Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Jun 19 2013, 7:07 am
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:

KIMBERLY A. JACKSON                                         GREGORY F. ZOELLER
Indianapolis, Indiana                                       Attorney General of Indiana

                                                            ANDREW FALK
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

WADE R. MEISBERGER,                                 )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 53A05-1208-CR-452
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MONROE CIRCUIT COURT
                         The Honorable Mary Ellen Diekhoff, Judge
                              Cause No. 53C05-9108-CF-457


                                           June 19, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                              Case Summary

          Wade R. Meisberger (“Meisberger”) had been convicted of Murder, a Felony, and

Auto Theft, a Class D felony, and was serving a suspended sentence1 through supervised

probation in Monroe County. Meisberger’s probation officer ultimately filed a petition to

revoke the suspended sentence. After a hearing, the trial court concluded that Meisberger

had violated the terms of his probation, revoked his probation, and ordered that he serve the

remainder of his sentence as executed time in the Department of Correction. He now

appeals.

          We affirm.

                                                    Issues

          Meisberger presents four issues for our review, which we restate as:

             I.   Whether he knowingly, intelligently, and voluntarily waived his right to
                  counsel during the probation revocation proceedings;

            II.   Whether the trial court erroneously admitted certain evidence during
                  the probation revocation hearing;

           III.   Whether there was sufficient evidence from which the trial court could
                  conclude that Meisberger violated the terms of his probation; and

           IV.    Whether the trial court abused its discretion when it revoked the
                  entirety of Meisberger’s suspended sentence and ordered him to serve
                  the remainder as executed time.

                                     Facts and Procedural History

          On May 5, 1993, in Monroe County, Meisberger was convicted of Murder and Auto

Theft and sentenced to an aggregate term of imprisonment of forty-eight years. We affirmed


1
    Eighteen years of his aggregate forty-eight year sentence had been suspended.

                                                       2
his conviction upon direct appeal. See Meisberger v. State, 640 N.E.2d 716 (Ind. Ct. App.

1994), trans. denied.

       On March 31, 1998, Meisberger filed a petition for post-conviction relief. On March

18, 1999, the post-conviction court entered an agreed order whereby the State agreed to a

modification of Meisberger’s sentence to permit suspension of the final eighteen years of his

forty-eight-year sentence to supervised probation. Also pursuant to the agreed order,

Meisberger moved to dismiss his petition for post-conviction relief.

       On September 7, 2007, Meisberger was released from imprisonment in the

Department of Correction and began serving his eighteen-year term of supervised probation

through the Monroe County Probation Department. Meisberger was authorized to reside in

Madison, Jefferson County, was eventually permitted to engage in probation with monthly

phone reporting while in Madison, and was permitted to travel for purposes of employment,

including working for Hyundai dealerships in Louisville and Florence, Kentucky. By

sometime in May 2012, Meisberger was living in Indianapolis and was reporting to the

Marion County Probation Department.

       On May 20, 2012, the State filed a Petition to Revoke Suspended Sentence (“the

Petition”). In the Petition, the State alleged that Meisberger had violated the terms of his

probation by failing to notify the Marion County Probation Department and, through it, the

Monroe County Probation Department, of a change of residence. The State also alleged that

Meisberger had violated the terms of his probation by failing to appear for scheduled

meetings with probation officers.


                                             3
       On July 31, 2012, the State filed a First Amended Petition to Revoke Probation (“First

Amended Petition”). The First Amended Petition set forth an additional allegation of

violation of probation, namely, that Meisberger had committed Auto Theft, as a Class D

felony, in Johnson County. Attached to the First Amended Petition was an affidavit of

probable cause executed by Officer Brain T. Swisher (“Officer Swisher”) of the Greenwood

Police Department.

       On August 6, 2012, the trial court held a hearing on the Petition and First Amended

Petition. At the beginning of the hearing, Meisberger was represented by counsel previously

appointed for him by the trial court, though Meisberger had expressed a desire to proceed pro

se. Meisberger and his appointed counsel disagreed on whether the court should grant a

motion to continue the probation revocation hearing to another date: Meisberger wanted to

move forward pro se with the hearing that day, while counsel wished to continue the hearing

in order to obtain witness testimony and to more adequately respond to allegations in the First

Amended Petition.

       After assuring itself that Meisberger intended to proceed pro se, the trial court granted

counsel’s motion to withdraw from representing Meisberger and conducted the remainder of

the probation revocation hearing. During the hearing, Susan Allen (“Allen”), an Officer

Supervisor with the Monroe County Probation Department (“the Probation Department”),

testified concerning the allegations in the Petition and First Amended Petition. During

Meisberger’s cross-examination of Allen, Meisberger elicited testimony from Allen that

recounted the contents of a phone conversation the Probation Department had with a


                                               4
Corporal Baker at the Madison (Indiana) Police Department concerning Corporal Baker’s

assessment of Meisberger’s progress during the course of his probation.

       Also during the probation revocation hearing, Meisberger objected to the admission of

the probable cause affidavit that had been attached to the First Amended Petition. The trial

court overruled this objection.

       At the hearing’s conclusion, the trial court found that Meisberger had violated the

terms of his probation, and ordered the remainder of his term executed in the Department of

Correction.

       This appeal ensued.

                                  Discussion and Decision

                                     Standard of Review

       Meisberger challenges the trial court’s revocation of his probation. Our general

standard of review in such cases is well established. Probation is a favor granted by the

State, not a right to which a defendant is entitled. Butler v. State, 951 N.E.2d 255, 259 (Ind.

Ct. App. 2011). Though a defendant is entitled to due process in a probation revocation

proceeding, he is not entitled to all the rights he enjoyed before the underlying criminal

conviction, such as the applicability of the rules of evidence or an elevated burden of proof.

Id. A defendant is, however, entitled to certain due process protections, including the right to

confront witnesses, right to cross-examine witnesses, and right to representation of counsel.

Ind. Code § 35-38-2-3(e); Butler, 951 N.E.2d at 259. There must also be substantial

evidence of probative value from which the trial court could determine based upon a


                                               5
preponderance of the evidence that the defendant violated the terms of his probation. Figures

v. State, 920 N.E.2d 267, 272 (Ind. Ct. App. 2010).

                                 Waiver of Right to Counsel

       Challenging the revocation of probation, Meisberger first contends that he was denied

his right to due process of law because the trial court did not properly determine that he

knowingly, intelligently, and voluntarily waived his right to counsel during the revocation

hearing.

       When a defendant proceeds without counsel in a probation revocation proceeding, the

record must reflect that he knowingly, intelligently, and voluntarily waived the right to

counsel. Hammerlund v. State, 967 N.E.2d 525, 527 (Ind. Ct. App. 2012) (citing Butler, 951

N.E.2d at 259-60). “There are no magic words a judge must utter to ensure a defendant

adequately appreciates the nature of the situation.” Kubsch v. State, 866 N.E.2d 726, 736

(Ind. 2007). Rather, whether waiver of counsel is knowing, intelligent, and voluntary

“depends on the ‘particular facts and circumstances surrounding [the] case, including the

background, experience, and conduct of the accused.’” Id. (quoting Johnson v. Zerbst, 304

U.S. 458, 464 (1938)).

       In Kubsch, our supreme court reiterated its adoption of the four-factor test set forth by

the Seventh Circuit for purposes of appellate review of waiver of counsel in criminal cases:

       We consider four factors: “‘(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.’” Poynter v. State, 749 N.E.2d 1122,


                                               6
       1127–28 (Ind. 2001) (quoting United States v. Hoskins, 243 F.3d 407, 410 (7th
       Cir. 2001)).

Id. This Court has relied upon Kubsch in reviewing appeals related to the waiver of counsel

in probation revocation proceedings. See, e.g., Butler, 951 N.E.2d at 259 (concluding waiver

of counsel was knowing, intelligent, and voluntary); Eaton v. State, 894 N.E.2d 213, 218

(Ind. Ct. App. 2008) (concluding counsel was not waived and the defendant was not

adequately advised as to the consequences of waiver), trans. denied.

       We review de novo a trial court’s finding that a defendant has waived his right to

counsel. Butler, 951 N.E.2d at 260.

       Here, Meisberger contends that his waiver of counsel was not made knowingly,

intelligently, and voluntarily. In support of his argument, Meisberger points to the nature of

the trial court’s advisements concerning the perils of proceeding pro se, the purported

absence of any inquiry into his experience with the legal system, the absence of an initial

hearing on the First Amended Petition, and the absence of a separate inquiry by the trial court

into his psychological condition. When we apply the four-factor test set forth above, we

cannot agree with Meisberger’s argument on appeal.

       During both the initial hearing on the Petition and the probation revocation hearing on

the First Amended Petition, Meisberger insisted that he wished to proceed pro se. Despite

this, the trial court appointed counsel for him after the initial hearing on the Petition. During

the probation revocation hearing, Meisberger continued to insist that he wished to proceed

pro se despite several warnings from the trial court that there were significant advantages to

accepting appointed counsel. Meisberger insisted in response that he had represented himself

                                               7
on numerous prior occasions, and characterized the probation revocation hearing as “pretty

much cut and dry [sic].” (Tr. at 6.) Even after this, the trial court continued to inquire of

Meisberger whether he was sure he wished to move forward without representation. The

court granted Meisberger’s request and his counsel’s motion to withdraw only after

Meisberger was able to consult separately with counsel concerning a decision to proceed pro

se and after several additional warnings and inquiries from the court.

       Further, Meisberger seeks to minimize the extent of his prior experiences with the

legal process. Our review of the record reveals that Meisberger has conducted significant

motion practice pro se, including petitions for various forms of credit time, post-conviction

relief, and a habeas corpus proceeding. During the revocation hearing, Meisberger objected

to the admission of evidence and cross-examined the State’s witness. While he claims error

in the absence of an initial hearing on the First Amended Petition, Meisberger does so despite

his testimony during the revocation hearing that he had seen and understood the First

Amended Petition.

       Finally, while Meisberger claims the trial court erred when it did not inquire into his

mental state at the time of the revocation hearing, he disregards his statements to the trial

court during the initial hearing that his psychological diagnoses did not affect his ability to

understand the proceedings and act on his own behalf. Moreover, we see nothing in the

record of the proceedings that indicate that his mental health actually did impair his self-

representation during the revocation hearing, including the decision to proceed pro se.

       We therefore conclude that the trial court did not err when it granted Meisberger’s


                                              8
waiver of his right to counsel during the probation revocation hearing.

                                  Admissibility of Evidence

       We turn next to Meisberger’s claim that the trial court erroneously admitted into

evidence certain hearsay statements.

       Meisberger directs our attention to three items of hearsay that he claims were

erroneously admitted into evidence during the probation revocation proceeding. The first

item Meisberger identifies is the probable cause affidavit executed by Officer Swisher, which

set forth facts related to a charge against Meisberger for Auto Theft; Meisberger objected to

the admission of this affidavit, and the trial court overruled his objection. The second item

Meisberger identifies as hearsay is testimony offered by Allen concerning her notes in

Meisberger’s probation department file from his probation officer, Christy Scheid (“Scheid”),

concerning missed probation appointments and information that charges had been filed

against Meisberger in Johnson County; Meisberger did not object to these statements. The

third item Meisberger complains of are hearsay statements contained within testimony he

elicited from Allen during his cross-examination of her during the hearing; Meisberger also

did not object to the admissibility of that testimony.

       For its part, the State responds that each of these were admissible under the substantial

trustworthiness test, that the probable cause affidavit was not admitted into evidence and was

irrelevant to the trial court’s reasoning in revoking Meisberger’s probation, and that any error

was not prejudicial because Meisberger’s own statements during the hearing establish that he

violated the terms of his probation.


                                               9
       “The due process right applicable in probation revocation hearings allows for

procedures that are more flexible than in criminal prosecution.” Reyes v. State, 868 N.E.2d

438, 440 (Ind. 2007) (citing, inter alia, Morrissey v. Brewer, 408 U.S. 471, 489 (1972)).

Thus, evidence may be deemed admissible for the purposes of probation revocation

proceedings that would not be admissible during a criminal trial. Id.; also Ind. Evidence Rule

101(c)(2) (providing that, except for rules concerning privilege, the Rules of Evidence do not

apply in numerous criminal-related proceedings, including those dealing with probation

revocation).

       As our supreme court noted, however, “[t]his does not mean that hearsay evidence

may be admitted willy-nilly.” Reyes, 868 N.E.2d at 440. Because the right to confront

accusers still applies to defendants in probation revocation proceedings, albeit in a less

stringent form than in a criminal trial, we apply the “substantial trustworthiness” test to

determine whether hearsay evidence is admissible during a probation revocation hearing. Id.

at 441. The substantial trustworthiness test requires that the State demonstrate “good cause”

for using hearsay rather than live testimony during a probation revocation proceeding.

Robinson v. State, 955 N.E.2d 228, 232 (Ind. Ct. App. 2011). The good cause requirement is

met so long as the hearsay bears substantial guarantees of trustworthiness. In reaching such a

determination, the trial court must “evaluate the reliability of the hearsay evidence” and,

ideally, “explain on the record why the hearsay is reliable and why that reliability is

substantial enough to supply good cause for not producing live witnesses.” Id. (citing Reyes,

868 N.E.2d at 441-42).


                                             10
       Where a party fails to object to evidence, we must determine whether any alleged error

was fundamental. Fundamental error occurs when an error constitutes a blatant violation of

basic principles, the harm or potential for harm is substantial, and the resulting error denies

the defendant the fundamental guarantees of due process. Carden v. State, 873 N.E.2d 160,

164 (Ind. Ct. App. 2007). And even where an error in the admission of evidence has been

made—whether or not sufficient objection was raised to its admission—we will not reverse

the trial court where the error was harmless. Ind. Trial Rule 61.

       We turn first to Meisberger’s contention that the probable cause affidavit was

erroneously admitted into evidence. Meisberger and the State differ as to whether the

affidavit was properly admitted into evidence. As the State observes, however, the trial court

did not rely on the probable cause affidavit in reaching its decision to revoke Meisberger’s

probation. Indeed, the trial court agreed with Meisberger’s contentions that the charges

against him were unresolved. The court instead concluded that Meisberger had failed to

comply with probation conditions concerning timely reporting of changes in residence and

appearance for appointments with his probation officer. Regardless of whether the probable

cause affidavit was admitted, and whether its admission was in error, Meisberger has not

demonstrated any harm as a result of such a ruling. We need not—and therefore do not—

decide whether the affidavit satisfied the requirements of the substantial trustworthiness test.

       We next address Meisberger’s claim that the trial court erred when it admitted into

evidence hearsay statements Scheid made to Allen concerning Meisberger’s compliance with

the terms of his probation. Allen repeated these statements in her testimony, and Meisberger


                                              11
did not object to their admissibility during the revocation hearing. Meisberger must therefore

not only demonstrate that Scheid’s hearsay statements as reported by Allen were not

substantially trustworthy, but also that he was so prejudiced by their admission into evidence

that this denied him fundamental due process protections.

       Meisberger cannot satisfy this burden. For regardless of whether Scheid’s statements

as conveyed by Allen were substantially trustworthy, Meisberger cannot establish prejudice

from these statements because of his own admissions during his testimony. Specifically,

Meisberger testified that he had tried to “get back on [his] feet” after a job loss, but did not

attend an appointment with Scheid after receiving a notice of a technical violation because “I

just didn’t want to go back to prison,” and he did not trust Scheid. (Tr. at 36.) Meisberger

further stated that, “[n]one of this would have ever happened […] if you guys wouldn’t have

been so hard on me…. Yeah, I violated my probation, I didn’t show up because I was scared

because for whatever reason [Scheid] wanted me back in prison.” (Tr. at 36.) Later,

Meisberger stated that “I’m not saying that I’m not guilty of violating the conditions of my

probation. Yes, I did do that. But there’s always two sides to every story….” (Tr. at 45-46.)

Based upon this testimony, we cannot conclude that any error in the admission of hearsay

statements by Scheid through Allen’s testimony would have been prejudicial to his rights.

       We now address Meisberger’s final alleged error in the admission of evidence during

the probation hearing, hearsay statements from a Corporal Baker of the Madison Police

Department. These statements were also conveyed to the trial court through Allen’s

testimony. Yet here, Meisberger not only did not contest the statements’ admissibility—he


                                              12
solicited the introduction of these statements into evidence. As our supreme court has held:

       A party may not invite error, then later argue that the error supports reversal,
       because error invited by the complaining party is not reversible error. Invited
       errors are not subject to appellate review. This type of invited error is not
       fundamental error.

Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995) (citations omitted). Without regard to

whether the testimony Allen offered otherwise would have been admissible, because

Meisberger solicited that testimony himself during cross-examination, he cannot now

complain of any associated error.

       To summarize, then, we find no basis upon which to reverse the trial court’s

revocation of Meisberger’s probation as a result of any claimed error in the admission of

evidence during the probation revocation hearing.

                                Sufficiency of the Evidence

       We turn now to Meisberger’s claim that the trial court lacked sufficient evidence from

which it could properly revoke his probation.

       Whether to revoke a defendant’s probation is a matter within the sole discretion of the

trial court judge. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). We therefore review

such decisions for an abuse of discretion, and consider only the evidence most favorable to

the judgment. Id. We neither reweigh evidence nor judge the credibility of witnesses, and if

there is substantial evidence of probative value to support the trial court’s decision that the

defendant has violated any of the terms of his probation, we will affirm the decision to

revoke probation. Id.

       Meisberger advances several arguments in contending that there was insufficient

                                              13
evidence to support the revocation of his probation. First among these is that the trial court

improperly took judicial notice of evidence outside the record. Yet, as we have noted above,

most of the Rules of Evidence do not apply in probation proceedings, and Meisberger makes

no argument that the evidence of which he presently complains was not admissible under the

substantial trustworthiness test. Evid. R. 101(c)(2); see discussion, supra. We therefore

decline to exclude from our consideration of the sufficiency of the evidence those matters

which the trial court took under judicial notice.

       Meisberger goes on to identify three bases upon which he claims his probation was

revoked, and to identify alleged errors with each. We find one of these dispositive: whether

there was sufficient evidence based upon which the trial court could properly revoke

Meisberger’s probation for failure to report for appointments with the probation department

as required by the terms of his probation. Those terms include, in relevant part, a

requirement that Meisberger “report as directed to the Probation Department and …

truthfully answer all reasonable inquiries.” (App. at 490.)

       Testimony from Allen concerning probation department records, the admissibility of

which Meisberger contests on appeal, indicates that Meisberger failed to return telephone

calls concerning an item of mail to his address that was returned as undeliverable by the post

office. Further, during his own testimony Meisberger acknowledged failing to appear for

probation appointments because he did not want to return to jail. Meisberger also admitted to

having violated the terms of his probation. Rather than dispute whether he had done so,

Meisberger instead proffered explanations for his conduct—namely, that Scheid was trying to


                                             14
ruin him and the probation system was unfair—that the trial court was within its discretion to

deem undeserving of weight.

         Because there was sufficient evidence from which the trial court could properly

conclude that Meisberger violated the terms of his probation as they related to appearance for

appointments with the probation department, we decline to address Meisberger’s other two

arguments. We find no abuse of discretion in the trial court’s revocation of his probation.

                                       Nature of Sanction

         Finally, we turn to Meisberger’s challenge to the nature of the sanction the trial court

imposed, namely, revoking his probation and ordering that he serve the entire remaining

prison sentence as executed time.

         Where a trial court revokes a defendant’s probation before the expiration of the

probationary period, the court may impose one or more of the following sanctions:

         (1) Continue the person on probation, with or without modifying or enlarging
             the conditions.

         (2) Extend the person’s probationary period for not more than one (1) year
             beyond the original probationary period.

         (3) Order execution of all or part of the sentence that was suspended at the
             time of initial sentencing.

I.C. § 35-38-2-3(h). As with decisions to revoke probation, the sentencing decision in a

probation revocation proceeding is within the sound discretion of the trial court, and we

review that decision for an abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

2007).

         Here, Meisberger contends that the trial court abused its discretion when it ordered

                                                15
that he serve the entirety of his remaining sentence as executed time in the Department of

Correction. Meisberger points to his employment since beginning probation, his payment of

child support, his compliance with the terms of his probation for four years prior to the

present violation, and his “extensive[]”court-authorized travel outside of Indiana as bases

from which the trial court should have reached a decision other than its order revoking the

entirety of his suspended sentence. (Appellant’s Br. at 41.)

       We disagree. Meisberger’s violation of his probation was not a question of an isolated

failure to comply with the terms of his probation. Meisberger intentionally failed to appear

for multiple appointments with his probation officer. He left Indianapolis and fled to

Madison, posted multiple videos to YouTube over the course of several days in July 2012,

and at some point during this period apparently attempted either to fake his own death or to

commit suicide by jumping off a bridge. In light of this evidence, we cannot conclude that

the trial court abused its discretion when it determined that revoking the entirety of

Meisberger’s probation was an appropriate sanction for his probation violation. We therefore

leave the trial court’s order undisturbed.

                                         Conclusion

       Meisberger’s waiver of his right to counsel during the probation revocation hearing

was given knowingly, intelligently, and willfully. We find no reversible error in the trial

court’s evidentiary rulings during the probation revocation hearing. There was sufficient

evidence from which the trial court could properly conclude that Meisberger violated the

terms of his probation. Finally, the trial court did not abuse its discretion when it required


                                             16
Meisberger, as the sanction for his probation violation, to serve the remainder of his sentence

as executed time in the Department of Correction.

       Affirmed.

NAJAM, J., and MAY, J., concur.




                                              17
