MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Nov 09 2018, 9:27 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




APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Derrick R. Burt                                         Curtis T. Hill, Jr.
Bunker Hill, Indiana                                    Attorney General of Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Derrick R. Burt,                                        November 9, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1382
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas Newman,
Appellee-Plaintiff.                                     Jr., Judge
                                                        Trial Court Cause Nos.
                                                        48D03-0701-FB-16 & 48D03-0612-
                                                        FB-566



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1382 | November 9, 2018              Page 1 of 7
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Derrick Burt (Burt), appeals the trial court’s denial of his

      motion to reinstate probation.


[2]   We dismiss without prejudice.


                                                   ISSUE
[3]   Burt presents two issues on appeal, but we find another issue which we raise sua

      sponte to be dispositive: Whether Burt may bring his claim in a direct appeal

      after he has already challenged the validity of his probation revocation through

      a direct appeal.


                      FACTS AND PROCEDURAL HISTORY
[4]   The facts pertaining to Burt’s underlying criminal convictions, sentencing, and

      probation revocation as found by this court on direct appeal are as follows:


              In late December 2006, Burt was arrested and charged with
              armed robbery. Less than one month later, Burt was arrested
              again and charged with armed robbery. Burt pleaded guilty to
              both charges in a single plea agreement and the trial court
              sentenced Burt to two consecutive twenty-year sentences. Each
              sentence required Burt to serve fifteen years in the Department of
              Correction, with five years suspended to probation.


              In March 2015, the trial court held a hearing on Burt’s motion to
              modify his sentence. Burt was transferred from the Miami
              Correctional Facility to the Madison County Jail for his hearing.
              According to the probable cause affidavit, Madison County Jail
              officials suspected Burt of trafficking heroin into the jail.
              Detective Jake Brooks obtained a warrant to conduct a cavity
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1382 | November 9, 2018   Page 2 of 7
        search of Burt. The cavity search revealed a substance wrapped
        in latex in Burt’s rectum. Detective Brooks examined the
        substance and found it tested positive for heroin. Burt then told
        Detective Brooks he was exchanging heroin for commissary
        money. Detective Brooks arrested Burt and he was charged with
        dealing heroin as a Level 3 felony and possessing heroin as a
        Level 6 felony.


        The State filed a Notice of Violation of Suspended/Executed
        Sentence in both cases, alleging Burt violated the conditions of
        probation by committing new criminal offenses. At the
        probation violation hearing, the State submitted into evidence the
        probable cause affidavit prepared and signed by Detective
        Brooks, without objection by Burt. Although Detective Brooks
        was present in court and available to testify, neither the State nor
        Burt called Detective Brooks to the witness stand. Neither party
        submitted any other evidence. At the conclusion of the hearing,
        the trial court revoked Burt’s suspended sentence in each case,
        stating,


                [T]he Court finds the defendant has violated the
                conditions of his probation by possessing heroin.
                Court finds that the five (5) years suspended sentence
                that was originally imposed in this Court on
                December 10, 2007 is now revoked . . .


Burt v. State, No. 48A02-1512-CR-2310, 2016 WL 5266855 at *1 (Ind. Ct. App.,

Sept. 22, 2016) (footnote omitted). Burt appealed the trial court’s revocation

decision, claiming that the trial court had abused its discretion by applying a

probable cause standard rather than a preponderance of the evidence standard

when determining his probation revocation. Id. at *2. This court affirmed,

finding that the trial court had applied the correct evidentiary burden to the


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1382 | November 9, 2018   Page 3 of 7
      proceedings and that, within its discretion, the trial court could have found that

      Burt committed the new offenses. Id.


[5]   While Burt’s appeal from his probation revocation unfolded, the State pursued

      its prosecution of Burt on the new heroin charges. Burt moved the trial court to

      suppress the evidence against him and filed an interlocutory appeal challenging

      the trial court’s subsequent denial of that motion. This court held that the

      search warrant issued for the body cavity search which turned up the heroin

      was constitutionally defective, as it was not supported by adequate probable

      cause and the good-faith exception did not apply. Burt v. State, No. 4804-1611-

      2698, 2017 WL 3471008 at *3-4 (Ind. Ct. App., Aug. 14, 2017). The court

      reversed the trial court’s suppression judgment and remanded for “further

      proceedings consistent with this opinion.” Id. at *4. On November 22, 2017,

      the trial court granted the State’s motion to nolle prosequi without prejudice,

      ending the litigation on the heroin charges. 1


[6]   On April 25, 2018, Burt filed a motion in the trial court to reinstate his

      probation. On April 30, 2018, the trial court summarily denied Burt’s motion.


[7]   Burt now appeals. Additional facts will be provided as necessary.




      1
        This information was gleaned from Odyssey, as Burt did not include the chronological case summary from
      that case in the record on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1382 | November 9, 2018              Page 4 of 7
                              DISCUSSION AND DECISION
[8]   Burt challenges the trial court’s denial of his motion to reinstate his probation,

      arguing that the trial court was required to reverse his probation revocation after

      we remanded the heroin case for further proceedings consistent with our

      opinion and that the exclusionary rule worked to invalidate his probation

      revocation. The State responds that Burt’s claims are barred by res judicata and

      waiver and that the exclusionary rule does not apply to probation revocation

      proceedings.


[9]   We note that Burt has already unsuccessfully challenged the validity of his

      probation revocation in a direct appeal. Burt does not cite to any statute or

      other legal authority, and we are aware of none, which provides him with a

      basis to collaterally attack his probation revocation with a second direct appeal.

      As such, Burt has exhausted his available direct appeal remedy as to his

      probation revocation. As a result, Burt must bring his claims through a

      proceeding pursuant to Post-Conviction Relief Rule 1 which provides, in

      relevant part, as follows:


              Any person who has been convicted of, or sentenced for, a crime
              by a court of this state, and who claims:


              ***


              (5) that his sentence has expired, his probation, parole or
              conditional release unlawfully revoked, or he is otherwise
              unlawfully held in custody or other restraint;


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1382 | November 9, 2018   Page 5 of 7
               ***


               may institute at any time a proceeding under this Rule to secure
               relief.


       Ind. Post-Conviction Rule 1(a)(5); see also Hoaks v. State, 832 N.E.2d 1061, 1063

       (Ind. Ct. App. 2005) (noting that post-conviction relief is available for

       defendants who have exhausted the direct appeals process), trans. denied.


[10]   The case of Brown v. State, 458 N.E.2d 245 (Ind. Ct. App. 1983), illustrates this

       point. Brown pleaded guilty to a charge of possession of a controlled substance,

       and the trial court placed him on probation for three years. Id. at 246. The

       State subsequently sought to revoke Brown’s probation based upon its

       allegation that he had committed the crime of involuntary manslaughter, and,

       after a hearing, the trial court revoked Brown’s probation. Id. Brown appealed

       the revocation of his probation, and this court affirmed the trial court’s

       revocation decision. Id. at 247. Brown’s conviction for involuntary

       manslaughter, which had been the basis for his probation revocation, was

       overturned on appeal. Id. Brown then sought to have his probation reinstated

       through a post-conviction proceeding to pursue his theory that his probation

       revocation must be reversed based upon the reversal of his involuntary

       manslaughter conviction. Id.


[11]   Although Brown is not entirely analogous to the instant case since Burt was

       never convicted of the heroin charges, the cases are alike in that Brown and

       Burt had both already availed themselves of a direct appeal challenging their

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1382 | November 9, 2018   Page 6 of 7
       probation revocation, and so we conclude that the same procedural vehicle

       must be used here as in Brown: post-conviction relief. Because we have

       determined that Burt must bring his claim in a post-conviction relief

       proceeding, we hold that this direct appeal is dismissed without prejudice to

       Burt’s ability to raise his probation revocation challenge in a post-conviction

       proceeding should he elect to do so.


                                            CONCLUSION
[12]   Based on the foregoing, we conclude that Burt, having already challenged the

       validity of his probation revocation through a direct appeal, must challenge the

       validity of his probation revocation through a post-conviction proceeding.


[13]   Dismissed without prejudice.


[14]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1382 | November 9, 2018   Page 7 of 7
