MEMORANDUM DECISION FILED Apr 16 2018, 9:49 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Meghan K. Kugel Curtis T. Hill, Jr. Osceola, Indiana Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Malcolm A. Walker, April 16, 2018
Appellant-Defendant, Court of Appeals Case No. 20A05-1706-CR-1408 v. Appeal from the Elkhart Superior Court. The Honorable Teresa L. Cataldo, State of Indiana, Judge. Trial Court Cause Nos. Appellee-Plaintiff. 20D03-1210-FD-1233 20D03-1409-FC-181
Shepard, Senior Judge
[1] Appellant Malcolm Walker was found to have violated the probation for his
convictions of failure to register as a sex offender in Cause Number 20D03-
1210-FD-1233 (“Cause 1233”) and child molesting in Cause Number 20D03-
2409-FC-181 (“Cause 181”). Concluding the trial court correctly determined
Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1408 | April 16, 2018 Page 1 of 6 that he was on probation for both causes at the time of his violation, we affirm
the court’s revocation of his probation in both Causes 1233 and 181.
Facts and Procedural History [2] Having been previously convicted of child molesting and therefore required to
register as a sex offender, Walker was subsequently charged with failing to do
so in Cause 1233. He pleaded guilty to the charge and was sentenced on
September 23, 2013 to eighteen months at DOC, with all but six months
suspended and reporting probation for twelve months.
[3] On September 3, 2014, Walker was charged with child molesting and being a
repeat sexual offender in Cause 181. Based on these new charges, the State
filed a petition in March 2015, alleging Walker had violated his probation in
Cause 1233. Walker pleaded guilty to the child molesting charge in Cause 181,
and the State dismissed its pending petition in Cause 1233. The court
sentenced Walker to eight years at DOC, all of it suspended to reporting
probation and ordered to be served consecutively to his sentence and probation
in Cause 1233.
[4] In February 2017, the State filed further probation violation petitions in Causes
1233 and 181 for several alleged violations committed by Walker. He admitted
to violating his probation, and the trial court revoked his probation in both
causes. He now appeals that determination.
Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1408 | April 16, 2018 Page 2 of 6 Issues [5] Walker presents two issues to this Court, which we restate as:
I. Whether his admission was invalid due to inadequate advisements; and II. Whether the trial court erred in revoking his probation.
Discussion and Decision I. Due Process Rights [6] Walker contends that his due process rights were violated because he was not
adequately advised that his probation in both Cause 1233 and Cause 181 could
be revoked. Specifically, he alleges it was not made clear to him that his
probation may be revoked in both causes “until after the Court found that he
had violated the terms of his probation.” Appellant’s Br. p. 15.
[7] Although probationers are not entitled to the full array of constitutional rights
afforded defendants at trial, the Due Process Clause of the Fourteenth
Amendment does impose certain procedural and substantive limits on the
revocation of the conditional liberty created by probation. Knecht v. State, 85
N.E.3d 829 (Ind. Ct. App. 2017). The minimum requirements of due process to
which a probationer at a revocation hearing is entitled include: (a) written
notice of the claimed violations of probation; (b) disclosure of the evidence
against him; (c) an opportunity to be heard and present evidence; (d) the right to
confront and cross-examine adverse witnesses; (e) a neutral and detached
hearing body; and (f) a written statement by the factfinder as to the evidence
Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1408 | April 16, 2018 Page 3 of 6 relied on and the reasons for revoking probation. Vernon v. State, 903 N.E.2d
533 (Ind. Ct. App. 2009), trans. denied.
[8] Here, at the initial hearing on the State’s petitions, the court began by advising
Walker that there were two petitions for probation violation, one in Cause 1233
and one in Cause 181. Tr. Vol. II Cause 181, p. 85; Tr. Vol. II Cause 1233, p.
102. The judge then gave Walker copies of both petitions, and, beginning with
Cause 181, went through the allegations in each petition on the record. Tr. Vol
II Cause 181, pp. 86, 87-89; Tr. Vol. II Cause 1233, pp. 103, 104-06. The court
also informed Walker that, if it is determined that he violated his probation, the
State was recommending in both causes that he serve a portion of his suspended
sentence at the DOC. Tr. Vol. II Cause 181, p. 88, 89; Tr. Vol. II Cause 1233,
p. 105, 106. Finally, the court inquired whether Walker understood the
allegations contained in the petitions, and he responded in the affirmative. Tr.
Vol. II Cause 181, p. 89; Tr. Vol. II Cause 1233, p. 106.
[9] We conclude that Walker was given sufficient notice of the alleged violations
and the fact that petitions were filed in both Cause 1233 and Cause 181.
II. Revocation of Probation [10] Walker was ordered to serve his sentence and probation in Cause 181
consecutively to his sentence and probation in Cause 1233. The probation
violations at issue in this appeal were filed in February 2017. At that time,
Walker was serving his term of probation in Cause 1233, which he was
scheduled to complete in August 2017. Once his probation was complete in
Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1408 | April 16, 2018 Page 4 of 6 Cause 1233, he would serve his term of probation in Cause 181. Thus, he
asserts that, because he was serving his probation in Cause 1233 and had not
yet begun serving his term in Cause 181 at the time the violation petitions were
filed, the trial court erred in revoking his probation in Cause 181.
[11] The decision to revoke a defendant’s probation is a matter within the sound
discretion of the trial court. Woods v. State, 892 N.E.2d 637 (Ind. 2008). Thus,
on appeal, we review the trial court’s decision for an abuse of that discretion.
Id. An abuse of discretion occurs when the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before the court.
Brown v. State, 830 N.E.2d 956 (Ind. Ct. App. 2005).
[12] Indiana Code section 35-38-2-3(h) (2015) provides that a trial court may revoke
probation “[i]f the court finds that the person has violated a condition at any
time before termination of the period.” (Emphasis added). Our courts have
interpreted this statute to mean that probation may be revoked even before it
begins. Hardy v. State, 975 N.E.2d 833 (Ind. Ct. App. 2012) (citing Ashley v.
State,
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MEMORANDUM DECISION FILED Apr 16 2018, 9:49 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Meghan K. Kugel Curtis T. Hill, Jr. Osceola, Indiana Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Malcolm A. Walker, April 16, 2018
Appellant-Defendant, Court of Appeals Case No. 20A05-1706-CR-1408 v. Appeal from the Elkhart Superior Court. The Honorable Teresa L. Cataldo, State of Indiana, Judge. Trial Court Cause Nos. Appellee-Plaintiff. 20D03-1210-FD-1233 20D03-1409-FC-181
Shepard, Senior Judge
[1] Appellant Malcolm Walker was found to have violated the probation for his
convictions of failure to register as a sex offender in Cause Number 20D03-
1210-FD-1233 (“Cause 1233”) and child molesting in Cause Number 20D03-
2409-FC-181 (“Cause 181”). Concluding the trial court correctly determined
Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1408 | April 16, 2018 Page 1 of 6 that he was on probation for both causes at the time of his violation, we affirm
the court’s revocation of his probation in both Causes 1233 and 181.
Facts and Procedural History [2] Having been previously convicted of child molesting and therefore required to
register as a sex offender, Walker was subsequently charged with failing to do
so in Cause 1233. He pleaded guilty to the charge and was sentenced on
September 23, 2013 to eighteen months at DOC, with all but six months
suspended and reporting probation for twelve months.
[3] On September 3, 2014, Walker was charged with child molesting and being a
repeat sexual offender in Cause 181. Based on these new charges, the State
filed a petition in March 2015, alleging Walker had violated his probation in
Cause 1233. Walker pleaded guilty to the child molesting charge in Cause 181,
and the State dismissed its pending petition in Cause 1233. The court
sentenced Walker to eight years at DOC, all of it suspended to reporting
probation and ordered to be served consecutively to his sentence and probation
in Cause 1233.
[4] In February 2017, the State filed further probation violation petitions in Causes
1233 and 181 for several alleged violations committed by Walker. He admitted
to violating his probation, and the trial court revoked his probation in both
causes. He now appeals that determination.
Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1408 | April 16, 2018 Page 2 of 6 Issues [5] Walker presents two issues to this Court, which we restate as:
I. Whether his admission was invalid due to inadequate advisements; and II. Whether the trial court erred in revoking his probation.
Discussion and Decision I. Due Process Rights [6] Walker contends that his due process rights were violated because he was not
adequately advised that his probation in both Cause 1233 and Cause 181 could
be revoked. Specifically, he alleges it was not made clear to him that his
probation may be revoked in both causes “until after the Court found that he
had violated the terms of his probation.” Appellant’s Br. p. 15.
[7] Although probationers are not entitled to the full array of constitutional rights
afforded defendants at trial, the Due Process Clause of the Fourteenth
Amendment does impose certain procedural and substantive limits on the
revocation of the conditional liberty created by probation. Knecht v. State, 85
N.E.3d 829 (Ind. Ct. App. 2017). The minimum requirements of due process to
which a probationer at a revocation hearing is entitled include: (a) written
notice of the claimed violations of probation; (b) disclosure of the evidence
against him; (c) an opportunity to be heard and present evidence; (d) the right to
confront and cross-examine adverse witnesses; (e) a neutral and detached
hearing body; and (f) a written statement by the factfinder as to the evidence
Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1408 | April 16, 2018 Page 3 of 6 relied on and the reasons for revoking probation. Vernon v. State, 903 N.E.2d
533 (Ind. Ct. App. 2009), trans. denied.
[8] Here, at the initial hearing on the State’s petitions, the court began by advising
Walker that there were two petitions for probation violation, one in Cause 1233
and one in Cause 181. Tr. Vol. II Cause 181, p. 85; Tr. Vol. II Cause 1233, p.
102. The judge then gave Walker copies of both petitions, and, beginning with
Cause 181, went through the allegations in each petition on the record. Tr. Vol
II Cause 181, pp. 86, 87-89; Tr. Vol. II Cause 1233, pp. 103, 104-06. The court
also informed Walker that, if it is determined that he violated his probation, the
State was recommending in both causes that he serve a portion of his suspended
sentence at the DOC. Tr. Vol. II Cause 181, p. 88, 89; Tr. Vol. II Cause 1233,
p. 105, 106. Finally, the court inquired whether Walker understood the
allegations contained in the petitions, and he responded in the affirmative. Tr.
Vol. II Cause 181, p. 89; Tr. Vol. II Cause 1233, p. 106.
[9] We conclude that Walker was given sufficient notice of the alleged violations
and the fact that petitions were filed in both Cause 1233 and Cause 181.
II. Revocation of Probation [10] Walker was ordered to serve his sentence and probation in Cause 181
consecutively to his sentence and probation in Cause 1233. The probation
violations at issue in this appeal were filed in February 2017. At that time,
Walker was serving his term of probation in Cause 1233, which he was
scheduled to complete in August 2017. Once his probation was complete in
Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1408 | April 16, 2018 Page 4 of 6 Cause 1233, he would serve his term of probation in Cause 181. Thus, he
asserts that, because he was serving his probation in Cause 1233 and had not
yet begun serving his term in Cause 181 at the time the violation petitions were
filed, the trial court erred in revoking his probation in Cause 181.
[11] The decision to revoke a defendant’s probation is a matter within the sound
discretion of the trial court. Woods v. State, 892 N.E.2d 637 (Ind. 2008). Thus,
on appeal, we review the trial court’s decision for an abuse of that discretion.
Id. An abuse of discretion occurs when the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before the court.
Brown v. State, 830 N.E.2d 956 (Ind. Ct. App. 2005).
[12] Indiana Code section 35-38-2-3(h) (2015) provides that a trial court may revoke
probation “[i]f the court finds that the person has violated a condition at any
time before termination of the period.” (Emphasis added). Our courts have
interpreted this statute to mean that probation may be revoked even before it
begins. Hardy v. State, 975 N.E.2d 833 (Ind. Ct. App. 2012) (citing Ashley v.
State, 717 N.E.2d 927, 928 (Ind. Ct. App. 1999)); see also Rosa v. State, 832
N.E.2d 1119 (Ind. Ct. App. 2005) (noting that, under defendant’s reasoning, he
could commit any number of offenses prior to his subsequent term of probation
and not face a probation violation, this Court concluded that the probationary
Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1408 | April 16, 2018 Page 5 of 6 period begins immediately after sentencing and ends at the conclusion of the 1 probationary phase of the defendant’s sentence).
[13] Thus, although Walker was still serving his probation in Cause 1233 at the time
the petitions were filed and therefore had not begun serving his term of
probation in Cause 181, the trial court had the authority to revoke his probation
in both causes. We find no abuse of discretion by the trial court in revoking
Walker’s probation in Cause 181.
Conclusion [14] We conclude that there was no denial of Walker’s due process rights and that
the trial court did not abuse its discretion in revoking his probation in Cause
181.
[15] Affirmed.
May, J., and Altice, J., concur.
1 See Waters v. State, 65 N.E.3d 613, 617 n.1 (Ind. Ct. App. 2016) (clarifying that Court’s statement that defendant’s probationary period begins immediately after sentencing does not mean that defendant is on probation when he is incarcerated but is simply another way of saying that defendant’s probation can be revoked prospectively while he is incarcerated and before he begins probation phase of his sentence).
Court of Appeals of Indiana | Memorandum Decision 20A05-1706-CR-1408 | April 16, 2018 Page 6 of 6