                                                                                FILED
                                                                           Aug 01 2018, 9:57 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      R. Thomas Lowe                                             Curtis T. Hill, Jr.
      Vissing Law LLC                                            Attorney General of Indiana
      Jeffersonville, Indiana
                                                                 Ian McLean
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Scott A. Hall,                                             August 1, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 17A-CR-3022
              v.                                                 Appeal from the Clark Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Vicki L.
      Appellee-Plaintiff.                                        Carmichael, Judge
                                                                 Trial Court Cause No.
                                                                 10C04-1107-FA-43



      Najam, Judge.


                                        Statement of the Case
[1]   Scott A. Hall appeals the trial court’s revocation of his placement in community

      corrections. He raises two issues for our review, which we revise and restate as

      follows:
      Court of Appeals of Indiana | Opinion 17A-CR-3022 | August 1, 2018                            Page 1 of 10
              1.       Whether the trial court lacked jurisdiction to hold a
                       hearing on the petition to revoke his placement in
                       community corrections because the petition had been filed
                       by a deputy prosecutor instead of the director of the
                       community corrections program.

              2.       Whether the trial court committed fundamental error
                       when it revoked his placement in community corrections.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On July 7, 2011, the State charged Hall with burglary, as a Class A felony, in

      Cause Number 10D01-1107-FA-43 (“FA-43”). Following a trial, a jury found

      him guilty as charged, and the trial court entered its judgment of conviction.

      Thereafter, “pursuant to an agreement reached by the parties,” the trial court

      sentenced Hall to twenty years, all to be served in a home incarceration

      program through community corrections. Appellant’s App. Vol. III at 59.


[4]   On July 14, 2016, the State charged Hall with attempted robbery, as a Level 3

      felony, and battery, as a Class A misdemeanor, in Cause Number 72C01-1607-

      F3-11 (“F3-11”) for crimes that Hall had committed on July 8. Accordingly, on

      October 24, the State, by the deputy prosecuting attorney and at the request of

      Hall’s probation officer, filed a petition to revoke Hall’s placement in the home

      detention program in FA-43. Specifically, the State alleged that Hall had

      violated the terms of his placement when he had committed the crimes of

      robbery and battery on July 8.


      Court of Appeals of Indiana | Opinion 17A-CR-3022 | August 1, 2018         Page 2 of 10
[5]   On September 19, 2017, Hall pleaded guilty to robbery, as a Level 5 felony, in

      F3-11. Thereafter, the trial court held a hearing on the State’s petition to revoke

      Hall’s placement in community corrections in FA-43. During that hearing,

      Hall admitted to the alleged violation. The trial court accepted Hall’s

      admission and found that he had violated the terms of his home incarceration

      program. The court then heard evidence concerning Hall’s sentence. Hall

      offered, and the trial court admitted, a letter from the community corrections

      program in which it recommended that Hall remain in community corrections.

      At the conclusion of the hearing, the trial court revoked Hall’s placement in the

      community corrections program and ordered him to serve the balance of his

      previously suspended sentence in the Department of Correction. This appeal

      ensued.


                                      Discussion and Decision
                             Issue One: Jurisdiction to Hear the Petition

[6]   Hall first contends that the trial court abused its discretion when it held the

      hearing on the State’s petition to revoke his placement in community

      corrections. Specifically, Hall asserts that the petition was not properly before

      the trial court because the deputy prosecuting attorney, at the request of the

      probation officer, had filed the petition when the petition could only be filed by

      the director of the community corrections program. To support his assertion,

      Hall relies on Indiana Code Section 35-38-2.6-5 (2018), which provides that, if a

      person who is placed in a community corrections program violates the terms of



      Court of Appeals of Indiana | Opinion 17A-CR-3022 | August 1, 2018         Page 3 of 10
      the placement, “the community corrections director may . . . [r]equest that the

      court revoke the placement[.]”1


[7]   But, here, the community corrections director did not file the petition. Instead,

      the deputy prosecuting attorney, at the request of Hall’s probation officer, filed

      the petition to revoke Hall’s placement in community corrections. Hall

      therefore asserts that the trial court “lacked any jurisdiction” to hold a hearing

      on the State’s petition to revoke his placement in community corrections.


[8]   But we need not decide whether there might have been any error in the filing of

      the petition by the prosecuting attorney instead of the director of community

      corrections because we hold that any potential error was a procedural, not

      jurisdictional, error and that Hall did not preserve the issue for our review. In

      reaching this conclusion, we rely on our Supreme Court’s decisions in K.S. v.

      State, 849 N.E.2d 538 (Ind. 2006), and Packard v. Shoopman, 852 N.E.2d 297

      (Ind. 2006), which we find to be instructive.




      1
        Hall also relies on Morgan v. State, 87 N.E.3d 506, 509 (Ind. Ct. App. 2017), trans. denied, to support his
      assertion that only the community corrections director can file the petition to revoke his placement. But, in
      Morgan, this court analyzed whether a statutory change made by the Indiana General Assembly in 2015 to
      Indiana Code Section 35-38-2.6-5 was unconstitutional. Prior to 2015, the statute provided that “the court
      may” change the terms of the placement, continue the placement, or revoke the person’s placement if the
      person violates the terms of the community corrections program. Ind. Code § 35-38-2.6-5 (2014). However,
      the statute now provides that “the community corrections director may” change the terms of placement,
      continue the placement, reassign the person to a different program, or request that the court revoke a person’s
      placement if the person violates the terms of the community corrections program. I.C. § 35-38-2.6-5 (2018).
      This court held that the revised statute was not an unconstitutional violation of separation of powers because
      “it remains the trial court’s duty to determine whether revocation will be ordered.” Morgan, 87 N.E.3d at
      510. Thus, Morgan is not controlling, and Hall’s reliance on Morgan is misplaced.

      Court of Appeals of Indiana | Opinion 17A-CR-3022 | August 1, 2018                                Page 4 of 10
[9]    In K.S., a juvenile sought to set aside his delinquency adjudication because the

       trial court had not approved the filing of the delinquency petition. K.S., 849

       N.E.2d at 541. As such, the juvenile claimed that the court lacked jurisdiction

       to hear the case. Id. On appeal, our Supreme Court noted that “[a]ttorneys and

       judges alike frequently characterize a claim of procedural error as one of

       jurisdictional dimension. The fact that a court may have erred along the course

       of adjudicating a dispute does not mean it lacked jurisdiction.” Id. The court

       further explained that “[r]eal jurisdictional problems would be, say, a juvenile

       delinquency adjudication entered in a small claims court, or a judgment

       rendered without any service of process.” Id. at 542 (emphasis in original).

       The court noted that “‘[t]he question of subject matter jurisdiction entails a

       determination of whether a court has jurisdiction over the general class of

       actions to which a particular case belongs’” and that the juvenile court had

       exclusive jurisdiction over cases involving juvenile delinquency. Id. (quoting

       Troxel v. Troxel, 737 N.E.2d 745, 749 (Ind. 2000)). Thus, our Supreme Court

       held that the juvenile’s claim was one of procedural error and that the trial court

       had jurisdiction over the case. Id.


[10]   And in Packard, a taxpayer appealed the assessment of his real property. 852

       N.E.2d at 928. The Indiana Board of Tax Review denied the taxpayer’s appeal,

       and the taxpayer petitioned the Tax Court to review the board’s decision. Id.

       The Assessor moved to dismiss the taxpayer’s appeal on the ground that the

       taxpayer had failed to file the petition for judicial review within the statutorily

       mandated timeframe and, thus, that the Tax Court lacked subject matter

       Court of Appeals of Indiana | Opinion 17A-CR-3022 | August 1, 2018         Page 5 of 10
       jurisdiction to hear the appeal. Id. at 929. Our Supreme Court concluded that

       the “timely filing of a complaint in the Tax Court is ‘jurisdictional’ only in the

       sense that it is a statutory prerequisite to the docketing of an appeal in the Tax

       Court[.]” Id. at 931. That court further held that “[t]imely filing relates neither

       to the merits of the controversy nor the competence of the court to resolve it.”

       Id. at 932. And “[b]ecause the timeliness of filing does not affect the subject

       matter jurisdiction of the Tax Court, any objection to the timeliness of filing is a

       procedural rather than jurisdictional error that can be waived if not raised at the

       appropriate time.” Id. at 931-32.


[11]   Here, the filing of a petition to revoke a person’s placement in a community

       corrections program by the appropriate person is similarly “jurisdictional” only

       in the sense that it is a statutory prerequisite to the filing of the petition. See id.

       at 931. The position of the person who filed the petition relates neither to the

       merits of the controversy or the competence of the court to resolve it. See id. at

       932. Further, there is no question that the trial court had jurisdiction over the

       general class of actions to which the petition belongs. See K.S., 849 N.E.2d at

       542. Indeed, “[a]ll circuit courts have . . . original and concurrent jurisdiction

       in all civil cases and in all criminal cases[.]” I.C. § 33-28-1-2.


[12]   Accordingly, we hold that any error in the filing of the petition to revoke Hall’s

       placement in community corrections by the prosecuting attorney instead of the

       director of community corrections would have been a procedural error and not

       a jurisdictional error. To preserve appellate review of a procedural error, Hall

       was required to properly object to the error in the trial court, which he did not

       Court of Appeals of Indiana | Opinion 17A-CR-3022 | August 1, 2018            Page 6 of 10
       do. Thus, he has not preserved for our review the merits of his claim on this

       issue.2


                                      Issue Two: Revocation of Placement

[13]   Hall next contends that the trial court committed fundamental error when it

       revoked his placement because he “was never properly advised of the

       allegations against him because of numerous factual errors and incorrect law

       [sic] that were contained in the petition[.]” Appellant’s Br. at 6. Specifically,

       Hall asserts that the petition contained the following factual and legal

       inaccuracies: 1) the petition included numerous references to violations of the

       probation home detention program even though Hall was in the community

       corrections program; 2) the petition cited to an outdated version of the

       community corrections statute; 3) the petition referenced a plea agreement, but

       Hall was convicted following a jury trial; 4) the petition cited a statute

       governing probation proceedings; and 5) the petition was signed by the chief

       probation officer instead of the director of the community corrections program.


[14]   Hall acknowledges that he “did not object to any of the due process issues,

       either statutory or constitutional, in the proceedings below and therefore they




       2
          Because Hall did not preserve the issue for our review, he could only prevail on appeal if he could establish
       that the trial court committed fundamental error. Fundamental error requires the appellant to demonstrate
       that the alleged error constituted a blatant violation of elementary principals of due process. See Taylor v.
       State, 86 N.E.3d 157, 162 (Ind. 2017). However, Hall did not make a claim of fundamental error on this
       issue in his principal brief. Instead, he asserted it for the first time in his reply brief. “[P]arties may not raise
       an issue, such as fundamental error, for the first time in a reply brief.” Curtis v. State, 948 N.E.2d 1143, 1149
       (Ind. 2011). As such, he has waived any purported issue of fundamental error he may have had. See id.

       Court of Appeals of Indiana | Opinion 17A-CR-3022 | August 1, 2018                                      Page 7 of 10
       have not been properly preserved for appeal.” Id. at 5. Thus, to prevail on

       appeal, Hall must establish that the trial court committed fundamental error.


[15]   To prove fundamental error, Hall must “‘show that the trial court should have

       raised the issue sua sponte due to a blatant violation of basic and elementary

       principles, undeniable harm or potential for harm, and prejudice that makes a

       fair trial impossible.’” Taylor v. State, 86 N.E.3d 157, 162 (Ind. 2017) (quoting

       Harris v. State, 76 N.E.3d 137, 140 (Ind. 2017)). “A ‘finding of fundamental

       error essentially means that the trial judge erred . . . by not acting when he or

       she should have,’ even without being spurred to action by a timely objection.”

       Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014) (quoting Whiting v. State, 969

       N.E.2d 24, 34 (Ind. 2012)) (omission original to Brewington).


[16]   Hall contends that he was denied due process because he did not receive written

       notice of the claimed violations against him. It is well settled that, “[w]hen the

       State seeks to revoke a defendant’s placement in a Community Corrections

       Program, the defendant is ‘not entitled to the full due process rights afforded a

       defendant in a criminal proceeding.’” Pope v. State, 853 N.E.2d 970, 972 (Ind.

       Ct. App. 2006) (quoting Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App.

       1997)). Nonetheless, “a defendant in a community corrections program is

       entitled to representation by counsel, written notice of the claimed violations,

       disclosure of the opposing evidence, an opportunity to be heard and present

       evidence, and the right to confront and cross-examine witnesses in a neutral

       hearing before the trial court.” Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999)

       (emphasis added).

       Court of Appeals of Indiana | Opinion 17A-CR-3022 | August 1, 2018            Page 8 of 10
[17]   Hall specifically contends that he did not receive written notice of the claimed

       violation because “the right to written notice of the violations includes the right

       to have an accurate representation of the allegation and the law pertaining

       thereto.” Appellant’s Br. at 10. In essence, Hall asserts that he was denied due

       process because the petition to revoke his placement contained factual and legal

       inaccuracies. We cannot agree.


[18]   While the petition to revoke his placement in community corrections did

       contain some inaccuracies, none of those inaccuracies related to the violations

       of the community corrections program that the State claimed Hall had

       committed. Indeed, the petition clearly outlined the claimed violations.

       Specifically, the State alleged that Hall had failed to follow the rules of his

       program when he committed a subsequent crime. Accordingly, Hall was given

       notice of the claimed violations so that he was able to prepare his defense. See

       Thompson v. State, 761 N.E.2d 467, 470 (Ind. Ct. App. 2002) (“it is well-

       established that due process requires that a defendant be given notice of the

       crime or crimes with which he is charged so that he can prepare his defense”).

       Further, Hall had an opportunity to defend himself during the hearing on the

       petition to revoke his placement. But instead of asserting a defense, Hall

       affirmatively admitted the allegation contained within the petition.3




       3
         Hall briefly asserts that his rights were violated because he was never advised as to how his actions violated
       the rules of the community corrections program and because the rules of the program were never presented as
       evidence during the hearing. But, during the hearing, Hall affirmatively acknowledged that the program had
       particular rules and regulations, including a rule against committing another criminal offense, and that he
       had violated that rule when he committed the subsequent robbery offense. Tr. Vol. II at 5-6. Further, “the

       Court of Appeals of Indiana | Opinion 17A-CR-3022 | August 1, 2018                                 Page 9 of 10
[19]   Hall received written notice of the claimed violation. As such, the trial court

       did not deprive Hall of his due process rights when it revoked his placement in

       community corrections. Consequently, Hall has not demonstrated that the trial

       court committed fundamental error.


[20]   In conclusion, we hold that any error in the filing of the petition to revoke

       Hall’s placement by the deputy prosecutor instead of the director of community

       corrections was a procedural, not a jurisdictional, error. And Hall did not

       preserve our review of the merits of that issue on appeal because he failed to

       raise it in the trial court. We also hold that the trial court did not commit

       fundamental error when it held a hearing on the State’s petition to revoke his

       placement despite the fact that the petition contained inaccuracies because Hall

       received written notice of the specific claimed violation against him, which

       enabled him to prepare a defense. As such, we affirm the trial court’s order.


[21]   Affirmed.


       Crone, J., and Pyle, J., concur.




       commission of a crime while serving time in the community corrections program is always grounds for
       revocation, even if the sentencing court fails to notify the person of such condition.” Decker v. State, 704
       N.E.2d 1101, 1103 (Ind. Ct. App. 1999).

       Court of Appeals of Indiana | Opinion 17A-CR-3022 | August 1, 2018                                  Page 10 of 10
