentiary
hearing, during which Scott, by counsel, indicated that he was ready to proceed
and that he intended to admit to some of the alleged violations. After accepting
Scott’s admissions, the trial court revoked his probation and ordered that he
serve 580 days of his previously-suspended sentence. On appeal, Scott contends
that the trial court denied him due process by failing to ascertain whether he
had had an opportunity to discuss the case with his counsel prior to entering his
admissions. Because the record clearly indicates that Scott both had the
opportunity to and did discuss his case with counsel, we cannot say that the
trial court denied Scott due process by accepting his admissions. We therefore
affirm.
Facts and Procedural History [2] On June 8, 2015, Scott robbed a CVS store and threatened to shoot a CVS
employee. On July 30, 2015, Scott pled guilty to Level 5 felony robbery. He
was subsequently sentenced to a term of six years with four years executed, two
years suspended, and one year on probation. Among the terms of his
Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019 Page 2 of 6 probation, Scott was required to report to the probation department as directed;
cooperate with and truthfully answer all reasonable inquiries of his probation
officer; refrain from consuming or possessing any illegal drug, unless he had a
valid prescription; submit to drug and alcohol testing when ordered by the
probation department; and comply with and satisfactorily complete “all
education and/or treatment programs reasonably related to [his]
rehabilitation.” Appellant’s App. Vol. II p. 21. Scott began serving his
probation on April 9, 2018.
[3] On June 15, 2018, the State filed an allegation of probation violation (“the First
Information”), alleging that Scott had violated the terms of his probation by
being dishonest with his probation officer regarding his use of illegal drugs and
testing positive for morphine, oxycodone, oxymorphone, and nor-
buprenorphine. The trial court conducted an initial hearing on the First
Information on August 16, 2018. During this hearing, the trial court informed
Scott that he had the “right to have an attorney represent [him] in these
matters” and Scott indicated that he intended to hire an attorney. Tr. Vol. II p.
4. The trial court scheduled the matter for a fact-finding hearing on September
20, 2018.
[4] On September 10, 2018, the State filed a second allegation of a probation
violation (“the Second Information”), alleging that Scott had violated the terms
of his probation by failing to report to his probation officer; being dishonest
with his probation officer regarding his drug use; testing positive for cocaine,
codeine, morphine, oxycodone, oxymorphone, buprenorphine, and nor-
Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019 Page 3 of 6 buprenorphine; and failing to provide documentation indicating that he had
participated in the court-ordered substance abuse assessment. The trial court
conducted an initial hearing on the Second Information on September 13, 2018.
During this hearing, the trial court again told Scott that he had the right to have
an attorney represent him and asked Scott “[s]o do you want an attorney to
represent you on both of these allegations, in all [of] these allegations?” Tr.
Vol. II p. 17. Scott responded, “Yeah.” Tr. Vol. II p. 17. The trial court
appointed counsel, stating:
I will reappoint[1] [counsel] to represent you on these matters. Because I have appointed him I will enter a denial on these, on all these allegations today. We’ll go ahead and schedule the fact- finding for next week. The First Information is set for next week. We’ll just leave it set and give [counsel] an opportunity to talk to Mr. Scott.
Tr. Vol. II p. 18.
[5] Prior to the beginning of the September 20, 2018 evidentiary hearing, the trial
court informed the parties that “there was no pressure to go forward with the
fact-finding hearing” on that date. Appellant’s App. Vol. II p. 38–39 (internal
quotation marks omitted). The trial court also noted on the record that
And we set the fact-finding on the First Information for today’s date, and then since the second one happened just prior to the fact-finding date, we went ahead and consolidated them. But
1 The trial court appointed the same individual to represent Scott who had represented him in the underlying criminal proceedings.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019 Page 4 of 6 please don’t feel like you’re under any pressure to actually do a fact-finding on the Second [Information] anyway today. And if you want to continue both, then I’ll understand that as well.
Tr. Vol. II pp. 21–22. Despite the trial court’s offer to continue the evidentiary
hearing, Scott’s counsel indicated that they wished to proceed because “Mr.
Scott is actually anxious to get these resolved.” Tr. Vol. II p. 22. Scott then
admitted to all of the violations included in the First Information and most of
the violations included in the Second Information. The State indicated that it
was satisfied with Scott’s admissions and that it was prepared to “just go on the
ones that he’s going to admit.” Tr. Vol. II p. 22. The trial court accepted
Scott’s admissions, revoked his probation, and ordered that he serve 580 days of
his previously-suspended sentence. Scott subsequently filed a motion to correct
error, which was denied by the trial court.
Discussion and Decision [6] Scott contends that the trial court denied him due process by failing to ascertain
whether he had had the opportunity to consult with an attorney prior to
accepting his admission to the probation violations. In support, Scott cites to
Indiana Code section 35-38-2-3(e) which reads, in relevant part, that “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.”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019 Page 5 of 6 [7] In this case, the record reflects that Scott was appointed counsel a week prior to
the evidentiary hearing. The record further reflects that Scott had both the
opportunity to and did confer with his counsel prior to entering his admissions.
During the evidentiary hearing, Scott’s counsel rejected the offered continuance
and informed the trial court that Scott was anxious to resolve the matters,
intended to admit to some of the alleged violations, and intended to deny some
of the alleged violations. One may reasonably infer from the record that Scott’s
counsel made these statements relating to Scott’s mindset and intentions after
discussing the matter with Scott. Despite Scott’s claim on appeal, we see no
need for the trial court to explicitly inquire into whether Scott had discussed the
matter with counsel when the record clearly indicates that Scott had done so.
As such, we conclude that Scott has failed to prove that the trial court denied
him due process by failing to ascertain whether he had the opportunity to
consult with counsel prior to the evidentiary hearing. 2
[8] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.
2 To the extent that Scott argues that he should have been given more time to discuss the matter with his counsel, the record reveals that the trial court offered Scott a continuance of the evidentiary hearing but that Scott, by counsel, rejected the offered continuance.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019 Page 6 of 6