MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jun 15 2017, 8:23 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel M. Schumm                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard K. Dean,                                         June 15, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         73A01-1612-CR-2722
        v.                                               Appeal from the Shelby Superior
                                                         Court
State of Indiana,                                        The Honorable David N. Riggins,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         73D02-1508-F6-242



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017            Page 1 of 7
                                Case Summary and Issue
[1]   The trial court revoked Richard Dean’s probation and ordered him to serve the

      entirety of his previously suspended sentence at the Indiana Department of

      Correction (“DOC”) after he admitted to violating conditions of his probation.

      Dean now raises one issue on appeal: whether his waiver of counsel was

      knowing, intelligent, and voluntary. Concluding Dean did not make a

      knowing, intelligent, and voluntary waiver of counsel, we reverse and remand

      for a new probation revocation hearing.



                            Facts and Procedural History
[2]   On August 5, 2015, the State of Indiana charged Dean with cheating on a

      gambling game, a Level 6 felony. Eventually, the State and Dean reached a

      plea agreement and the trial court entered judgment of conviction as a Class A

      misdemeanor. The trial court sentenced Dean to 365 days in the DOC with

      363 of those days suspended to probation. Dean’s probation conditions

      provided that Shelby County and Delaware County would share supervision

      and revocation authority over Dean.


[3]   On August 16, 2016, the Shelby County Probation Office filed a revocation

      petition alleging Dean failed to report to scheduled probation appointments in

      both Shelby County and Delaware County and that his whereabouts were

      unknown. The probation department later amended its revocation petition and

      alleged Dean committed a new crime in Madison County.


      Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017   Page 2 of 7
[4]   On November 30, 2016, the trial court held a hearing on the revocation

      petition. Dean was not represented by counsel. At the revocation hearing, the

      following exchange occurred:


              The Court: The State of Indiana wants me to revoke your
                         probation saying you failed to report to probation as
                         ordered, saying you failed to respond to letters, and
                         you failed to report . . . in Delaware County, failed
                         to report to Shelby County, and you didn’t respond
                         to letters. . . . [T]hey also said you committed a
                         new offense, possession of methamphetamine and
                         possession of a controlled substance in Madison
                         County. Now, before I can revoke your probation,
                         you’re entitled to a hearing in the matter. At that
                         hearing you have the right to be represented by an
                         attorney. If you cannot afford an attorney, I can
                         appoint one for you. All you have to do is ask. At
                         that hearing the State has to prove by a
                         preponderance of the evidence that you violated
                         probation. They have to—you have the right to
                         confront and cross-examine witnesses against you
                         and to subpoena witnesses to testify on your behalf.
                         You have the right to appeal any decision I make
                         and be represented by an attorney on the appeal.
                         Do you understand all your rights?

              [Dean]:          Yes, sir.

              ***

              The Court: All right. I’m gonna ask you, except for the new
                         charges, I’ll show a denial on that. But I’m gonna
                         ask you if you admit or deny the other allegations.
                         If you admit I’m presuming you’re waiving all of
                         those rights, including the right to be represented by
                         an attorney, and I’ll proceed to sentencing. If you
                         deny I’ll set this matter for a fact finding hearing
                         and give you a chance to hire or request an attorney.
                         Do you understand your choices?


      Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017   Page 3 of 7
              [Dean]:          Yes.

              The Court: Do you admit or deny you failed to report to
                         probation as ordered?

              [Dean]:          I failed to report, sir.


      Transcript at 4-5. The trial court accepted Dean’s admission and set the matter

      for a dispositional hearing the following day.


[5]   At the dispositional hearing, the trial court ordered Dean to serve in the DOC

      the entire 363 days previously suspended for his offense. When Dean heard the

      trial court’s sentence, he immediately responded, “I’d ask for a lawyer for an

      appeal, sir.” Tr. at 15.



                                 Discussion and Decision
[6]   Dean argues he did not knowingly, intelligently, and voluntarily waive his right

      to counsel at the probation revocation hearing because the trial court did not

      advise him of the potential consequences of admitting a violation of probation.

      Therefore, Dean alleges the revocation of his probation must be set aside.


[7]   First, we note the State asserts on cross-appeal that Dean’s challenge to the

      validity of the revocation of probation following an admission of a violation

      must be brought by a petition for post-conviction relief rather than on direct

      appeal. See Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996) (holding that a

      petition for post-conviction relief, and not a direct appeal, is the proper vehicle

      for challenging a conviction that is the result of a guilty plea). Moreover, in


      Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017   Page 4 of 7
       Huffman v. State, 822 N.E.2d 656, 659-60 (Ind. Ct. App. 2005), a panel of this

       court applied the holding in Tumulty to probation revocations.


[8]    Notwithstanding our supreme court’s decision in Tumulty that guilty pleas must

       be challenged through a petition for post-conviction relief and our decision in

       Huffman extending that rule to cases in which the defendant admits to a

       probation violation, the issue remains unsettled and more recent cases have

       addressed on direct appeal the issue of whether a defendant knowingly,

       intelligently, and voluntarily waived the right to counsel in a probation

       revocation hearing. See Butler v. State, 951 N.E.2d 255, 259-62 (Ind. Ct. App.

       2011); Cooper v. State, 900 N.E.2d 64, 66-71 (Ind. Ct. App. 2009); Eaton v. State,

       894 N.E.2d 213, 216-18 (Ind. Ct. App. 2008), trans. denied; see also Sparks v.

       State, 983 N.E.2d 221, 224 n.1 (Ind. Ct. App. 2013). Therefore, we choose to

       address the merits of Dean’s argument.


[9]    The sole issue raised by Dean is whether his decision to proceed without

       counsel at his probation revocation hearing was knowing, intelligent, and

       voluntary. We review de novo a trial court’s finding that a defendant waived

       his right to counsel. Cooper, 900 N.E.2d at 67.


[10]   The right to representation by counsel is statutorily guaranteed to those who

       face revocation of their probation. Ind. Code § 35-38-2-3(f). And when a

       defendant proceeds without counsel, the record must reflect the defendant

       knowingly, intelligently, and voluntarily waived his right to counsel. Eaton, 894

       N.E.2d at 216-17. “The record must show that the defendant was made aware


       Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017   Page 5 of 7
       of the nature, extent and importance of the right to counsel and to the necessary

       consequences of waiving such a right.” Bumbalough v. State, 873 N.E.2d 1099,

       1102 (Ind. Ct. App. 2007) (internal quotation marks and citation omitted).


[11]   However, a trial court is not required to recite any specific words or phrases to

       ensure a defendant appreciates the nature of the situation, Butler, 951 N.E.2d at

       259, and both our supreme court and the United States Supreme Court “have

       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) (citing Iowa v. Tovar, 541 U.S. 77, 88 (2004)). “Rather,

       determining if a defendant’s waiver was knowing and intelligent depends on the

       particular facts and circumstances surrounding the case, including the

       background, experience, and conduct of the accused.” Butler, 951 N.E.2d at

       259 (citation omitted). As a reviewing court, we must “conduct a thoughtful

       examination of the record as a whole to determine whether a particular

       defendant, in a particular stage of a particular case, voluntarily and intelligently

       waived his right to counsel.” Hopper, 957 N.E.2d at 619.


[12]   Here, an examination of the record establishes Dean was properly advised of

       his right to counsel and the panoply of other rights afforded to a person facing

       revocation of probation. However, the record does not demonstrate the trial

       court advised Dean of the potential consequences if he opted to admit the

       State’s allegations without the benefit of counsel. Dean’s act of immediately

       requesting an attorney for an appeal once the trial court imposed its sanction

       demonstrates Dean did not appreciate or understand the nature of the

       Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017   Page 6 of 7
       proceedings.1 Further, other than this case and an alleged new crime

       committed in Madison County, the record does not demonstrate Dean had any

       prior experience with the criminal justice system such that he would have

       known of this serious potential consequence. Therefore, under the particular

       facts and circumstances of this case, we cannot say Dean’s waiver of counsel

       was knowing, intelligent, and voluntary.2



                                                 Conclusion
[13]   We conclude Dean’s waiver of counsel was not knowing, intelligent, and

       voluntary. Accordingly, we reverse and remand for a new probation revocation

       hearing.


[14]   Reversed and remanded.


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




       1
         The State argues the trial court’s statement that it would “proceed to sentencing” upon an admission of a
       violation of probation adequately informed Dean of the potential consequences. Tr. at 5. However, a trial
       court has multiple sentencing options available when it finds a defendant has violated probation, and some
       options are more severe than others. See Ind. Code § 35-38-2-3(h). Thus, the trial court’s statement is
       insufficient to adequately inform Dean of the serious potential consequence that he could be ordered to serve
       the entirety of his previously suspended sentence.
       2
         The State urges us to apply a harmless error analysis. See Hammerlund v. State, 967 N.E.2d 525, 529 (Ind.
       Ct. App. 2012). However, as this court has previously noted, “the United States Supreme Court has held that
       invalid waivers of counsel are not subject to a harmless error analysis.” Bumbalough, 695 N.E.2d at 999
       (citing Penson v. Ohio, 488 U.S. 75 (1988)).

       Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017              Page 7 of 7
