Pursuant to Ind. Appellate Rule 65(D), this                             Jul 30 2013, 7:35 am
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:

JILL M. ACKLIN                                   GREGORY F. ZOELLER
Acklin Law Office, LLC                           Attorney General of Indiana
Westfield, Indiana
                                                 J.T. WHITEHEAD
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ROBERT MARKS,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 62A01-1212-CR-591
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE PERRY CIRCUIT COURT
                          The Honorable Lucy Goffinet, Judge
                            Cause No. 62C01-0809-FD-816



                                       July 30, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
        In this case, the appellant-defendant, Robert Marks, appeals the revocation of his

probation based on his allegedly invalid guilty plea to a probation violation. Specifically,

Marks argues that the record failed to establish that he knowingly, voluntarily, and

intelligently waived his right to counsel at the revocation hearing. Marks further asserts

that the evidence was insufficient to support the probation revocation.

        The State cross-appeals, claiming that we must dismiss this appeal because Marks

may only challenge the voluntariness of his guilty plea in a probation revocation

proceeding by way of post-conviction relief and not on direct appeal. However, we

believe that the issue of whether Marks voluntarily, knowingly, and intelligently waived

his right to counsel at the probation revocation hearing does not have to be addressed on

post-conviction relief. Thus, we address Marks’s arguments on their merits and conclude

that the record demonstrates that Marks’s waiver of his right to counsel was voluntarily,

knowingly, and intelligently made.

        We further conclude that the evidence was sufficient to support the revocation of

Marks’s probation. Indeed, Marks admitted to the violations, and the trial court heard

evidence of the violations at the revocation hearing. Thus, we affirm the judgment of the

trial court.

                                          FACTS

        On December 16, 2009, the State filed a notice of probation violation against

Marks under Cause FD-816, for testing positive for the presence of alcohol on his breath.

Marks had pleaded guilty to resisting law enforcement and public intoxication under that

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cause, where he received a suspended sentence and was placed on probation. Following

an admission to the violation, the trial court, on January 24, 2011, ordered Marks to

continue probation with additional conditions.

          However, prior to the issuance of that order, the State had filed another notice of

violation of probation in the same cause on February 12, 2010, which alleged that Marks

had been charged with strangulation and domestic battery in cause number FD-83.

          On March 21, 2012, the State filed yet another notice of probation violation,

alleging that Marks was charged under cause FD-215 in Dubois County with operating a

vehicle as a habitual traffic violator, operating a vehicle while intoxicated, operating a

vehicle while intoxicated endangering another person, and operating a vehicle with an

ACE of .15 or more.1

          A hearing on that notice of violation was held on July 11, 2012, where Marks

appeared pro se. At that hearing, the trial court informed Marks of his rights, including

the right to counsel. The trial court also stated that it would appoint an attorney to

represent Marks if he could not afford one. Marks was also informed of other rights,

including the State’s burden, the right to remain silent, and the right to present evidence

and face his accusers. Marks indicated that he worked forty hours per week at a masonry

company at an hourly rate of $13.50. Marks acknowledged that he understood his rights

and the trial judge indicated:




1
    Marks was charged with these offenses on March 9, 2012.
                                                    3
      I will show that Mr. Marks no longer qualifies for court Appointed
      Counsel. But I will still give you until September the 6th to find an
      attorney, okay? . . . In [Case 384 and Case 385], [the court-appointed
      attorney] is not going to represent you anymore. You will either need to
      hire [the court-appointed attorney] or represent yourself or you can hire an
      attorney of your choosing.

Appellant’s App. p. 7.

      At that same hearing, Marks requested the trial court to dispose of all other

pending causes against him, which included charges filed under CM-384 and CM-385.

CM-384 involved charges of domestic battery and criminal mischief, and the charges

filed under CM-385 were offenses of public intoxication and resisting law enforcement.

Marks proceeded pro se for the remainder of the hearing.

      The trial court conducted a status hearing on September 6, 2012, in FD-816, CM-

385, and CM-384. At that hearing, Marks informed the trial court that he and the State

had reached an agreement and that a plea agreement was pending. The plea agreement

informed Marks that he had the right to counsel and that if he could not afford an

attorney, the trial court would appoint one to represent him.      Marks and the State

executed the plea agreement on October 15, 2012.

      At a hearing on October 24, 2012, at which Marks proceeded pro se, the trial court

acknowledged that Marks had signed a plea agreement. Marks admitted that he violated

the terms of his probation in FD-816, and he admitted to the truth of the facts that were

alleged in CM-385. More particularly, Marks admitted that on June 7, 2012, at 1665 13th

Street, in Tell City, he damaged some property while drunk and resisted law enforcement


                                           4
officers.   Marks purportedly read the plea agreement, which contained all of the

conditions agreed to between himself and the State. The agreement called for the trial

court to determine what sentence should be imposed in FD-816 and informed Marks that

he had the right to counsel, and that if he could not afford an attorney that one would be

appointed to represent him.

       Thereafter, the trial court conducted a probation revocation hearing on November

21, 2012. At that hearing, Marks admitted that he had pleaded guilty to the charges that

were alleged in FD-215. Those charges formed the basis of Marks’s notice of probation

violation that had been filed in March 2012.

       The trial court found that Marks had violated the terms of his probation and

ordered him to serve two years of his previously suspended three-year sentence. Marks

now appeals.

                              DISCUSSION AND DECISION

                              I. Waiver of Right to Counsel

       Marks argues that the probation revocation must be set aside because the trial

court did not adequately inquire into whether he knowingly, intelligently, and voluntarily

waived his right to counsel. Marks claims that the trial court’s failure to inquire about

“his right to counsel constitutes a deprivation of Due Process.” Appellant’s Br. p. 9.

       We initially observe that the State asserts on cross-appeal that Marks’s challenge

to the validity of the revocation of probation following a guilty plea must be brought by a

petition for post-conviction relief rather than on direct appeal. See Tumulty v. State, 666

                                               5
N.E.2d 394, 396 (Ind. 1996) (holding that post-conviction relief, and not a direct appeal,

is the vehicle for challenging a conviction that is the result of a guilty plea). Also, in

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.

       More specifically, in Huffman it was observed that

       Post-Conviction Rule 1(1)(a)(5) provides a remedy for Huffman’s claim,
       stipulating that post-conviction relief is available to any person who has
       been convicted and who asserts that his probation was unlawfully revoked.
       Furthermore, section (b) of the same rule expressly states that “[e]xcept as
       otherwise provided in this Rule, it comprehends and takes the place of all
       other common law, statutory, or other remedies heretofore available for
       challenging the validity of the conviction or sentence and it shall be used
       exclusively in place of them.”

Id. at 659.

       Notwithstanding the decision in Huffman and our Supreme court’s holding in

Tumulty, which applies to challenging the validity of a conviction based on a guilty plea,

several cases on direct appeal have addressed the issue of whether a defendant

knowingly, voluntarily, and intelligently waived the right to counsel in a probation

revocation proceeding. Sparks v. State, 983 N.E.2d 221 (Ind. Ct. App. 2013); Butler v.

State, 951 N.E.2d 255 (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). In light of

these decisions that have addressed the claim that Marks raises on direct appeal, we

decline to adopt the State’s position. Thus, we will proceed to address Marks’s claims on

their merits.


                                            6
       The Sixth Amendment to the United States Constitution and Article 1, Section 13

of the Indiana Constitution both guarantee a criminal defendant the right to counsel.

Faretta v. California, 422 U.S. 806, 845 (1975); Jones v. State, 783 N.E.2d 1132, 1138

(Ind. 2003).      To waive this constitutional right, a defendant “must ‘knowingly and

intelligently’ forgo those relinquished benefits” provided by counsel and be advised of

the potential pitfalls surrounding self-representation so that it is clear that “he knows

what he is doing and [that] his choice is made with eyes open.” Hopper v. State, 957

N.E.2d 613, 618 (Ind. 2011). While there are no magic words that a judge must utter to

ensure that a defendant adequately appreciates the nature of the situation, determining

whether 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.” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

       In determining whether a defendant has adequately waived the right to counsel, we

consider the following factors: “‘(1) the extent of the court’s inquiry into the defendant’s

decision, (2) other evidence in 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. ’” Hopper, 957 N.E.2d at 618 (quoting Poynter v. State, 749 N.E.2d 1122, 1127-

28 (Ind. 2001).

       Turning to the circumstances here, including Marks’s background, experience, and

conduct, the record demonstrates that the trial court informed him of his right to counsel

                                             7
at the initial hearing on the probation violations. Tr. p. 4. The plea agreement also

informed Marks of those rights, and he acknowledged that he understood them.

Appellant’s App. p. 410-44.      Marks’s dialogues with the trial court concerning his

employment status, and his ability to qualify for court-appointed counsel also

demonstrate that Marks understood the difference between qualifying for appointed

counsel and not qualifying for appointed counsel. Tr. p. 6, 14.

       We further note that Marks’s background establishes that he has extensive

experience in our judicial system, including the courtroom setting. Appellant’s App. p.

27, 29, 36. In light of these circumstances, the record supports the determination that

Marks clearly understood his right to be represented by counsel and the pitfalls of self-

representation. As a result, we find that Marks’s waiver of his right to counsel and his

decision to proceed pro se were made voluntarily, knowingly, and intelligently.

Therefore, Marks’s claim fails, and we decline to set aside the revocation of his probation

on this basis.

                            II. Revocation of Probation—Sufficiency

       Marks further claims that the State failed to present sufficient evidence to support

the revocation of his probation. Marks argues that the revocation cannot stand because it

was “based upon an act that was different, albeit similar, to the violation alleged in the

notice [of violation].” Appellant’s Br. p. 11.

       We first note that probation is a favor granted by the State, not a right to which a

defendant is entitled. Butler v. State, 951 N.E.2d 255, 259 (Ind. Ct. App. 2011). While a

                                             8
defendant is entitled to due process in a probation revocation proceeding, he is not

entitled to all the rights he enjoyed before the underlying criminal conviction, such as the

applicability of the rules of evidence or an elevated burden of proof. Id. A probation

revocation hearing is in the nature of a civil proceeding and, therefore, a violation need

only be proven by a preponderance of the evidence. Washington v. State, 758 N.E.2d

1014, 1017 (Ind. Ct. App. 2001). A trial court may revoke a defendant’s probation upon

evidence of the violation of any single term of probation. Id. If there is substantial

evidence of probative value to support the trial court’s decision that the probationer is

guilty of a violation, revocation is appropriate. Id.

       Here, Marks asserts that the revocation cannot stand because the terms upon which

his probation was revoked were not the terms that were proven at the hearing on October

24, 2012. However, Marks apparently overlooks the fact that the plea agreement that he

entered into specifically included his admission that he violated the terms of his

probation. Appellant’s App. p. 40-41. Moreover, before the trial court revoked Marks’s

probation, it heard evidence of the charges and guilt in both the notice of violation that

was filed on March 21, 2012, as well as the evidence of the charges and guilt in CM-385.

Tr. p. 18-23. In other words, Marks admitted his guilt and the existence of charges from

both causes, which was proper and consistent with the notice of the probation violation.

As a result, Marks has failed to show that his rights were violated or that the trial court’s

revocation of his probation was improper.         Therefore, we decline to set aside the

revocation.

                                              9
      The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.




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