MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                 FILED
this Memorandum Decision shall not be                                     Aug 16 2018, 8:12 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy Allen,                                           August 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-367
        v.                                               Appeal from the Franklin Circuit
                                                         Court
State of Indiana,                                        The Honorable J. Steven Cox,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         24C01-1108-FB-48



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018                     Page 1 of 15
[1]   Timothy Allen appeals the revocation of his probation. Allen raises two issues

      which we revise and restate as:


        I.    Whether the trial court abused its discretion when it denied his
              counsel’s motion to withdraw; and

       II.    Whether the trial court committed fundamental error when it
              admitted certain evidence.

      We affirm.

                                      Facts and Procedural History

[2]   On August 15, 2012, the court sentenced Allen to twenty years for conspiracy

      to manufacture methamphetamine as a class B felony with all time suspended

      to probation. On April 5, 2017, the State filed a verified petition of probation

      violation. On May 24, 2017, the court entered an order finding that Allen

      violated the terms and conditions of his probation and sentenced him to serve

      the previously-suspended sentence of twenty years. Allen appealed and argued

      that he did not waive his right to counsel at the fact-finding hearing on the

      petition to revoke his probation. Allen v. State, No. 24A05-1706-CR-1303, slip

      op. at 1 (Ind. Ct. App. October 17, 2017). The State agreed that the record did

      not reflect a valid waiver of the right to counsel, and we reversed and

      remanded. Id. at 2.


[3]   On October 24, 2017, the State filed an amended verified petition of probation

      violation alleging that Allen committed: Count I, dealing in methamphetamine

      as a level 3 felony; Count II, possession of methamphetamine as a level 5

      felony; Count III, illegal possession of precursors as a level 6 felony; and Count


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 2 of 15
      IV, maintaining a common nuisance as a level 6 felony in cause number 24C01-

      1704-F3-299. The State also alleged that Allen tested positive for THC on April

      17, 2015, for THC and methamphetamine on July 17, 2015, for THC on

      August 28, 2015, for methamphetamine on July 8, 2016, and for

      methamphetamine on August 19, 2016.


[4]   On October 25, 2017, the court scheduled a fact-finding hearing for December

      6, 2017. On November 22, 2017, an attorney was appointed to represent Allen.

      On November 30, 2017, Allen filed a motion for continuance. On December 5,

      2017, the court granted the motion and rescheduled the hearing for January 31,

      2018.


[5]   On January 24, 2018, Allen’s counsel filed a petition to withdraw appearance

      asserting that Allen “expressed to [counsel] that he does not want him to

      represent him in this matter and therefore has stopped working with [counsel]

      on his defense and has made further representation impossible.” Appellant’s

      Appendix Volume II at 82. On January 25, 2018, the court denied the petition.

      That same day, Allen filed a handwritten motion asking to terminate his

      attorney because he “said he has more clients than just me and couldn’t or

      didn’t have time to look up or try to fight for me” and that he believed his

      attorney did not have “any interest and says I will not beat my case.” Id. at 85.

      The motion also stated: “I need an attorney who will at least try to help me.”

      Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 3 of 15
[6]   On January 31, 2018, the court held a hearing and mentioned Allen’s motion.

      The following exchange then occurred:


              THE COURT: . . . [I]s there any response from either, uh,
              [Allen’s counsel] or the State?

              [Prosecutor]: State has no response.

              [Allen’s Counsel]: Your Honor, I’ve done everything that I can
              to prepare for trial, other then [sic] that I have no response.

              THE COURT: Well, the Court is aware of many things that you
              have done, the Pre-Trials that we have conducted off . . . out of
              hearing and with the State. It’s never been my experience with
              counsel that he was not at all times in those and other
              conferences, uh continuing in not only advocacy, but vehement
              advocacy on behalf of Mr. Allen. So, it’s . . . it’s . . . the . . . I
              don’t know what . . . I’m not privy to your conversations with
              each other, but the Motion itself seems innocuous to . . . uh, the
              effort I’ve seen you expend at least when the Court and the State
              were all present. So, uh, I guess the only question is, uh, are you
              still in a position to go forward with whatever you’ve prepared to
              do in assisting or advocating for Mr. Allen in this matter?

              [Allen’s Counsel]: Your Honor, I’m prepared to go forward, but
              I also filed a Motion to Withdraw because Mr. Allen indicated
              that he did not want me as his counsel. So, that was denied by
              the Court.

              THE COURT: Well, the problem with the request is that to
              relieve you of . . . of representation puts us back in the position of
              Mr. Allen being unrepresented . . . .

              [Allen’s Counsel]: Correct, Your Honor.

              THE COURT: . . . . which the Court of Appeals said was
              inappropriate. Uh, even though he didn’t ask for counsel until
              the day of the hearing, so the Court will deny the Motion so that

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 4 of 15
              we can continue with counsel and with representation of record.
              The law does not require a harmonious relationship between the
              parties. It only requires that, uh, confident advocacy is exhibited
              on behalf of the issues that are presented before the Court. So the
              Motion to . . . for you to withdraw would be denied and the
              Motion for substitution of counsel or to remove you as counsel
              by Mr. Allen would also be denied, uh, and preserved for the
              record.


      Transcript Volume II at 5-6.


[7]   Chief Probation Officer Brian Campbell testified that Allen failed drug screens

      administered by the probation department and was alleged to have committed a

      new offense. He testified that he was not “personally always” involved in

      supervising Allen, that Allen Benker and Kent Hildenbrand, who were under

      his supervision, were engaged in supervising Allen. Id. at 8. The prosecutor

      introduced a drug report as State’s Exhibit 2, and Allen’s counsel objected on

      the basis of a lack of proper foundation. Campbell testified that the documents

      included a drug screen result from Allen’s test on April 17, 2015, that he

      collected the sample, and that Allen signed the document in his presence. He

      also testified that State’s Exhibit 2 included a drug screen result from Allen’s

      test on July 17, 2015, and that Hildebrand collected that sample. He testified

      that the exhibit included an affidavit from Bridget Lorenz Lemberg who was a

      technician at the lab. He stated that the documents indicated that Allen tested

      positive for THC and oxycodone on April 17, 2015, and amphetamine,

      methamphetamine, and THC on July 17, 2015. Allen’s counsel again objected




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 5 of 15
       to the admission of the documents, and the court admitted the documents as

       State’s Exhibit 2.


[8]    Campbell testified that State’s Exhibit 3 contained the results of a drug screen

       sent to a different lab, which indicated that Allen tested positive for marijuana,

       and the court admitted the exhibit without objection. Campbell stated that

       State’s Exhibit 4 contained a drug test result for July 8, 2016, which indicated

       that Allen tested positive for methamphetamine, amphetamine, hydrocodone,

       and hydromorphone. The court admitted State’s Exhibit 4 without objection.

       Campbell testified that State’s Exhibit 5 consisted of drug screen results from

       August 19, 2016, indicating Allen tested positive for methamphetamine and

       amphetamine, as well as a chain of custody form and an affidavit from the

       toxicologist. The court admitted State’s Exhibit 5 without objection.


[9]    Campbell also testified that Allen had been charged with new offenses and that

       State’s Exhibit 6 consisted of the new charges. The court admitted State’s

       Exhibit 6 for the limited purpose of showing that Allen was charged with new

       offenses including Count I, dealing in methamphetamine as a level 3 felony,

       Count II, possession of methamphetamine as a level 5 felony, Count III, illegal

       possession of precursors as a level 6 felony, and Count IV, maintaining a

       common nuisance as a level 6 felony.


[10]   Indiana State Trooper Rusty Slater testified that he investigated Allen, checked

       NPLEx, a national precursor log exchange, and found that Allen had made

       thirteen to fourteen purchases after his conviction between April 26, 2016, and


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 6 of 15
       March 7, 2017. He testified that Trooper Pete Gates and Trooper Tim

       Wuestefeld performed a trash pull from Allen’s residence and that he went

       through the trash and found a meth lab. Allen’s counsel objected on the basis

       that Trooper Slater was testifying what somebody said to him, and the court

       allowed the testimony. Trooper Slater testified that he obtained a search

       warrant for Allen’s residence and discovered a meth pipe, paraphernalia, a

       coffee filter that tested positive for methamphetamine, ammonia nitrate, liquid

       fire, sodium hydroxide, and a methamphetamine producing lab.


[11]   Franklin County Sheriff’s Deputy Ryan Geiser testified that he assisted in the

       execution of the warrant, located a bottle in the direction from which he saw

       Allen walking when he arrived, and that the contents of the bottle were

       consistent with a process of manufacturing methamphetamine known as the

       shake and bake process.


[12]   After the parties’ arguments, Allen stated that he “failed because of me” and

       that he thought he would have been “better off if I could have went somewhere

       else.” Id. at 46. The following exchange occurred:


               THE COURT: . . . Now the State’s request is for the entire
               amount to be revoked. I did that once without an attorney. The
               Court of Appeals said, no, you should have an attorney. You’ve
               got one sitting there. I don’t know of anything that he’s done
               that is not vehement advocacy on your behalf. I can tell you in
               our pre-trial conferences with the State and he, he has made
               every argument under the sun about while [sic] we should put
               this off. We should postpone it. We should let you prove
               something else. We should . . . I mean, the thought that he has


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 7 of 15
               not advocated for you is frankly laughable, but he’s . . . he’s up
               against a pretty tall brick wall, isn’t he?

               [Allen]: Yes.

               THE COURT: That you created, right?

               [Allen]: Yes.


       Id. at 48. The court later stated:


               And I want you to understand this, . . . State’s Exhibit 2, 3, 4 and
               5 are all failed drug screens that any of them would have revoked
               your probation. And we continued to work with you to try to get
               you to Community Mental Health and to other things that would
               help you, short of in-patient treatment again because you had
               already completed that. It just didn’t work. No one is faulting
               you for relapsing, it is expected by people who struggle with
               addictions. That’s why there was no revocations in those
               periods, but when you turned around and got arrested for the
               allegation of making or creating for others use, or for your own
               use. No, that isn’t going to happen. That’s the problem. Now I
               don’t know if the State can ever prove you did that, they don’t
               have to for revocation of probation. The bar is much higher and
               there [sic] standard is much lower. All they have to show, is that
               you have now gone beyond just failing drug screens, and you’re
               buying, your [sic] accumulating precursors, you are involved in
               things completely against your ability to be involved in a
               probation . . . probation program. And that’s . . . that’s exactly
               what they’ve shown. So, uh, the Court will . . . order the
               suspended portion executed.


       Id. at 50.


[13]   On February 5, 2018, the court entered an order finding that Allen “did violate

       the terms and conditions of Probation,” sentencing him to serve his previously-

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 8 of 15
       suspended sentence of twenty years, and finding that he was allowed to

       participate in the Purposeful Incarceration Program. Appellant’s Appendix

       Volume II at 90.


                                                   Discussion

                                                          I.


[14]   The first issue is whether the trial court abused its discretion when it denied

       Allen’s motion that his attorney withdraw. Allen argues that the trial court

       abused its discretion by ruling on his motion without ever speaking to him or

       hearing from him at the hearing. He asserts that this Court’s prior opinion

       never barred him from validly waiving his right to counsel at the new hearing or

       prohibited the trial court from accepting such a valid waiver.


[15]   The State argues the grounds alleged in Allen’s motion were insufficient to

       constitute viable grounds for withdrawal of counsel and asserts that Allen’s

       motion was filed only six days before the date of the fact-finding hearing on the

       petition to revoke. It also contends that Allen failed to prove prejudice from the

       denial of his motion for his counsel to withdraw. It argues that Allen’s claim

       that his motion was actually a motion to proceed pro se is unpersuasive because

       at no point did he state that he wanted to represent himself.


[16]   To the extent Allen phrases the issue as whether he was denied his right to

       proceed pro se, we cannot say that reversal is warranted. The Indiana Supreme

       Court has observed that a request to proceed pro se is a waiver of the right to

       counsel and that consequently there are several requirements to invoking the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 9 of 15
       right of self-representation successfully. Stroud v. State, 809 N.E.2d 274, 279

       (Ind. 2004). A defendant’s request must be clear and unequivocal, and it must

       be made within a reasonable time prior to trial. Id. The record reveals that

       Allen did not request to proceed pro se. Allen’s handwritten motion, which

       stated that he needed an attorney who would try to help him, did not constitute

       a clear and unequivocal request to proceed pro se.


[17]   To the extent Allen argues that his right to counsel of choice was violated, we

       observe that a probationer faced with a petition to revoke his probation is

       entitled to representation by counsel. Cooper v. State, 900 N.E.2d 64, 66 (Ind.

       Ct. App. 2009); Ind. Code § 35-38-2-3(f). Generally, the right to counsel of

       choice is not absolute. Lewis v. State, 730 N.E.2d 686, 688-689 (Ind. 2000). “It

       is well settled that the right to counsel of choice must be exercised at the

       appropriate stage of the proceeding.” Id. (citations and internal quotation

       marks omitted). The Indiana Supreme Court has stated that a “trial court, in

       the exercise of its discretion, may refuse to allow an accused to replace counsel

       during or immediately before trial because such a substitution would require the

       court to grant a continuance.” Id. at 690. “The denial of a continuance is

       reviewed for an abuse of discretion, and the denial of the right to counsel of

       choice . . . is reviewed to determine whether the trial court acted unreasonably

       and arbitrarily.” Id. (citations omitted). A defendant must demonstrate that he

       was prejudiced before we may reverse because the trial court denied counsel’s

       motion to withdraw. See Bronaugh v. State, 942 N.E.2d 826, 830 (Ind. Ct. App.

       2011) (citing Corder v. State, 467 N.E.2d 409, 413 (Ind. 1984) (stating that “[a]s

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 10 of 15
       defendant has not shown that the denial of the motion to withdraw jeopardized

       or prejudiced him, we cannot now reverse”)), trans. denied.


[18]   The record reveals that the State filed its initial verified petition for probation

       violation on April 5, 2017, and following remand by this Court, the State filed

       an amended verified petition of probation violation on October 24, 2017, the

       trial court initially scheduled a fact-finding hearing for December 6, 2017, but

       later granted a motion to continue filed by Allen and rescheduled the hearing

       for January 31, 2018. Seven days prior to the hearing, Allen’s counsel filed a

       petition to withdraw his appearance. Six days prior to the hearing, Allen filed a

       handwritten motion asking to terminate his attorney. Under these

       circumstances, we cannot say that Allen has demonstrated that he was

       prejudiced by the denial or that reversal is warranted. See Bronaugh, 942 N.E.2d

       at 830 (citing Moore v. State, 557 N.E.2d 665, 668 (Ind. 1990) (recognizing the

       “late date” of a motion to withdraw filed three weeks before trial)).


                                                         II.


[19]   The next issue is whether the trial court committed fundamental error when it

       admitted certain evidence. Allen argues that the testimony of Trooper Slater

       and Probation Officer Campbell and State’s Exhibits 2 through 5 and 7

       constituted inadmissible hearsay which does not pass the substantial

       trustworthiness test. He states that he did not object to most of the evidence

       presented by the State and that the fundamental error doctrine applies. The

       fundamental error doctrine is extremely narrow and applies only when the error


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 11 of 15
       amounts to a blatant violation of basic principles, the harm or potential for

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

       due process. Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App. 2010), reh’g

       denied, trans. denied.


[20]   “Although probationers are not entitled to the full array of constitutional rights

       afforded defendants at trial, ‘the Due Process Clause of the Fourteenth

       Amendment [does] impose [ ] procedural and substantive limits on the

       revocation of the conditional liberty created by probation.’” Debro v. State, 821

       N.E.2d 367, 374 (Ind. 2005) (citing Cox v. State, 706 N.E.2d 547, 549 (Ind.

       1999) (citing Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254 (1985))). The

       minimum requirements of due process that inure to a probationer at a

       revocation hearing include the right to confront and cross-examine adverse

       witnesses. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). See also Ind. Code §

       35-38-2-3 (providing in pertinent part that a probationer “is entitled to

       confrontation, cross-examination, and representation by counsel”).


[21]   “Nonetheless, confrontation rights in the context of probation revocation are

       not as extensive as they are in criminal trials.” Knecht v. State, 85 N.E.3d 829,

       833 (Ind. Ct. App. 2017). Indiana Evidence Rule 101(c)(2) allows for the

       admission of evidence during probation revocation hearings that would not be

       permitted in a full-blown criminal trial. Yet, “[t]his does not mean that hearsay

       evidence may be admitted willy-nilly in a probation revocation hearing.” Reyes

       v. State, 868 N.E.2d 438, 440 (Ind. 2007), reh’g denied. The Indiana Supreme

       Court adopted the substantial trustworthiness test as the means for determining

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 12 of 15
       whether hearsay evidence should be admitted at a probation revocation

       hearing. Id. In applying the substantial trustworthiness test, “‘ideally [the trial

       court should explain] on the record why the hearsay [is] reliable and why that

       reliability [is] substantial enough to supply good cause for not producing . . .

       live witnesses.’” Id. at 442 (quoting United States v. Kelley, 446 F.3d 688, 693

       (7th Cir. 2006)). Failure to provide an explanation on the record is not fatal

       where the record supports such a determination. Id. We also observe that the

       Indiana Supreme Court noted that the United States Supreme Court’s decision

       on the Sixth Amendment right to confrontation in criminal trials, Crawford v.

       Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), is not implicated because

       probation revocation hearings are not criminal trials. Reyes, 868 N.E.2d at 440

       n.1.


[22]   In this case, Allen’s failure to object to some of the evidence deprived the court

       of the opportunity to make a substantial trustworthiness determination.

       Nevertheless, the record reveals that the evidence would support a

       determination that the evidence challenged by Allen was substantially

       trustworthy.


[23]   The record includes test results from Forensic Fluid Laboratories, an affidavit of

       Bridget Lorenz Lemberg, M.S., and her curriculum vitae. The drug test results

       indicated that Allen’s sample collected on April 17, 2015, tested positive for

       THC and oxycodone and that his sample collected on July 17, 2015, tested

       positive for amphetamine, methamphetamine, and THC. In her affidavit,

       Lemberg asserted that she is the Laboratory Director at Forensic Fluids

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 13 of 15
       Laboratories, stated she was “familiar with the procedures employed to ensure

       the chain of custody of samples, the testing of those samples, and the validity of

       the test procedures employed by our laboratory,” detailed the procedure

       employed by the laboratory, stated that she “reviewed all of the records in this

       lab in regard to the oral fluid sample as identified in the attached report,”

       asserted that “[a]ll of the procedures identified in this affidavit were followed in

       regards to this sample,” and stated that the “attached document(s) are the

       original or exact duplicates of the original business records maintained by

       Forensic Fluids Laboratories Inc. in regards to Timothy Allen (Donor).”

       State’s Exhibit 2.


[24]   The record also includes an affidavit of Jeff Retz, the Scientific Director and a

       Certifying Scientist at Witham Memorial Hospital Toxicology Laboratory, his

       curriculum vitae, and test results. In his affidavit, Retz asserted that, prior to

       his employment as toxicologist, he worked for fifteen years as the laboratory

       supervisor at the Indiana Department of Toxicology. He asserted that he was

       “familiar with the procedures employed to ensure the chain of custody of

       samples, the testing of those samples and the validity of the test procedures

       employed by our lab.” State’s Exhibit 3. The affidavit referenced the urine

       sample taken from Allen on July 8, 2016, and stated that Retz concluded that

       Allen would have used “an opiate containing drug (or food) some time in the

       48 hours prior to collection / an amphetamine some time in the 72 hours prior

       to collection.” Id. State’s Exhibit 4 and 5 included a similar affidavit of Retz,

       his curriculum vitae, and test results. In his affidavit, Retz concluded that


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 14 of 15
       Allen’s sample taken on August 19, 2016, indicated the presence of

       amphetamines and that Allen would have used an amphetamine some time in

       the seventy-two hours prior to collection.


[25]   Based upon the record, we conclude that the evidence adequately supports a

       finding that the affidavits of Lemberg and Retz are substantially trustworthy.

       See Reyes, 868 N.E.2d at 442 (holding that the evidence supported a finding that

       Retz’s affidavits were substantially trustworthy). Consequently, we cannot say

       that the trial court abused its discretion in admitting the affidavits and

       toxicology reports.


                                                   Conclusion

[26]   For the foregoing reasons, we affirm the revocation of Allen’s probation.


[27]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-367 | August 16, 2018   Page 15 of 15
