      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

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       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
