MEMORANDUM DECISION                                                      Apr 24 2015, 8:12 am

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                           Gregory F. Zoeller
Bargersville, Indiana                                     Attorney General of Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Benjamin T. Haines,                                       April 24, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          01A02-1410-CR-684
        v.                                                Appeal from the Adams Circuit
                                                          Court
State of Indiana,                                         The Honorable Chad E. Kukelhan,
                                                          Judge
Appellee-Plaintiff.
                                                          Cause No. 01C01-0606-FB-3




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015            Page 1 of 15
[1]   Benjamin T. Haines appeals the revocation of his probation. Haines raises two

      issues, which we revise and restate as:


            I.    Whether the trial court violated his right to due process when it failed
                  to provide a statement of reasons explaining why it revoked his entire
                  suspended sentence; and

           II.    Whether the court committed fundamental error by failing to provide
                  him with an opportunity to present mitigating evidence after it found
                  that a probation violation had been committed.

      We affirm.

                                      Facts and Procedural History

[2]   On June 9, 2006, Haines was charged with burglary as a class B felony and theft

      as a class D felony under cause number 01C01-06069-FB-3 (“Cause No. 3”).

      On June 19, 2006, Haines pled guilty to five felonies and two misdemeanors

      under four cause numbers, including Cause No. 3, in which he pled guilty to

      burglary as a class B felony.1 On July 10, 2006, Haines was sentenced to ten

      years with four years suspended to probation in Cause No. 3 consecutive to his

      sentences in the other three cause numbers. He received an aggregate sentence

      of twenty-two and one-half years with ten years suspended to probation.




      1
        Pursuant to the same plea agreement, Haines pled guilty under cause number 01C01-0512-FD-0020 to
      receiving stolen property as a class D felony and carrying a handgun without a license as a class A
      misdemeanor. Under cause number 01C01-0512-CM-0034, Haines pled guilty to possession of marijuana as
      a class A misdemeanor. Under cause number 01C01-0605-FC-0014, he pled guilty to three counts of
      dangerous control of a firearm as class C felonies.

      Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015     Page 2 of 15
[3]   On September 19, 2011, Haines was released on probation. On March 28,

      2013, the State filed a Violation of Probation Petition 1.1 under both Cause No.

      3 and cause number 01C01-0605-FC-0014 (“Cause No. 14”), alleging that

      Haines failed to meet with his probation officer on March 13, 2013, and that he

      was arrested on March 26, 2013, in Wells County on charges of resisting law

      enforcement as a class D felony, reckless driving as a class B misdemeanor, and

      criminal mischief as a class B misdemeanor, relating to incidents occurring on

      or about March 17, 2013. On March 28, 2013, a bench warrant was issued

      pursuant to the petition. On April 1, 2013, the State filed a Violation of

      Probation Petition 1.2 under both cause numbers alleging that Haines failed to

      submit a urine sample on March 27, 2013. On May 14, 2013, the court denied

      a petition for reinstatement of bond filed by Haines. Also, on June 6, 2013, the

      court granted a motion by the State to continue a fact-finding hearing on the

      petitions until additional new charges were filed.2


[4]   On May 28, 2014, the court held a hearing at which Haines initially moved to

      continue the hearing due to evidentiary issues regarding his new alleged

      criminal activity. Following argument, the court granted Haines’s continuance

      and ordered that the hearing would pertain solely to Petition 1.2 and the

      allegation of failing to meet with his probation officer contained in Petition 1.1.




      2
        On September 30, 2013, the State filed a Violation of Probation Petition 1.3 under both cause numbers
      alleging that Haines committed certain offenses on March 26, 2013, including possession of marijuana as a
      class D felony, receiving stolen property as a class C felony, and four counts of unlawful possession of a
      firearm by a serious violent felon as class B felonies. As will be discussed below, Haines’s entire previously-
      suspended sentence has been revoked based solely on Petitions 1.1 and 1.2.

      Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015                Page 3 of 15
      Following the hearing, the court entered an order which, as amended on June

      6, 2014, revoked Haines’s probation in Cause No. 14 and ordered that he serve

      his previously-suspended six-year sentence in the Department of Correction

      (“DOC”). The order set a hearing date on Haines’s remaining violations for

      June 20, 2014, and also ordered that any sentence in Cause No. 3 would run

      consecutive to the sentence imposed. On July 3, 2014, Haines filed a notice of

      appeal of the court’s June 6, 2014 order.3


[5]   Following a continuance at the State’s request, on July 31, 2014, the State

      requested a fact-finding hearing on the remaining allegations contained in

      Petition 1.1, i.e., Haines’s arrest in Wells County on March 26, 2013. On

      September 4, 2014 the court held a hearing under Cause No. 3 at which Haines

      was sworn and testified that on June 11, 2014, he was convicted on the Wells

      County charges, including resisting law enforcement, reckless driving, and

      criminal mischief, and on July 8, 2014, he was sentenced on those charges. The

      court found that Haines violated his probation based on these convictions,

      inquired as to how many years of probation Haines had under Cause No. 3,

      and the prosecutor responded that Haines had been sentenced to four years of

      probation under Cause No. 3. The following exchange then took place:

              Court: Ben, I’m going to execute all four years of that sentence that’s
              remaining based on that conviction.




      3
        On December 11, 2014, in a Memorandum Decision, this court affirmed the trial court’s June 6, 2014 order
      revoking Haines’s probation and ordering him to serve his previously-suspended six-year sentence in the
      DOC. See Haines v. State, No. 01A02-1407-CR-454 (Ind. Ct. App. December 11, 2014).

      Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015          Page 4 of 15
              [Defense Counsel]: Your honor, before you do that would it be okay
              just for record purposes for him to do his right of allocution; this too,
              just for this aspect which I think he’s entitled to; to ask you to consider
              to do that. I understand what you’re thinking is and what you’re
              looking at doing, but just for his [. . . .]
              Court: Sure, Ben if you want to speak, go ahead. It’s unsworn. This
              part is unsworn. You can make a statement.
              [Haines]: That’s okay. I just want to be done with the, uh, I’d like to
              execute it, and be finished with it you know.
              Court: You want me to execute all of it?
              [Haines]: Yes, please.
              Court: Okay, all right.
              [Defense Counsel]: Obviously, there’s nothing else I can say over and
              above that your honor.
              Court: Nobody can really question you on what you’ve said Ben, but
              thank you. . . .


      September 4, 2014 Transcript at 11 (capital letters omitted). The next day, the

      court issued an order revoking the four years of his previously-suspended

      sentence in Cause No. 3, and it ordered that he serve the four years in the DOC

      consecutive to the sentence in Cause No. 14.


                                                   Discussion

                                                         I.


[6]   The first issue is whether the trial court violated his right to due process when it

      failed to provide a statement of reasons explaining why it revoked his entire

      suspended sentence. 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
      Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015   Page 5 of 15
      revocation of the conditional liberty created by probation. Woods v. State, 892

      N.E.2d 637, 640 (Ind. 2008). The minimum requirements of due process that

      inure to a probationer at a revocation hearing include: (a) written notice of the

      claimed violations of probation; (b) disclosure of the evidence against him; (c)

      an opportunity to be heard and present evidence; (d) the right to confront and

      cross-examine adverse witnesses; and (e) a neutral and detached hearing body.

      Id. Also, this court has observed that due process requires “a written statement

      by the factfinder as to the evidence relied on and reasons for revoking

      probation.” Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011). This

      requirement may be satisfied by placement of the transcript of the evidentiary

      hearing in the record if the transcript contains a clear statement of the trial

      court’s reasons for revoking probation. Washington v. State, 758 N.E.2d 1014,

      1018 (Ind. Ct. App. 2001); see also Puckett, 956 N.E.2d at 1186 (“A transcript of

      the evidentiary hearing, although not the preferred way of fulfilling the writing

      requirement, is sufficient if it contains a clear statement of the trial court’s

      reasons for revoking probation.).


[7]   Haines argues that the trial court violated his right to due process when it failed

      to provide a statement of reasons explaining why it revoked his entire

      suspended sentence. He asserts that accordingly, “it is difficult, if not

      impossible, for this court to review whether it abused its discretion by revoking

      the full four years of [his] sentence.” Appellant’s Brief at 7. He maintains that

      the fact he “asked for full revocation of his sentence does not render the trial

      court’s failure to issue any reasoning harmless” because “a few months prior to


      Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015   Page 6 of 15
      this hearing, [he] had attempted suicide while in the county jail,” and he also

      notes that the court “had already ordered the four years executed” when he

      made the statement and accordingly “any statement of allocution . . . was

      pointless and his request . . . was simply an acquiescence to the trial court’s

      order.” Id.


[8]   The State argues that “[t]he court adequately explained why it revoked Haines’s

      probation in its oral statement” when it stated: “Ben, I’m going to execute all

      four years of that sentence that’s remaining based on that conviction.” Appellee’s

      Brief at 8 (quoting September 4, 2014 Transcript at 11). The State asserts that

      “[a] trial court is not required to provide a written sentencing statement if the

      transcript of the evidentiary hearing ‘contains a clear statement of the trial

      court’s reasons for revoking probation.’” Id. at 7 (quoting Puckett, 956 N.E.2d

      at 1186).


[9]   Initially, we observe that as noted above due process requires the court to

      provide “a written statement by the factfinder as to the evidence relied on and

      reasons for revoking probation” and that this requirement may be satisfied by

      including the transcript of the hearing in the record on appeal. Puckett, 956

      N.E.2d 1186 (emphasis added). Haines does not cite to authority for the

      proposition that due process requires the court to explain its reasons for

      imposing the entire previously-suspended sentence instead of a lighter sentence

      for the violation. See, e.g., id. (noting that “[i]f a defendant is found to have

      violated his or her probation, a trial court may (1) continue the defendant on

      probation; (2) extend the probationary period for not more than one year

      Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015   Page 7 of 15
       beyond the original period; and/or (3) order all or part of a previously

       suspended sentence to be executed”).


[10]   Here, the transcript of the September 4, 2014 evidentiary hearing has been

       placed in the record. As noted by the State, the transcript discloses that the

       court revoked Haines’s probation on the basis that he committed the criminal

       offenses of resisting law enforcement as a class D felony, reckless driving as a

       class B misdemeanor, and criminal mischief as a class B misdemeanor, in Wells

       County on or about March 17, 2013. Proof of a single violation of the

       conditions of a defendant’s probation is sufficient to support a trial court’s

       decision to revoke probation. See, e.g., Hubbard v. State, 683 N.E.2d 618, 622

       (Ind. Ct. App. 1997) (noting that “[p]roof of a single violation of the conditions

       of a defendant’s probation is sufficient to support a trial court’s decision to

       revoke probation”). Reversal on this basis is not warranted. See Washington,

       758 N.E.2d at 1018 (noting that the transcript of the revocation hearing had

       been placed in the record and clearly disclosed the court’s basis for revoking the

       defendant’s probation).


[11]   Also, to the extent Haines argues that the court’s failure to explain its reasoning

       in a written statement is not harmless because, as noted at a previous hearing

       on June 18, 2014, he “had attempted suicide while in the county jail,”

       Appellant’s Brief at 7, and because his request for the court to execute his

       sentence was made only after the court stated that it was going to order that he

       serve his previously-suspended sentence in the DOC, we note the following.

       First, such arguments more properly support his contention in Part II that he

       Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015   Page 8 of 15
       was not given the opportunity to present mitigating evidence. Second, our

       review of the June 18, 2014 transcript reveals that the day before that hearing

       Haines “overdosed with some type of medication,” but it does not indicate that

       the overdose was the result of an alleged suicide attempt. June 18, 2014

       Transcript at 2. Third, assuming that the overdose was an alleged suicide

       attempt, at the September 4, 2014 hearing, following Haines’s statement,

       defense counsel had the opportunity to argue that Haines’s mental state

       impacted his behavior at the hearing and his decision to request that the court

       execute his previously-suspended sentence. Instead, counsel simply stated:

       “Obviously, there’s nothing else I can say over and above that your honor.”

       September 4, 2014 Transcript at 11.


[12]   We conclude that the court did not violate Haines’s right to due process when it

       stated at the hearing that it was revoking Haines’s probation because he

       committed the offenses in Wells County.


                                                         II.


[13]   The next issue is whether the court committed fundamental error by failing to

       provide Haines with an opportunity to present mitigating evidence after it found

       that a probation violation had been committed. Probation revocation is a two-

       step process. Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997). First,

       the court must make a factual determination that a violation of a condition of

       probation actually occurred. Id. If a violation is proven, then the trial court

       must determine if the violation warrants revocation of the probation. Id. When


       Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015   Page 9 of 15
       reviewing an appeal from the revocation of probation, we consider only the

       evidence most favorable to the judgment, and we will not reweigh the evidence

       or judge the credibility of the witnesses. Vernon v. State, 903 N.E.2d 533, 536

       (Ind. Ct. App. 2009), trans. denied. Probation is an alternative to commitment

       in the Department of Correction, and it is at the sole discretion of the trial

       court. Lightcap v. State, 863 N.E.2d 907, 911 (Ind. Ct. App. 2007) (citing Cox v.

       State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g denied). Probation is a favor

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

       Parker, 676 N.E.2d at 1085. However, once the State grants that favor, it

       cannot simply revoke the privilege at its discretion. Id. Probation revocation

       implicates a defendant’s liberty interest, which entitles him to some procedural

       due process. Id. (citing Morrissey v. Brewer, 408 U.S. 471, 482, 92 S. Ct. 2593,

       2600-2601 (1972)). Because probation revocation does not deprive a defendant

       of his absolute liberty, but only his conditional liberty, he is not entitled to the

       full due process rights afforded a defendant in a criminal proceeding. Id. The

       due process rights granted to a probationer at a revocation hearing include the

       opportunity to be heard and present evidence. Vernon, 903 N.E.2d at 536-537.


[14]   In Woods v. State, the Indiana Supreme Court noted that for the purposes of

       probation revocation proceedings, “[t]o reverse a trial court’s decision to

       exclude evidence, there must have been error by the court that affected the

       defendant’s substantial rights and the defendant must have made an offer of

       proof or the evidence must have been clear from the context.” 892 N.E.2d 637,

       641 (Ind. 2008) (citing Stroud v. State, 809 N.E.2d 274, 283 (Ind. 2004)). “This

       Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015   Page 10 of 15
       offer to prove is necessary to enable both the trial court and the appellate court

       to determine the admissibility of the testimony and the prejudice which might

       result if the evidence is excluded.” Id. at 641-642 (quoting Wiseheart v. State, 491

       N.E.2d 985, 991 (Ind. 1986)). “The purpose of an offer of proof is to convey

       the point of the witness’s testimony and provide the trial judge the opportunity

       to reconsider the evidentiary ruling.” Id. at 642 (citing State v. Wilson, 836

       N.E.2d 407, 409 (Ind. 2005), reh’g denied). Equally important, it preserves the

       issue for review by the appellate court. Id. Generally, the failure to offer

       mitigating evidence at the revocation hearing waives the claim on appeal. See

       id. (“Neither on direct appeal nor on transfer to this Court does Woods make

       any attempt to explain why he violated the terms of his probation. More

       importantly, Woods did not make an offer of proof to the trial court. Generally

       this failure is fatal to his claim.”).


[15]   Haines argues that the court violated his due process rights when it failed to

       provide him with the opportunity to present any mitigating evidence.

       Specifically, he argues that probation revocation is a two-step process, that even

       where a violation is admitted “the probationer must be given an opportunity to

       provide mitigating evidence suggesting that the violation does not warrant

       revocation,” and that here the court ordered that his entire previously-

       suspended sentence be revoked “[i]mmediately after finding [that he] violated

       probation . . . .” Appellant’s Brief at 7. Haines acknowledges that “the Indiana

       Supreme Court has held that a probationer must make an offer of proof in order

       to preserve for appeal the denial of the opportunity to present mitigating


       Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015   Page 11 of 15
       evidence in a probation disposition” and that he “did not make an offer of

       proof,” and he argues that here the error amounts to fundamental error and

       directs our attention to Tillberry v. State, 895 N.E.2d 411 (Ind. Ct. App. 2008),

       overruled on other grounds by Heaton v. State, 984 N.E.2d 614, 617 n.4 (Ind. 2013),

       for the proposition. Id. at 8.


[16]   The State argues that following the court’s pronouncement that it would revoke

       his previously-suspended sentence, defense counsel asked the court to allow

       Haines “to do his right of allocution” and make a statement, and the court

       allowed Haines to speak. Appellee’s Brief at 7. Haines then asked the court to

       order that his sentence be executed, and his counsel “had nothing to add.” Id.

       The State also argues that any error in this case was harmless because when

       given the opportunity to speak Haines asked the court to execute his previously-

       suspended sentence, and that accordingly, any error did not affect his

       substantial rights.


[17]   In Tillberry, a panel of this court addressed defendant Tillberry’s argument that

       he was denied due process at his revocation hearing, despite not objecting and

       making an offer of proof, observing that “we may bypass an error that a party

       procedurally defaults when we believe that the error is plain or fundamental,”

       that “[t]o qualify as ‘fundamental error,’ the error must be a substantial blatant

       violation of basic principles rendering the trial unfair to the defendant,” and

       that “[d]eprivation of due process is fundamental error.” 895 N.E.2d at 415

       n.1. The court distinguished Woods, noting that in Woods the Court “found a

       trial court erred at a probation revocation hearing when it did not permit

       Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015   Page 12 of 15
       Woods to explain why his admitted violation should not result in revocation of

       probation,” and it observed that “the Court affirmed the revocation because

       Woods did not make an offer of proof,” which “suggest[ed] Woods had an

       evidentiary hearing.” Id. The court stated that “a ‘trial court ruling excluding

       evidence’ may not be challenged on appeal unless ‘the substance of the evidence

       was made known to the court by a proper offer of proof,’” but that Tillberry

       “was not afforded an evidentiary hearing, as no witnesses were sworn and no

       other evidence was admitted.” Id. (quoting Lashbrook v. State, 762 N.E.2d 756,

       758 (Ind. 2002)).


[18]   Here, unlike in Tillberry, the court swore Haines in prior to Haines’s testimony

       admitting that he was convicted of the Wells County charges. Indeed, unlike

       what occurred in Tillberry, Haines does not even allege that error occurred

       during the first step of the revocation hearing. Thus, the circumstances in this

       case are akin to Woods, in which the court denied the defendant the opportunity

       to offer mitigating evidence during the second step of the revocation hearing,

       and the defendant failed to preserve any error by not objecting and making an

       offer of proof.


[19]   Moreover, unlike in Woods, Haines was given an opportunity to speak in

       allocution and, instead of offering mitigating circumstances, asked the court to

       execute his previously suspended sentence. In Woods, at the revocation hearing

       probationer Woods did not challenge the fact that a violation occurred but

       asked the court: “Can I explain why I missed, sir?” 892 N.E.2d at 639. The

       court declined Woods’s request, stating that it did not matter because he was

       Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015   Page 13 of 15
       “on strict compliance,” and Woods then accepted the State’s offer that he

       execute twelve years of his previously-suspended sentence. Id. On appeal,

       Woods argued that “the court denied him due process by preventing him from

       explaining why he violated the terms of probation,” and the Court agreed,

       holding that the trial court erred when it denied him the “opportunity to explain

       why even this final chance is deserving of further consideration.” Id. at 641.

       However, as noted above, the Court’s analysis did not end there, and it

       nevertheless affirmed the trial court because he did not preserve the error by

       objecting and making an offer of proof.4


[20]   Although Haines’s statement to the court during phase two of the revocation

       hearing was unsworn and came following the court’s initial statement that it

       was going to revoke his entire previously-suspended sentence, the court

       nevertheless gave him the opportunity to speak, unlike the defendant in Woods.

       Rather than make an offer of proof regarding potential mitigating

       circumstances, Haines instead stated: “I just want to be done with the, uh, I’d

       like to execute it, and be finished with it you know.” September 4, 2014

       Transcript at 11. The court asked Haines: “You want me to execute all of it?”




       4
         The Court left open the possibility that, under certain circumstances, reversal may be warranted where a
       defendant articulates mitigating circumstances on appeal. See Woods, 892 N.E.2d at 642 (“Neither on direct
       appeal nor on transfer to this Court does Woods make any attempt to explain why he violated the terms of
       his probation.”). The Court also deemed making an offer of proof to the trial court “[m]ore important[].” Id.
       The only reasons suggested on appeal by Haines appear in another part of the argument section of his brief
       discussed above, namely, that Haines overdosed prior to a previous hearing on June 18, 2014. Under the
       circumstances, and considering the fact that when given the chance to speak Haines asked the court to
       execute his sentence, we cannot say that Haines has articulated mitigating circumstances on appeal sufficient
       to overcome waiver.

       Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015           Page 14 of 15
       Id. Haines responded: “Yes, please.” Id. Also, Haines’s counsel did not offer a

       statement in mitigation and simply stated: “Obviously, there’s nothing else I

       can say over and above that your honor.” Id. Under the circumstances, we

       cannot say that the court committed fundamental error during the second phase

       of the probation hearing when Haines did not present any mitigating evidence.


                                                    Conclusion

[21]   For the foregoing reasons, we affirm the revocation of Haines’s probation.


[22]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 01A02-1410-CR-684 | April 24, 2015   Page 15 of 15
