MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                 Jun 21 2019, 7:58 am
court except for the purpose of establishing                                      CLERK
the defense of res judicata, collateral                                       Indiana Supreme Court
                                                                                 Court of Appeals
estoppel, or the law of the case.                                                  and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
John S. Terry                                            Curtis T. Hill, Jr.
Daniel J. Pfleging                                       Attorney General of Indiana
Cate, Terry & Gookins LLC
Carmel, Indiana                                          Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Lamar Scott,                                     June 21, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-29
        v.                                               Appeal from the Hamilton Circuit
                                                         Court
State of Indiana,                                        The Honorable Paul A. Felix,
Appellee-Plaintiff.                                      Judge

                                                         Trial Court Cause No.
                                                         29C01-1506-F5-5083



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019                           Page 1 of 6
                                          Case Summary
[1]   On April 9, 2018, Kenneth Lamar Scott was placed on probation following his

      2015 conviction for Level 5 felony robbery. Within approximately five months

      of his being placed on probation, the State alleged, in two separate filings, that

      Scott had violated the terms of his probation. Although Scott initially indicated

      that he intended to hire counsel, counsel was appointed to represent him on

      September 13, 2018. One week later, the trial court conducted an evidentiary

      hearing, during which Scott, by counsel, indicated that he was ready to proceed

      and that he intended to admit to some of the alleged violations. After accepting

      Scott’s admissions, the trial court revoked his probation and ordered that he

      serve 580 days of his previously-suspended sentence. On appeal, Scott contends

      that the trial court denied him due process by failing to ascertain whether he

      had had an opportunity to discuss the case with his counsel prior to entering his

      admissions. Because the record clearly indicates that Scott both had the

      opportunity to and did discuss his case with counsel, we cannot say that the

      trial court denied Scott due process by accepting his admissions. We therefore

      affirm.



                            Facts and Procedural History
[2]   On June 8, 2015, Scott robbed a CVS store and threatened to shoot a CVS

      employee. On July 30, 2015, Scott pled guilty to Level 5 felony robbery. He

      was subsequently sentenced to a term of six years with four years executed, two

      years suspended, and one year on probation. Among the terms of his

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019   Page 2 of 6
      probation, Scott was required to report to the probation department as directed;

      cooperate with and truthfully answer all reasonable inquiries of his probation

      officer; refrain from consuming or possessing any illegal drug, unless he had a

      valid prescription; submit to drug and alcohol testing when ordered by the

      probation department; and comply with and satisfactorily complete “all

      education and/or treatment programs reasonably related to [his]

      rehabilitation.” Appellant’s App. Vol. II p. 21. Scott began serving his

      probation on April 9, 2018.


[3]   On June 15, 2018, the State filed an allegation of probation violation (“the First

      Information”), alleging that Scott had violated the terms of his probation by

      being dishonest with his probation officer regarding his use of illegal drugs and

      testing positive for morphine, oxycodone, oxymorphone, and nor-

      buprenorphine. The trial court conducted an initial hearing on the First

      Information on August 16, 2018. During this hearing, the trial court informed

      Scott that he had the “right to have an attorney represent [him] in these

      matters” and Scott indicated that he intended to hire an attorney. Tr. Vol. II p.

      4. The trial court scheduled the matter for a fact-finding hearing on September

      20, 2018.


[4]   On September 10, 2018, the State filed a second allegation of a probation

      violation (“the Second Information”), alleging that Scott had violated the terms

      of his probation by failing to report to his probation officer; being dishonest

      with his probation officer regarding his drug use; testing positive for cocaine,

      codeine, morphine, oxycodone, oxymorphone, buprenorphine, and nor-

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019   Page 3 of 6
      buprenorphine; and failing to provide documentation indicating that he had

      participated in the court-ordered substance abuse assessment. The trial court

      conducted an initial hearing on the Second Information on September 13, 2018.

      During this hearing, the trial court again told Scott that he had the right to have

      an attorney represent him and asked Scott “[s]o do you want an attorney to

      represent you on both of these allegations, in all [of] these allegations?” Tr.

      Vol. II p. 17. Scott responded, “Yeah.” Tr. Vol. II p. 17. The trial court

      appointed counsel, stating:


              I will reappoint[1] [counsel] to represent you on these matters.
              Because I have appointed him I will enter a denial on these, on
              all these allegations today. We’ll go ahead and schedule the fact-
              finding for next week. The First Information is set for next week.
              We’ll just leave it set and give [counsel] an opportunity to talk to
              Mr. Scott.


      Tr. Vol. II p. 18.


[5]   Prior to the beginning of the September 20, 2018 evidentiary hearing, the trial

      court informed the parties that “there was no pressure to go forward with the

      fact-finding hearing” on that date. Appellant’s App. Vol. II p. 38–39 (internal

      quotation marks omitted). The trial court also noted on the record that


              And we set the fact-finding on the First Information for today’s
              date, and then since the second one happened just prior to the
              fact-finding date, we went ahead and consolidated them. But



      1
        The trial court appointed the same individual to represent Scott who had represented him in the underlying
      criminal proceedings.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019                      Page 4 of 6
              please don’t feel like you’re under any pressure to actually do a
              fact-finding on the Second [Information] anyway today. And if
              you want to continue both, then I’ll understand that as well.


      Tr. Vol. II pp. 21–22. Despite the trial court’s offer to continue the evidentiary

      hearing, Scott’s counsel indicated that they wished to proceed because “Mr.

      Scott is actually anxious to get these resolved.” Tr. Vol. II p. 22. Scott then

      admitted to all of the violations included in the First Information and most of

      the violations included in the Second Information. The State indicated that it

      was satisfied with Scott’s admissions and that it was prepared to “just go on the

      ones that he’s going to admit.” Tr. Vol. II p. 22. The trial court accepted

      Scott’s admissions, revoked his probation, and ordered that he serve 580 days of

      his previously-suspended sentence. Scott subsequently filed a motion to correct

      error, which was denied by the trial court.



                                 Discussion and Decision
[6]   Scott contends that the trial court denied him due process by failing to ascertain

      whether he had had the opportunity to consult with an attorney prior to

      accepting his admission to the probation violations. In support, Scott cites to

      Indiana Code section 35-38-2-3(e) which reads, in relevant part, that “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.”




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019   Page 5 of 6
[7]   In this case, the record reflects that Scott was appointed counsel a week prior to

      the evidentiary hearing. The record further reflects that Scott had both the

      opportunity to and did confer with his counsel prior to entering his admissions.

      During the evidentiary hearing, Scott’s counsel rejected the offered continuance

      and informed the trial court that Scott was anxious to resolve the matters,

      intended to admit to some of the alleged violations, and intended to deny some

      of the alleged violations. One may reasonably infer from the record that Scott’s

      counsel made these statements relating to Scott’s mindset and intentions after

      discussing the matter with Scott. Despite Scott’s claim on appeal, we see no

      need for the trial court to explicitly inquire into whether Scott had discussed the

      matter with counsel when the record clearly indicates that Scott had done so.

      As such, we conclude that Scott has failed to prove that the trial court denied

      him due process by failing to ascertain whether he had the opportunity to

      consult with counsel prior to the evidentiary hearing. 2


[8]   The judgment of the trial court is affirmed.


      Crone, J., and Tavitas, J., concur.




      2
        To the extent that Scott argues that he should have been given more time to discuss the matter with his
      counsel, the record reveals that the trial court offered Scott a continuance of the evidentiary hearing but that
      Scott, by counsel, rejected the offered continuance.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-29 | June 21, 2019                           Page 6 of 6
