MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Aug 02 2019, 6:16 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                       Curtis T. Hill, Jr.
LaPlante LLP                                             Attorney General of Indiana
Evansville, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jacob Maden,                                             August 2, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-505
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Michael J. Cox,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause Nos.
                                                         82C01-1704-F3-2150
                                                         82C01-1808-F6-5611



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019                  Page 1 of 12
[1]   Jacob Maden appeals the revocation of his probation, arguing that the trial

      court violated his due process rights; simultaneously, Maden appeals the

      sentence imposed by the trial court after he pleaded guilty to Level 6 Felony

      Escape, arguing that the sentence is inappropriate in light of the nature of the

      offense and his character. Finding no violation and the sentence not

      inappropriate, we affirm.


                                                    Facts
[2]   The facts and circumstances surrounding this case are difficult to discern. The

      following comes from what little information exists in the record.


[3]   One evening, A.M. and H.D. met up with seventeen-year-old Maden and J.M.

      to purchase a cell phone. Maden and J.M. got into the back seat of H.D.’s car

      to complete the transaction. Before the exchange was finalized, Maden lifted

      his shirt to reveal what A.M. and H.D. believed to be a gun and pointed it at

      H.D. Then, J.M. “wrapped a lanyard around the neck of A.M.” Appellant’s

      App. Vol. II p. 8. Maden and J.M. promptly fled the scene with both the money

      and the cell phone. With A.M. and H.D.’s assistance, officers from the

      Evansville Police Department located and arrested Maden and J.M.


[4]   Under Cause Number 82C01-1704-F3-2150 (Cause 2150), on April 11, 2017,

      the State charged Maden with two counts of Level 3 felony armed robbery.

      Maden was then released on bond, but on August 1, 2017, the State filed a

      petition to revoke bond and issued a warrant for Maden’s arrest. Finally, on


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019   Page 2 of 12
      August 11, 2017, Maden pleaded guilty as charged in exchange for a three-year

      sentencing cap. Then, on September 12, 2017, the trial court sentenced Maden

      to three years for each armed robbery count to be served concurrently in the

      Division of Youth Services at the Department of Correction (DOC).


[5]   On January 23, 2018, Maden filed a petition to modify his sentence so that he

      would not be immediately transferred to an adult facility once he turned

      eighteen. The trial court granted this petition, and on May 25, 2018, modified

      Maden’s sentence to three years of home detention through electronic tracking

      with specific conditions: placement with a guardian, submission to health

      evaluations, recommended follow-up mental health treatment, required study to

      obtain a high school diploma, and no contact with the robbery victims.


[6]   On June 14, 2018, the State filed a petition to revoke probation under Cause

      2150, alleging that Maden had illegally consumed vodka. Maden admitted to

      violating probation and was sentenced to eight days in the Vanderburgh County

      Jail. After those eight days, the trial court then placed Maden back under home

      detention through electronic monitoring and ordered him to complete 100

      hours of community service. On August 8, 2018, the State filed another petition

      to revoke probation under Cause 2150, alleging that Maden had removed his

      electronic monitoring device. Additionally, under Cause Number 82C01-1808-

      F6-5611 (Cause 5611), the State charged Maden with one count of Level 6

      felony escape.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019   Page 3 of 12
[7]   On December 12, 2018, the trial court held a hearing on both the petition to

      revoke (Cause 2150) and the escape charge (Cause 5611). At that hearing, the

      trial court said the following:


              The Court: Were you present when I read everyone their rights?

              [Maden]: Yes, ma’am. Can I speak?

              The Court: You should wait a minute. Did you understand all
              those rights?

              [Maden]: Yeah, I understand them.


      Tr. Vol. II p. 4-5. The trial court then asked Maden if he wanted an attorney for

      the hearing and the ensuing proceedings. Maden asked if he could represent

      himself, but the trial court advised against this and warned that he would be

      held to the same standard as an attorney if he did so. Still, Maden insisted that

      he wanted to represent himself. The trial court granted his request and

      continued the hearing until January 9, 2019.


[8]   At that hearing, Maden appeared pro se along with stand-by counsel as

      appointed by the trial court. The State offered a standard one-year executed

      agreement for the Level 6 felony escape charge under Cause 5611, which the

      trial court denied. As the trial court was about to set the matter for trial, Maden

      attempted to plead guilty without an agreement. The trial court swiftly

      reminded Maden that he could proceed to a probation revocation hearing and a

      trial for Causes 2150 and 5611, respectively, but Maden insisted that “there’s no

      way around me beating what I did.” Id. at 12. After confirming multiple times


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019   Page 4 of 12
      that Maden wanted to plead guilty, the trial court informed Maden that he

      would be admitting that he violated his probation and pleading guilty to the

      crime of Level 6 felony escape. Maden agreed to do so.


[9]   The trial court then said the following:


              The Court: Do you understand that by your plea of guilty, you are
              admitting the truth of all the facts alleged in the information, and
              upon entry of such plea the Court will proceed with judgment and
              sentence?

                                                       ***

              Do you understand the following rights? You’re entitled to a
              speedy and public trial by court or jury. The State must prove
              beyond a reasonable doubt you committed the offense charged
              before you could be convicted of it. You have the right to
              introduce evidence, and testify if you so desire, however; you
              cannot be compelled to testify against yourself. The Court will
              subpoena any witnesses needed for your defense. You have the
              right to object to the introduction of the evidence and confront and
              cross examine any witnesses used by the state. If the verdict is
              against you and you are found guilty, you would have the right to
              an appeal. If you could not afford an attorney, the Court would
              appoint one to represent you on that appeal. Do you understand
              these rights?


      Id. at 13-14. Once more, Maden said that he understood his rights and that he

      would be forfeiting them by admitting to the violation and pleading guilty. The

      trial court then confirmed that Maden was admitting that he took off his

      electronic tracking device, though he knew wearing it was a condition of

      probation, and that he fled from home detention.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019   Page 5 of 12
[10]   At Maden’s February 13, 2019, sentencing hearing, the trial court considered

       Maden’s delinquency and criminal history, which included detainer, juvenile

       detention for multiple delinquency adjudications involving violent felony

       battery offenses, resident placement, and the pending charge for escape. The

       trial court ultimately revoked Maden’s probation under Cause 2150 and

       ordered that he serve the remainder of his previously-suspended sentence in the

       DOC. Additionally, Maden was sentenced to 850 days under Cause 5611, with

       credit given for 662 days of time served. Maden now appeals.


                               Discussion and Decision

                                          I. Due Process
[11]   First, Maden argues that the trial court violated his due process rights by not

       advising him of certain rights he would be forfeiting by waiving the probation

       violation hearing. Specifically, Maden contends that while the trial court

       properly advised him of the rights he was forfeiting by pleading guilty to Level 6

       felony escape under Cause 5611, the trial court failed to separately advise him

       of the rights he would be forfeiting by admitting that he violated his probation

       under Cause 2150.


[12]   Whether a defendant was denied due process is a question of law that we

       review de novo. NOW Courier, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev.,

       871 N.E.2d 384, 387 (Ind. Ct. App. 2007). Though Maden did not object to the

       trial court’s alleged failure to advise him of his rights, this Court has held that

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019   Page 6 of 12
       “a trial court’s failure to ensure that a probationer who admits to a probation

       violation has received the advisements as required . . . constitutes a

       fundamental violation of the probationer’s due process rights.” Hilligoss v. State,

       45 N.E.3d 1228, 1232 (Ind. Ct. App. 2015). Accordingly, Maden was not

       required to object at the trial court level in order to preserve this issue for appeal

       since a failure to advise automatically constitutes fundamental error.


[13]   Indiana Code section 35-38-2-3(e) states the following:


               A person may admit to a violation of probation and waive the
               right to a probation violation hearing after being offered the
               opportunity to consult with an attorney. If the person admits to a
               violation and requests to waive the probation violation hearing,
               the probation officer shall advise the person that by waiving the
               right to a probation violation hearing the person forfeits the rights
               provided in subsection (f).


       Those rights include the right to have the State prove the probation violation by

       a preponderance of the evidence, the right to have evidence presented in open

       court, the right to confront and cross-examine witnesses, and the right to be

       represented by counsel. Id. at -3(f).


[14]   Maden argues that before he admitted to violating his probation, the trial court

       failed to separately advise him of the rights that he would forfeit by not

       conducting a probation revocation hearing. However, the record plainly shows

       that the trial court took every possible step to inform him about the rights that

       he would forfeit by admitting to the violation under Cause 2150 and pleading

       guilty under Cause 5611.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019   Page 7 of 12
[15]   First, at the initial December 12, 2018, hearing, the trial court asked Maden if

       he was present when, presumably, other probationers were being read their

       rights. Maden responded that he was both present for the advisement of rights

       and that “I understand them.” Tr. Vol. II p. 5. Then, the trial court attempted to

       determine whether Maden was eligible for a public defender, to which Maden

       asked if he could represent himself. The trial court advised Maden to seek

       counsel because he would be held to the same standard as an attorney.

       Repeatedly, Maden said that he understood and that he still wished to proceed

       pro se. See generally id. at 5-8. Still, the trial court asked Maden questions about

       his competency, his level of education, and whether it was proper for Maden to

       proceed pro se. After advising Maden of “the perils of representing [himself][,]”

       id. at 8, the trial court nevertheless appointed stand-by counsel to ensure that

       Maden had some representation going forward.


[16]   Then, at the January 9, 2019, hearing, before the trial court could set a trial

       date, Maden asked if he could plead guilty. The trial court informed Maden of

       the initial consequences of pleading guilty without a trial or a probation

       revocation hearing and said that “your [Maden’s] choices are, set it for trial or

       you can plead guilty without an agreement. You tell me what you want to do

       now.” Id. at 12. Once again, Maden maintained that he wished to plead guilty

       and admit to the violation without an agreement. Then, the trial court advised

       Maden that:


               You’re entitled to a speedy and public trial by court or jury. The
               State must prove beyond a reasonable doubt you committed the
               offense before charged before you can be convicted of it. You have
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019   Page 8 of 12
               the right to introduce evidence, and testify if you so desire,
               however; you cannot be compelled to testify against yourself. The
               Court will subpoena any witnesses needed for your defense. You
               have the right to object to the introduction of the evidence and
               confront and cross examine any witnesses used by the state. If the
               verdict is against you and you are found guilty, you would have
               the right to an appeal. If you could not afford an attorney, the
               Court would appoint one to represent you on that appeal. Do you
               understand these rights?


       Id. at 13-14.


[17]   The trial court ordered a combined hearing for Causes 2150 and 5611 because

       the charges were intertwined—Maden’s alleged violation of probation also

       constituted a separate criminal offense. There was no due process requirement

       that Maden receive a wholly separate advisement of rights associated with his

       waiver of a probation revocation hearing when he had already been advised of

       the rights he was forfeiting by not having a criminal trial. And, as a general

       matter, “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.” Parker v. State,

       676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997). It was enough that Maden was

       apprised of the rights that he would ultimately forfeit by pleading guilty to Level

       6 felony escape and by admitting that he violated a condition of his probation—

       namely, taking off his electronic tracking device. And, Maden agreed to try

       both matters at the same time and admits that he understood his rights at every

       point in in the proceedings, whether it was in a group setting or conducted

       individually.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019   Page 9 of 12
[18]   The trial court clearly advised Maden of all the rights he was waiving pursuant

       to section 35-38-2-3(f). It also repeatedly advised Maden of the consequences of

       representing himself without an attorney. The trial court was cognizant of the

       fact that Maden was eager to both proceed pro se and to plead guilty, so it

       safeguarded Maden’s due process rights by appointing stand-by counsel,

       confirming that Maden understood the consequences of pleading guilty, and

       executing a written acknowledgment of those rights for Maden to sign. Butler v.

       State, 951 N.E.2d 255, 260 (Ind. Ct. App. 2011) (holding that a trial court’s

       constant reaffirming that defendant understood rights and would be forfeiting

       them comported with due process requirements for probation revocation).

       Under these circumstances, Maden’s due process rights were not violated, and

       the trial court did not commit fundamental error.


                                     II. Appropriateness
[19]   Next, Maden argues that the sentence imposed by the trial court for Level 6

       felony escape is inappropriate in light of the nature of the offense and his

       character. Indiana Appellate Rule 7(B) states that a “Court may revise a

       sentence . . . if, after due consideration of the trial court’s decision, the Court

       finds that the sentence is inappropriate in light of the nature of the offense and

       the character of the offender.” The defendant bears the burden of persuading us

       that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006). In determining whether the sentence is inappropriate, we will consider

       numerous factors such as culpability of the defendant, the severity of the crime,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019   Page 10 of 12
       the damage done to others, and a “myriad [of] other factors that come to light

       in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).


[20]   The maximum sentence for a Level 6 felony escape conviction is two and one-

       half years, and the minimum sentence is six months. Ind. Code § 35-50-2-7(b).

       The advisory sentence is one year. Id. Here, the trial court sentenced Maden to

       850 days.


[21]   It is difficult to conduct a complete 7(B) analysis given the lack of information

       about the nature of the offense and the character of the offender. From what we

       can assess, the trial court sentenced Maden to probation through home

       detention, recognizing Maden’s concerns about not wanting to be immediately

       placed in an adult facility. Then, the trial court exercised leniency and allowed

       Maden to remain on probation after the first violation. Soon thereafter, Maden

       deliberately removed his electronic tracking device and fled from home

       detention, a clear violation of his probation. Furthermore, Maden has a long

       delinquency and criminal history, which includes detainer and juvenile

       delinquency adjudications for felony offenses involving battery and violence.

       Moreover, while under home detention, Maden twice admitted to violating the

       conditions of probation—once by illegally consuming alcohol and again by

       removing his electronic monitoring device, leading to a separate criminal

       charge. Nothing in the record leads us to conclude that the sentence imposed

       was inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019   Page 11 of 12
[22]   In sum, we will not revise Maden’s sentence pursuant to Indiana Appellate

       Rule 7(B).


[23]   The judgment of the trial court is affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-505 | August 2, 2019   Page 12 of 12
