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:

WILLIAM S. FRANKEL, IV                            GREGORY F. ZOELLER
Wilkinson, Goeller, Modesitt,                     Attorney General of Indina
Wilkinson, & Drummy, LLP
Terre Haute, Indiana                              J.T. WHITEHEAD
                                                  Deputy Attorney General

                                                                               FILED
                                                  Indianapolis, Indiana

                                                                            Apr 09 2012, 9:22 am
                               IN THE
                    COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court




STEVEN W. STOCKWELL,
                                                  )
       Appellant- Defendant,                      )
                                                  )
              vs.                                 )     No. 84A01-1108-CR-392
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee- Plaintiff,                       )


                      APPEAL FROM THE VIGO SUPERIOR COURT
                          The Honorable David R. Bolk, Judge
                            Cause No. 84D03-0506-FC-1691




                                        April 9, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                 Case Summary and Issue

       The probation department alleged Steven Stockwell violated the terms of his

probation. Stockwell proceeded pro se at the probation violation hearing and admitted to

each violation. The trial court revoked Stockwell‟s probation and ordered him to serve

the previously suspended portion of his sentence. Stockwell raises one issue for our

review: whether he knowingly, intelligently, and voluntarily waived his right to counsel

at the probation violation hearing.       Concluding the record establishes Stockwell

knowingly, intelligently, and voluntarily waived his right to an attorney, we affirm.

                               Facts and Procedural History

       In 2005 Stockwell pleaded guilty to battery by means of a deadly weapon, a Class

C felony. The trial court sentenced Stockwell to eight years in the Department of

Correction, four of which were suspended to probation.            In 2009, the probation

department filed a notice that Stockwell violated the terms of his probation. On June 27,

2011, Stockwell appeared in person, pro se, for a hearing on his alleged probation

violation.   At the commencement of his hearing, Stockwell received a copy of the

probation department‟s amended notice of probation violation alleging the following

violations of the terms of his probation: he was arrested and convicted of battery, a Class

A misdemeanor; he failed two drug screens by testing positive for amphetamines; he

admitted to his probation officer he was using methamphetamine on a regular basis; he

was ordered to enroll in drug and alcohol counseling and refused to do so, stating he

would rather serve time in jail; and he was arrested and charged with eight counts,

including dealing in methamphetamine.         The trial court stated each allegation to


                                             2
Stockwell and asked, “[s]o you understand what the allegations are here?” Tr. at 7.

Stockwell replied, “[y]es sir.” Id.

       Subsequently, the following discussion took place:

       COURT: If you‟re found to have violated the terms of your probation, the
       maximum penalty the Court can impose is the four (4) years that was
       suspended, that‟s the maximum; the minimum is zero (0) additional days in
       jail. Do you understand what the potential penalties are?
       DEFENDANT STOCKWELL: Yes.
       COURT: You have a right to have a lawyer represent you in this
       proceeding; like to have one, can‟t afford one, one will be appointed for
       you. Mr. Stockwell, do you wish to have a lawyer represent you?
       DEFENDANT STOCKWELL: No, I‟d just like to get this over with today.
       COURT: Okay. You understand that you have a right to have an attorney
       represent you in this proceeding.
       DEFENDANT STOCKWELL: There‟s nothing to represent; it‟s just a
       probation violation.
       ***
       DEFENDANT STOCKWELL: - I understand that your Honor.
       COURT: . . . You have a right to have a lawyer represent you. Do you
       understand that?
       DEFENDANT STOCKWELL: Yes sir.
       COURT: And you understand that if you would like to have a lawyer
       represent you and cannot afford one, one will be appointed for you at no
       expense; do you understand that?
       DEFENDANT STOCKWELL: Yes sir.
       COURT: And you are telling me that you do not wish to have the services
       of an attorney; is that correct?
       DEFENDANT STOCKWELL: Yes sir.
       COURT: Okay. And you understand that if you don‟t have an attorney,
       we‟re gonna go through a proceeding; I‟m gonna ask whether you admit or
       deny. If you deny we‟re gonna set it for a hearing. If you admit, then it‟s
       gonna be up to the Court as to what sentence to impose; you understand
       that?
       DEFENDANT STOCKWELL: Yeah.
       COURT: And you understand . . . I‟ve got discretion to sentence you up to
       four (4) years in prison.
       DEFENDANT STOCKWELL: Yes.
       COURT: And you understand that.
       DEFENDANT STOCKWELL: Yes.
       COURT: And you wish to proceed on your own today without an attorney;
       is that correct?

                                           3
      DEFENDANT STOCKWELL: It‟s gonna take longer to get this done,
      isn‟t it, if I get a lawyer?
      ***
      DEFENDANT STOCKWELL: I just want this done and over with today
      so I don‟t have to come back your Honor.
      COURT: Okay. So you want to proceed without an attorney?
      DEFENDANT STOCKWELL: Yes.

Id. at 7-11. Stockwell then proceeded to admit to each probation violation allegation.

The trial court ordered Stockwell to serve the previously suspended four years of his

sentence. Stockwell now appeals.

                                Discussion and Decision

                                 I. Standard of Review

      Probation is a favor granted by the State, not a right to which a criminal
      defendant is entitled. However, once the State grants that favor, it cannot
      simply revoke the privilege at its discretion. Probation revocation
      implicates a defendant‟s liberty interest, which entitles him to some
      procedural due process. 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.

Eaton v. State, 894 N.E.2d 213, 216 (Ind. Ct. App. 2008) (citations omitted), trans.

denied.

      A person whose probation is being revoked is entitled to representation by an

attorney. Ind. Code § 35-38-2-3(e). As with other stages of criminal proceedings, if one

elects to proceed pro se and waive his or her right to representation during a probation

revocation proceeding, such election must be knowing, intelligent, and voluntary. Eaton,

894 N.E.2d at 217. We review de novo whether a defendant knowingly, intelligently,

and voluntarily waived his right to counsel. Cooper v. State, 900 N.E.2d 64, 67 (Ind. Ct.

App. 2009).

                                            4
       “There is no particular formula or script that must be read to the defendant. The

information that must be given „will depend on a range of case-specific factors, including

the defendant‟s education or sophistication, the complex or easily grasped nature of the

charge, and the stage of the proceeding.‟” Hopper v. State, 957 N.E.2d 613, 618 (Ind.

2011) (quoting Iowa v. Tovar, 541 U.S. 77, 88 (2004)). Other factors to consider are “(1)

the extent of the court‟s inquiry into the defendant‟s decision, (2) other evidence in the

record that establishes whether the defendant understood the dangers and disadvantages

of self-representation, (3) the background and experience of the defendant, and (4) the

context of the defendant‟s decision to proceed pro se.” Id. However, both the United

States Supreme Court and our supreme court “have deliberately eschewed any attempt to

formulate a rigid list of required warnings, talismanic language, or formulaic checklist.”

Id. at 619. Important to our appellate review is consideration of “what purposes a lawyer

can serve at the particular stage of the proceedings in question, and what assistance he

could provide to an accused at that stage.” Id. (quoting Patterson v. Illinois, 487 U.S.

285, 298 (1988)).

                        II. Stockwell‟s Waiver of Right to Counsel

       Stockwell argues his waiver of the right to counsel was not voluntary, knowing,

and intelligent, and he claims “[t]he record is silent as to whether [his] waiver of counsel”

was such. Amended Brief of Appellant at 7. Initially, he contends a trial court is

required to make a finding that waiver is voluntary, knowing, and intelligent, and that the

trial court did not do so. While he is correct that the trial court did not do so, we disagree

that it was required to. What is required is that the record sufficiently shows that waiver

was voluntary, knowing, and intelligent when considering the factors discussed above,
                                              5
such as the stage of the proceeding, the depth of the court‟s inquiry, and other

surrounding circumstances.      Neither Hopper nor Indiana Code section 35-38-2-3(e)

require a specific finding from the trial court.

       While our supreme court has expressed the need for a fact-sensitive evaluation of

a defendant‟s waiver, prior cases can serve as guideposts in our evaluation. Stockwell

argues extensively by making comparisons to Bumbalough v. State, 873 N.E.2d 1099

(Ind. Ct. App. 2007). In Bumbalough, the defendant appealed the revocation of his

probation, arguing his decision to waive his right to counsel at the revocation proceeding

was not voluntary, knowing, and intelligent.         At the beginning of Bumbalough‟s

revocation hearing, he watched a videotape informing him of his rights, including:

       You have the . . . right to the assistance of a lawyer. If you intend to hire a
       lawyer, you must do so within ten days after this hearing because there are
       deadlines for filing motions and raising defenses. If these deadlines are
       missed, then the legal issues and defenses that could have been raised will
       be waived or given up. If you want a lawyer and are unable to afford one,
       the Court will appoint a lawyer to represent you at no costs, if, after a
       hearing, you are determined to be financially unable to hire a lawyer.

Id. at 1101 (quoting probation revocation hearing transcript at 4). After the video, the

following exchange took place:

       THE COURT: You have the right to either admit or deny those allegations
       at this time.
       [Bumbalough]: Your honor, before I admit or deny, may I ask . . .
       THE COURT: No, no, that‟s all we‟re doing today. You‟re either going to
       admit or deny it right now.
       [Bumbalough]: Alright, I admit it.

Id. (quoting probation revocation hearing transcript at 8). This court concluded the

record did not establish that Bumbalough‟s waiver was voluntary, knowing, and

intelligent. Id. at 1102.

                                               6
       In Eaton, during a probation revocation hearing the trial court advised Eaton that

he had “the right to an attorney either by hiring one or by having one appointed.” 894

N.E.2d at 215. Eaton indicated he understood his right to an attorney. The trial court

then asked if Eaton wanted an attorney and Eaton responded, “[c]urrently I‟m indigent so

if I did have an attorney it would have to be an appointed one.” Id. Without any form of

follow-up question or statement, the trial court then asked Eaton if he intended to admit

or deny the allegations that he violated his probation, and Eaton said he intended to admit

the allegations, at least in part, and he thereafter admitted to violating terms of his

probation. Id. This court concluded Eaton did not sufficiently waive his right to an

attorney, but that, even if he had, it would not have been voluntary, knowing, and

intelligent. Id. at 217.

       In both Bumbalough and Eaton, the defendant said very little during his exchange

with the trial court, and what he did say did not establish that he voluntarily, knowingly,

and intelligently waived his right to counsel. In Bumbalough, the only statement of the

defendant other than admitting he violated his probation was an attempt to ask the trial

court a question, which the trial court declined to allow. Similarly, in Eaton, although the

defendant indicated an understanding of his right to counsel, when the trial court asked

whether he would like an attorney his response merely indicated that he could not afford

to pay an attorney. In both cases the trial court went no further than expressing the

defendant‟s right to an attorney and, in Eaton, establishing that the defendant understood

that right.

       As shown above, however, here the trial court engaged in a discussion with

Stockwell concerning whether or not he desired to be represented by counsel at the
                                             7
probation revocation hearing, and Stockwell repeatedly stated he did not. The record

shows Stockwell understood the potential prison sentence he faced, his right to be

represented by an attorney, his right to have an attorney appointed for his representation

if he could not afford one, the procedure that would take place in the hearing, and the trial

court‟s discretion to sentence him up to four years in prison. Despite the potential prison

sentence Stockwell knew what was at stake, he repeatedly stated he did not want an

attorney and that he would “just like to get this over with today” so that he would not

have “to come back.” Tr. at 8, 10. The record quite clearly establishes Stockwell knew

what his rights were and what could happen if he admitted to violating probation, and that

he wanted to proceed without an attorney.

       Evaluating the specific factors our supreme court has outlined, the trial court‟s

inquiry into whether Stockwell wished to waive his right to an attorney was extensive;

Stockwell had previously pleaded guilty to a felony and thus was not a stranger to the

criminal justice system; and Stockwell‟s desire to proceed pro se was unequivocally

stated numerous times.       Further, as the State points out, a probation revocation

proceeding is more straightforward than other proceedings, such as an agreement to enter

a guilty plea or an initial trial, and proceeding pro se is thus less complex. We therefore

conclude his waiver of counsel was voluntary, knowing, and intelligent and affirm the

trial court‟s order revoking his probation.

                                         Conclusion

       The record sufficiently establishes Stockwell voluntarily, knowingly, and

intelligently waived his right to an attorney, and we therefore affirm the trial court‟s order


                                              8
revoking his probation.

      Affirmed.

BAILEY, J., and MATHIAS, J., concur.




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