        MEMORANDUM DECISION

        Pursuant to Ind. Appellate Rule 65(D),                        Sep 23 2015, 8:28 am
        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
        Steven E. Ripstra                                        Gregory F. Zoeller
        Ripstra Law Office                                       Attorney General of Indiana
        Jasper, Indiana                                          George P. Sherman
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                   IN THE
            COURT OF APPEALS OF INDIANA

        Larry T. Bass,                                           September 23, 2015
        Appellant-Defendant,                                     Court of Appeals Case No.
                                                                 63A01-1502-CR-72
                v.                                               Appeal from the Pike Circuit Court
                                                                 The Honorable Jeffrey L.
        State of Indiana,                                        Biesterveld, Judge
        Appellee-Plaintiff                                       Trial Court Cause No.
                                                                 63C01-1406-FD-238



        Mathias, Judge.


[1]     Larry T. Bass (“Bass”) appeals the order of the Pike Circuit Court revoking his

        probation and ordering him to serve the remainder of his sentence at the

        Indiana Department of Corrections (“DOC”). On appeal, Bass presents two

        Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015   Page 1 of 13
        issues, which we restate as: (1) whether Bass’s waiver of counsel was knowing

        and intelligent, and (2) whether the trial court abused its discretion in ordering

        Bass to serve the remainder of his sentence at the DOC.


[2]     We affirm.

                                      Facts and Procedural History

[3]     On December 8, 2010, Bass pleaded guilty to Class B misdemeanor battery and

        was sentenced to six months suspended to probation. The trial court ordered

        that this sentence be served consecutively to another sentence Bass was serving.


[4]     While he was on probation, Bass was charged with Class D felony failure to

        register as a sex offender. Because of this new offense, the State also alleged that

        Bass violated the terms of his probation.


[5]     The trial court held a plea hearing on July 15, 2014, at which Bass indicated

        that he wished to plead guilty to the Class D felony and admit to the probation

        violation. Before accepting the plea, the following colloquy occurred:

                [COURT]: And I have in front of me this Waiver of Rights and
                         Plea Agreement and it purports to have your
                         signature. Did you, in fact, sign that document?
                [BASS]:          Yes, Your Honor.
                [COURT]: Did you read it before you signed it?
                [BASS]:          Yes sir.
                [COURT]: How far did you go in school?
                [BASS]:          I completed eleventh grade. But I, I earned my
                                 G.E.D.

        Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015   Page 2 of 13
        [COURT]: Okay. So you have no difficulty reading, writing,
                 understanding the English language?
        [BASS]:          No, Your Honor.
        [COURT]: And this agreement calls for you to plead guilty to
                 Count I, Failure to Register as a Sex Offender, in
                 the new case, FD-238 and to enter an admission in
                 regards to your probation, in Cause FC-241, based
                 upon the new charge. Do you understand that?
        [BASS]:          Yes, Your Honor.
                                                      ***
        [COURT]: Both of these cases, you have a right to appear as
                 you are today without an attorney. You have the
                 right to hire an attorney. If you cannot afford an
                 attorney at any stage of the proceedings, the Court
                 would appoint an attorney for you. And do you
                 understand that?
        [BASS]:          Yes, Your Honor.
        [COURT]: And you understand that an attorney would
                 possess skills that you don’t possess as far as
                 understanding the rules of evidence, how to deal
                 with cross- examining witnesses, all that that
                 comes with being a lawyer. Do you understand
                 that?
        [BASS]:          Yes, Your Honor.
        [COURT]: Still your desire today, to proceed without an
                 attorney?
        [BASS]:          Yes.
        [COURT]: Have you had any alcoholic beverages today?
        [BASS]:          No, Your Honor.
        [COURT]: Are you taking any medication?
        [BASS]:          No, Your Honor.

Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015   Page 3 of 13
                [COURT]: Do you feel like you’re thinking clearly and you
                         fully understand these proceedings?
                [BASS]:          Yes, Your Honor.
                [COURT]: Have you, or anybody else close to you, been forced
                         or threatened to cause you to plead guilty and enter
                         this admission here today?
                [BASS]:          No, Your Honor.
                [COURT]: Is the plea of guilty that you’re making and the
                         admission that you’re making, free and voluntary
                         acts of your own choosing?
                [BASS]:          Yes, Your Honor.

        Tr. pp. 4-7 (emphasis added).


[6]     After further advising Bass regarding the rights he would give up by pleading

        guilty, Bass reiterated his desire to plead guilty, and the trial court accepted the

        plea. The trial court found that Bass had violated the terms of his probation by

        failing to report a change of address and by committing another crime. The

        court ordered Bass to serve 180 days executed.

[7]     The court also found that Bass had committed the crime of Class D felony

        failure to register as a sex offender. Pursuant to the plea agreement, the trial

        court sentenced Bass to two years, with one year executed and one year

        suspended to probation. The trial court also ordered that the executed portion

        of the sentence be served in community corrections at the Wabash Valley

        Regional Community Corrections/Work Release Program (“Wabash Valley

        Community Corrections”). At the end of the hearing, the trial court warned

        Bass that the court was “going to give you another chance at probation. If you


        Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015   Page 4 of 13
        violate these terms, you know how that works now. The State will be back in

        here asking that you serve the balance of this sentence.” Tr. pp. 15-16.

[8]     However, Bass did not heed the trial court’s warning. On December 11, 2014,

        Wabash Valley Community Corrections filed a notice of community

        corrections violation, alleging that Bass had failed a drug screen, possessed

        paraphernalia, possessed contraband, ate a cigarette, and acted in an aggressive

        manner toward a staff member. The following day, the State filed a motion to

        revoke Bass’s probation.


[9]     At the December 17, 2014 initial hearing, the trial court again notified Bass of

        his right to counsel and of his right to self representation. After explaining the

        nature of a revocation hearing to Bass, the following exchange occurred:


                [COURT]: You have the right to appear as you are today
                         without an attorney. You have the right to hire an
                         attorney. If you cannot afford an attorney, the Court
                         would appoint an attorney for you. Do you
                         understand these rights?
                [BASS]:          Yes, Your Honor.
                [COURT]: How do you intend on, in proceeding in these
                         matters? Are you going to represent yourself and try
                         to work this out with the State? Are you going to
                         hire an attorney? Are you going to ask the Court to
                         appoint one?
                [BASS]:          I’d rather represent myself and, just talk to the
                                 Prosecutor.
                [COURT]: Okay. I’ll advise you that that’s not a permanent
                         waiver. If at any point in time, you change your
                         mind, you can always take up the matter of counsel

        Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015   Page 5 of 13
                                   with the Court. You understand that? You always
                                   have a right to an attorney.
                 [BASS]:           Yes.

         Tr. p. 21.

[10]     At the revocation hearing held on January 21, 2015, Bass represented himself.

         The State presented one witness, Officer Dusty Baize from Wabash Valley

         Community Corrections. Bass cross-examined Baize, but did not present any

         evidence. Bass argued that his probation could not be revoked because he had

         not yet begun his probationary term.1 He also claimed that his bail was

         excessive and that he was subject to cruel and unusual punishment. The court

         found that Bass violated his probation by committing the additional crimes of

         possession of marijuana and possession of paraphernalia.


[11]     With regard to his sentence, Bass argued that he should serve part of his

         executed sentence in jail, then be released to probation. Bass argued that he was

         not a “bad person.” Tr. p. 61. He admitted to using marijuana “to escape what

         they were doing to me,” but claimed that, if he were to be released, he wouldn’t

         have to “deal with people who are mean to me.” Id. at 61-62. The trial court




         1
           The trial court correctly noted that Bass’s argument in this regard was misplaced, as probation may be
         revoked even before a defendant begins probation. See Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App.
         2005).

         Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015         Page 6 of 13
         rejected Bass’s argument and ordered his probation revoked and that he serve

         the remainder of his sentence in the custody of the DOC.2

[12]     At that point, Bass exclaimed, “I want a lawyer.” Id. at 66. The trial court

         advised Bass of his right to appeal and to have counsel appointed for purposes

         of appeal. Bass then stated, “I want a lawyer for this. Since it’s not done and

         over with.” Id. at 67. The trial court explained, “It is done and over with . . .

         except for you may appeal or file a motion to correct error.” Id. Obviously

         regretting his choice to proceed pro se, Bass stated, “This is illegal. I want a

         lawyer. Please. Don’t sentence me to prison. Please give me a lawyer. I don’t

         understand.” Id. at 68. The court responded, “I just appointed you an attorney.

         The attorney’s information is there. Call the attorney. Talk to the attorney

         about your case.” Id. Bass now appeals.


                                        I. Waiver of Right to Counsel

[13]     Bass first claims that his waiver of his right to counsel was not knowingly and

         intelligently made. A probationer is entitled to certain due process protections

         before probation can be revoked, including the right to counsel. Hodges v. State,

         997 N.E.2d 419, 421 (Ind. Ct. App. 2013) (citing Ind. Code § 35-38-2-3(f) (“The

         person [alleged to have violated probation] is entitled to confrontation, cross-

         examination, and representation by counsel.”).




         2
           The trial court gave Bass credit for 84 days he served in jail and 149 days on work release. Appellant’s App.
         p. 43.

         Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015           Page 7 of 13
[14]     On appeal, we review a trial court’s finding that a defendant waived his right to

         counsel de novo. Jackson v. State, 992 N.E.2d 926, 932 (Ind. Ct. App. 2013), trans.

         denied. Implicit in the right to counsel is the corollary right to self-

         representation. Id. However, before a defendant waives his right to counsel and

         proceeds pro se, the trial court must determine that the defendant’s waiver of

         counsel is knowing, voluntary, and intelligent. Id. (citing Jones v. State, 783

         N.E.2d 1132, 1138 (Ind. 2003)).

[15]     When a defendant asserts his or her right to proceed pro se, the trial court must

         “acquaint the defendant with the advantages to attorney representation and the

         disadvantages and the dangers of self-representation.” Id. Our supreme court

         has stated that the trial court has no specific “talking points” it must follow

         when advising a defendant of the dangers and disadvantages of proceeding

         without counsel; instead, the trial court need only come to a considered

         determination that the defendant is making a knowing, voluntary, and

         intelligent waiver of his or her right to counsel. Id. (citing Poynter v. State, 749

         N.E.2d 1122, 1126 (Ind. 2001)).


[16]     Our supreme court has adopted four factors for trial courts to consider when

         determining whether a defendant has knowingly, voluntarily, and intelligently

         waived his right to counsel: (1) the extent of the court’s inquiry into the

         defendant’s decision, (2) other evidence into the record that establishes whether

         the defendant understood the dangers and disadvantages of self-representation,

         (3) the background and experience of the defendant, and (4) the context of the

         defendant’s decision to proceed pro se. Id. (citing Poynter, 749 N.E.2d at 1127-

         Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015   Page 8 of 13
         28). In making this analysis, the trial court is in the best position to assess

         whether the defendant has made a knowing, voluntary, and intelligent waiver,

         and the trial court’s finding will most likely be upheld if the trial court has made

         the proper inquiries and conveyed the proper information, and reaches a

         reasoned conclusion. Id. (citing Poynter, 749 N.E.2d at 1128).


[17]     Here, Bass admits that the warnings given to him by the trial court during the

         first hearing on July 15, 2014 were sufficient. See Appellant’s Br. p. 7 (“The

         extent of the court’s inquiry during the proceedings on his underlying case were

         sufficient[.]”). However, Bass argues that the subsequent inquiries were

         insufficient. He notes that, during the initial hearing on the petition to revoke

         probation, the trial court asked Bass if he intended to hire an attorney or if he

         wished to have an attorney appointed for him. Bass replied that he would

         “rather represent myself, and just talk to the Prosecutor.” Tr. p. 21. The trial

         court then informed Bass that his waiver of the right to counsel was not

         permanent and that he could request an attorney at any time, and Bass

         indicated that he understood that he “always had the right to an attorney.” Id.


[18]     If the trial court’s inquiry at the initial hearing on the petition to revoke were

         the only thing giving us insight into the validity of Bass’s waiver of the right to

         counsel, we would agree with him that it was insufficient. However, when we

         determine the validity of the waiver of counsel, we may consider the

         advisement given at the earlier hearing, which Bass admits was sufficient. See

         Callahan v. State, 719 N.E.2d 430, 440-41 (Ind. Ct. App. 1999) (holding that

         defendant’s waiver of his right to counsel at second trial was knowing and

         Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015   Page 9 of 13
         intelligent when viewed in context with the warnings given by the trial court

         before the commencement of the first trial).

[19]     Simply said, Bass was advised that he had the right to counsel and could invoke

         this right at any time; that if he could not afford counsel, the court would

         appoint him counsel; and that counsel would have skills and knowledge that

         Bass would not possess regarding trial procedure and the rules of evidence. Bass

         is also a literate adult who had attended high school through eleventh grade and

         obtained his G.E.D. Thus, although Bass did not possess an advanced

         education, nothing in the record suggests that he was educationally

         disadvantaged. Moreover, as a registered sex offender, it is apparent that this

         was not Bass’s first experience with the criminal justice system. Bass, acting

         without an attorney, managed to negotiate a plea agreement on the underlying

         charge for failure to register as a sex offender. Under these facts and

         circumstances, we conclude that Bass’s waiver of his right to counsel was

         knowingly and intelligently made.3 See Callahan, 719 N.E.2d at 441.


                                                     II. Sentencing

[20]     Bass next claims that the trial court abused its discretion in ordering him to

         serve the remainder of his sentence in the DOC. It is well settled that probation




         3
          We reject Bass’s claim that his poor performance at the revocation hearing should be used to judge the
         validity of his waiver of his right to counsel. First, as the State notes, Bass appeared to be relatively well
         prepared for the hearing; he had prepared a legal argument and cited statutes to the trial court. The fact that
         he had difficulty cross-examining a witness or in forming objections may indicate that his decision to proceed
         without counsel was unwise, but it does not mean that his decision was not knowingly or intelligently made.

         Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015          Page 10 of 13
is a matter of grace and a conditional liberty that is a favor, not a right. Cooper v.

State, 917 N.E.2d 667, 671 (Ind. 2009), overruled on other grounds in Heaton v.

State, 984 N.E.2d 614, 616 (Ind. 2013).4 The trial court determines the

conditions of probation and may revoke upon determining that those conditions

were violated. Cooper, 917 N.E.2d 671. The sentencing of a defendant following

a probation violation is governed by Indiana Code section 35-38-2-3(h), which

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.

(emphasis added). Thus, under this statute, the trial court has discretion in

deciding which option is appropriate under the circumstances of each case.

Johnson v. State, 692 N.E.2d 485, 488 (Ind. Ct. App. 1998). Indeed, our supreme

court has held that “[o]nce a trial court has exercised its grace by ordering

probation rather than incarceration, the judge should have considerable leeway



4
  Our supreme court in Heaton clarified that the allegations of a probation violation must be proven by a
preponderance of the evidence, overruling a contrary statement in Cooper that revocation of probation would
be sustained by probable cause to believe that a probation violation had occurred. See Heaton, 984 N.E.2d at
616-17 (citing Cooper, 917 N.E.2d at 674).

Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015        Page 11 of 13
         in deciding how to proceed.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007).

         Accordingly, we review a trial court’s sentencing decision following a probation

         revocation only for an abuse of this discretion. Sanders v. State, 825 N.E.2d 952,

         957 (Ind. Ct. App. 2005). An abuse of discretion will be found only where the

         trial court’s decision is clearly against the logic and effect of the facts and

         circumstances before the court. Prewitt, 878 N.E.2d at 188.


[21]     Here, Bass argues that his prior misconduct while in community corrections

         was punished much more leniently: after four incidents of rules violations5, the

         Wabash Valley Conduct Adjustment Board took away seventy-five days of

         good credit time. The fifth rule violation, however, led to the notice of

         community correction violation, which in turn triggered the State to file the

         motion to revoke probation that led to Bass’s probation being revoked in the

         case on appeal.

[22]     The State argues that Bass’s prior disciplinary history at Wabash Valley merely

         demonstrates that Bass did not respond well to prior showings of lenience, and

         we agree. Further, the final rules violation that led to the probation revocation

         was not a minor, technical violation; Bass smoked marijuana in a Wabash

         Valley restroom, destroyed the evidence, and was found in possession of a




         5
           Before the Wabash Valley Conduct Adjustment Board, Bass was accused of violating rules on several
         occasions: on September 14, 2014, Bass was found in possession of a pipe, two rolled cigarettes, and a razor
         blade; on September 18, 2014, Bass was found in possession of paraphernalia and a small amount of a green,
         leafy substance that was too small to be seized for evidentiary purposes; on November 17, 2014, Bass was
         defiant and found in possession of a cigarette lighter and a rolled cigarette; and on December 9, 2014, Bass
         failed a drug screen.

         Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015        Page 12 of 13
         green, leafy substance. Thus, Bass committed yet another crime at the

         community corrections center itself.

[23]     We further observe that Bass had previously violated the terms of his probation

         on his previous conviction, which led to his placement in community

         corrections. Because Bass had not responded to his previous probation and

         continued to violate the terms of his community corrections placement, we

         cannot say that the trial court abused its discretion by ordering Bass to serve the

         remainder of his two-year sentence in the DOC.6


                                                        Conclusion

[24]     Bass knowingly and intelligently waived his right to counsel, and the trial court

         did not abuse its discretion by ordering Bass to serve the remainder of his

         sentence in the DOC.

[25]     Affirmed.


         Baker, J., and Bailey, J., concur.




         6
           To the extent that Bass argues that his sentence is disproportionally harsh compared to his violation, we
         remind Bass that he was not sentenced for his probation violation; he was sentenced for failing to register as a
         sex offender, which was a Class D felony.

         Court of Appeals of Indiana | Memorandum Decision 63A01-1502-CR-72 | September 23, 2015           Page 13 of 13
