MEMORANDUM DECISION Jun 10 2015, 9:30 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey S. Jacob Gregory F. Zoeller Jacob, Hammerle & Johnson Attorney General of Indiana Zionsville, Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Sidelinger, June 10, 2015
Appellant-Defendant, Court of Appeals Cause No. 06A05-1411-CR-543 v. Appeal from the Boone Superior State of Indiana, Court The Honorable Rebecca McClure, Appellee-Plaintiff, Judge Cause No. 06D02-0709-FB-1015
Robb, Judge.
Case Summary and Issues [1] In early 2013, the State filed two petitions to revoke Michael Sidelinger’s
probation, alleging that he violated his probation by using methamphetamine
Court of Appeals of Indiana | Memorandum Decision 06A05-1411-CR-543 | June 10, 2015 Page 1 of 6 and by committing new criminal offenses of burglary and theft. The trial court
eventually revoked Sidelinger’s probation. He raises two issues on appeal: (1)
whether it was a violation of due process to hold Sidelinger’s probation
violation hearing before resolution of his new criminal charges; and (2) whether
there was sufficient evidence to establish that he violated the terms of his
probation. Concluding that the timing of Sidelinger’s hearing did not violate
his right to due process and that there was sufficient evidence of his probation
violations, we affirm.
Facts and Procedural History [2] On September 14, 2007, the State charged Sidelinger with four counts of Class
B felony burglary and four counts of Class D felony theft. On October 2, 2012,
Sidelinger pled guilty to four counts of Class B felony burglary, and the State
dismissed the remaining charges. On the same date, Sidelinger was sentenced
to sixteen years, with nine years and 256 days executed and the remainder
suspended to probation.1
[3] On January 16, 2013, the State filed a petition to revoke Sidelinger’s probation,
alleging he committed new crimes of burglary and theft in Carroll County, for
which he had been charged, and also that he used methamphetamine. On
February 19, 2013, the State filed a second petition to revoke Sidelinger’s
1 Sidelinger’s executed sentence amounted to time served.
Court of Appeals of Indiana | Memorandum Decision 06A05-1411-CR-543 | June 10, 2015 Page 2 of 6 probation, alleging that he had also committed and been charged with burglary
and theft in Boone County.
[4] After several continuances, a hearing was held on October 23, 2014. Sidelinger
admitted to using methamphetamine while on probation, and he also admitted
to committing burglary in Boone County, for which he had been convicted after
pleading guilty. Sidelinger did not admit to the allegations of burglary and theft
in Carroll County, because that case was not yet resolved. The State presented
evidence supporting that allegation through testimony from Delphi Police
Department Officer Stephen Mullin. Sidelinger chose not to cross-examine
Officer Mullin at the hearing. The trial court found the State proved its
allegations by a preponderance of evidence and ordered Sidelinger to serve the
remainder of his sentence with the Department of Correction. This appeal
followed.
Discussion and Decision I. Standard of Review [5] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.
2013) (citation omitted). The trial court has discretion to set probation
conditions and to revoke probation upon violation of a condition. Id. Thus, an
appeal from a trial court’s finding of a violation and the resulting sanction are
reviewed only for an abuse of discretion. Id. An abuse of discretion occurs if
Court of Appeals of Indiana | Memorandum Decision 06A05-1411-CR-543 | June 10, 2015 Page 3 of 6 the decision is clearly against the logic and effect of the facts and circumstances
or if it is contrary to law. Id.
II. Due Process [6] Sidelinger contends that holding his probation revocation hearing prior to
resolution of his new criminal charges in Carroll County violated his
constitutional rights. Specifically, he claims he was denied his “right to
confront and cross-examine adverse witnesses,” although his argument also
contains reference to his right to be free from self-incrimination. See Appellant’s
Brief at 3-4.
[7] Although probationers are not entitled to the full spectrum of constitutional
rights afforded to a defendant in a criminal trial, there remain some due process
limits on the revocation of probation. Woods v. State, 892 N.E.2d 637, 640 (Ind.
2008). Our supreme court has identified the minimum due process
requirements afforded to a probationer at a revocation hearing: “(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; and (e) a neutral and detached
hearing body.” Id.
[8] At the revocation hearing, Sidelinger was given the opportunity to cross-
examine the State’s witness, and he declined. See Transcript at 17. Thus, there
is no merit to his claim that he was denied an opportunity to confront and
cross-examine adverse witnesses at his hearing.
Court of Appeals of Indiana | Memorandum Decision 06A05-1411-CR-543 | June 10, 2015 Page 4 of 6 [9] To the extent that Sidelinger is attempting to make a more general due process
argument or one based on his privilege against self-incrimination, he cites no
case law or statutory provision supporting his position that a probation
revocation hearing cannot be held until resolution of his new criminal charges.
Indiana Code section 35-38-2-3, wherein due process requirements for
probation revocation hearings are codified, see Woods, 892 N.E.2d at 640,
contains no requirement that the hearing be held only after resolution of new
criminal charges. Moreover, this court has previously held that a probation
revocation hearing based on new criminal charges need not wait until after
resolution of those charges. See Davis v. State, 743 N.E.2d 793, 794-96 (Ind. Ct.
App. 2001), trans. denied. Sidelinger has not persuaded us that our decision in
Davis was incorrect.
III. Probation Violation [10] Sidelinger also argues that there was not sufficient evidence to support a finding
that he violated his probation. The trial court’s discretion to revoke probation is
triggered by a violation of a condition of probation. Ind. Code § 35-38-2-3(a).
The State must prove a violation by a preponderance of the evidence. Ind.
Code § 35-38-2-3(f).
[11] Sidelinger claims that the State’s evidence of his probation violations was
insufficient because the timing of his hearing prevented him from properly
defending against the State’s allegations.
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MEMORANDUM DECISION Jun 10 2015, 9:30 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey S. Jacob Gregory F. Zoeller Jacob, Hammerle & Johnson Attorney General of Indiana Zionsville, Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael Sidelinger, June 10, 2015
Appellant-Defendant, Court of Appeals Cause No. 06A05-1411-CR-543 v. Appeal from the Boone Superior State of Indiana, Court The Honorable Rebecca McClure, Appellee-Plaintiff, Judge Cause No. 06D02-0709-FB-1015
Robb, Judge.
Case Summary and Issues [1] In early 2013, the State filed two petitions to revoke Michael Sidelinger’s
probation, alleging that he violated his probation by using methamphetamine
Court of Appeals of Indiana | Memorandum Decision 06A05-1411-CR-543 | June 10, 2015 Page 1 of 6 and by committing new criminal offenses of burglary and theft. The trial court
eventually revoked Sidelinger’s probation. He raises two issues on appeal: (1)
whether it was a violation of due process to hold Sidelinger’s probation
violation hearing before resolution of his new criminal charges; and (2) whether
there was sufficient evidence to establish that he violated the terms of his
probation. Concluding that the timing of Sidelinger’s hearing did not violate
his right to due process and that there was sufficient evidence of his probation
violations, we affirm.
Facts and Procedural History [2] On September 14, 2007, the State charged Sidelinger with four counts of Class
B felony burglary and four counts of Class D felony theft. On October 2, 2012,
Sidelinger pled guilty to four counts of Class B felony burglary, and the State
dismissed the remaining charges. On the same date, Sidelinger was sentenced
to sixteen years, with nine years and 256 days executed and the remainder
suspended to probation.1
[3] On January 16, 2013, the State filed a petition to revoke Sidelinger’s probation,
alleging he committed new crimes of burglary and theft in Carroll County, for
which he had been charged, and also that he used methamphetamine. On
February 19, 2013, the State filed a second petition to revoke Sidelinger’s
1 Sidelinger’s executed sentence amounted to time served.
Court of Appeals of Indiana | Memorandum Decision 06A05-1411-CR-543 | June 10, 2015 Page 2 of 6 probation, alleging that he had also committed and been charged with burglary
and theft in Boone County.
[4] After several continuances, a hearing was held on October 23, 2014. Sidelinger
admitted to using methamphetamine while on probation, and he also admitted
to committing burglary in Boone County, for which he had been convicted after
pleading guilty. Sidelinger did not admit to the allegations of burglary and theft
in Carroll County, because that case was not yet resolved. The State presented
evidence supporting that allegation through testimony from Delphi Police
Department Officer Stephen Mullin. Sidelinger chose not to cross-examine
Officer Mullin at the hearing. The trial court found the State proved its
allegations by a preponderance of evidence and ordered Sidelinger to serve the
remainder of his sentence with the Department of Correction. This appeal
followed.
Discussion and Decision I. Standard of Review [5] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.
2013) (citation omitted). The trial court has discretion to set probation
conditions and to revoke probation upon violation of a condition. Id. Thus, an
appeal from a trial court’s finding of a violation and the resulting sanction are
reviewed only for an abuse of discretion. Id. An abuse of discretion occurs if
Court of Appeals of Indiana | Memorandum Decision 06A05-1411-CR-543 | June 10, 2015 Page 3 of 6 the decision is clearly against the logic and effect of the facts and circumstances
or if it is contrary to law. Id.
II. Due Process [6] Sidelinger contends that holding his probation revocation hearing prior to
resolution of his new criminal charges in Carroll County violated his
constitutional rights. Specifically, he claims he was denied his “right to
confront and cross-examine adverse witnesses,” although his argument also
contains reference to his right to be free from self-incrimination. See Appellant’s
Brief at 3-4.
[7] Although probationers are not entitled to the full spectrum of constitutional
rights afforded to a defendant in a criminal trial, there remain some due process
limits on the revocation of probation. Woods v. State, 892 N.E.2d 637, 640 (Ind.
2008). Our supreme court has identified the minimum due process
requirements afforded to a probationer at a revocation hearing: “(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; and (e) a neutral and detached
hearing body.” Id.
[8] At the revocation hearing, Sidelinger was given the opportunity to cross-
examine the State’s witness, and he declined. See Transcript at 17. Thus, there
is no merit to his claim that he was denied an opportunity to confront and
cross-examine adverse witnesses at his hearing.
Court of Appeals of Indiana | Memorandum Decision 06A05-1411-CR-543 | June 10, 2015 Page 4 of 6 [9] To the extent that Sidelinger is attempting to make a more general due process
argument or one based on his privilege against self-incrimination, he cites no
case law or statutory provision supporting his position that a probation
revocation hearing cannot be held until resolution of his new criminal charges.
Indiana Code section 35-38-2-3, wherein due process requirements for
probation revocation hearings are codified, see Woods, 892 N.E.2d at 640,
contains no requirement that the hearing be held only after resolution of new
criminal charges. Moreover, this court has previously held that a probation
revocation hearing based on new criminal charges need not wait until after
resolution of those charges. See Davis v. State, 743 N.E.2d 793, 794-96 (Ind. Ct.
App. 2001), trans. denied. Sidelinger has not persuaded us that our decision in
Davis was incorrect.
III. Probation Violation [10] Sidelinger also argues that there was not sufficient evidence to support a finding
that he violated his probation. The trial court’s discretion to revoke probation is
triggered by a violation of a condition of probation. Ind. Code § 35-38-2-3(a).
The State must prove a violation by a preponderance of the evidence. Ind.
Code § 35-38-2-3(f).
[11] Sidelinger claims that the State’s evidence of his probation violations was
insufficient because the timing of his hearing prevented him from properly
defending against the State’s allegations. But as discussed above, holding the
hearing before resolution of his charges in Carroll County did not violate his
Court of Appeals of Indiana | Memorandum Decision 06A05-1411-CR-543 | June 10, 2015 Page 5 of 6 due process rights. Even if introduction of evidence concerning recent crimes in
Carroll County was improper, Sidelinger’s admissions to the State’s other
allegations of burglary and methamphetamine use are sufficient to support the
trial court’s finding of a probation violation and the resulting revocation of
probation. “When a probationer admits to the violations, the procedural
safeguards [required for a revocation hearing] and the evidentiary hearing are
unnecessary. Instead, the court can proceed to the second step of the inquiry
and determine whether the violation warrants revocation.” Woods, 892 N.E.2d
at 640. And this court has previously said that “[t]he violation of a single
condition of probation is sufficient to revoke probation.” Snowberger v. State,
938 N.E.2d 294, 296 (Ind. Ct. App. 2010). Thus, the trial court was presented
with sufficient evidence to find Sidelinger violated probation.
Conclusion [12] Concluding Sidelinger’s due process rights were not violated and that there was
sufficient evidence that he violated the terms of his probation, we affirm.
[13] Affirmed.
May, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 06A05-1411-CR-543 | June 10, 2015 Page 6 of 6