MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                May 01 2020, 9:14 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
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Dale M. Thomas,                                          May 1, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2217
        v.                                               Appeal from the Franklin Circuit
                                                         Court
State of Indiana,                                        The Honorable Clay M.
Appellee-Plaintiff.                                      Kellerman, Judge
                                                         Trial Court Cause No.
                                                         24C02-1701-F6-81



Darden, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020                       Page 1 of 12
                                      Statement of the Case
[1]   Dale M. Thomas appeals the trial court’s judgment revoking his probation. We

      affirm.


                                                    Issue
[2]   Thomas raises one issue, which we restate as: whether the trial court erred in

      determining that Thomas had knowingly, intelligently, and voluntarily waived

      his right to counsel during probation revocation proceedings.


                               Facts and Procedural History
[3]   On January 25, 2017, the State charged Thomas with possession of

      methamphetamine, a Level 6 felony, and possession of marijuana, a Class B

      misdemeanor. On January 31, 2017, the State amended the charging

      information to add a charge of maintaining a common nuisance, a Level 6

      felony.


[4]   Also, on January 31, 2017, the trial court held an initial hearing on the charge

      of maintaining a common nuisance, during which the trial court advised

      Thomas of his constitutional rights. Thomas also signed an advisement of his

      rights. The document advised Thomas that he had “a right to have a lawyer

      and to consult him during all critical states of a criminal proceeding including

      the initial hearing.” Appellant’s App. Vol. 2, p. 21.


[5]   Thomas, by counsel, and the State subsequently negotiated a plea agreement.

      Thomas agreed to plead guilty to the charges of possession of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020   Page 2 of 12
      methamphetamine and possession of marijuana, and the State agreed to dismiss

      the charge of maintaining a common nuisance. The State further agreed to

      recommend the following sentence to the trial court: (1) for the charge of

      possession of methamphetamine, twenty-four months in the county jail, with

      fifteen months suspended to probation; and (2) for the charge of possession of

      marijuana, six months in the county jail, with three months suspended to

      probation, to be served concurrently with the sentence for possession of

      methamphetamine.


[6]   On August 21, 2018, Thomas signed an advisement of rights in connection with

      the plea agreement. Among other topics, the document advised Thomas that

      he agreed that his “guilty plea has been made knowingly and voluntarily and no

      promises, threats or force have been used to make you plead guilty.” Id. at 61.

      The document further advised:


              You have the right to be represented by an attorney. If you
              cannot afford an attorney, the Court will appoint an attorney for
              you. You have the right to a continuance in which to hire an
              attorney and to have you [sic] attorney prepare you [sic] case and
              subpoena witnesses. If you choose to proceed without an
              attorney, you will be giving up these rights.


      Id. By signing the advisement of rights, Thomas certified “that [he has] read the

      above statements, [understood] each paragraph, and [wished] to waive and

      hereby do waive each and every right enumerated.” Id.


[7]   On August 21, 2018, the trial court held a hearing on the plea agreement. The

      trial court accepted Thomas’ guilty plea. On September 6, 2018, the trial court
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020   Page 3 of 12
       issued an amended order sentencing Thomas pursuant to the parties’ plea

       agreement. The State dismissed the charge of maintaining a common nuisance.


[8]    Thomas served the executed portion of his sentence and was released to

       probation on January 28, 2019. That same day, he met with a probation officer

       to review and sign an order detailing the terms and conditions of his probation.

       On January 29, 2019, the trial court issued the order.


[9]    Among other terms and conditions of probation, Thomas agreed to “[r]eport to

       the Probation Department as directed by [the] Probation Officer, keep all

       appointments and answer all reasonable inquiries.” Id. at 72. Thomas also

       agreed to notify the probation officer of all changes of address, and that he

       could not move out of Franklin County without “written permission of [the]

       Probation Officer.” Id.


[10]   On March 8, 2019, the Franklin County Probation Office filed with the trial

       court a Verified Petition of Probation Violation (the Petition). A probation

       officer alleged that Thomas had: (1) missed two scheduled appointments with

       his probation officer; and (2) had moved out of his residence and left the state,

       moving to Florida. The officer further stated Thomas had failed to submit

       proof that he was seeking treatment for substance abuse.


[11]   On March 14, 2019, the trial court issued an order determining that the State’s

       Petition contained facts sufficient to establish probable cause for an arrest

       warrant and, accordingly, ordered the trial court clerk to issue a warrant for



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020   Page 4 of 12
       Thomas’ arrest. Thomas was subsequently arrested under circumstances not set

       forth in the record.


[12]   On August 15, 2019, Thomas appeared before the trial court for an initial

       hearing on the Petition. Judge Kellerman had also presided over Thomas’

       guilty plea and sentencing hearing. At the beginning of the initial hearing, the

       trial court advised Thomas as follows:


               Mr. Thomas, you have the right to take this matter to a hearing
               at which time the burden will be on the State to prove that you
               violated the terms and conditions of probation. You do have the
               right to face all witnesses against you and to see them, question
               them, cross-examine those Witnesses. You also have the right to
               call Witnesses to testify on your own behalf. The Court can
               assist you in that right by issuing subpoenas. You do have the
               right to remain silent[.] Anything that you do say, can and will,
               be used against you. You also have the right to be heard in your
               own defense and to be represented by an attorney. If you cannot
               afford an attorney and meet certain criteria, the Court can
               appoint one for you.


       Tr. Vol. 2, p. 4.


[13]   Thomas stated that he understood his rights as stated by the trial court, and that

       he was not under the influence of alcohol or drugs. The trial court also asked

       Thomas for his age, and Thomas stated he was twenty-seven. Next, the trial

       court reviewed the Petition with Thomas, and Thomas agreed that he

       understood the State’s allegations.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020   Page 5 of 12
[14]   Thomas denied the allegations set forth in the Petition. When the trial court

       asked Thomas what he planned to do about an attorney, Thomas responded:


               I would like to represent myself pro se and also, I would like to, I
               would like to file a motion for a Habeous [sic] Corpus Fast and
               Speedy Trial and I also would like to file a Motion for Releasal
               [sic] because of the 72-hour law. This is the first time I’ve been to
               Court. I’ve been arrested on this warrant since, since the 6th of
               this month, of August 6th I’ve been arrested and it is now August
               15th and this is the first time I’ve been in Court. And I know that
               I have 72-hours to be arraigned. It’s the law. I looked it up in
               the law library.


       Id. at 6-7.


[15]   After Thomas’s statement, the following discussion occurred:


               THE COURT: Okay. Before we proceed, I do want you to
               understand that you are facing, this is a petition to show that it,
               it's alleging that you violated felony probation. Do you
               understand that?


               MR. THOMAS: Yes, sir.


               THE COURT: And do you understand that you are going to be
               held to the same standards as the State of Indiana meaning that
               Ms. Brier is the person handling this case for the State. She
               understands the Rules of Procedures. She understands the Rules
               of Evidence. She knows how to try and prepare a case; do you
               understand that?


               MR. THOMAS: Yes, sir.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020   Page 6 of 12
               THE COURT: All of that applies to you whether you have an
               attorney or not.


               MR. THOMAS: Yes, sir.


               THE COURT: Knowing that, do you still want to proceed
               without counsel?


               MR. THOMAS: Yes, sir.


       Id. at 7.


[16]   Next, the trial court denied Thomas’ motion for speedy trial and instructed him

       to file a written habeas corpus petition. The trial court then decided to set bond

       and asked the prosecutor to describe Thomas’ conviction record. The

       prosecutor discussed Thomas’s two prior criminal cases. The trial court set a

       bond amount, scheduled the dispositional hearing, and ordered Thomas to

       appear for the hearing. Later, the trial court issued an order describing the

       initial hearing. The trial court stated, “the Court advises the Defendant of the

       perils of proceeding without counsel.” Appellant’s App. Vol. 2, p. 84.


[17]   On August 29, 2019, the trial court held a dispositional hearing. At the State’s

       request, the trial court took judicial notice of the plea agreement and sentencing

       order, the order containing the terms and conditions of probation, and the

       record of the August 15, 2019 initial hearing on the State’s Petition. Thomas

       represented himself. At the conclusion of the hearing, the trial court

       determined Thomas had violated the terms and conditions of his probation.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020   Page 7 of 12
       The trial court imposed an aggregate sentence of fifteen months, to be served in

       the county jail. This appeal followed.


                                    Discussion and Decision
[18]   Thomas argues that the trial court erred in allowing him to waive his right to

       counsel and represent himself during probation revocation proceedings, because

       he contends his waiver was not knowing, intelligent, and voluntary.


[19]   Probation is a favor granted by the State, not a right to which a defendant is

       entitled. Butler v. State, 951 N.E.2d 255, 259 (Ind. Ct. App. 2011). “A

       probation revocation proceeding is in the nature of a civil action, as there is no

       formal finding of guilt or innocence, and the alleged violation need be proven

       only by a preponderance of the evidence.” State v. Cass, 635 N.E.2d 225, 226

       (Ind. Ct. App. 1994), trans. denied. As a result, a defendant at a probation

       revocation hearing does not have all of the rights he or she possessed prior to

       conviction. Isaac v. State, 605 N.E.2d 144, 148 (Ind. 1992).


[20]   “There are certain due process rights, of course, that inure to a probationer at a

       revocation hearing.” Id. These rights include representation by counsel. Id.; see

       also Ind. Code § 35-38-2-3(f) (2015) (probationers are entitled to representation

       by counsel). When a defendant proceeds without counsel, the record must

       reflect that the defendant knowingly, intelligently, and voluntarily waived the

       right to counsel. Butler, 951 N.E.2d at 259. “[D]etermining if a defendant’s

       waiver was ‘knowing and intelligent’ depends on the ‘particular facts and

       circumstances surrounding [the] case, including the background, experience,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020   Page 8 of 12
       and conduct of the accused.’” Kubsch v. State, 866 N.E.2d 726, 736 (Ind. 2007)

       (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed.

       1461 (1938)). We review de novo a trial court’s finding that a defendant waived

       the right to counsel. Butler, 951 N.E.2d at 260.


[21]   Thomas concedes that the trial court “properly advised [him] of his due process

       rights and of the potential consequences if his probation was revoked . . . .”

       Appellant’s Br. p. 7. He argues that the trial court failed to ascertain that he

       was competent to represent himself and failed to ensure that he was aware of

       the pitfalls of waiving the assistance of counsel.


[22]   Under the particular facts and circumstances of this case, we conclude the trial

       court had ample evidence from which it could conclude that Thomas was

       competent to represent himself. The same trial judge had also presided over

       Thomas’s guilty plea proceedings. During those proceedings, Thomas had

       signed a waiver of rights document, which described in detail Thomas’s rights,

       which he indicated he understood. In addition, at the beginning of the August

       15, 2019 initial hearing, the trial court advised him of other due process rights,

       which Thomas also indicated he understood. The trial court learned that

       Thomas was twenty-seven years old, well into adulthood, and was not under

       the influence of any drugs or alcohol.


[23]   Further, when Thomas asked to represent himself, he also asked for a speedy

       trial and indicated that he thought he should be released because he believed he

       had been held in jail for too long without an initial hearing. Thomas thus


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020   Page 9 of 12
       indicated some familiarity with criminal law and procedure. He also informed

       the court he had been using the jail’s law library to conduct research. Finally,

       in the course of setting bond during the initial hearing, the trial court learned

       from the prosecutor that Thomas had been the subject of at least two prior

       criminal cases. This is ample evidence from which the trial court could have

       determined Thomas was sufficiently intelligent and experienced to represent

       himself. See Cooper v. State, 900 N.E.2d 64, 70-71 (Ind. Ct. App. 2009) (trial

       court adequately investigated Cooper’s competency; Cooper understood the

       allegations against him and, despite being a high school dropout, was twenty-

       five years old, could read and write, was not under the influence of substances,

       had been involved with the court system before, and was aware of his right to

       counsel).


[24]   Turning to whether Thomas was sufficiently informed of the perils of

       proceeding without counsel, the Indiana Supreme Court has “deliberately

       eschewed any attempt to formulate a rigid list of required warnings, talismanic

       language, or formulaic checklist.” Hopper v. State, 957 N.E.2d 613, 619 (Ind.

       2011), on reh’g. Nevertheless, a trial court’s complete failure to inform a

       probationer of the perils of waiving the right to counsel is grounds for reversal.

       See, e.g., Eaton v. State, 894 N.E.2d 213, 217 (Ind. Ct. App. 2008) (trial court

       advised probationer of right to counsel but did not address whether probationer

       wanted the assistance of counsel, or wished to waive the right to counsel, before

       asking probationer to admit or deny allegations), trans. denied; Bumbalough v.

       State, 873 N.E.2d 1099, 1102 (Ind. Ct. App. 2007) (trial court informed


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020   Page 10 of 12
       probationer of right to counsel but did not discuss waiver of that right with

       probationer); Bell v. State, 695 N.E.2d 997, 999 (Ind. Ct. App. 1998) (trial court

       failed to advise probationer of his right to counsel and did not attempt to

       determine whether probationer wanted to waive that right).


[25]   In contrast to those cases, in Thomas’ case the trial court provided ample

       warning to Thomas of the perils of waiving the right to counsel. Thomas was

       represented by counsel during the plea agreement negotiation phase and during

       guilty plea proceedings. He signed an advisement of rights in conjunction with

       his guilty plea, in which he indicated he understood that an attorney’s tasks

       included preparing a defense and subpoenaing witnesses.


[26]   Next, at the beginning of the August 15, 2019 initial hearing on the State’s

       Petition, the trial court informed Thomas that during the evidentiary hearing,

       Thomas would have the right to cross-examine the State’s witnesses and the

       right to call witnesses for his own defense. The trial court further stated that

       Thomas had the right to counsel. After Thomas stated he wanted to represent

       himself, the trial court reminded him that this case involved a felony

       conviction, which is a serious matter. Finally, the trial court informed Thomas

       that: (1) he would be held to the same standards of conduct as the deputy

       prosecutor; and (2) the deputy prosecutor understood the rules of procedure and

       knew how to prepare and try a case. Under these facts and circumstances, we

       conclude Thomas was sufficiently informed of the perils of waiving the right to

       counsel. See Cooper, 900 N.E.2d at 69 (probationer knowingly waived right to

       counsel; trial court advised probationer of due process rights including the right

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020   Page 11 of 12
       to cross-examine and the right to present evidence; court also advised

       probationer of the potential sentencing consequences of being found in

       violation of probation).


                                                Conclusion
[27]   For the reasons stated above, we affirm the judgment of the trial court.


[28]   Affirmed.


       Bailey, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020   Page 12 of 12
