MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any
                                                                   Feb 28 2017, 8:41 am
court except for the purpose of establishing
the defense of res judicata, collateral                                CLERK
                                                                   Indiana Supreme Court
estoppel, or the law of the case.                                     Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kay A. Beehler                                           Curtis T. Hill, Jr.
Terre Haute, Indiana                                     Attorney General of Indiana

                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy F. Watkins,                                      February 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A04-1609-CR-2129
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable John T. Roach,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D01-1602-F6-439
                                                         84D01-1602-F6-323



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 84A04-1609-CR-2129 | February 28, 2017   Page 1 of 5
                                          Case Summary
[1]   Timothy F. Watkins admitted to violating his probation by failing to return to a

      treatment center at the end of a weekend pass. The trial court revoked his

      probation and ordered him to serve the balance of his previously suspended

      sentence. Watkins now appeals, arguing that the trial court should have

      inquired more fully as to the circumstances surrounding his failure to return to

      the treatment center because those circumstances could have impacted its

      decision to revoke his probation. We find that the trial court gave Watkins an

      adequate opportunity to offer mitigating evidence that his violation did not

      warrant revocation and did not need to inquire further. We therefore affirm.



                            Facts and Procedural History
[2]   In June 2016, Watkins pled guilty to Level 6 felony battery by bodily waste in

      Cause No. 84D01-1602-F6-439 and Level 6 felony theft in Cause No. 84D01-

      1602-F6-323. Pursuant to the plea agreement, several other counts, including a

      habitual-offender enhancement, were dismissed. The trial court sentenced

      Watkins to consecutive terms of two years for each conviction, suspended the

      time (except for time served), and placed Watkins on formal probation. See

      Appellant’s App. Vol. II pp. 38-41. The court also ordered Watkins to

      complete treatment at Lighthouse Recovery Center, a nine-month to two-year




      Court of Appeals of Indiana | Memorandum Decision 84A04-1609-CR-2129 | February 28, 2017   Page 2 of 5
      transitional housing/rehabilitation program for addiction, in Washington,

      Indiana.1 Id. at 36.


[3]   Approximately two months later, on Friday, August 5, 2016, Watkins was

      given a forty-eight-hour pass to leave Lighthouse. On Monday, the probation

      department filed a notice of probation violation under both cause numbers

      alleging that Watkins violated his probation by failing to return to Lighthouse.

      A bench warrant was issued for Watkins’ arrest, and he was arrested on that

      warrant on August 15. Watkins, however, was “too intoxicated” to appear in

      court that day, so his initial hearing on the notice of probation violation was

      continued. Id. at 48.


[4]   The next day, Watkins appeared in court for his initial hearing without an

      attorney. After the trial court advised Watkins of his rights, including his right

      to an attorney, Watkins waived them.2 Watkins then explained that he wanted

      to admit to violating his probation and “go ahead with [his] sentence” because

      “[b]ottom line” he “relapsed” and “violated.” Tr. Vol. II p. 4; Tr. Vol. III p. 4.

      The trial court told Watkins that if he admitted to violating his probation, he

      “could go to DOC or the Vigo County Jail for the balance of [his] time,” and

      Watkins said he understood that and was willing to proceed. Tr. Vol. III p. 6.




      1
       Watkins began treatment at Lighthouse before sentencing, on April 11, 2016. See Appellant’s App. Vol. II
      p. 33.
      2
       Watkins does not challenge the waiver of his rights on appeal. Indeed, the trial court strongly encouraged
      Watkins not to represent himself.

      Court of Appeals of Indiana | Memorandum Decision 84A04-1609-CR-2129 | February 28, 2017          Page 3 of 5
      The trial court then asked Watkins if he understood the allegations against him,

      and Watkins said yes. Watkins then elaborated:

              I left on a [forty-eight-hour] pass, and I didn’t have a ride back
              and . . . found out shortly after that – there’s a warrant out for my
              arrest. I walked up to the police Saturday night, Sunday night,
              and turned myself in.


      Id.; see also id. at 4 (“I messed up, relapsed, I left for a weekend.”).


[5]   The trial court revoked Watkins’ probation and “sentenced [him] to the balance

      of his time in the Department of Correction.” Id. at 7; see also Appellant’s App.

      Vol. II pp. 49-50.

[6]   Watkins now appeals.



                                 Discussion and Decision
[7]   Watkins contends that the trial court erred in revoking his probation. Probation

      revocation is a two-step process. First, the trial court must determine that a

      violation of a condition of probation actually occurred. Woods v. State, 892

      N.E.2d 637, 640 (Ind. 2008). Second, the court must determine if the violation

      warrants revocation of probation. Id.


[8]   Where, as here, a probationer admits to the violation, the court can proceed to

      the second step of the inquiry and determine whether the violation warrants

      revocation. Id. But even a probationer who admits the allegations against him



      Court of Appeals of Indiana | Memorandum Decision 84A04-1609-CR-2129 | February 28, 2017   Page 4 of 5
       must still be given an opportunity to offer mitigating evidence suggesting that

       the violation does not warrant revocation. Id.


[9]    Watkins argues that the trial court “should have inquired more fully as to the

       circumstances which surrounded [his] failure to return to treatment at the end

       of [his] week-end pass” because had the court done so, it “may well have”

       decided not to revoke his probation. Appellant’s Br. p. 7, 9 (emphasis added).

       We, however, find that the trial court gave Watkins an adequate opportunity to

       offer mitigating evidence that his violation did not warrant revocation and did

       not need to inquire further. Watkins explained that, two months after being

       ordered to complete treatment at Lighthouse, he was given a forty-eight-hour

       pass, left the center, “messed up,” “relapsed,” and then was arrested on a

       warrant a week after the pass expired (at which point he was too intoxicated to

       appear in court). Tr. Vol. III p. 4. In addition, Watkins did not ask for an

       opportunity to present additional testimony about his progress at Lighthouse up

       to that point or the circumstances surrounding his relapse, nor does he tell us

       what that testimony would have been had he asked for and been given such an

       opportunity. We therefore affirm the revocation of Watkins’ probation and the

       imposition of the balance of his previously suspended sentence.


[10]   Affirmed.

       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A04-1609-CR-2129 | February 28, 2017   Page 5 of 5
