Ratliff v. State

546 N.E.2d 309, 1989 Ind. App. LEXIS 1159, 1989 WL 139779
CourtIndiana Court of Appeals
DecidedNovember 20, 1989
Docket18A02-8904-CR-148
StatusPublished
Cited by16 cases

This text of 546 N.E.2d 309 (Ratliff v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ratliff v. State, 546 N.E.2d 309, 1989 Ind. App. LEXIS 1159, 1989 WL 139779 (Ind. Ct. App. 1989).

Opinions

SHIELDS, Presiding Judge.

Don Edward Ratliff appeals the revocation of his probation. We reverse.

FACTS

The July 22, 1987 order book entry reflects that upon his conviction for non-support of a child, a class D felony, Ratliff was sentenced as follows:

The Court now fines the defendant in the sum of $350.00 plus costs in the sum of $103.00[;] in lieu of payment of fines in the sum of $350.00 defendant is to complete Alternative Service at the rate of $25.00 per day. Further, the Court now sentences the defendant to two years to the Department of Correction, all suspended on the condition that defendant pay current support of $70.00 per week and an additional $10.00 per week on arrearage which is in the sum of $16,090 thru July 3, 1987. Defendant is to commence paying support Friday, July 24, 1987. Defendant is to submit to two years of supervised probation, and probation user’s fees are hereby waived. Defendant to pay costs on or before October 23, 1987. Parties notified in Open Court.

Record at 25-26.

In January 1988, a petition for the revocation of Ratliff’s probation was filed. A hearing on the petition was set for February 10, 1988 at 1:30 p.m. When Ratliff failed to appear1 a bench warrant was ordered issued. Pursuant to that bench warrant, Ratliff appeared in open court on September 19, 1988 without counsel. The trial court announced it would “proceed with the petition. I want to know what the problem is. And then I’ll know whether to hold this man for tomorrow morning or whether or not we should proceed with or without an attorney.” Record at 83. Ratliff was interrogated under oath by the court concerning his residences, his work, his support history, his reasons for not complying with the order, his work history, etc. At the end of this questioning, the court advised Ratliff the court would appoint a public defender to represent him in any further proceedings.

The hearing resumed on September 21, 1988 at which time Ratliff was represented by counsel. At the hearing Ratliff moved to dismiss the petition on the ground the sentencing court failed to specify the conditions of his probation in the record and failed to provide him with a written copy of the conditions at his sentencing hearing. The trial court denied the motion. Also, Ratliff’s counsel moved to strike the incriminating statements made by Ratliff in response to the court’s interrogation at the September 19 hearing because the statements were obtained in violation of Ratliff’s right to counsel and his right against self-incrimination. The trial court denied this motion as well.

The only evidence presented at the September 21 hearing was that Ratliff had not [311]*311made any support payments directly to his former wife since his sentencing.

The trial court ordered Ratliffs probation revoked for his failure to pay support and for his failure to submit to supervised probation. This appeal ensued.

DISCUSSION

I.

Citing Harder v. State (1986), Ind.App., 501 N.E.2d 1117, Lucas v. State (1986), Ind.App., 501 N.E.2d 480, and Disney v. State (1982), Ind.App., 441 N.E.2d 489, Ratliff argues the trial court erroneously revoked his probation. Specifically he asserts the sentencing court failed to comply with the mandate of IC 35-38-2-1(a) (1988) and IC 35-38-2-2(b) (1989 Supp.).

The relevant statutory provisions read:

Whenever it places a person on probation, the court shall specify in the record the conditions of probation.

IC 35-38-2-l(a).

When a person is placed on probation the person shall be given a written statement of the conditions of his probation.

IC 35-38-2-2(b).2

IC 35-38-2-l(a) imposes upon the sentencing court a duty to specify the conditions of probation in the record at the time it places a defendant on probation. The sentencing court may fulfill this duty by orally stating the conditions “on the record” or by entering a written order which states the conditions and becomes part of the record. Here, the sentencing court complied with the mandate of IC 35-38-2-l(a) by specifying the relevant conditions of probation in its order book entry memorializing the sentencing hearing. Thus, there is no merit to Ratliffs claim the revocation is erroneous because the sentencing court violated IC 35-38-2-l(a).

However, Ratliff is correct when he claims he was not provided with a written statement of the conditions of his probation at his sentencing as required by IC 35-38-2-2(b).

The question is whether the error is reversible error. This court previously has held a defendant’s failure to receive a written statement of his probation conditions is harmless error if the sentencing court complies with IC 35-38-2-l(a) in a manner that also fulfills the notice function intended by IC 35-38-2-2(b).

In Kerrigan v. State we explained:

Although the trial court did not give Kerrigan a written copy of the terms and conditions of his probation when he was sentenced, the record reveals the trial court orally, on the record, explained the conditions to him, and which Kerrigan acknowledged he understood. Therefore, although the trial court erred in omitting to provide Kerrigan with a written statement of his conditions of probation at sentencing, the error is harmless.

Kerrigan v. State (1989), Ind.App., 540 N.E.2d 1251, 1252 (footnote omitted). The oral statement relied upon in Kerrigan was a sufficient advisement of the conditions of probation. To be sufficient, an oral advisement must 1) apprise the defendant in adequately definite terms of the behavior required of him, 2) be addressed to the defendant, 3) be administered by the sentencing court, and 4) be identified as conditions of the defendant’s continued probation.

Here, while the sentencing court’s order book entry complied with IC 35-38-2-l(a), it failed to fulfill the notice function of IC 35-38-2-2(b) because Ratliff was not informed of its contents. Neither was the notice function fulfilled by an adequate oral advisement at the sentencing hearing.

The sentencing record, in relevant part, reads:

THE COURT: All right. Now let me see if I understand the plea agreement....
******
THE COURT: Okay. Then we have two years D.O.C. suspended. Current sup[312]*312port of seventy dollars per week. Is that — he has agreed to pay support of seventy dollars per week? Is that what that says?
[THE STATE]: That’s seventy dollars a week plus ten on arrears.
[DEFENSE COUNSEL]: Yes.
THE COURT: Okay.
[DEFENSE COUNSEL]: Plus ten on the arrearage.
[THE STATE]: Your Honor, I do have [sic] calculated the amount of the arrear-age if you’d like to put that in the order.

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Ratliff v. State
546 N.E.2d 309 (Indiana Court of Appeals, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
546 N.E.2d 309, 1989 Ind. App. LEXIS 1159, 1989 WL 139779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ratliff-v-state-indctapp-1989.