FOR PUBLICATION

ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

JAY RODIA                                      GREGORY F. ZOELLER
Indianapolis, Indiana                          Attorney General of Indiana

                                               MICHELLE BUMGARNER
                                               Deputy Attorney General

                                                                             FILED
                                               Indianapolis, Indiana

                                                                        Feb 26 2013, 8:54 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                               CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




PAUL SPARKS,                                   )
                                               )
       Appellant-Defendant,                    )
                                               )
               vs.                             )    No. 49A02-1207-CR-593
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                        APPEAL FROM THE MARION SUPERIOR COURT
                              The Honorable Robert Altice, Judge
                                Cause No. 49G02-1202-FC-8723




                                    February 26, 2013



                              OPINION - FOR PUBLICATION



ROBB, Chief Judge
                                   Case Summary and Issue

       Paul B. Sparks’s probation was revoked and he was ordered to serve the entirety of his

previously-suspended sentence at the Department of Correction after he admitted to violating

a condition of his probation. He now appeals, raising two issues, one of which we restate and

find dispositive: whether the trial court violated Sparks’s due process rights in its handling

of his probation revocation hearing. Concluding that Sparks’s due process rights were

violated, we reverse and remand for a new probation revocation hearing.

                                 Facts and Procedural History

       Sparks was convicted of battery, a Class C felony, and invasion of privacy, a Class A

misdemeanor, following a guilty plea entered on May 2, 2012. On May 9, 2012, he was

sentenced to concurrent, suspended terms of five years for the battery and one year for the

invasion of privacy. The trial court placed Sparks on probation for two years with the

condition that he would participate in an inpatient treatment program for alcohol abuse in the

Hebron Center in Bloomington, Indiana, for one year followed by a second year of treatment

in a program approved by the probation department and the Hebron Center. On May 22,

2012, the State filed a notice of probation violation, alleging that Sparks left the Hebron

Center on May 17, 2012, without notice.

       The parties appeared before the trial court on June 29, 2012, for a probation violation

hearing. At the hearing, during a short conversation with the court, the State explained that

Sparks had left the Hebron Center after only a few days of attendance. The court responded:

“Right. So he left after three days. If he is willing to accept responsibility for his actions . . .


                                                2
I was thinking of giving him a four year sentence if he’ll do that. Otherwise, if you want to

have a hearing, we can have a hearing.” Transcript at 5. The State informed the court that it

would rather have a hearing, but after a recess, the attorneys informed the court that Sparks

had decided to admit to the violation. Under oath, Sparks admitted that he left the Hebron

Center on May 17. The court then reminded Sparks of the sentencing hearing at which the

court had informed him that he had been given “the deal of a lifetime.” Id. at 7. When

Sparks was given the opportunity to address the court, he indicated that he wanted to return

to the Hebron Center and that he wanted to continue addressing his drinking problem. The

trial court revoked Sparks’s probation and ordered him to serve the entirety of his five year

suspended sentence. Sparks now appeals.1

                                         Discussion and Decision

                                        I.       Standard of Review


        Probation is a favor granted by the State and is not a right to which a criminal

defendant is entitled. Cooper v. State, 917 N.E.2d 667, 671 (Ind. 2009). The decision to

revoke probation lies within the sound discretion of the trial court. Id. Thus, a trial court’s

decision to revoke probation and its subsequent sentencing decision is reviewed for an abuse

of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). However, because


        1
          Sparks did not file a post-conviction relief petition prior to filing this direct appeal. A panel of this
court has held that an alleged error during a guilty plea in a probation revocation hearing must be challenged
by a post-conviction relief petition. Huffman v. State, 822 N.E.2d 656, 660 (Ind. Ct. App. 2005). The court in
Huffman based its decision on our supreme court’s decision in Tumulty v. State, 666 N.E.2d 394, 396 (Ind.
1996), in which the court held that a guilty plea leading to a criminal conviction must be challenged by a post-
conviction relief petition and not a direct appeal. The issue of whether the rule in Tumulty should be extended
to probation revocation hearings remains unsettled. We have chosen to address the probation revocation issue

                                                        3
probation revocation implicates the probationer’s conditional liberty interest, the probationer

is entitled to some procedural due process. Cooper, 917 N.E.2d at 671-72. Thus, if a

reviewing court finds that a violation of due process took place, it must reverse and remand

with instructions to conduct a revocation hearing consistent with due process requirements.

Id. at 672.

                                 II.     Probation Revocation


        Probation revocation is a two-step process. Woods v. State, 892 N.E.2d 637, 640 (Ind.

2008). First, the court must make a factual determination that a violation of a condition of

probation has taken place. Id. Second, if a violation is proven, the trial court must determine

whether the violation warrants revocation of the probation. Id. While a defendant is not

entitled to full due process rights for a probation revocation, due process requires the

following:

        (a) written notice of the claimed violations of [probation]; (b) disclosure to the
        [probationer] of evidence against him; (c) opportunity to be heard in person
        and to present witnesses and documentary evidence; (d) the right to confront
        and cross-examine adverse witnesses (unless the hearing officer specifically
        finds good cause for not allowing confrontation); (e) a ‘neutral and detached’
        hearing body . . . ; and (f) a written statement by the factfinders as to the
        evidence relied on and reasons for revoking [probation].

Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997) (quoting Morrissey v. Brewer,

408 U.S. 471, 489 (1972)). Indiana has codified the due process requirements and requires

that an evidentiary hearing be held to determine whether the State has proven the probation

violation by a preponderance of the evidence. Ind. Code § 35-38-2-3(d), (f). Failure to hold


in this case on the merits.

                                                4
an evidentiary hearing is a fundamental error and requires reversal. Eckes v. State, 562

N.E.2d 443, 445 (Ind. Ct. App. 1990). If a probationer admits to the violation, an evidentiary

hearing is not required. Ind. Code § 35-38-2-3(e). But if the probationer is unrepresented,

the court must advise him of his right to counsel even if he or she decides to admit the

probation violation. Eaton v. State, 894 N.E.2d 213, 217 (Ind. Ct. App. 2008), trans. denied.

If there is an admission, the court can go to the second step of the process to determine

whether the violation warrants revocation, but the probationer must be given an opportunity

to provide mitigating evidence suggesting that the violation does not warrant revocation.

Woods, 892 N.E.2d at 640.

       An evidentiary hearing did not take place in this case. And while Sparks admitted to

violating a term of his probation, this admission came following the trial court’s comment

that it was inclined to give him four years if he accepted responsibility for his actions. The

trial court’s comment at the outset of the hearing overlooks the fact that the probationer has a

constitutional and statutory right to an evidentiary hearing in which the State proves the

probation violation by a preponderance of the evidence before the trial court decides whether

a condition of probation was violated. A trial court’s failure to hold an evidentiary hearing

prior to revoking probation requires reversal even if there is sufficient evidence in the record

to support the revocation of the probation. See Eckes, 562 N.E.2d at 445. Also, an informal

conversation between the court and the parties does not constitute an evidentiary hearing and

does not comport with a probationer’s due process rights. See Dalton v. State, 560 N.E.2d

558, 560 (Ind. Ct. App. 1990).


                                               5
       Sparks argues that his admission was not made voluntarily and knowingly in light of

the trial court’s comment. He contends that the trial court’s comment “actually misled” him

to believe that he would receive a four year sentence, but the court later ordered him to serve

his full five year term. The State argues that while Sparks may have formed a mistaken

belief as to the sentence he would receive if he admitted to the probation violation, he was

not actually misled by the court.

       In support of his argument, Sparks cites Sims v. State, 547 N.E.2d 895 (Ind. Ct. App.

1989), trans. denied. In Sims, the defendant argued in a post-conviction relief petition that

his probation violation admission was not voluntary, knowing, and intelligent and that he had

been “actually misled” by his attorney and an agent of his substance abuse program as to the

consequences of admitting to the probation violation. Id. at 897. The post-conviction court

denied his petition. This court noted that a defendant must be “actually misled” and not just

form a mistaken belief, id. at 898 (citing White v. State, 497 N.E.2d 893 (Ind. 1986)), but,

ultimately, refused to reweigh the evidence and affirmed the post-conviction court’s holding

that the admission was voluntary, knowing, and intelligent. Id. at 898.

       In this case, unlike Sims, there was no finding by a factfinder regarding whether

Sparks’s admission was voluntary and knowing. The record is not clear as to whether Sparks

was “actually misled” regarding the consequences of his admission, though there appears to

be some evidence that he did not understand the consequences of his admission. For

example, after Sparks admitted that he had left the Hebron Center on May 17, 2012, the

following exchange took place between the court and Sparks:


                                              6
       The court: And you understand as a result of that that makes you in violation
       of your probation?
       The defendant: I do, Your Honor.
       The court: You understand I’m going to revoke your probation?
       The defendant: No, I didn’t understand that—I was going to—I wanted to talk
       to you.

Tr. at 7. Moreover, the nature of the trial court’s comment at the outset of the hearing lends

support to the contention that Sparks’s admission was not voluntary and knowing.

       We note that even though both parties have advanced their arguments regarding

whether Sparks’s admission was voluntary and knowing, it is not settled in Indiana that a

probation violation admission must be made knowingly and voluntarily akin to a guilty plea.

Cf. Eaton, 894 N.E.2d at 216-17 (a waiver of counsel during a probation revocation hearing

must be made knowingly and voluntarily). In Sims, the court, in a footnote, stated that “[w]e

do not actually decide whether an admission to a probation violation must be voluntary,

knowing and intelligent, but discuss the issue in those terms since both parties have argued in

that manner.” 547 N.E.2d at 897 n.4. The court went on to note that many federal courts

have held that many of the requirements that apply to guilty pleas do not apply to probation

revocation proceedings. Id.

       Like the court in Sims, we do not decide the issue of whether a probation violation

admission must be made voluntarily, knowingly, and intelligently in Indiana. Rather, we

base our decision on the cumulative effect of the lack of an evidentiary hearing, the

unknowing nature of Sparks’s admission, and the trial court’s comment. Thus, while an

evidentiary hearing is not required if the defendant admits to the probation violation, the lack

of an evidentiary hearing in this case in light of the trial court’s comment and the suspect

                                               7
quality of Sparks’s admission constitutes fundamental error.2 Accordingly, we reverse and

remand for a new probation revocation hearing consistent with the requirements of due

process.

                                                 Conclusion

        The trial court did not handle the probation revocation hearing in a way that comports

with Sparks’s due process rights. Therefore, we reverse and remand for a new probation

revocation hearing.

        Reversed.

MAY, J., and PYLE, J., concur.




        2
           Sparks also argues that the five-year sentence ordered by the trial court was an abuse of discretion in
light of the court’s comment that it would likely give him four years if he was willing to accept responsibility
for his actions. Because we find a violation of due process, we do not decide this issue, but note that a trial
court has “considerable leeway” when making sentencing decisions for probation violations. Prewitt, 878
N.E.2d at 188.

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