MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                Apr 23 2019, 10:35 am

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


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Donald E. Hamilton                                        Curtis T. Hill, Jr.
Fortville, Indiana                                        Attorney General of Indiana

                                                          Monika Prekopa Talbot
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

William E. Glesing, III,                                  April 23, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-847
        v.                                                Appeal from the Hancock Superior
                                                          Court
State of Indiana,                                         The Honorable Terry K. Snow
Appellee-Plaintiff                                        Trial Court Cause No.
                                                          30D01-1706-F6-1287



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-847 | April 23, 2019                      Page 1 of 9
                                                  Case Summary
[1]   William E. Glesing, III, appeals the trial court’s revocation of his probation.

      The sole restated issue presented for our review is whether Glesing knowingly,

      voluntarily, and intelligently waived his right to counsel before admitting to

      violating his probation. Concluding that, under the totality of the

      circumstances, Glesing validly waived his right to counsel, we affirm.


                                      Facts and Procedural History
[2]   On June 22, 2017, the State charged Glesing with level 6 felony domestic

      battery. Glesing pled guilty to that charge on October 3, 2017. The trial court

      sentenced Glesing to two years in the Hancock County jail with all but fourteen

      days suspended to probation. Appellant’s App. Vol. 2 at 20, 26.


[3]   The State filed a notice of probation violation on November 15, 2017, after

      Glesing failed a urine drug screen. During a hearing held on December 13,

      2017, Glesing appeared pro se and admitted to violating his probation, and his

      probation was continued by the trial court.1 After the probation department

      completed an evaluation of Glesing for the “Heroin Protocol” drug treatment

      program, Glesing was placed in Simply Divine transitional housing. Tr. Vol. 2

      at 4.


[4]   Shortly thereafter, the State filed a notice of probation violation and petition to

      revoke, alleging that Glesing had violated his probation by refusing to submit a


      1
          The transcript of this hearing was not included in the record on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-847 | April 23, 2019   Page 2 of 9
      urine sample at Simply Divine and being discharged by the facility. A hearing

      was held on February 7, 2018, at which Glesing again appeared pro se. Prior to

      the start of the hearing, Glesing read and signed an advisement of rights form.

      Tr. Vol. 2. at 4. The form included an advisement that Glesing had “the right

      to be represented in this case by a lawyer” and that the court would appoint a

      lawyer if he could not afford one. Appellant’s App. Vol. 2 at 34. The form also

      advised Glesing that he had “the right to have [that] lawyer with [him]

      whenever someone wants to question [him] in this case.” Id. During the

      hearing, the trial court asked Glesing if he understood his constitutional rights

      as provided on the form, and Glesing advised the court “Yes, I did.” Id. The

      court then advised and asked, “At this time you can admit the violation, deny

      the violation, or ask for a continuance to talk to a lawyer[.] Do you know what

      you want to do?” Id. at 5. Glesing informed the court, “Um – I’ll admit it.”

      Tr. Vol. 2. At 5. Glesing then told the court that he thought that he and the

      director of the Heroin Protocol program had an agreement that perhaps he

      could reside in a different facility. Because the director was not available, the

      trial court continued the matter for a dispositional hearing on February 21,

      2018.


[5]   Following the hearing held on February 21, Glesing was returned to probation.2

      A week later, the State filed another notice of probation violation and petition

      to revoke alleging that Glesing committed three new crimes in Marion County:



      2
          A transcript of the February 21, 2018, hearing is not included in the record on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-847 | April 23, 2019                 Page 3 of 9
level 6 felony attempted auto theft; class B misdemeanor public intoxication;

and class B misdemeanor disorderly conduct. A hearing was held on March

16, 2018, at which Glesing again appeared pro se. During that hearing, the

following exchange took place:


        THE COURT: Because you’re charged with a violation of the
        terms of probation in this cause, you have certain Constitutional
        rights. Before we started you were handed an initial hearing
        violation of rights form, returned to the bench purportedly signed
        by you. Did you read and sign this document?


        MR. GLESING: Yes, I did.


        THE COURT: Did you understand it?


        MR. GLESING: Yes, I did.


        THE COURT: Do you have any questions about your rights?


        MR. GLESING: No, I do not.


        THE COURT: At this time, you can admit the violation, deny
        the violation, or ask for a continuance to talk to a lawyer. Do
        you know what you want to do?


        MR. GLESING: Admit the violation.


        THE COURT: By admitting the violation, you’re telling me that
        you committed this offense in Marion County and that you were
        on probation at that time. Is that correct?



Court of Appeals of Indiana | Memorandum Decision 18A-CR-847 | April 23, 2019   Page 4 of 9
        MR. GLESING: I- I was arrested, Your Honor.


        THE COURT: I understand you were arrested. That’s different
        than saying you did it. Is that case still pending?


        MR. GLESING: Yes, sir.


        THE COURT: All right. Then you probably want to uh –
        decline to admit it at this time, wouldn’t you think?


        MR. GLESING: Uh- I don’t know. Depending on if I’m
        allowed to have bond ….


        THE COURT: You won’t have bond on this case. I’ll tell you
        that right now.


        MR. GLESING: Okay.


        THE COURT: I’ll tell you what we’re going to do. We’re going
        to do it this way. We’re going to make it easy on you. I’m going
        to enter a denial on your behalf.


        MR. GLESING: Your honor? Can I go ahead and admit it
        because I’m going to take a plea out there. I was just waiting on
        something here to –


        THE COURT: Okay. Then you admit that you committed one
        or more of those offenses while you were on probation out of this
        Court?


        MR. GLESING: Yes, Your Honor.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-847 | April 23, 2019   Page 5 of 9
              THE COURT: Is that correct?


              MR. GLESING: Yes, Your Honor.


              THE COURT: All right. Who represented you before in this
              Court?


              MR. GLESING: I was pro se, Your Honor.


              THE COURT: You were always pro se?


              MR. GLESING: Yes, Your Honor.


              THE COURT: You want to stay that way or do you want a
              lawyer?


              MR. GLESING: I’ll stay that way, Your Honor.


              …


              THE COURT: This is not your first rodeo.


              MR. GLESING: It’s not, Your Honor.


      Tr. Vol. 3 at 4-8.


[6]   At the conclusion of the hearing, the trial court revoked Glesing’s probation

      and ordered him to serve the remainder of his previously suspended sentence.

      This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-847 | April 23, 2019   Page 6 of 9
                                     Discussion and Decision
[7]   Glesing challenges the trial court’s revocation of his probation based upon his

      pro se admission that he violated his probation. Specifically, he claims that he

      did not knowingly, voluntarily, and intelligently waive his right to counsel

      before he admitted to violating his probation. Although probation is a favor

      granted by the State and not a right to which a defendant is entitled, a

      defendant is still entitled to some due process protections before his probation

      may be revoked. Cooper v. State, 900 N.E.2d 64, 66 (Ind. Ct. App. 2009). One of

      those due process protections is the right to be represented by counsel. Ind.

      Code § 35-38-2-3(e). If a defendant elects to proceed without counsel, the record

      must reflect that he waived his right to counsel knowingly, voluntarily, and

      intelligently. Cooper, 900 N.E.2d at 66.


[8]   “We review de novo a trial court’s finding that a defendant waived his right to

      counsel.” Butler v. State, 951 N.E.2d 255, 260 (Ind. Ct. App. 2011). There are

      no specific words or phrases that a trial court must utter to produce a valid

      waiver of counsel by a defendant. Hammerlund v. State, 967 N.E.2d 525, 527-28

      (Ind. Ct. App. 2012). 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.” Eaton v. State, 894 N.E.2d 213, 218 (Ind. Ct. App. 2008), trans.

      denied (citations and quotation marks omitted).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-847 | April 23, 2019   Page 7 of 9
[9]   Here, the record establishes that Glesing was well aware of his right to be

      represented by counsel during his probation revocation proceedings and to have

      that counsel appointed at public expense. Glesing read and signed at least two

      advisement of rights forms that specifically advised him of those rights, and

      Glesing informed the court, on more than one occasion, that he understood his

      rights and had no questions about them. Indeed, during the March 16, 2018,

      revocation hearing, before accepting Glesing’s admission to his probation

      violation, the trial court asked Glesing if he was sure he wanted to enter the

      admission and then again confirmed with Glesing that he knew he had the right

      to be represented by counsel. The court explained to Glesing what the

      implications of his admission were and even cautioned Glesing that perhaps he

      should enter a denial. Glesing unequivocally assured the court that he wished

      to continue to represent himself and to admit to committing a new criminal

      offense in violation of his probation. Glesing acknowledged to the court that it

      was not his “first rodeo” and that he knew exactly what he was doing. Tr. Vol.

      3 at 8. Based on the totality of these circumstances, we conclude that Glesing’s

      waiver of counsel was knowing, voluntary, and intelligent.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-847 | April 23, 2019   Page 8 of 9
       Accordingly, we affirm the trial court’s revocation of his probation.3


[10]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       3
         Relying on Martin v. State, 813 N.E.2d 388 (Ind. Ct. App. 2004), Glesing briefly argues that the evidence is
       insufficient to support the revocation of his probation because he admitted only to being arrested on new
       charges, and that an admission to an arrest alone cannot support the revocation of probation. Id. at 390
       (holding that State could not rely on defendant’s admission to being arrested to prove by preponderance of
       evidence that he violated probation by committing another criminal offense). We disagree with Glesing as
       the record clearly establishes that he admitted to committing at least one of the Marion County offenses, not
       simply to being arrested. Glesing further suggests that we should reverse and remand for a new revocation
       hearing because the Marion County charges were subsequently dismissed two months after his probation was
       revoked. We find the subsequent dismissal of the charges to be of no moment to his admission to violating
       his probation in committing those offenses or to whether he knowingly, voluntarily, or intelligently waived
       his right to counsel prior to the admission.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-847 | April 23, 2019                      Page 9 of 9
