Parker B Depalma v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: April 17, 2025
• Docket: 24A-CR-02864
• Status: Published

Opinion

IN THE

Court of Appeals of Indiana Parker DePalma, FILED Apr 17 2025, 8:54 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.

State of Indiana, Appellee-Plaintiff

April 17, 2025 Court of Appeals Case No. 24A-CR-2864 Appeal from the LaPorte Superior Court The Honorable Jaime M. Oss, Judge Trial Court Cause No. 46D01-2108-F4-1143

Opinion by Judge Tavitas Chief Judge Altice and Judge Brown concur.

Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 1 of 12 Tavitas, Judge.

Case Summary [1] Parker DePalma pleaded guilty to operating a vehicle while intoxicated

endangering a person, a Class A misdemeanor, and was sentenced to one year

suspended to probation. While on probation, DePalma tested positive for illicit

drug use, and the State filed a petition to revoke DePalma’s probation.

DePalma admitted to the probation violation, and the trial court revoked

DePalma’s probation and ordered him to serve his previously suspended

sentence in jail. DePalma appeals and claims that: (1) the trial court abused its

discretion by allowing the victim’s family members to make statements at the

probation revocation hearing; and (2) the trial court abused its discretion by

ordering DePalma to serve his previously suspended sentence. We disagree

and, accordingly, affirm.

Issues [2] DePalma presents two issues, which we restate as:

I. Whether the trial court abused its discretion by allowing the victim’s family to make statements at the probation revocation hearing.

II. Whether the trial court abused its discretion by ordering DePalma to serve his previously suspended sentence.

Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 2 of 12 Facts [3] On February 6, 2021, a dog belonging to fifty-seven-year-old Ryan Gaston

(“Ryan”) and his wife, Vera, was struck and killed on U.S. Highway 12 in

Michigan City. That evening, Ryan and a friend were attempting to remove the

dog’s remains from the road. At the same time, DePalma was driving his car

on the same highway. DePalma struck Ryan, who later died from his injuries.

DePalma admitted to the police that he had used cocaine earlier in the day, and

DePalma smelled of marijuana.

[4] On August 30, 2021, the State charged DePalma with operating a vehicle while

intoxicated causing death, a Level 4 felony, and reckless homicide, a Level 5

felony. The State later amended the charging information to add a count of

operating a vehicle while intoxicated endangering a person, a Class A

misdemeanor. On October 26, 2023, DePalma entered into a plea agreement

with the State in which he agreed to plead guilty to the Class A misdemeanor,

and the State agreed to dismiss the two felony counts. The plea agreement also

called for DePalma to be sentenced to one year suspended to probation.

Among the explicit terms of DePalma’s probation was that he not “use,

purchase, or possess illegal drugs[.]” 1 Appellant’s App. Vol. II p. 32.

1 We also note that “[t]he requirement that a probationer obey federal, state, and local laws is automatically a condition of probation by operation of law.” Luke v. State, 51 N.E.3d 401, 421 (Ind. Ct. App. 2016), trans. denied; see also Ind. Code § 35-38-2-1(b) (“If the person commits an additional crime, the court may revoke the probation”).

Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 3 of 12 [5] At first, DePalma was compliant with the terms of his probation and submitted

several clean drug screens. On April 30, 2024, however, DePalma tested

positive for cocaine, a metabolite of cocaine, and THC, the active component in

marijuana. Accordingly, on July 8, 2024, the State filed a petition to revoke

DePalma’s probation.

[6] The trial court held a hearing on the petition to revoke on November 21, 2024.

DePalma admitted to using cocaine and marijuana. DePalma argued that since

he tested positive for drug use only once and had previously tested clean, the

trial court should impose a sanction of a weekend in jail or community service.

The probation department recommended that DePalma’s probation be revoked

and that he serve his sentence in jail because DePalma tested positive for the

very same drugs that he used when he drove while intoxicated.

[7] After hearing the arguments of both parties, the trial court permitted, over

DePalma’s objection, three of Ryan’s family members—his brother, father, and

wife—to testify regarding the impact Ryan’s death had on them. DePalma also

made a statement claiming he had made a “bad decision,” but argued that he

had learned from this mistake and would make better decisions going forward.

Tr. Vol. II p. 54. The trial court accepted DePalma’s admission to violating the

terms of his probation and adopted the probation department’s

recommendation regarding the appropriate sanction by ordering DePalma to

serve his previously suspended sentence in jail. DePalma now appeals.

Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 4 of 12 Discussion and Decision I. The trial court did not abuse its discretion by permitting the victim’s family members to testify at the probation revocation hearing.

[8] DePalma first claims that the trial court abused its discretion by permitting

Ryan’s family members to testify at the probation revocation hearing regarding

the impact of Ryan’s death. We disagree.

[9] Probation revocation hearings are not adversarial criminal proceedings. Watters

v. State, 22 N.E.3d 617, 619 (Ind. Ct. App. 2014) (citing Cox v. State, 706 N.E.2d

547, 550 (Ind. 1999)). Instead, probation revocation procedures are “flexible,”

and “strict rules of evidence do not apply.” Id.; see also Ind. Evidence Rule

101(d)(2) (providing that the rules of evidence, other than those with respect to

privileges, do not apply in probation proceedings). “A trial court ‘possesses

broad discretion in ruling on the admissibility of evidence, and we will not

disturb its decision absent a showing of an abuse of that discretion.’” Id.

(quoting C.S. v. State, 735 N.E.2d 273, 275 (Ind. Ct. App. 2000)).

[10] DePalma admits that “the victim’s family had a right to notice of the probation

revocation hearings.” Appellant’s Br. p. 12; see also Ind. Code § 35-40-8-1

(providing that, upon a victim’s request, a criminal court “shall notify the

victim of any probation . . . revocation disposition proceeding or proceeding in

which the court is asked to terminate the probation . . . of a person who is

convicted of a crime against the victim.”); Ind. Code § 35-40-8-2 (providing

that, upon a victim’s request, a criminal court “shall notify the victim of a

modification of the terms of probation . . . of a person convicted of a crime Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 5 of 12 against the victim only if: (1) the modification will substantially affect the

person’s contact with or safety of the victim;” or “(2) the modification will

substantially affect the person’s restitution or confinement status.”).

[11] DePalma claims, however, that the Indiana Crime Victim Act does not create a

right for victims to be heard at a probation revocation hearing. Indiana Code

Section 35-40-5-5 provides, “[a] victim has the right to be heard at any proceeding

involving sentencing, a postconviction release decision, or a pre-conviction release

decision under a forensic diversion program.” “Postconviction release” is defined

to mean “parole, work release, home detention, or any other permanent,

conditional, or temporary discharge from confinement of a person who is confined

in” jail or prison. Ind. Code § 35-40-4-6.

[12] Thus, DePalma contends that a victim has a right to be heard only at a

“postconviction release hearing” when a court is considering releasing a person

from confinement to parole, work release, home detention, or other similar

discharge from confinement. The trial court here was not considering DePalma’s

release, but rather the opposite—whether to revoke his probation and confine him.

Thus, DePalma concludes that a victim has no right to be heard at a probation

revocation proceeding.

[13] Even assuming that this is true, it does not follow that simply because a victim has

no right to be heard at a probation revocation hearing, that a victim is prohibited

from being so heard. Accordingly, we cannot say that Indiana Code Section

35-40-5-5 prohibits victims from being heard at a probation revocation

Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 6 of 12 hearing when, in the trial court’s considerable discretion, such statements

would be helpful to the trial court in its decision making.

[14] DePalma also claims that allowing the victim’s family to make statements was

prejudicial because their statements focused on the underlying charge and the

death of the victim, not the probation violation itself. Again, the Rules of

Evidence do not apply in probation revocation proceedings, and we cannot say

that the trial court abused its considerable discretion in permitting the victim’s

family members to speak at the hearing. Although DePalma notes that the trial

court expressed sympathy with the victim’s family, there is no evidence that the

trial court based its decision on such sympathy. Instead, DePalma admitted to

using the very same drugs that resulted in his conviction in the first place. In

short, the trial court did not abuse its discretion by permitting the victim’s

family to testify at the probation revocation hearing.

II. The trial court did not abuse its discretion by ordering DePalma to serve his previously suspended sentence.

[15] DePalma also argues that the trial court abused its discretion by ordering him to

serve his previously suspended sentence as a sanction for his probation

violation. Again, we disagree.

[16] When a probation violation is alleged, the trial court engages in two functions:

“[f]irst, the trial court must make a factual determination that a violation of a

condition of probation actually occurred;” and “[s]econd, if a violation is

found, then the trial court must determine the appropriate sanctions for the

Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 7 of 12 violation.” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). Indiana Code

Section 35-38-2-3(h) governs such sanctions and provides:

If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) or more of the following sanctions:

(1) Continue the person on probation, with or without modifying or enlarging the conditions.

(2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period.

(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.

[17] “‘Proof of a single violation is sufficient to permit a trial court to revoke

probation.’” Hammann v. State, 210 N.E.3d 823, 832 (Ind. Ct. App. 2023)

(citing Killebrew v. State, 165 N.E.3d 578, 582 (Ind. Ct. App. 2021)), reh’g denied,

trans. denied. “While it is correct that probation may be revoked on evidence of

violation of a single condition, the selection of an appropriate sanction will

depend upon the severity of the defendant’s probation violation, which will

require a determination of whether the defendant committed a new criminal

offense.” Heaton, 984 N.E.2d at 618. “‘[S]o long as the proper procedures have

been followed in conducting a probation revocation hearing . . . , the trial court

may order execution of a suspended sentence upon a finding of a violation by a

preponderance of the evidence.’” Killebrew v. State, 165 N.E.3d 578, 582 (Ind.

Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 8 of 12 Ct. App. 2021) (quoting Crump v. State, 740 N.E.2d 564, 573 (Ind. Ct. App.

2000)), trans. denied. On appeal, we review a trial court’s sanction for probation

violations only for an abuse of discretion. Heaton, 984 N.E.2d at 616.

[18] DePalma claims that the trial court should not have ordered him to serve his

previously suspended sentence because DePalma had been compliant with

probation for six months and tested positive for drugs only one time. We note,

however, that DePalma tested positive for the very same drugs that were in his

system at the time he drove while intoxicated. This demonstrates that DePalma

had not learned from his prior mistakes but instead engaged in the very same

behavior that resulted in his conviction.

[19] DePalma notes that he was not charged with any additional crimes, but this

does not mean he did not commit any additional crimes. He admittedly tested

positive for cocaine and THC. Thus, it was necessary for him to possess

cocaine and marijuana at some point, both of which are crimes. See Ind. Code

§ 35-48-4-6 (defining the crime of possession of cocaine or a narcotic drug); Ind.

Code § 35-48-4-11 (defining the crime of possession of marijuana). Under these

circumstances, we cannot say that the trial court abused its discretion by

ordering DePalma to serve the balance of his previously suspended sentence.

See Decker v. State, 704 N.E.2d 1101, 1104 (Ind. Ct. App. 1999) (holding that

trial court did not abuse its discretion by revoking defendant’s community

Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 9 of 12 corrections placement based on defendant’s admission that he had taken a

“couple of puffs” of a marijuana cigarette). 2

[20] DePalma also claims that the trial court erred by not following the schedule of

progressive probation violation sanctions adopted by the judicial conference.

Subsection (e) of Indiana Code Section 35-38-2-3 provides:

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).[ 3] The sanction administered must follow the schedule of progressive probation violation sanctions adopted by the judicial conference of Indiana under IC 11-13-1-8.

(emphasis added). This subsection unambiguously requires two conditions to

be met before a trial court must follow the schedule of progressive probation

violation sanctions. First, the defendant must “admit to a violation.” Id.

Second, the petitioner must “request[] to waive the right to a probation

violation hearing.” Id. Only then must the sanction imposed by the trial court

2 In Gibson v. State, 154 N.E.3d 823, 826 (Ind. Ct. App. 2020), we recognized that Decker was one of a few cases in which this Court had improperly applied a Strickland standard when reviewing a claim of ineffective assistance of trial counsel on appeal from a probation revocation hearing. We also noted, however, that “the question of the proper standard of review was [not] raised in any of those cases, much less decided.” Id. Thus, even though Decker may have applied the wrong standard on the ineffective assistance of trial counsel issue, it remains good law on the revocation issue. 3 Subsection (f) provides, “Except as provided in subsection (e), the state must prove the violation by a preponderance of the evidence. The evidence shall be presented in open court. The person is entitled to confrontation, cross-examination, and representation by counsel.” I.C. § 35-38-2-3(f).

Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 10 of 12 follow the schedule of progressive probation violations adopted by the judicial

conference.

[21] Here, DePalma admitted to violating the terms of his probation, but nothing in

our review of the record shows that he requested to waive his right to a

probation violation hearing. 4 To the contrary, the trial court held a probation

violation hearing. Thus, Indiana Code Section 35-38-2-3(e) does not apply, and

the trial court was not required to follow the progressive probation violation

schedule. 5

Conclusion [22] The trial court did not abuse its discretion by permitting the victim’s family

members to give statements at the probation revocation hearing. Nor did the

trial court abuse its discretion by ordering DePalma to serve his previously

suspended sentence in jail. We, therefore, affirm the trial court’s judgment.

[23] Affirmed.

4 In his reply brief, DePalma claims that he did, in fact, waive his right to a hearing, citing Appellant’s Appendix Vol. II p. 16. This page of the Appendix, however, indicates only that DePalma “admits to the Petition for Revocation of Suspended Sentence.” Id. It says nothing about DePalma requesting to waive his right to a probation revocation hearing. By admitting to the probation violation, DePalma necessarily waived his right to have the State prove the allegations by a preponderance of the evidence, the right to present witnesses on his own behalf, and the right to confront and cross-examine witnesses against him. See Tr. Vol. II pp. 36-37. But there is no indication that DePalma requested to waive his right to a hearing at all. Indeed, this appeal arises from such a hearing. 5 In Prince v. State, No. 23A-CR-2794 (Ind. Ct. App. Aug. 19, 2024) (mem.), trans. denied, this Court similarly held that Indiana Code Section 35-38-2-3(e) did not apply because although the defendant admitted to a probation violation, he did not waive his right to a probation hearing. Although Prince was a memorandum decision, we cite it for persuasive value. See Ind. Appellate Rule 65(D)(2) (permitting memorandum decisions issued after January 1, 2023 to be cited “for persuasive value to any court by any litigant.”).

Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 11 of 12 Altice, C.J., and Brown, J., concur.

ATTORNEY FOR APPELLANT Nicholas T. Otis LaPorte, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana

Rebekah D. Bennett Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 24A-CR-2864 | April 17, 2025 Page 12 of 12