MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 09 2019, 10:39 am

court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Megan Shipley                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General
Appellate Division
Indianapolis, Indiana                                   Lauren A. Jacobsen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Bradley Kay,                                            December 9, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1523
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Barbara Crawford,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        49G01-0111-CF-217377



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019                Page 1 of 6
                                             Case Summary
[1]   Bradley Kay appeals the revocation of his community corrections and

      probation placements, asserting that he was denied fundamental due process at

      his revocation hearing because the trial court did not ensure that he was advised

      of the rights he was forfeiting before he admitted to committing a violation of

      the terms of his placements. We agree and therefore reverse and remand for a

      new hearing.


                                 Facts and Procedural History
[2]   In September 2001, Kay went to Payroll Check Cashing and attempted to cash

      a check in his name from Knight Transportation Administrative Services.

      However, Kay had never worked for Knight Transportation and was not due

      any type of financial compensation from it. In November 2001, the State

      charged Kay with class C felony forgery and class D felony forgery. In March

      2003, pursuant to a plea agreement, Kay pled guilty to the class C felony. In

      April 2003, the trial court sentenced Kay to eight years, with three years to be

      served on community corrections and five years suspended, with three of those

      years to be served on probation.


[3]   In September 2003, the State filed a notice of community corrections violation

      alleging that Kay had left the community corrections residential facility on a job

      search and failed to return. In October 2003, the State filed a notice of

      probation violation based on the same allegation. A warrant was issued for

      Kay’s arrest.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019   Page 2 of 6
[4]   In May 2019, Kay was arrested. On May 30, 2019, the trial court held a

      hearing on the community corrections and probation violations. At the

      beginning of the hearing, Kay requested a public defender, and the trial court

      determined that he was indigent and appointed a public defender to represent

      him. Kay’s appointed counsel received copies of the notices of violation, and

      the trial court read the allegation on the record. Then, the trial court discussed

      Kay’s credit time with the representatives from community corrections and the

      probation department and asked them what they would like to see as a sanction

      for the violation, and each recommended revocation.


[5]   The trial court asked Kay’s counsel for comment, and he informed the trial

      court that Kay would like to make a statement. The trial court said, “Okay, I

      have already sworn you in; where have you been for sixteen (16) years?” Tr.

      Vol. 2 at 7. Kay replied that he had been in Colorado and Wyoming. The trial

      court asked Kay if he left the community corrections facility and never came

      back. Kay answered affirmatively, apologized for his actions, and noted that he

      had turned himself in and had not been arrested or convicted of anything since

      he left. The trial court then informed Kay that it was finding a violation. The

      trial court revoked Kay’s community corrections placement and ordered him to

      serve the remainder of the three-year sentence in the Department of Correction.

      The trial court also revoked Kay’s probation and ordered him to serve one year

      in community corrections and four years suspended to probation. This appeal

      ensued.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019   Page 3 of 6
                                     Discussion and Decision
[6]   Kay argues that the trial court did not ensure that he was advised of the rights

      he was forfeiting before he admitted to violating the terms of his placements,

      resulting in fundamental error and requiring reversal and a new hearing. The

      State agrees.


[7]   Before a defendant’s probation or community corrections placement is revoked,

      the defendant must be afforded certain due process protections. See Cox v. State,

      706 N.E.2d 547, 549 (Ind. 1999) (“We hold that the due process requirements

      expressed by this court for probation revocations are also required when the

      trial court revokes a defendant’s placement in a community corrections

      program.”). These due process rights are codified in Indiana Code Section 35-

      38-2-3, which provides in relevant part,


              (e) A person may admit to a violation of probation and waive the
              right to a probation violation hearing after being offered the
              opportunity to consult with an attorney. If the person admits to a
              violation and requests to waive the probation violation hearing,
              the probation officer shall advise the person that by waiving the
              right to a probation violation hearing the person forfeits the rights
              provided in subsection (f)....


              (f) Except as provided in subsection (e), the state must prove the
              violation by a preponderance of the evidence. The evidence shall
              be presented in open court. The person is entitled to
              confrontation, cross-examination, and representation by counsel.


[8]   In Hilligoss v. State, 45 N.E.3d 1228 (Ind. Ct. App. 2015), another panel of this

      court addressed the same claim Kay raises. There, as here, the defendant had

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019   Page 4 of 6
      not been advised of the due process rights he was forfeiting as required by

      subsection (e). In reviewing his claim of fundamental error, the Hilligoss court

      reasoned as follows:


              Indiana’s courts have recognized fundamental error in the
              context of probation revocation proceedings before. For example,
              it is well settled that the failure to hold an evidentiary hearing on
              an alleged probation violation denies a probationer his due
              process rights and constitutes fundamental error. [Dalton v. State,
              560 N.E.2d 558, 560 (Ind. Ct. App. 1990)]. Indeed, “[t]he
              fundamental requirement of due process is the opportunity to be
              heard at a meaningful time and in a meaningful manner.”
              [Mathews v. Eldridge, 424 U.S. 319, 333 (1976)]. Further, “a
              probationer’s admission that he violated the terms of probation
              does not entitle him to less due process than a probationer who
              contests the asserted violations.” United States v. Holland, 850 F.2d
              1048, 1051 (5th Cir. 1988).


              …. [T]he statutory advisements applicable here insure that a
              probationer’s admission “is given with full knowledge of the
              consequences of such admission.” Gray v. State, 481 N.E.2d 158,
              161 (Ind. Ct. App. 1985).


      Id. at 1231-32. Accordingly, the Hilligoss court held that “a trial court’s failure

      to ensure that a probationer who admits to a probation violation has received

      the advisements as required under Indiana Code Section 35-38-2-3(e)

      constitutes a fundamental violation of the probationer’s due process rights.” Id.

      at 1232.


[9]   We agree with the reasoning in Hilligoss. Here, there is no dispute that Kay was

      not advised of the rights he was forfeiting before he admitted to violating the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019   Page 5 of 6
       terms of his placements. 1 The trial court’s failure to ensure that Kay was

       advised as required by Section 35-38-2-3(e) constitutes fundamental error, and

       therefore we reverse the revocation of Kay’s alternative placements and remand

       for a new hearing. 2


[10]   Reversed and remanded.


       May, J., and Pyle, J., concur.




       1
        The State does not suggest that the statutory requirement that the “probation officer shall advise” the person
       of the rights being forfeited by admitting a violation relieved the trial court of its responsibility to ensure that
       Kay was aware of his rights.
       2
         Because we are remanding for a new hearing, we need not address Kay’s argument that he was denied his
       right to allocution.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019                        Page 6 of 6
