                                                                               FILED
                                                                           Aug 18 2020, 9:15 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                      Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                    Attorney General of Indiana
      Brooklyn, Indiana                                          Samuel J. Dayton
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Victoria V. Arrowood,                                      August 18, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 20A-CR-667
              v.                                                 Appeal from the Shelby Superior
                                                                 Court
      State of Indiana,                                          The Honorable David N. Riggins,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 73D02-1905-F6-252



      Mathias, Judge.


[1]   Victoria Arrowood (“Arrowood”) pleaded guilty in Shelby Superior Court to

      Level 6 felony possession of methamphetamine, and the court sentenced her to

      545 days in community corrections, to be served on home detention. The State

      subsequently filed a petition to revoke Arrowood’s placement in community

      corrections. Following a hearing on the State’s petition, the trial court revoked

      Arrowood’s placement in community corrections and ordered her to serve the

      Court of Appeals of Indiana | Opinion 20A-CR-667 | August 18, 2020                           Page 1 of 8
      remainder of her sentence in incarceration. Arrowood appeals and presents one

      issue, which we restate as whether her counsel’s performance at the revocation

      hearing effectively denied her the right to counsel as guaranteed by Article 1,

      Section 13 of the Indiana Constitution. Because the revocation of probation or

      placement in community corrections is civil, not criminal, in nature, Article 1,

      Section 13 is inapplicable. Accordingly, we affirm.


                                  Facts and Procedural History
[2]   Arrowood was a passenger in a vehicle that was stopped for a traffic infraction

      in Shelby County. During the traffic stop, law enforcement found her in

      possession of methamphetamine and two syringes.1 The State charged

      Arrowood on May 30, 2019 with Level 6 felony unlawful possession of a

      syringe and Level 6 felony possession of methamphetamine. On June 12, 2019,

      Arrowood agreed to plead guilty to the charge of possession of

      methamphetamine in exchange for the State dismissing the other count. The

      trial court accepted the plea agreement on September 16, 2019, and sentenced

      Arrowood to 545 days in community corrections, to be served on home

      detention.


[3]   On January 27, 2020, the State filed a petition to revoke Arrowood’s placement

      in community corrections, alleging that she had violated the terms of her




      1
       At the time of the traffic stop, Arrowood faced pending charges of possession of methamphetamine in
      nearby Henry County.

      Court of Appeals of Indiana | Opinion 20A-CR-667 | August 18, 2020                             Page 2 of 8
      placement by testing positive for methamphetamine, morphine, fentanyl, and

      cannabinoids. The trial court held a hearing on the State’s revocation petition

      on February 27, 2020. Arrowood failed to appear in person but was represented

      by counsel.2


[4]   At the conclusion of the hearing, the trial court revoked Arrowood’s placement

      in community corrections and ordered her to serve the balance of her sentence

      in incarceration. Arrowood now appeals.


                                           Standard of Review
[5]   Arrowood argues that, pursuant to Article 1, Section 13 of the Indiana

      Constitution, she had a right to the effective assistance of counsel at the

      revocation hearing. This is a question of law that we review de novo. State v.

      Neff, 117 N.E.3d 1263, 1267 (Ind. 2019) (noting that a question involving the

      meaning of the Indiana Constitution is a question of law that appellate courts

      review de novo).


                                       Discussion and Decision
[6]   We first note that, under the Sixth Amendment to the United States

      Constitution, a probationer does not have a right to counsel at a probation

      revocation hearing. Jordan v. State, 60 N.E.3d 1062, 1068 (Ind. Ct. App. 2016)




      2
       After the hearing finished, Arrowood appeared in person at the trial court. She and the court engaged in a
      brief discussion, which revealed that Arrowood had telephoned the court and stated that her car had broken
      down. The court acknowledged this and stated that it had delayed the hearing by over a half hour but went
      ahead with the hearing when Arrowood did not appear after a reasonable delay.

      Court of Appeals of Indiana | Opinion 20A-CR-667 | August 18, 2020                               Page 3 of 8
      (citing Gagnon v. Scarpelli, 411 U.S. 778, 781–82 (1973)). By extension, this

      would also hold true in proceedings for revocation of placement in community

      corrections. See Cox v. State, 706 N.E.2d 547, 549 n.6 (Ind. 1999) (holding that

      “appellate review procedures, due process requirements, and evidentiary rules

      for probation revocation and community corrections placement revocation

      hearings are the same.”). Recognizing this, Arrowood makes no argument that

      the Sixth Amendment right to counsel applies at placement revocation

      hearings.


[7]   Although a probationer has no Sixth Amendment right to counsel at a

      revocation hearing, Indiana Code § 35-38-2-3(f) provides that a probationer in a

      revocation hearing is entitled to representation by counsel. See Jordan, 60

      N.E.3d at 1068. In reviewing a claim of ineffective assistance of counsel at a

      revocation hearing, we apply a less-rigorous “due process” standard: “If counsel

      appeared and represented the petitioner in a procedurally fair setting which

      resulted in judgment of the court, it is not necessary to judge his performance by

      rigorous standards.” Id. (citing Childers v. State, 656 N.E.2d 514, 517 (Ind. Ct.

      App. 1995), trans. denied; Baum v. State, 533 N.E.2d 1200, 1201 (Ind.1989)).


[8]   To avoid application of this less-rigorous standard, Arrowood argues the right

      to counsel guaranteed by Article 1, Section 13 applies at revocation hearings,

      noting that the Indiana Constitution provides a broader guarantee than the

      Sixth Amendment. She also argues that the two-part Strickland test should apply

      to claims of ineffective assistance of counsel under Article 1, Section 13 and



      Court of Appeals of Indiana | Opinion 20A-CR-667 | August 18, 2020         Page 4 of 8
       that, under this test, her revocation counsel was constitutionally ineffective.3

       We are unpersuaded.


[9]    We agree with Arrowood that the right to counsel guaranteed by Article 1,

       Section 13 is broader than that provided by the Sixth Amendment. For

       example, the Sixth Amendment requires the assistance of counsel only at all

       critical stages of the prosecution. Barnett v. State, 83 N.E.3d 93, 104 (Ind. Ct.

       App. 2017) (citing Hopper v. State, 957 N.E.2d 613, 616 (Ind. 2011)), trans.

       denied. In contrast, Article 1, Section 13 applies to “every stage of [a criminal]

       proceeding[].” Batchelor v. State, 189 Ind. 69, 125 N.E.2d 773, 776 (1920). Thus,

       “Indiana’s constitutional right—contrary to the Sixth Amendment—can attach

       ‘prior to the filing of formal charges against the defendant[.]’” Jewell v. State, 957

       N.E.2d 625, 634 (Ind. 2011) (quoting Hall v. State, 870 N.E.2d 449, 460 (Ind.

       Ct. App. 2007), trans. denied). But this does not mean that Article 1, Section 13

       applies in revocation proceedings.


[10]   Indeed, the language of Article 1, Section 13 of the Indiana Constitution

       provides that “[i]n all criminal prosecutions, the accused shall have the right . . . to

       be heard by himself and counsel[.]” (emphasis added). It is well settled that

       proceedings to revoke either probation or placement in community corrections

       are civil proceedings, not criminal prosecutions. See McQueen v. State, 862




       3
         When addressing claims of ineffective assistance of counsel under either the Sixth Amendment or Article 1,
       Section 13, our courts have applied the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
       See, e.g., Shaw v. State, 898 N.E.2d 465, 467–68 (Ind. Ct. App. 2008) (applying Strickland test to claim of
       ineffective assistance brought under both the Sixth Amendment and Article 1, Section 13), trans. denied.

       Court of Appeals of Indiana | Opinion 20A-CR-667 | August 18, 2020                                   Page 5 of 8
       N.E.2d 1237, 1242 (Ind. Ct. App. 2007) (citing Cox, 706 N.E.2d at 551) (noting

       civil nature of community correction revocation proceedings); Jordan, 60

       N.E.3d at 1068 (noting civil nature of probation revocation proceedings). Thus,

       “‘probationers do not receive the same constitutional rights that defendants

       receive at trial.’” Jordan, 60 N.E.3d at 1068 (quoting Reyes v. State, 868 N.E.2d

       438, 440 (Ind. 2007)). Because revocation hearings are civil in nature, the right

       to counsel in criminal proceedings guaranteed by Article 1, Section 13 of the

       Indiana Constitution simply does not apply.


[11]   We find support for our conclusion in Baum, 533 N.E.2d at 1201, in which our

       supreme court held that the right to counsel guaranteed by Article 1, Section 13

       does not apply in post-conviction proceedings, which, like revocation

       proceedings, are civil in nature. We read Baum as holding that Article 1,

       Section 13 simply does not apply to non-criminal proceedings, whether they be

       post-conviction proceedings or revocation proceedings.


[12]   Arrowood, nevertheless claims that Article 1, Section 13 does provide a right to

       counsel at revocation hearings, citing Vicory v. State, 802 N.E.2d 426 (Ind.

       2004). In that case, our supreme court held that a probationer has a right to

       allocution at a probation revocation hearing. Id. at 429. Our supreme court’s

       decision in Vicory was, as the court later put it, “informed by Article 1, Section

       13 of the Indiana Constitution,” which guarantees the right to be heard “‘by

       himself and counsel.’” Biddinger v. State, 868 N.E.2d 407, 412 (Ind. 2007)

       (quoting Ind. Const., art. 1, § 13). Essentially, Arrowood argues that, if the right



       Court of Appeals of Indiana | Opinion 20A-CR-667 | August 18, 2020           Page 6 of 8
       to allocution is extended to probation revocation proceedings, then so should

       the right to counsel.


[13]   We do not read Vicory as holding that Article 1, Section 13 extends to

       revocation hearings. Had the Vicory court intended to make such a profound

       statement, we believe it would have done so clearly, not by mere implication.

       Indeed, the supreme court later noted that its holding in Vicory was merely

       “informed” by the right to be heard by oneself under Article 1, Section 13; it did

       not hold that the right to allocution was guaranteed by Article 1, Section 13.

       Biddinger, 868 N.E.2d at 412. It certainly did not hold that the right to counsel

       extended to revocation hearings.


[14]   Accordingly, we decline to hold that the right to counsel at all criminal

       prosecutions, as guaranteed by Article 1, Section 13, extends to revocation

       hearings, which are civil, not criminal, in nature. Instead, revocation

       proceedings, like post-conviction proceedings, are governed by principles of due

       process. See Baum, 533 N.E.2d at 1201 (“We therefore apply a lesser standard

       responsive more to the due course of law or due process of law principles which

       are at the heart of the civil post-conviction remedy.”); see also A.M. v. State, 134

       N.E.3d 361, 366–67 (Ind. 2019) (holding that Sixth Amendment Strickland

       standard did not apply in juvenile disposition-modification hearings).


                                                  Conclusion
[15]   Under the more lenient due-process standard set forth in Jordan and Baum, it is

       apparent that Arrowood was not denied her right to counsel, as “counsel

       Court of Appeals of Indiana | Opinion 20A-CR-667 | August 18, 2020           Page 7 of 8
       appeared and represented the [probationer] in a procedurally fair setting which

       resulted in judgment of the court[.]” 60 N.E.3d at 1069 (quoting Childers, 656

       N.E.2d at 517) (citing Baum, 533 N.E.2d at 1201).


[16]   For all these reasons, we affirm the judgment of the trial court.


[17]   Affirmed.


       Bradford, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-667 | August 18, 2020      Page 8 of 8
