MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 15 2017, 8:23 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
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel M. Schumm Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard K. Dean, June 15, 2017 Appellant-Defendant, Court of Appeals Case No. 73A01-1612-CR-2722 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable David N. Riggins, Appellee-Plaintiff. Judge Trial Court Cause No. 73D02-1508-F6-242
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 1 of 7 Case Summary and Issue [1] The trial court revoked Richard Dean’s probation and ordered him to serve the
entirety of his previously suspended sentence at the Indiana Department of
Correction (“DOC”) after he admitted to violating conditions of his probation.
Dean now raises one issue on appeal: whether his waiver of counsel was
knowing, intelligent, and voluntary. Concluding Dean did not make a
knowing, intelligent, and voluntary waiver of counsel, we reverse and remand
for a new probation revocation hearing.
Facts and Procedural History [2] On August 5, 2015, the State of Indiana charged Dean with cheating on a
gambling game, a Level 6 felony. Eventually, the State and Dean reached a
plea agreement and the trial court entered judgment of conviction as a Class A
misdemeanor. The trial court sentenced Dean to 365 days in the DOC with
363 of those days suspended to probation. Dean’s probation conditions
provided that Shelby County and Delaware County would share supervision
and revocation authority over Dean.
[3] On August 16, 2016, the Shelby County Probation Office filed a revocation
petition alleging Dean failed to report to scheduled probation appointments in
both Shelby County and Delaware County and that his whereabouts were
unknown. The probation department later amended its revocation petition and
alleged Dean committed a new crime in Madison County.
Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 2 of 7 [4] On November 30, 2016, the trial court held a hearing on the revocation
petition. Dean was not represented by counsel. At the revocation hearing, the
following exchange occurred:
The Court: The State of Indiana wants me to revoke your probation saying you failed to report to probation as ordered, saying you failed to respond to letters, and you failed to report . . . in Delaware County, failed to report to Shelby County, and you didn’t respond to letters. . . . [T]hey also said you committed a new offense, possession of methamphetamine and possession of a controlled substance in Madison County. Now, before I can revoke your probation, you’re entitled to a hearing in the matter. At that hearing you have the right to be represented by an attorney. If you cannot afford an attorney, I can appoint one for you. All you have to do is ask. At that hearing the State has to prove by a preponderance of the evidence that you violated probation. They have to—you have the right to confront and cross-examine witnesses against you and to subpoena witnesses to testify on your behalf. You have the right to appeal any decision I make and be represented by an attorney on the appeal. Do you understand all your rights?
[Dean]: Yes, sir.
***
The Court: All right. I’m gonna ask you, except for the new charges, I’ll show a denial on that. But I’m gonna ask you if you admit or deny the other allegations. If you admit I’m presuming you’re waiving all of those rights, including the right to be represented by an attorney, and I’ll proceed to sentencing. If you deny I’ll set this matter for a fact finding hearing and give you a chance to hire or request an attorney. Do you understand your choices?
Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 3 of 7 [Dean]: Yes.
The Court: Do you admit or deny you failed to report to probation as ordered?
[Dean]: I failed to report, sir.
Transcript at 4-5. The trial court accepted Dean’s admission and set the matter
for a dispositional hearing the following day.
[5] At the dispositional hearing, the trial court ordered Dean to serve in the DOC
the entire 363 days previously suspended for his offense. When Dean heard the
trial court’s sentence, he immediately responded, “I’d ask for a lawyer for an
appeal, sir.” Tr. at 15.
Discussion and Decision [6] Dean argues he did not knowingly, intelligently, and voluntarily waive his right
to counsel at the probation revocation hearing because the trial court did not
advise him of the potential consequences of admitting a violation of probation.
Therefore, Dean alleges the revocation of his probation must be set aside.
[7] First, we note the State asserts on cross-appeal that Dean’s challenge to the
validity of the revocation of probation following an admission of a violation
must be brought by a petition for post-conviction relief rather than on direct
appeal. See Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996) (holding that a
petition for post-conviction relief, and not a direct appeal, is the proper vehicle
for challenging a conviction that is the result of a guilty plea). Moreover, in
Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 4 of 7 Huffman v. State, 822 N.E.2d 656, 659-60 (Ind. Ct. App. 2005), a panel of this
court applied the holding in Tumulty to probation revocations.
[8] Notwithstanding our supreme court’s decision in Tumulty that guilty pleas must
be challenged through a petition for post-conviction relief and our decision in
Huffman extending that rule to cases in which the defendant admits to a
probation violation, the issue remains unsettled and more recent cases have
addressed on direct appeal the issue of whether a defendant knowingly,
intelligently, and voluntarily waived the right to counsel in a probation
revocation hearing. See Butler v. State, 951 N.E.2d 255, 259-62 (Ind. Ct. App.
2011); Cooper v. State, 900 N.E.2d 64, 66-71 (Ind. Ct. App. 2009); Eaton v. State,
894 N.E.2d 213, 216-18 (Ind. Ct. App. 2008), trans. denied; see also Sparks v.
State, 983 N.E.2d 221, 224 n.1 (Ind. Ct. App. 2013). Therefore, we choose to
address the merits of Dean’s argument.
[9] The sole issue raised by Dean is whether his decision to proceed without
counsel at his probation revocation hearing was knowing, intelligent, and
voluntary. We review de novo a trial court’s finding that a defendant waived
his right to counsel. Cooper, 900 N.E.2d at 67.
[10] The right to representation by counsel is statutorily guaranteed to those who
face revocation of their probation. Ind.
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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 15 2017, 8:23 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
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel M. Schumm Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard K. Dean, June 15, 2017 Appellant-Defendant, Court of Appeals Case No. 73A01-1612-CR-2722 v. Appeal from the Shelby Superior Court State of Indiana, The Honorable David N. Riggins, Appellee-Plaintiff. Judge Trial Court Cause No. 73D02-1508-F6-242
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 1 of 7 Case Summary and Issue [1] The trial court revoked Richard Dean’s probation and ordered him to serve the
entirety of his previously suspended sentence at the Indiana Department of
Correction (“DOC”) after he admitted to violating conditions of his probation.
Dean now raises one issue on appeal: whether his waiver of counsel was
knowing, intelligent, and voluntary. Concluding Dean did not make a
knowing, intelligent, and voluntary waiver of counsel, we reverse and remand
for a new probation revocation hearing.
Facts and Procedural History [2] On August 5, 2015, the State of Indiana charged Dean with cheating on a
gambling game, a Level 6 felony. Eventually, the State and Dean reached a
plea agreement and the trial court entered judgment of conviction as a Class A
misdemeanor. The trial court sentenced Dean to 365 days in the DOC with
363 of those days suspended to probation. Dean’s probation conditions
provided that Shelby County and Delaware County would share supervision
and revocation authority over Dean.
[3] On August 16, 2016, the Shelby County Probation Office filed a revocation
petition alleging Dean failed to report to scheduled probation appointments in
both Shelby County and Delaware County and that his whereabouts were
unknown. The probation department later amended its revocation petition and
alleged Dean committed a new crime in Madison County.
Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 2 of 7 [4] On November 30, 2016, the trial court held a hearing on the revocation
petition. Dean was not represented by counsel. At the revocation hearing, the
following exchange occurred:
The Court: The State of Indiana wants me to revoke your probation saying you failed to report to probation as ordered, saying you failed to respond to letters, and you failed to report . . . in Delaware County, failed to report to Shelby County, and you didn’t respond to letters. . . . [T]hey also said you committed a new offense, possession of methamphetamine and possession of a controlled substance in Madison County. Now, before I can revoke your probation, you’re entitled to a hearing in the matter. At that hearing you have the right to be represented by an attorney. If you cannot afford an attorney, I can appoint one for you. All you have to do is ask. At that hearing the State has to prove by a preponderance of the evidence that you violated probation. They have to—you have the right to confront and cross-examine witnesses against you and to subpoena witnesses to testify on your behalf. You have the right to appeal any decision I make and be represented by an attorney on the appeal. Do you understand all your rights?
[Dean]: Yes, sir.
***
The Court: All right. I’m gonna ask you, except for the new charges, I’ll show a denial on that. But I’m gonna ask you if you admit or deny the other allegations. If you admit I’m presuming you’re waiving all of those rights, including the right to be represented by an attorney, and I’ll proceed to sentencing. If you deny I’ll set this matter for a fact finding hearing and give you a chance to hire or request an attorney. Do you understand your choices?
Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 3 of 7 [Dean]: Yes.
The Court: Do you admit or deny you failed to report to probation as ordered?
[Dean]: I failed to report, sir.
Transcript at 4-5. The trial court accepted Dean’s admission and set the matter
for a dispositional hearing the following day.
[5] At the dispositional hearing, the trial court ordered Dean to serve in the DOC
the entire 363 days previously suspended for his offense. When Dean heard the
trial court’s sentence, he immediately responded, “I’d ask for a lawyer for an
appeal, sir.” Tr. at 15.
Discussion and Decision [6] Dean argues he did not knowingly, intelligently, and voluntarily waive his right
to counsel at the probation revocation hearing because the trial court did not
advise him of the potential consequences of admitting a violation of probation.
Therefore, Dean alleges the revocation of his probation must be set aside.
[7] First, we note the State asserts on cross-appeal that Dean’s challenge to the
validity of the revocation of probation following an admission of a violation
must be brought by a petition for post-conviction relief rather than on direct
appeal. See Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996) (holding that a
petition for post-conviction relief, and not a direct appeal, is the proper vehicle
for challenging a conviction that is the result of a guilty plea). Moreover, in
Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 4 of 7 Huffman v. State, 822 N.E.2d 656, 659-60 (Ind. Ct. App. 2005), a panel of this
court applied the holding in Tumulty to probation revocations.
[8] Notwithstanding our supreme court’s decision in Tumulty that guilty pleas must
be challenged through a petition for post-conviction relief and our decision in
Huffman extending that rule to cases in which the defendant admits to a
probation violation, the issue remains unsettled and more recent cases have
addressed on direct appeal the issue of whether a defendant knowingly,
intelligently, and voluntarily waived the right to counsel in a probation
revocation hearing. See Butler v. State, 951 N.E.2d 255, 259-62 (Ind. Ct. App.
2011); Cooper v. State, 900 N.E.2d 64, 66-71 (Ind. Ct. App. 2009); Eaton v. State,
894 N.E.2d 213, 216-18 (Ind. Ct. App. 2008), trans. denied; see also Sparks v.
State, 983 N.E.2d 221, 224 n.1 (Ind. Ct. App. 2013). Therefore, we choose to
address the merits of Dean’s argument.
[9] The sole issue raised by Dean is whether his decision to proceed without
counsel at his probation revocation hearing was knowing, intelligent, and
voluntary. We review de novo a trial court’s finding that a defendant waived
his right to counsel. Cooper, 900 N.E.2d at 67.
[10] The right to representation by counsel is statutorily guaranteed to those who
face revocation of their probation. Ind. Code § 35-38-2-3(f). And when a
defendant proceeds without counsel, the record must reflect the defendant
knowingly, intelligently, and voluntarily waived his right to counsel. Eaton, 894
N.E.2d at 216-17. “The record must show that the defendant was made aware
Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 5 of 7 of the nature, extent and importance of the right to counsel and to the necessary
consequences of waiving such a right.” Bumbalough v. State, 873 N.E.2d 1099,
1102 (Ind. Ct. App. 2007) (internal quotation marks and citation omitted).
[11] However, a trial court is not required to recite any specific words or phrases to
ensure a defendant appreciates the nature of the situation, Butler, 951 N.E.2d at
259, and both our supreme court and the United States Supreme Court “have
deliberately eschewed any attempt to formulate a rigid list of required warnings,
talismanic language, or formulaic checklist,” Hopper v. State, 957 N.E.2d 613,
619 (Ind. 2011) (citing Iowa v. Tovar, 541 U.S. 77, 88 (2004)). “Rather,
determining if a defendant’s waiver was knowing and intelligent depends on the
particular facts and circumstances surrounding the case, including the
background, experience, and conduct of the accused.” Butler, 951 N.E.2d at
259 (citation omitted). As a reviewing court, we must “conduct a thoughtful
examination of the record as a whole to determine whether a particular
defendant, in a particular stage of a particular case, voluntarily and intelligently
waived his right to counsel.” Hopper, 957 N.E.2d at 619.
[12] Here, an examination of the record establishes Dean was properly advised of
his right to counsel and the panoply of other rights afforded to a person facing
revocation of probation. However, the record does not demonstrate the trial
court advised Dean of the potential consequences if he opted to admit the
State’s allegations without the benefit of counsel. Dean’s act of immediately
requesting an attorney for an appeal once the trial court imposed its sanction
demonstrates Dean did not appreciate or understand the nature of the
Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 6 of 7 proceedings.1 Further, other than this case and an alleged new crime
committed in Madison County, the record does not demonstrate Dean had any
prior experience with the criminal justice system such that he would have
known of this serious potential consequence. Therefore, under the particular
facts and circumstances of this case, we cannot say Dean’s waiver of counsel
was knowing, intelligent, and voluntary.2
Conclusion [13] We conclude Dean’s waiver of counsel was not knowing, intelligent, and
voluntary. Accordingly, we reverse and remand for a new probation revocation
hearing.
[14] Reversed and remanded.
Vaidik, C.J., and Bailey, J., concur.
1 The State argues the trial court’s statement that it would “proceed to sentencing” upon an admission of a violation of probation adequately informed Dean of the potential consequences. Tr. at 5. However, a trial court has multiple sentencing options available when it finds a defendant has violated probation, and some options are more severe than others. See Ind. Code § 35-38-2-3(h). Thus, the trial court’s statement is insufficient to adequately inform Dean of the serious potential consequence that he could be ordered to serve the entirety of his previously suspended sentence. 2 The State urges us to apply a harmless error analysis. See Hammerlund v. State, 967 N.E.2d 525, 529 (Ind. Ct. App. 2012). However, as this court has previously noted, “the United States Supreme Court has held that invalid waivers of counsel are not subject to a harmless error analysis.” Bumbalough, 695 N.E.2d at 999 (citing Penson v. Ohio, 488 U.S. 75 (1988)).
Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 7 of 7