                                                               FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                             Feb 07 2012, 8:33 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                        CLERK
                                                                  of the supreme court,
                                                                  court of appeals and
                                                                         tax court




APPELLANT PRO SE:                                 ATTORNEYS FOR APPELLEE:

JUSTIN WOODHOUSE                                  GREGORY F. ZOELLER
Bunker Hill, Indiana                              Attorney General of Indiana

                                                  ANGELA N. SANCHEZ
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

JUSTIN WOODHOUSE,                                 )
                                                  )
       Appellant-Petitioner,                      )
                                                  )
              vs.                                 )       No. 56A04-1105-CR-324
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Respondent.                       )


                    APPEAL FROM THE NEWTON SUPERIOR COURT
                         The Honorable Daniel J. Molter, Judge
                             Cause No. 56D01-0108-FA-8



                                       February 7, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

      Justin Woodhouse appeals the trial court’s denial of his motion to dismiss the

State’s notice of a probation violation. Woodhouse raises three issues for our review,

which we consolidate and restate as whether the trial court erred when it denied his

motion to dismiss. We dismiss the appeal.

                      FACTS AND PROCEDURAL HISTORY

      On July 9, 2002, the trial court sentenced Woodhouse to seventeen years, with two

years suspended to probation, after Woodhouse pleaded guilty to residential burglary, as

a Class B felony. Following his release from incarceration, on June 11, 2010, the State

filed a petition for revocation of Woodhouse’s probation based on Woodhouse’s arrest

for new criminal offenses.

      On February 10, 2011, Woodhouse, while in jail on the new criminal charges,

filed a motion to dismiss the State’s petition for the revocation of his probation. In

relevant part, Woodhouse stated that he “has been available since November 11th[,]

2010[,] to resolve this matter,” even though he “has been continuously incarcerated since

August 1st[,] 2010.” Appellant’s App. at 19. Woodhouse then claimed that the petition

should be dismissed due to the State’s failure to timely prosecute him. Woodhouse

further alleged that the pending motion resulted in a hold being placed on him, which, in

turn, prevented him from participating in various lower-security forms of sentencing.

Notably, Woodhouse also admitted to the State’s alleged violations. See id. at 18.

      That same day, the trial court entered an order denying Woodhouse’s motion to

dismiss. However, thereafter Woodhouse filed a motion to set a hearing date on his


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request and admitted to the alleged probation violation. On February 28, 2011, the court

entered an order on Woodhouse’s motion to set a hearing date. In relevant part, the court

stated that it “takes . . . Defendant’s admission of violation under advisement until such

time as the Defendant has completed the sentence for which [he] is currently

incarcerated.” Id. On April 27, 2011, Woodhouse filed another verified motion to

dismiss the petition to revoke his probation on the same grounds as his original motion to

dismiss. The trial court denied Woodhouse’s motion the same day. This appeal ensued.

                            DISCUSSION AND DECISION

       Woodhouse appeals the trial court’s denial of his motion to dismiss the State’s

petition for the revocation of his probation. We review such motions for an abuse of

discretion. See Wilkerson v. State, 918 N.E.2d 458, 464 (Ind. Ct. App. 2009). An abuse

of discretion occurs where the decision is clearly against the logic and effect of the facts

and circumstances. Id.

       As an initial matter, we must note that Woodhouse does not appeal from a final

judgment but from an interlocutory order.           However, Woodhouse did not seek

certification of that order for a discretionary interlocutory appeal either from the trial

court or from this court. See Ind. Appellate Rule 14(B). We also note that the State fails

to mention this fact in its Appellee’s brief.      Without certification, we are without

jurisdiction to hear Woodhouse’s arguments and we must dismiss his appeal.

       Nevertheless, in the interest of judicial economy, we will briefly address

Woodhouse’s arguments.       On appeal, Woodhouse raises three arguments.          First, he

asserts that “[p]robation and parole are virtually identical” and, therefore, he was entitled


                                             3
to a preliminary hearing “without unnecessary delay” pursuant to Indiana Code Section

11-13-3-9(a). Appellant’s Br. at 10. Second, but relatedly, Woodhouse asserts that the

delay violated his federal constitutional right to a speedy trial.        Third, Woodhouse

contends that the delay in holding a hearing on the State’s petition violated Woodhouse’s

state and federal constitutional due process rights.

       Woodhouse’s arguments are not well taken. Probation revocation hearings are

court proceedings. Parole revocation, by contrast, is heard and determined by the parole

board, not a court.    Indiana Code Section 35-38-2-3 expressly applies to probation

hearings, unlike Section 11-13-3-9, and provides that “[t]he issuance of a summons or

warrant tolls the period of probation until the final determination of the charge.” The

statute does not require that the trial court hold its hearing or reach its final determination

within a certain time period.

       This is not to say, however, that the trial court’s timeframe for hearing the State’s

petition to revoke probation is unfettered. The Sixth Amendment’s requirement for

speedy trials applies to state probation hearings. Wilburn v. State, 671 N.E.2d 143, 148

(Ind. Ct. App. 1996), trans. denied. That requirement is expressed by the balancing test

of Barker v. Wingo, 407 U.S. 514 (1972), which considers the length of the delay, the

reason for the delay, the defendant’s assertion of his right, and the prejudice to the

defendant. See Wilburn, 671 N.E.2d at 148. The conduct of both the prosecution and the

defendant are weighed. Id. Not any one of the four factors is either a necessary or

sufficient condition to the finding of a deprivation of the right of a speedy trial. Id.




                                              4
Rather, they are related factors which must be considered together with such other

circumstances as may be relevant. Id.

       Here, the relevant consideration is that Woodhouse cannot demonstrate prejudice.

His conditional release from prison had been a favor, not a matter of grace. See id.

Further, the probation violation is not disputed. See Appellant’s App. at 18. As such, a

delay by the trial court in sanctioning Woodhouse for his probation violation will not risk

the loss of evidence or otherwise impair Woodhouse’s defense. And Woodhouse’s only

claim of prejudice, that he has been denied the opportunity for less restrictive forms of

incarceration, such as work release or home detention, due to the hold placed on him by

the pending notice of probation revocation is speculation. Woodhouse has not shown that

he would be a likely candidate for any of those programs were it not for the hold, given

his extensive criminal history and repeated probation violations.

       Neither does the delay invoke Woodhouse’s due process rights. As our Supreme

Court has made clear, the due process rights to which a probationer is entitled are:

       (a) a written notice of the claimed violations, (b) disclosure of the evidence
       against [him], (c) the opportunity to be heard in person and present
       witnesses and evidence, (d) the right to confront and cross-examine
       witnesses, (e) a “neutral and detached” hearing body, and (f) a written
       statement by the factfinder regarding the evidence relied upon and reason
       for revocation.

Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).           Those rights do not apply to

Woodhouse’s claims here, and, therefore, his argument on this issue must fail.

       In sum, if we were to decide this case on its merits we would hold that the trial

court acted within its discretion when it took the State’s petition under advisement until

Woodhouse has served his current, unrelated sentence.           There is no dispute that
                                             5
Woodhouse committed the alleged violation during the probationary period, and,

therefore, there is no risk that Woodhouse will lose valuable evidence or that his defense

will otherwise be impaired. Nonetheless, we must dismiss Woodhouse’s appeal for

having failed to certify an interlocutory order.

       Dismissed.

ROBB, C.J., and VAIDIK, J., concur.




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