                                                                                    FILED
                                                                              Oct 17 2017, 7:27 am

                                                                                    CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




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




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Timothy Allen,                                            October 17, 2017

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                24A05-1706-CR-1303
              v.                                                Appeal from the Franklin Circuit
                                                                Court.
                                                                The Honorable J. Steven Cox, Judge.
      State of Indiana,                                         Trial Court Cause No.
      Appellee-Plaintiff.                                       24C01-1108-FB-48




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Timothy Allen appeals from the trial court’s order revoking his probation and

      imposing the execution of Allen’s previously-suspended, twenty-year sentence

      in the Department of Correction, contending that he did not waive his right to

      counsel at the fact-finding hearing on the petition to revoke his probation. The
      Court of Appeals of Indiana | Opinion 24A05-1706-CR-1303 | October 17, 2017                      Page 1 of 6
      State agrees that the record does not reflect a valid waiver of the right to

      counsel. We reverse and remand.


                                Facts and Procedural History
[2]   Allen pleaded guilty to conspiracy to manufacture methamphetamine for which

      he received a twenty-year suspended sentence to be served on supervised

      probation. The probation violation petition at issue here alleged that Allen had

      committed new crimes involving dealing in methamphetamine, as a Level 3

      felony, possession of methamphetamine, as a Level 5 felony, illegal possession

      of precursors, a Level 6 felony, and maintaining a common nuisance, a Level 6

      felony.


[3]   Allen appeared pro se at his initial hearing on the petition, which was

      conducted at the same time as the initial hearing on the new allegations filed

      under a separate cause number. The trial court advised Allen of his rights

      under the newly filed charges. At that time, Allen told the trial court that he

      needed an attorney. Tr. p. 5. The trial court indicated that the issue would be

      addressed later. After the trial court completed the advisement of rights with

      respect to all pending issues, allegations, and charges, the court asked Allen

      why he could not hire his own counsel. Allen responded by saying that he

      would attempt to hire private counsel, but that he was currently without funds

      to do so. The trial court then addressed Allen’s potential eligibility for pauper

      counsel as follows:




      Court of Appeals of Indiana | Opinion 24A05-1706-CR-1303 | October 17, 2017    Page 2 of 6
        THE COURT: Okay, the Court will enter preliminary pleas of
        not guilty on your behalf and denial on the probation violation
        and we’ll set the matter for an omnibus date, uh, for May the
        10th, set the matter for a pre-trial which you’re ordered to attend .
        . . unless you have an attorney on the 8th of June, 2017 at 1:00
        o’clock. And you’re still receiving benefits?
        [ALLEN]: Yes, I [am] getting ready to go . . . Your Honor. I’m
        getting ready to go to rehab, uh, suppose[d] to be tomorrow. . . .
        THE COURT: Why can’t you hire counsel?
        [ALLEN]: Well, I’m going to try, Your Honor, but I’ve got to
        see how much money I can save because I’ve still got . . . . I
        don’t got [sic] control of my money. My sister does, but she pays
        all my bills. I’m going to save . . . . get an attorney if I can.
        Now, can I have so much time to try to get an attorney, Your
        Honor?
        THE COURT: Well, you’ve got until June the . . . . whatever
        date I just gave you, June the 9th.
        [ALLEN]: Well, I . . . . can I possibly try to see if I can get me
        an attorney before I get appointed attorney?
        THE COURT: I’m sorry. June the 8th is the first date that you
        have to appear . . . [sic]
        [ALLEN]: Okay.
        THE COURT: . . . . but . . .uh, an attorney would be beneficial
        to you so that you don’t miss deadlines for the omnibus date
        which is a month before that, but if you . . . . I don’t know if
        you’re asking for counsel or not. You have income, . . . .
        [ALLEN]: Yeah.
        THE COURT: . . . .so you’re not indigent.
        [ALLEN]: No.
        THE COURT: So you probably don’t qualify for it.
        [ALLEN]: Okay.


Court of Appeals of Indiana | Opinion 24A05-1706-CR-1303 | October 17, 2017     Page 3 of 6
              THE COURT: But I don’t know what your obligations are . .
              [sic] I don’t know . . . . I mean . . . .
              [ALLEN]: Yeah, we’ve been looking for . . . I have been looking
              for attorneys, but they want pretty lot down . . . so that’s why I’m
              trying to save up money and to . . . and hope I can get one.
              THE COURT: Okay, I don’t know what your Motion is today?
              [ALLEN]: Today, I want to try and get my own attorney for
              right now . . . . you’re talk . . . . Your Honor.
              THE COURT: You’re going to try to get your own?
              [ALLEN]: Yes, yes.
      Tr. pp. 7-8.


[4]   After a continuance, the fact-finding hearing on the probation violation was

      held on May 24, 2017. The State raised the issue of Allen’s attempt to gain

      legal representation, noting that he presently appeared pro se. Specifically, the

      State said: “Your Honor, I don’t know if it’s a preliminary matter. I talked to

      Mr. Allen prior and he said he was going to get an attorney. So, I don’t know if

      you want to address that, or we just proceed.” Id. at 12. The trial court

      responded by saying, “Well, Mr. Allen told me at the Initial Hearing he was

      going to hire an attorney, and he was free to that, and he didn’t. So this is the

      fact finding and we’re ready to proceed.” Id. The matter proceeded without

      any inquiry about Allen’s efforts to obtain counsel, his ability to pay, and the

      record does not reflect that Allen affirmatively waived his right to counsel.

      Further, there was no advisement given to Allen of the dangers of proceeding

      pro se.




      Court of Appeals of Indiana | Opinion 24A05-1706-CR-1303 | October 17, 2017    Page 4 of 6
[5]   At the conclusion of the hearing, the trial court found Allen had violated the

      terms and conditions of his probation and imposed the execution of the twenty-

      year, previously-suspended, sentence to be executed in the Department of

      Correction. This appeal ensued.


                                    Discussion and Decision
[6]   The dispositive issue upon which we decide Allen’s challenge to his probation

      revocation is the issue of his waiver of the right to counsel. “Probation is a

      favor granted by the State, not a right to which a criminal defendant is entitled.”

      Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. When

      faced with a petition to revoke probation, a probationer is not entitled to the full

      panoply of rights he enjoyed prior to the conviction. Rosa v. State, 832 N.E.2d

      1119, 1121 (Ind. Ct. App. 2015). However, a petitioner is entitled to certain

      due process protections such as representation by counsel. Cooper v. State, 900

      N.E.2d 64, 66 (Ind. Ct. App. 2009); see also, Ind. Code § 35-38-2-3(e) (2017).


[7]   Here, the State agrees with Allen that the record does not reflect a valid waiver

      of the right to counsel. Appellee’s Br. p. 7. If a petitioner makes the decision to

      proceed without the benefit of counsel, we must be confident that the record

      reflects that the right to counsel was voluntarily, knowingly, and intelligently

      waived. Cooper, 900 N.E.2d at 66. Without such, we are without an adequate

      record to establish waiver. Id.


[8]   We recognize that there are no magic words a trial court must utter to ensure

      that the defendant appreciates the situation, but the particular facts must show

      Court of Appeals of Indiana | Opinion 24A05-1706-CR-1303 | October 17, 2017   Page 5 of 6
       that the defendant understands, based on his background, experience, and

       conduct, the nature of the situation. Id.


[9]    We agree with the following from the State’s brief:


               [T]hat the record in this case is inadequate to show a knowing,
               voluntary, and intelligent waiver of the right to counsel. Allen
               was never advised of the pitfalls of proceeding without an
               attorney. He was never fully questioned about his ability to
               understand and appreciate the proceedings. In fact, he told the
               trial court that he did not read well and repeated that he was
               confused throughout the fact-finding hearing (Tr. 4, 24, 26-27,
               29). The trial court did not establish that Allen understood that
               he had a right to counsel if he could not afford to retain his own,
               that he was waiving that right, and that certain dangers inure to
               proceeding pro se. Therefore, the State agrees that the trial
               court’s order revoking Allen’s probation should be reversed, and
               the case remanded to the trial court for a new fact-finding
               hearing.
       Appellee’s Br. p. 8.


                                                 Conclusion
[10]   In light of the foregoing, we reverse the revocation of probation and remand for

       for further proceedings consistent with this opinion.


[11]   Reversed and remanded.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 24A05-1706-CR-1303 | October 17, 2017   Page 6 of 6
