ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Anthony C. Lawrence                                       Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana            FILED
                                                                                            Aug 10 2017, 8:39 am
                                                          George P. Sherman
                                                          Deputy Attorney General                CLERK
                                                                                             Indiana Supreme Court
                                                          Indianapolis, Indiana                 Court of Appeals
                                                                                                  and Tax Court




                                           IN THE
    COURT OF APPEALS OF INDIANA

Derek Hutchison,                                          August 10, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          48A02-1702-CR-340
        v.                                                Appeal from the Madison Circuit
                                                          Court
State of Indiana,                                         The Honorable Mark Dudley,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          48D01-0605-FB-118



Bradford, Judge.




Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017               Page 1 of 16
                                           Case Summary
[1]   In 2006, Appellant-Respondent Derek Hutchison pled guilty but mentally ill to

      Class B felony rape. In exchange for Hutchison’s guilty plea, Appellee-

      Petitioner the State of Indiana (“the State”) agreed to dismiss other pending

      charges. The trial court accepted Hutchison’s guilty plea and sentenced him to

      a term of twenty years, with fifteen years executed in the Department of

      Correction (“DOC”) and five years suspended to probation.


[2]   On November 4, 2016, the State filed a petition alleging that Hutchison had

      violated the terms of his probation by committing several new criminal offenses,

      including unlawful entry by a serious sex offender. An evidentiary hearing was

      conducted on January 10, 2017, at which Hutchison was represented by an

      attorney. At the conclusion of the hearing, the trial court found that Hutchison

      had violated the terms of his probation. Thereafter, the trial court revoked

      Hutchison’s probation and ordered him to serve the entire five-year, previously-

      suspended sentence. Neither Hutchison, who claims to suffer from mental

      illness, nor his attorney requested a competency hearing at any time before or

      during the evidentiary hearing.


[3]   On appeal, Hutchison contends that the trial court committed fundamental

      error by failing to conduct a competency hearing before revoking his probation.

      Concluding otherwise, we affirm.



                            Facts and Procedural History

      Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017   Page 2 of 16
[4]   Our memorandum decision in Hutchinson’s prior direct appeal, which was

      handed down on November 16, 2007, instructs us to the underlying facts and

      procedural history which have led to the instant probation revocation

      proceeding:


              On February 14, 2006, eighteen-year-old Hutchison accompanied
              his mother to St. Joseph’s Hospital in Anderson after she
              complained of a fever. At some point that evening or after
              midnight, Hutchison began roaming around the hospital.
              Initially, he entered the room of eighty-five-year-old patient L.A.
              L.A. awoke to find Hutchison sitting on her bed and rubbing his
              hand across her face. L.A. stated she “fear[ed] for her life.”
              Appellant’s Appendix at 76. As he left her bedside, Hutchison
              ran his hand along L.A.’s breast.

              Shortly after leaving L.A.’s room, Hutchison entered the room of
              ninety-two-year-old L.E., also a patient at the hospital. L.E. was
              comatose and had various medical devices assisting her,
              including an IV, an oxygen machine, and a waste extraction
              tube. After attempting to wake L.E., Hutchison lifted L.E.’s
              hospital gown, climbed on top of her, and had vaginal
              intercourse with her for approximately two to three minutes.

              Anderson police officers responding to these incidents found
              Hutchison hiding in a basement office of the hospital. The door
              to the office was locked, but Hutchison had gained access by
              climbing over a wall that separated the office from the hospital’s
              common area. When officers apprehended Hutchison, he was
              carrying a plastic tub that contained various items, including
              personal planners, soft drinks, candy, and music CDs, all of
              which were hospital property.

              The State charged Hutchison with burglary, a Class C felony;
              theft, a Class D felony; and sexual battery, a Class D felony,
              based on the incidents in the basement office and with L.A.

      Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017    Page 3 of 16
        Shortly thereafter, the State charged Hutchison with rape, a Class
        B felony, based on the incident with L.E. The parties agreed that
        Hutchison would plead guilty to the rape charge and that the
        State would dismiss the burglary, theft, and sexual battery
        charges. Sentencing was left to the trial court’s discretion, except
        that the executed portion of Hutchison’s sentence could not
        exceed fifteen years.

        After accepting Hutchison’s plea of guilty but mentally ill, the
        trial court conducted a sentencing hearing. Thereafter the trial
        court issued a sentencing statement, which reads in relevant part
        as follows:


                The Court finds aggravation: 1) Prior juvenile
                criminal and delinquent acts; 2) The defendant is in
                need or correctional and/or rehabilitative services
                that can best be provided by commitment to a penal
                facility; 3) The advanced age of the victim; 4) The
                victim was physically infirm at the time of the instant
                offense; and 5) Prior attempts at rehabilitation have
                not been successful. The Court finds mitigation: 1)
                The defendant plead [sic] guilty to the Instant
                Offense, saving the State the time and cost of a trial;
                2) Defendant has a pattern of mental illness and
                diagnosis, none of which constitutes a defense; and 3)
                Defendant’s highly dysfunctional home environment
                and a life of instability.

        Id. at 113. Based on these findings, the trial court sentenced
        Hutchison to a total sentence of twenty years, with fifteen years
        executed and five suspended.


Hutchison v. State, 48A02-1611-CR-1059, *1-2 (Ind. Ct. App. Nov. 16, 2007)

(footnote omitted). Hutchinson’s sentence was affirmed on direct appeal. Id. at



Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017   Page 4 of 16
*4. In affirming Hutchinson’s sentence, we noted the following about his

mental state:


        The record discloses a history of psychiatric treatment and
        mental illness. The PSI states Hutchison was diagnosed with
        Attention Deficit Hyperactivity Disorder when he was three
        years old and, following an evaluation, was recommended for
        placement in a psychiatric facility as early as 2002. However,
        two psychiatric evaluations prepared for a competency hearing
        conclude Hutchison “is capable of determining right from wrong
        and can understand the wrongfulness of his behavior ....,”
        appellant’s app. at 79, and that although Hutchison “presents
        himself as someone who is unable to control behavior and does
        not even remember his behavior.... [H]e was able to understand
        the wrongfulness of the conduct at the time of the offense and
        does not have a psychiatric disorder that interferes with that,” id.
        at 83.

        Moreover, Hutchison’s statements at the sentencing hearing do
        not indicate any nexus between his mental illness and the
        offense. Describing his illness as a “demonic spirit,” Hutchison
        initially credited, but ultimately disavowed, his illness’s role in
        the commission of the crime:

                What I feel I did was wrong, stupid, it was out of this
                world. I mean, sometimes I feel like it was a
                demonic spirit pulling me in and I had smoked, I
                mean, I had a [sic] very first experience with
                marijuana that day, had smoked like a quarter of a
                joint, but I do not use that as an excuse for my
                behavior. Nothing is. Not even the demonic spirit.
                What I did was completely intentional and I take full
                responsibility for it.

        Id. at 150.


Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017      Page 5 of 16
      Id. at *3. Hutchison was released from incarceration and placed on probation

      on or about October 21, 2016.


[5]   On November 4, 2016, the State filed a petition alleging that Hutchison had

      violated the terms of his probation by committing several new criminal offenses,

      including unlawful entry by a serious sex offender. An evidentiary hearing was

      conducted on January 10, 2017, at which Hutchison was represented by an

      attorney. It is of note that neither Hutchison nor his attorney requested a

      competency hearing at any time before or during the evidentiary hearing.


[6]   During the evidentiary hearing, the State presented evidence indicating that on

      November 1, 2016, Elwood Police Officer Sherry Wright was working as a

      school resource officer at Elwood Junior-Senior High School when she

      encountered Hutchison. Hutchison came into the school office during school

      hours, identified himself as Mitchel Cruz, and indicated that he had come to

      speak with a student, M.R. When asked how he had gotten into the school,

      Hutchison indicated that “another student had let him in.” Tr. Vol. II, p. 33.

      Hutchison left the school after Officer Wright advised him that the school

      officials “didn’t pull kids out of a classroom just to come down and speak with

      other people in the office.” Tr. Vol. II, p. 33.


[7]   The next morning, Elwood Police Officer Andy McGuire was on patrol at the

      school when he observed Hutchison riding a bicycle between an elementary

      school and the junior-senior high school. About this same time, M.R.’s mother




      Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017   Page 6 of 16
      approached Officer McGuire and expressed concern that Hutchison had

      attempted to pick her daughter up from school the day before.


[8]   After speaking with M.R.’s mother, Officer McGuire approached Hutchison.

      Hutchison identified himself as Mitchell Cruz and told Officer McGuire that

      “he wanted to apologize to [M.R.’s mother] because for the confusion as what,

      as he put it for trying to pick her daughter up the day prior.” Tr. Vol. II, p. 15.

      Hutchison gave Officer McGuire what he claimed was his parents’ phone

      number. He told Officer McGuire that he lived with his parents at a residence

      located on South 25th Street. Hutchison also told Officer McGuire that “he had

      graduated early and that he was just confused and didn’t really know where he

      was and he was trying to find his way home.” Tr. Vol. II, p. 15. Officer

      McGuire pointed Hutchison in the direction of South 25 th Street.


[9]   In light of M.R.’s mother’s concern, Officer McGuire decided to follow

      Hutchison home and make sure that his parents were aware of what had

      happened at the school. Officer McGuire testified that

              So I drove down, down the street, was not able to locate him,
              went down to South 25th Street and kept going south and he
              ended up almost running into my car around South 8th Street
              and 25th Street. And then I asked him what he was doing, he
              looked shook up. Told me that he was confused, he was looking
              for his house. I asked him where that was. He said that it was
              over the railroad tracks. I said well you’ve went over the railroad
              tracks and many blocks since then. And then I said the phone
              number you gave me because I tried calling his mom as well, the
              phone number didn’t come back to a working number. And he
              just looked concerned and upset and didn’t know what to say. I

      Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017   Page 7 of 16
               said I’ll just follow you to your house then so I can talk to your
               parents directly. So when I followed him to his house he stopped
               one time to wave towards the house, asked why I was still
               following him there. I said just so I can make sure that your
               parents are aware of what’s going on and you’re trying to pick up
               juveniles from the school. We get to the apartment. As I’m
               starting to get out of the car I said hey just wait right there, I said
               I’ll walk in with you and he almost sprints in a very fast pace
               walk to the house, uses a key and gets in the door and then later
               was identified to me was his stepfather I believe was there at the
               door too kind of confused. He allowed me in and I walked into
               the backroom, which was his mother’s bedroom with him and
               she referred to him by his real name[.]


       Tr. Vol. II, pp. 16-17. When asked why he would give Officer McGuire a false

       name, Hutchison indicated that he “wanted to talk to his probation officer.”

       Tr. Vol. II, p. 17. Hutchison’s mother then informed Officer McGuire that

       Hutchison “was on probation for rape.” Tr. Vol. II, p. 18.


[10]   Upon receiving this information, Officer McGuire transported Hutchison to the

       police department for an interview. Hutchison consented to be interviewed

       after Officer McGuire informed him of his rights. During this interview,

       Hutchison indicated that he had attempted to approach M.R. because she

       reminded him of “an ex-girlfriend of his and he couldn’t get her out of his mind

       and kept thinking about her” after he encountered M.R. and a group of her

       friends “trick or treating” on Halloween. Tr. Vol. II, p. 18. Hutchison also

       indicated that on October 30, 2016, he had been found in a Sunday school class

       for five-year-olds at East Main Street Church, which also housed the Noah’s

       Ark Preschool.

       Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017     Page 8 of 16
[11]   Hutchison did not dispute that he had entered the school on November 1, 2016

       or had been present on school property on November 2, 2016. He

       acknowledged his legal name during the evidentiary hearing but also provided

       several aliases. However, he did dispute the fact that he was twenty-eight years

       old, claiming that he was seventeen years old.


[12]   Hutchison admitted that he had been convicted of rape “ten (10) years ago” but

       indicated that he did “felt that there was nothing wrong with being in schools.”

       Tr. Vol. II, p. 43. Hutchison indicated that he did not fully understand the

       advisement of rights which had been given to him by Officer McGuire on

       November 2, 2016, and that prior to giving his statement, he had asked to see

       his therapist, Doctor Walter Campbell, who he had been seeing since August of

       2012. Hutchison also indicated that his current psychiatric diagnosis was

       “severe post-traumatic stress disorder” which he claimed stemmed from “my

       being sexually abused when I was eight (8) years old and from, from the, an

       explosion in the Navy Seals[1] and that left me with mild traumatic brain

       injury.” Tr. Vol. II, p. 44. Hutchison further indicated that he had previously

       been diagnosed with borderline personality disorder.


[13]   At the conclusion of the evidentiary hearing, the trial court found that

       Hutchison had violated the terms of his probation. In making this finding, the

       trial court stated the following:




       1
           It does not appear that Hutchison was ever a member of the United States Navy, much less the Navy Seals.


       Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017                        Page 9 of 16
               Mr. Hutchison you really have some issues but not issues to the
               point where they dil, debilitate you to not knowing what you are
               doing. I do have your DOC progress report. There is certainly
               notations [sic] about the treatment that the DOC provided that
               you refused. I’m fully aware of all of this Mr. Hutchison.… I’m
               going to impose a sanction here, but I want you to understand.
               It’s not because I think you … have no issues in your life. You
               clearly do sir but I have very clear rules that were applied to you
               that were informed to you upon your release from the DOC.
               One of those was not to be on school property.


       Tr. Vol. II, p. 60. Thereafter, the trial court revoked Hutchison’s probation and

       ordered him to serve the entire five-year, previously-suspended sentence. This

       appeal follows.



                                  Discussion and Decision
[14]           Probation is a matter of grace left to trial court discretion, not a
               right to which a criminal defendant is entitled. The trial court
               determines the conditions of probation and may revoke
               probation if the conditions are violated. Once a trial court has
               exercised its grace by ordering probation rather than
               incarceration, the judge should have considerable leeway in
               deciding how to proceed. If this discretion were not afforded to
               trial courts and sentences were scrutinized too severely on
               appeal, trial judges might be less inclined to order probation to
               future defendants. Accordingly, a trial court’s sentencing
               decisions for probation violations are reviewable using the abuse
               of discretion standard. An abuse of discretion occurs where the
               decision is clearly against the logic and effect of the facts and
               circumstances.


       Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citations omitted).


       Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017   Page 10 of 16
[15]   In the instant matter, Hutchison does not argue that the evidence is insufficient

       to prove that he violated the terms of his probation or that the trial court abused

       its discretion in ordering him to serve the entire five-year balance of his

       previously-suspended sentence. Rather, Hutchison argues that the trial court

       committed fundamental error by failing to order a competency evaluation

       before finding that he had violated the terms of his probation.2


[16]   “The ‘fundamental error’ exception is extremely narrow, and applies only when

       the error constitutes a blatant violation of basic principles, the harm or potential

       for harm is substantial, and the resulting error denies the defendant

       fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006).


                The error claimed must either “make a fair trial impossible” or
                constitute “clearly blatant violations of basic and elementary
                principles of due process.” Clark v. State, 915 N.E.2d 126, 131
                (Ind. 2009). This exception is available only in “egregious
                circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind.
                2003).


       Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).


[17]   In arguing that the trial court committed fundamental error, Hutchison relies on

       our opinion in Donald v. State, 930 N.E.2d 76 (Ind. Ct. App. 2010). In Donald,

       the appellant requested a competency evaluation prior to his probation




       2
         In making this argument, Hutchison acknowledges that because he did not raise the issue of the
       competency evaluation below, he is only entitled to relief if the trial court is found to have committed
       fundamental error.

       Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017                          Page 11 of 16
       revocation hearing. 930 N.E.2d at 79. The trial court denied this request,

       conducted an evidentiary hearing, and revoked the appellant’s probation. Id.

       On appeal, we concluded that one has a due process right to a competency

       evaluation prior to a probation revocation hearing if such an evaluation is

       warranted. Id. at. 80. “[I]t is within the sound discretion of the trial court

       whether reasonable grounds exist to order a competency evaluation and that

       decision will be reviewed only for an abuse of discretion.” Id. We further

       concluded that the trial court committed fundamental error because it “did not

       reach the issue of whether there were reasonable grounds for a competency

       hearing” after a request for such an evaluation was raised by the appellant. Id.

       Unlike in Donald, however, neither Hutchison nor his attorney requested a

       competency evaluation at any point prior to or during the evidentiary hearing.

       Hutchison’s reliance on this opinion is therefore unavailing.


[18]   Hutchison also cites to the pre-sentence investigation report (“PSI”) that was

       completed in connection to the underlying matter following his guilty plea. As

       to Hutchison’s mental state at the time of sentencing, the PSI provides, in

       relevant part, as follows:

               The defendant has a long history of psychiatrict [sic] care. It
               appears he was diagnosed with Attention Deficit Hyperactivity
               Disorder when he was a mere three years old. He was ordered
               for treatment at Behavior Corp. as early as March of 1998.…

               A psychiatric evaluation prepared October 28, 2002 by Dr.
               Steven H. Berger evaluates the defendant as simply unsocialized,
               rather than psychiatrically ill. A psychiatric evaluation prepared
               October 24, 2002, by Ph.D. David F. Strus states that the
       Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017   Page 12 of 16
        defendant is developing a Mixed Personality Disorder. He is a
        very disturbed young man, has had highly inappropriate models
        and has lived and been raised in an incredibly dysfunctional
        family. He has very little understanding of how relationships
        work and very little concept of how one controls one’s own
        actions. Furthermore, he believes the defendant is not truly
        suicidal, but he is so unstable and so unpredictable that he would
        need to be placed under precautionary status. An evaluation
        prepared by Michael Walker, Educational Doctor for
        Psychological Consultation, prepared October 28, 2002,
        describes the defendant as of low average intelligence, extremely
        impulsive, and unable to delay immediate gratification.
        Although not demonstrating any psychotic features, rather is an
        impulse-driven individual, his risk being in his impulsiveness and
        inability to delay gratification. A follow-up psychological
        evaluation dated October 31, 2002, written by David F. Strus,
        Ph.D., states that the defendant is incredibly immature, has
        almost no judgment-making capacity, is an attention-seeking
        man who really doesn’t mean to be harmful or hurtful
        particularly, but will do whatever is required to create a stir and
        focus attention upon himself. A psychological evaluation
        prepared June 5, 2006, by Dr. Susan M. Anderson diagnosed the
        defendant with Anti-[S]ocial Personality Disorder and Borderline
        Personality Traits, a history of Post[-]Traumatic Stress Disorder,
        and Sexual Paraphelia. He was found competent to stand trial.
        The Summary states the defendant has a long history of Conduct
        Disorder and now as an adult, Anti-Social Personality. There is
        no evidence he was under the influence of drugs at the time of
        the offense, nor psychotic. He presents as someone who is
        unable to control nor remember his behavior. However, the
        doctor believes he was able to understand the wrongfulness of his
        conduct at the time of the offense, and he does not have a
        Psychiatric Disorder interfering with his conduct. A
        psychological evaluation prepared and filed with the Court June
        30, 2006, by Thomas E. Murray, Ed.D. Psychologist, summaries
        his findings as the defendant being able to determine right from
        wrong and understanding the wrongfulness of his behavior. It is

Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017   Page 13 of 16
               believed the defendant is competent to stand trial, experiencing
               some limitations in assisting his counsel, with significant
               evidence of a mental defect or disorder not present during the
               interview.


       Appellant’s App. Vol. II – Confidential, pp. 21-22. As is stated in the above-

       quoted section, Hutchison was found competent to stand trial in 2006.

       Hutchison has provided no evidence that his mental condition has seriously

       deteriorated since that time.


[19]   It is well-established that “‘not all mental conditions are serious enough to

       relieve one of criminal responsibility.’” Anderson v. State, 699 N.E.2d 257, 261

       (Ind. 1998) (quoting Cate v. State, 644 N.E.2d 546, 547 (Ind. 1994); see also

       Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996) (quoting U.S. ex rel. Foster

       v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)) (providing that “‘[n]ot every

       manifestation of mental illness demonstrates incompetence to stand trial; rather

       the evidence must indicate a present inability to assist counsel or understand the

       charges’”); Galowski v. Berge, 78 F.3d 1176, 1182 (7th Cir.1996); Medina v.

       Singletary, 59 F.3d 1095, 1107 (11th Cir.1995) (providing that “neither low

       intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can

       be equated with mental incompetence to stand trial”). Furthermore, the trial

       court, having had the opportunity to observe and interact with Hutchison

       during the evidentiary hearing, was in the best position to judge Hutchison’s

       then-current mental state. See Timmons v. State, 500 N.E.2d 1212, 1217 (Ind.

       1986) (providing that the trial court “can observe a defendant’s demeanor,



       Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017   Page 14 of 16
       including any uncooperative behavior, and determine defendant competent to

       stand trial”).


[20]   Hutchison acknowledged that he had been informed upon his release from

       DOC that he was not to be on school property. Nevertheless, less than one

       month after his release from DOC, Hutchison went onto school property on at

       least two separate occasions. Hutchison has presented no evidence which

       indicates that his mental condition prevented him from understanding or

       remembering that he was not supposed to be on school property. In fact,

       Hutchison’s act of providing officers with a false name and telephone number

       suggests he understood that he was not supposed to be on school property.


[21]   As is mentioned above, the trial court found that while Hutchison suffered from

       some mental issues, such issues did not “debilitate” Hutchison to the point that

       he did not know what he was doing. Tr. Vol. II, p. 60. The trial court’s

       observations of Hutchison during the evidentiary hearing were an adequate

       basis for the trial court’s determination that Hutchison was competent. See

       Manuel v. State, 535 N.E.2d 1159, 1162 (Ind. 1989) (providing that observations

       of the defendant’s demeanor during hearings before the court are an adequate

       basis for finding that a competency evaluation is not necessary). Hutchison has

       failed to prove that the trial court committed fundamental error by failing to

       order a competency evaluation.


[22]   The judgment of the trial court is affirmed.




       Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017   Page 15 of 16
May, J., and Barnes, J., concur.




Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017   Page 16 of 16
