MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Aug 29 2018, 9:15 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Davis,                                           August 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         57A03-1709-CR-2124
        v.                                               Appeal from the Noble Circuit
                                                         Court
State of Indiana,                                        The Honorable Michael J. Kramer,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         57C01-0806-FC-29



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018           Page 1 of 13
                                Case Summary and Issue
[1]   Timothy Davis appeals following the revocation of his probation. He raises one

      issue for our review which we restate as whether he knowingly, voluntarily, and

      intelligently waived his right to counsel before admitting to violating his

      probation. Concluding that, under the totality of the circumstances, Davis

      validly waived his right to counsel for his probation revocation hearing, we

      affirm.



                            Facts and Procedural History
[2]   On October 16, 2008, Davis pleaded guilty to nonsupport of a dependent child

      as a Class C felony. On November 13, 2008, the trial court sentenced Davis to

      eight years with the Indiana Department of Correction (“DOC”). The trial

      court suspended all of Davis’ sentence to probation.


[3]   The State filed its first notice of probation violation on October 20, 2009,

      alleging multiple violations, including that Davis had tested positive for alcohol,

      had provided a dilute urine specimen on two separate occasions, had failed to

      report for a scheduled appointment with his probation officer, and had failed to

      make his child support payments. At his initial hearing, the trial court advised

      Davis of his right to counsel and appointed him a public defender. After

      advising Davis of his constitutional rights, the effect of any admission or denial

      of the allegations, and the possible sanctions, the trial court accepted Davis’

      admission to the probation violations. At the dispositional hearing, the trial


      Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 2 of 13
      court modified Davis’ sentence to seven years and ordered Davis to serve the

      first two years with the DOC. The trial court suspended the remaining five

      years to probation.


[4]   Davis failed to report to begin serving the executed portion of his sentence. As

      a result, on April 7, 2010, the State filed its second notice of probation

      violation. By December 27, 2011, Davis was back in custody, and the trial

      court ordered him to commence serving the two years it had previously

      imposed. Davis completed the executed portion of his sentence on September

      20, 2012, and was returned to probation.


[5]   On February 19, 2013, the State filed its third notice of probation violation,

      alleging, among other things, that Davis had recently been arrested for domestic

      violence. At the initial hearing on this latest notice of violation, Davis was

      advised of his right to counsel and was appointed a public defender. Davis

      entered into a pre-trial diversion agreement pursuant to which the State agreed

      to dismiss the pending domestic violence charge if Davis complied with his

      probation and did not commit any new offenses for one year.


[6]   The State filed its fourth notice of probation violation on January 28, 2014, in

      which it alleged, among other things, that Davis had failed to report for

      scheduled appointments with his probation officer and that he had failed to

      make scheduled child support payments. By June of 2014, Davis was in

      custody in Elkhart County, having violated his probation in an unrelated

      matter. The initial hearing on the State’s fourth notice of probation violation


      Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 3 of 13
      was held on June 25, 2014. The trial court advised Davis of his right to counsel

      and appointed him a public defender. On July 24, 2014, after having been

      advised of his constitutional rights, the effect of any admission or denial, and

      possible sanctions, Davis admitted the allegations contained in the State’s

      notice of violation. On December 18, 2014, the trial court returned Davis to

      probation for the remaining portion of his suspended sentence.


[7]   The State filed its fifth notice of probation violation on June 27, 2016, alleging,

      among other things, that Davis had violated the terms of his probation by being

      arrested for the new offenses of disorderly conduct, resisting law enforcement,

      and criminal mischief. At the August 1, 2016, initial hearing, the trial court

      advised Davis of his right to counsel. Davis indicated that he wished to hire an

      attorney, and the trial court granted him an extension of time to do so. On

      October 6, 2016, the trial court granted Davis another extension of time to

      retain a lawyer. By December 15, 2016, Davis had not yet retained counsel.

      The trial court asked Davis if he required a public defender. Davis initially

      indicated that he desired a public defender but then requested that the trial court

      grant him an additional extension to hire counsel. The trial court granted Davis

      an extension until March of 2017 to retain counsel.


[8]   On March 9, 2017, Davis appeared without private counsel at a status hearing

      on the State’s fifth notice of probation violation. Although Davis admitted in

      open court that he would fail a drug test if subjected to one that day, the trial

      court denied the State’s request to incarcerate Davis pending trial. Davis



      Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 4 of 13
indicated his desire to hire an attorney once he received his income tax refund.

The trial court set the matter for trial and advised Davis as follows:


        At that, the State will call witnesses to show that you’ve violated
        your probation and argue that you go to prison I would assume
        or possibly argue that you go to prison on this. If you show up
        without an attorney you will have waived your right to an
        attorney and I need to tell you now that, that you may be a very
        bad disadvantage by showing up without an attorney. . . . And as
        you were advised over six (6) months ago if you can’t afford an
        attorney or nine (9) months ago the court will appoint one for
        you but you’ve chosen not to ask for that and that’s your right
        not to ask for a public defender and to either hire your own
        attorney, it’s also your right to represent yourself but you do need
        to understand that you may, you will be going against skilled trial
        attorneys who are knowledgeable about the law, and I don’t
        know what sort of experience you have in the law or any sort of
        training or knowledge that you have but I do need to warn you
        the dangers of going forward because you will be expected and
        held in the same standard as an attorney in interviewing, in
        asking questions of witnesses, in objecting to possible
        objectionable uh, information or evidence that the State is trying
        to get in that could be kept out of evidence against you with a
        proper and timely objection uh, you will be required to uh,
        question your own witnesses from the witness stand uh, cross
        examine witnesses called by the State, make proper objections,
        make appropriate closing arguments and opening statements and
        an attorney could also possibly negotiate with the prosecutor to
        try to resolve this short of the fact finding hearing. But this has
        been going on since August.


Transcript, Volume 2 at 22-23. The trial court then asked Davis if he

understood the dangers of coming to the trial date without an attorney, and

Davis confirmed that he did. The trial court also advised Davis that if he

Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 5 of 13
      changed his mind and wished to request a public defender, he should notify the

      court within two weeks in order to allow his public defender adequate time to

      prepare. On April 27, 2017, Davis appeared without an attorney and admitted

      to the allegations contained in the State’s fifth notice, pursuant to an agreement

      with the State under which he would pay increased child support and be

      returned to probation. The trial court accepted the State’s recommendation to

      return Davis to probation but counseled him, “don’t count on having another

      chance after this.” Id. at 34. The trial court commended Davis on his progress

      and noted that “if you relapse and start using again that everything is going to

      fall apart in your life including in this case and going to prison for this time.”

      Id.


[9]   On July 17, 2017, the State filed its sixth notice of probation violation in which

      it alleged, among other things, that Davis had missed scheduled addictions

      treatment, had tested positive for alcohol, and had failed to make scheduled

      child support payments. At the initial hearing on the newest violation notice,

      the trial court advised Davis of the nature of the new allegations. The trial

      court advised Davis that if he was found to have violated his probation, he

      could be continued on probation under the same or different terms, for the same

      or a different period of time, or he could be ordered to serve up to the amount

      of time that had been suspended. Davis indicated that he understood, and the

      trial court asked him if he would be hiring an attorney. Davis replied that he

      would if he could be released upon his own recognizance. The trial court




      Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 6 of 13
       denied that request. The trial court set the matter for an August 31, 2017,

       hearing on the violation.


[10]   Davis was not released on bond prior to the August 31 hearing. On August 15,

       2017, the trial court received a letter from Davis in which he requested to be

       reinstated to probation. Davis told the trial court, “Sir[,] I’m guilty of every

       violation . . . .” Appellant’s Appendix, Volume II at 124. In a second letter

       filed with the trial court on August 24, 2017, Davis wrote as follows:


               * Pro Se *


               So now Timothy J. Davis comes before the courts pleading guilty
               to my violations seeking a O.R. bond to obtain immediate
               employment . . . .


       Id. at 126.


[11]   At the August 31 hearing, Davis appeared without counsel. Davis indicated to

       the trial court when asked that he was representing himself at the hearing.

       Davis did not respond when the trial court asked him if he would like to

       attempt to qualify for a public defender. Davis indicated that he wished to

       admit the violations. Davis confirmed when asked that he had not consumed

       any intoxicants in the previous twenty-four hours. The trial court asked Davis,

       “And you do you [sic] the right to be represented by an attorney as I mentioned

       and if you can’t afford one the court will appoint one and you wish to give that

       up, is that right?” Tr., Vol. 2 at 43. Davis responded, “Yes.” Id. The trial

       court reiterated the possible sanctions following a probation violation admission

       Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 7 of 13
       as well as the trial process rights he was waiving. Davis confirmed again that

       he understood that he had a right to an attorney and that he was waiving that

       right.


[12]   Davis admitted to a factual basis for his plea, and the trial court found that he

       had violated his probation. The trial court ordered Davis to serve his previously

       modified and suspended seven-year sentence, with credit for the two years he

       had already served. This appeal ensued.



                                  Discussion and Decision
[13]   Davis contends that his waiver of his right to counsel for his sixth probation

       violation was not knowing, voluntary, and intelligent because the trial court

       failed to make adequate inquiries and advisements to establish a valid waiver.


                                  I. Direct Appeal Challenge
[14]   We begin by addressing the State’s argument that Davis may not properly

       challenge the validity of his waiver of counsel on direct appeal. Rather, the

       State asserts that the validity of a guilty plea to a probation violation may only

       be challenged through a petition for post-conviction relief. The State relies in

       part on Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996), in which our supreme

       court held that post-conviction relief, not a direct appeal, is the proper vehicle

       for challenging a conviction that is the result of a guilty plea. See State’s Brief of

       Appellee at 9. Another panel of this court has applied Tumulty to probation




       Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 8 of 13
       revocations. See Huffman v. State, 822 N.E.2d 656, 659-60 (Ind. Ct. App. 2005)

       (relying on Post-Conviction Rule 1(1)(a)(5)).


[15]   However, several other cases on direct appeal have addressed the merits of a

       probationer’s claim that his waiver of counsel was invalid. Sparks v. State, 983

       N.E.2d 221 (Ind. Ct. App. 2013); Hammerlund v. State, 967 N.E.2d 525 (Ind. Ct.

       App. 2012); Butler v. State, 951 N.E.2d 255 (Ind. Ct. App. 2011); Cooper v. State,

       900 N.E.2d 64 (Ind. Ct. App. 2009); Eaton v. State, 894 N.E.2d 213 (Ind. Ct.

       App. 2008), trans. denied. Given that our supreme court has yet to expressly

       extend Tumulty to probation revocation proceedings as well as our preference

       for deciding cases on the merits, we will address Davis’ arguments in this direct

       appeal.


               II. Knowing, Voluntary, and Intelligent Waiver
[16]   Although probation is a favor granted by the State and not a right to which a

       defendant is entitled, a defendant still has some due process protections before

       his probation may be revoked. Cooper, 900 N.E.2d at 66. One of those due

       process protections is the right to be represented by counsel. Ind. Code § 35-38-

       2-3(e). If a defendant elects to proceed without counsel, the record must reflect

       that he waived his right to counsel knowingly, voluntarily, and intelligently.

       Cooper, 900 N.E.2d at 66.


[17]   There are no specific words or phrases that a trial court must utter to produce a

       valid waiver of counsel by a defendant. Hammerlund, 967 N.E.2d at 527-28.

       Rather, “determining if a defendant’s waiver was knowing and intelligent

       Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 9 of 13
       depends on the particular facts and circumstances surrounding [the] case,

       including the background, experience, and conduct of the accused.” Eaton, 894

       N.E.2d at 218 (citations and quotation marks omitted). “We review de novo a

       trial court’s finding that a defendant waived his right to counsel.” Butler, 951

       N.E.2d at 260.


[18]   In Hammerlund, the trial court advised the defendant that he had the right to be

       represented by counsel during his probation revocation proceedings and that a

       public defender would be appointed for him if he could not afford counsel. 967

       N.E.2d at 525-26. In addition, the trial court advised Hammerlund that, in the

       event he was found to have violated his probation, the trial court could

       continue him on probation, modify the conditions of his probation, or order

       him to serve his suspended sentence. Id. at 526. Hammerlund indicated that he

       understood his rights and had no questions about them. Id. at 529. The court

       on appeal held that, based on the totality of these circumstances, Hammerlund

       had knowingly, intelligently, and voluntarily waived his right to counsel before

       admitting to violating his probation. Id.


[19]   Here, at Davis’ initial hearing on the instant probation violations, the trial court

       advised Davis of the nature of the allegations against him and advised him of

       the possible sanctions should he be found to have violated his probation.

       Although the trial court did not advise Davis that he had a right to counsel at

       public expense at this initial hearing, our examination of the record indicates

       that the trial court had advised Davis of that right at every other initial hearing

       held on the probation violations in this matter and that counsel was appointed

       Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 10 of 13
       for Davis for three of his previous violation proceedings. In light of Davis’

       experience in this case alone, we conclude that, despite the trial court’s failure

       to expressly advise him at this initial hearing that he had a right to counsel at

       public expense, Davis was aware of that right yet expressed his desire to hire

       private counsel.


[20]   Furthermore, before proceeding at the evidentiary hearing on August 31, 2017,

       the trial court asked Davis if he would like to attempt to qualify for a public

       defender. Davis did not answer, but he did indicate that he intended to admit

       to the violations. Before accepting his admission, the trial court twice

       confirmed with Davis that he knew that he had a right to counsel at public

       expense but that he chose to forgo it. Because Davis received essentially the

       same advisements and inquiries at issue in Hammerlund, under the totality of the

       circumstances, we conclude that Davis’ waiver of counsel was knowing,

       voluntary, and intelligent.


[21]   Davis contends that “[d]espite these circumstances suggesting Davis was

       unemployed and the trial court’s knowledge of Davis’s substantial payment

       delinquencies, the trial court did not appoint counsel for Davis.” Amended

       Brief of the Appellant at 17. This argument confounds the issues of waiver of

       counsel and ability to pay and ignores the fact that Davis indicated to the trial

       court at his initial hearing that he wished to hire private counsel, which he was

       entitled to do.




       Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 11 of 13
[22]   Davis further argues that the trial court should have made more inquiries

       regarding his decision to proceed pro se, his understanding of the dangers of

       self-representation, his education and background, and the context of his

       decision to plead guilty. Id. at 19-22. We note that it may always be alleged

       that a trial court could have provided more advisements or made more inquiries

       into a defendant’s decision to proceed pro se. As to understanding the dangers

       of self-representation and the context of Davis’ decision to admit the violations,

       when a probationer proceeds pro se and chooses to admit the alleged violation,

       his valid waiver of counsel may be established even if he was not advised of the

       pitfalls of self-representation. Hammerlund, 967 N.E.2d at 528. Davis filed two

       letters with the trial court prior to the August 31 hearing expressing his desire to

       admit to the allegations, and, in any event, the trial court had just months

       before provided Davis with detailed warnings regarding the dangers of self-

       representation. Given that there are no specific words or phrases that a trial

       court must use to establish a valid waiver of counsel, Eaton, 894 N.E.2d at 218,

       and given the particular circumstances of this case, we conclude that Davis’

       waiver of counsel was knowing, voluntary, and intelligent.



                                               Conclusion
[23]   Concluding that Davis knowingly, voluntarily, and intelligently waived his

       right to counsel before admitting to violating his probation, we affirm the trial

       court’s revocation order.


[24]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 12 of 13
Najam, J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 57A03-1709-CR-2124 | August 29, 2018   Page 13 of 13
