MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Nov 19 2019, 6:04 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
John Kindley                                            Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Lauren A. Jacobsen
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Chad A. Phipps,                                         November 19, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-813
        v.                                              Appeal from the Clay Circuit
                                                        Court
State of Indiana,                                       The Honorable Joseph D. Trout,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        11C01-1803-F5-198



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-813 | November 19, 2019              Page 1 of 11
                                              Case Summary

[1]   Chad Phipps appeals the trial court’s revocation of community corrections and

      his subsequent placement in the Indiana Department of Correction (“DOC”).

      We reverse and remand.


                                                     Issues

[2]   Phipps raises two issues for our review; however, we find one issue dispositive,

      which we restate as whether Phipps knowingly, voluntarily, and intentionally

      waived his right to counsel at the community corrections revocation hearing.


                                                     Facts

[3]   On March 13, 2018, the State charged Phipps with Count I, carrying a handgun

      without a license, a Level 5 felony; Count II, possession of altered handgun, a

      Level 5 felony; Count III, possession of methamphetamine, a Level 5 felony;

      Count IV, resisting law enforcement, a Class A misdemeanor; Count V,

      possession of marijuana, a Class B misdemeanor; and Count VI, possession of

      paraphernalia, a Class C misdemeanor. On September 5, 2018, Phipps pleaded

      guilty, pursuant to a plea agreement, to Counts I, II, III, and IV, and the State

      dismissed Counts V and VI.


[4]   Pursuant to the plea agreement, Phipps agreed with the sentencing

      recommendation that, “if he is found to be in violation of the rules of electronic

      home detention, he will serve the entire remainder of his sentence at the

      Indiana Department of Correction.” Id. at 19. On October 1, 2018, the trial

      court sentenced Phipps for Counts I, II, and III, to four years each fully

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-813 | November 19, 2019   Page 2 of 11
      executed at the DOC to run concurrently with one another, and for Count IV,

      one year fully executed at the DOC to run concurrently with Counts I, II, and

      III. 1 The trial court also calculated credit time and ordered that the “remaining

      executed portion of [Phipps’] sentence shall be served as a direct commitment

      on electronic home detention, to be monitored by Clay County Community

      Corrections, subject to their rules, regulations, and fees.” Id. at 42.


[5]   On March 8, 2019, the trial court issued a warrant for Phipps, ordering Phipps

      to appear and show cause as to why Phipps violated the terms of his home

      detention. On March 12, 2019, the trial court held a hearing on the petition to

      revoke. Phipps appeared pro se.


[6]   The trial court read the allegations in the probable cause affidavit to Phipps,

      namely, that Phipps, on different occasions: did not attend community service;

      called in hours after his community service was set to begin stating he overslept;

      told the community corrections employees he would not do community service

      because he was not getting paid; and showed up to community service but said

      he had to leave to take care of his children or because he was not feeling well.

      The trial court and Phipps then engaged in the following colloquy:


                 THE COURT: * * * * * I could return you to community service,
                 I could modify your sentence, I could order you to serve any or
                 all of the remaining sentence as an incarcerated person. You
                 have rights. You have the right to a timely hearing usually




      1
          This sentence is consistent with the terms of the plea agreement.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-813 | November 19, 2019   Page 3 of 11
        within ten days to fourteen days, that’s how fast it goes, and then
        you have the right to an attorney. If you cannot afford an
        attorney one could be appointed for you. You have a right at the
        hearing to face your accusers in open court, confront them and
        cross examine them, or have your lawyer do it for you. You
        have the right to use court subpoenas to compel witnesses and
        evidence to the trial or hearing and you have the right to make
        the State prove you violated your [c]ommunity [c]orrections’
        direct commitment by a preponderance of the evidence and you
        only have the right to remain silent as to any allegations of
        criminal activity. So if this is all about performing community
        service you can be called to the stand and testify under oath.
        You understand?


        [PHIPPS]: Yes.


        THE COURT: Okay. You got [sic] two choices here today.
        You can admit you violated your community corrections[]
        agreement on electronic in-home detention or you can deny it. If
        you deny it I will set it for that hearing and I will talk to you
        about what you want to do about a lawyer.


        [PHIPPS]: I admit that I did – I wasn’t doing my community
        service. That was the only reason why they could violate me.
        Everything else was – I’ve done. . . .


                                               *****


        THE COURT: All right. Before I can allow you to admit I need
        you to know that when you admit you waive and give up those
        constitutional rights I just had and the possible penalty is just
        what I said when I read you the petition. Do you want me to go
        . . . And it’s all up to me.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-813 | November 19, 2019   Page 4 of 11
               [PHIPPS]: Yeah.


      Tr. Vol. II pp. 60, 61, 64.


[7]   Phipps was then placed under oath, and the State asked Phipps if he “violate[d]

      the terms and conditions of Clay County Community Corrections by not

      completing community service as ordered” to which Phipps responded, “yes.”

      Id. at 66. The trial court then found that Phipps “made a knowing, intelligent,

      and voluntary admission, factually based on [his] own sworn testimony.” Id. at

      67. The same day, the trial court entered an order, stating that Phipps

      “waive[d] rights and entere[d] an admission.” Appellant’s App. Vol. II p. 46.

      Accordingly, the trial court revoked Phipps’ direct placement commitment.


[8]   The next day, on March 13, 2019, the trial court held a sentencing hearing.

      The trial court asked Phipps if he brought witnesses or anyone to speak on his

      behalf, to which Phipps indicated he did not. 2 Phipps requested the trial court

      to reinstate his commitment to house arrest and stated that the only reason he

      did not perform community service was due to caring for his young children.

      The State then asked to cross-examine Phipps because Phipps was

      “downplaying and basically withdrawing his admission by making excuses as

      to why it’s impossible for him to do everything.” Tr. Vol. II p. 81. The State

      also called Mary Brown from community corrections who testified that




      2
       Phipps’ response was inaudible according to the transcript; however, the trial court’s response indicates that
      Phipps did not bring any witnesses.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-813 | November 19, 2019                  Page 5 of 11
       community corrections sent Phipps to CFA Staffing to try and assist Phipps in

       obtaining employment, but Phipps declined several recommendations.


[9]    Brown further testified that Phipps arrived late to serve his community service

       many days and claimed he woke up late; and that Phipps stated many times

       that Phipps did not want to do community service. Additionally, Brown

       testified that community corrections attempted to work around Phipps’

       childcare schedule by scheduling Phipps’ community service during the

       morning hours because Phipps’ wife could work in the afternoon. Phipps

       testified that much of Brown’s testimony was not true.


[10]   The same day, the trial court entered a sentencing order, and ordered Phipps to

       serve 1,137 days at the DOC. Phipps now appeals.


                                                       Analysis

[11]   We address the dispositive issue of whether Phipps knowingly, voluntarily, and

       intentionally waived his right to counsel at his community corrections

       revocation hearing. 3 “The Sixth Amendment to the U.S. Constitution and




       3
        The State argues that we should not address the validity of an admission on direct appeal. Although we
       address it through the waiver of counsel, we acknowledge, as our Court did in Sparks v. State, 983 N.E.2d
       221, 224 n.1 (Ind. Ct. App. 2013), aff’d on reh’g, that:
               A panel of this court has held that an alleged error during a guilty plea in a probation revocation
               hearing must be challenged by a post-conviction relief petition. Huffman v. State, 822 N.E.2d 656,
               660 (Ind. Ct. App. 2005). The court in Huffman based its decision on our [S]upreme [C]ourt’s
               decision in Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996), in which the court held that a guilty
               plea leading to a criminal conviction must be challenged by a postconviction relief petition and not a
               direct appeal. The issue of whether the rule in Tumulty should be extended to probation revocation
               hearings remains unsettled. We have chosen to address the probation revocation issue in this case
               on the merits.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-813 | November 19, 2019                 Page 6 of 11
       Article 1, [S]ection 13 of the Indiana Constitution guarantee a criminal

       defendant the right to appointed counsel.” Jones v. State, 783 N.E.2d 1132, 1138

       (Ind. 2003). “Accordingly, when a criminal defendant waives his right to

       counsel and elects to proceed pro se, we must decide whether the trial court

       properly determined that the defendant’s waiver was knowing, intelligent, and

       voluntary.” Id. “Waiver of assistance of counsel may be established based

       upon the particular facts and circumstances surrounding the case, including the

       background, experience, and conduct of the accused.” Id.


[12]   “It is well established that there is a strong presumption against the waiver of

       the right to counsel, and it is the trial court that bears the ‘serious and weighty

       responsibility to determine whether there was an intelligent and competent

       waiver.’” Wirthlin v. State, 99 N.E.3d 699, 704 (Ind. Ct. App. 2018) (quoting

       Eaton v. State, 894 N.E.2d 213, 217 (Ind. Ct. App. 2008)) (emphasis supplied),

       trans. denied. “‘When a defendant asserts the right to self-representation, the

       court should tell the defendant of the dangers and disadvantages of self-

       representation.’” Wirthlin, 99 N.E.3d at 705 (quoting Poynter v. State, 749

       N.E.2d 1122, 1126 (Ind. 2001)). “Although a trial court need not follow

       specific talking points when advising a defendant of the dangers and

       disadvantages of proceeding without counsel, a trial court must come to a

       considered determination that the defendant is making a knowing, voluntary,

       and intelligent waiver of his right to counsel.” Id. (internal quotations omitted).



       Sparks, 983 N.E.2d at 224 n.1. As in Sparks, we choose to address the issue on the merits.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-813 | November 19, 2019             Page 7 of 11
       “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).


[13]   The right to counsel extends to the revocation of probation or, in this case,

       community corrections placement. See Allen v. State, 86 N.E.3d 391, 394 (Ind.

       Ct. App. 2017) (“When faced with a petition to revoke probation, a probationer

       is not entitled to the full panoply of rights he enjoyed prior to the conviction. . .

       . However, a petitioner is entitled to certain due process protections such as

       representation by counsel.”); see also Hodges v. State, 997 N.E.2d 419, 421 (Ind.

       Ct. App. 2013) (“[A] person serving a community corrections placement is

       entitled to certain due process protections before the placement is revoked,

       including the right to counsel.”). Accordingly, when a defendant is guaranteed

       the right to counsel, “we must be confident that the record reflects that the right

       to counsel was voluntarily, knowingly, and intelligently waived.” Allen, 86

       N.E.3d 391, 394 (Ind. Ct. App. 2017).


[14]   The State cites Butler for the proposition that “when a probationer proceeds pro

       se and chooses to admit rather than to challenge his alleged probation violation,

       his knowing, intelligent, and voluntary waiver of counsel may be established

       even if the record does not show that he was warned of the pitfalls of self-

       representation.” Butler, 951 N.E.2d at 259. While Butler stands for this

       proposition, the facts of Butler are distinguishable. In Butler, our Court found

       Butler’s argument was unavailing, because:


               We fail to see any difference between the explicit advisement of
               the right to counsel . . . and the advisement given in this case. To
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-813 | November 19, 2019   Page 8 of 11
               the extent that Butler argues that the court’s advisement was too
               perfunctory because the court did not repeatedly advise him of
               his right to counsel, we disagree that a court must make repeated
               advisements. Here, the trial court told Butler that he had a right
               to an attorney and that if he wanted an attorney but could not
               afford one, an attorney would be appointed for him. The court
               then asked Butler whether he wanted an attorney. Butler said no.
               The court verified with Butler that he was going to proceed at the
               hearing without an attorney and then said, “And you understand
               you have a right to a lawyer?” Butler said yes. The record shows
               that the trial court advised Butler of his right to counsel and that
               Butler unequivocally waived that right.


       Id. at 261 (internal quotations omitted).


[15]   Here, the trial court advised Phipps of his right to an attorney; however, the

       trial court then qualified its advisement and told Phipps that Phipps had two

       options: to admit the offense; or to deny the violation and speak with an

       attorney. Pursuant to Indiana Code Section 35-38-2-3(e), which codifies a

       defendant’s due process rights when a petition to revoke probation is filed, “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.”

       (emphasis added). Erroneously here, the trial court suggested that Phipps only

       had the right to an attorney if he denied the allegations.


[16]   After issuing the misleading statement regarding Phipps’ right to an attorney,

       the trial court failed to ascertain whether Phipps wanted to consult with a

       private attorney or have counsel appointed for him; or whether Phipps sought

       to waive his right to counsel and represent himself. See e.g., Bumbalough v. State,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-813 | November 19, 2019   Page 9 of 11
       873 N.E.2d 1099, 1102 (Ind. Ct. App. 2007) (“Here, the record establishes that

       Bumbalough was advised of his right to counsel by means of videotape.

       However, the record is silent as to whether the trial court determined that

       Bumbalough’s waiver [of counsel] was voluntary, knowing, and intelligent.”).

       The trial court merely informed Phipps that admitting to the violation meant

       that Phipps was “waiv[ing] and giv[ing] up those constitutional rights. . . .”

       without further inquiry to ascertain whether Phipps was voluntarily, knowingly,

       and intelligent waiving his right to counsel. Tr. Vol. II p. 64.


[17]   The case before us stands in contrast to Cooper v. State, 900 N.E.2d 64, 70-71

       (Ind. Ct. App. 2009). In Cooper, “Cooper expressed an unequivocal desire to

       proceed without counsel at his probation revocation proceeding. . . .

       Furthermore, the various questions and answers regarding Cooper’s

       background, experience, and conduct support the conclusion that Cooper’s

       waiver of his right to representation was voluntary, knowing, and intelligent.”

       (quotations omitted). The trial court here did not adequately question Phipps

       to support its conclusion that Phipps waived his right to counsel at the

       community corrections revocation hearing.


[18]   Moreover, while Phipps’ argument focuses on the community correction

       revocation hearing, we note that, at the sentencing hearing the next day, the

       trial court began the hearing with: “Defendant waives his rights and enters an

       admission.” Tr. Vol. II p. 72. The record is devoid of any follow-up at the

       sentencing hearing with regard to whether Phipps waived his right to an

       attorney at his sentencing hearing. See Puckett v. State, 843 N.E.2d 959, 965

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-813 | November 19, 2019   Page 10 of 11
       (Ind. Ct. App. 2006) (“[I]t is well settled that sentencing is a critical stage of the

       proceedings at which a defendant is entitled to representation by counsel.”).

       This is significant considering that Phipps stood to serve a large portion of his

       sentence in the DOC as a result of his community corrections revocation.


[19]   Accordingly, the record before us fails to demonstrate that Phipps knowingly,

       voluntarily, and intelligently waived his right to counsel. We reverse and

       remand for a new hearing on the petition to revoke Phipps’ community

       corrections placement.


                                                  Conclusion

[20]   Phipps did not knowingly, voluntarily, and intelligently waive his right to

       counsel. We reverse and remand.


[21]   Reversed and remanded.


       Brown, J., concur.


       Altice, J., concur in result without opinion.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-813 | November 19, 2019   Page 11 of 11
