MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             May 22 2020, 5:40 am
regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Valerie K. Boots                                        Josiah Swinney
Megan Shipley                                           Deputy Attorney General
Marion County Public Defender Agency                    Indianapolis, Indiana
– Appellate Division
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James A. Holder, Sr.,                                   May 22, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1927
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable James K. Snyder,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G02-1708-F3-32259



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020               Page 1 of 11
[1]   James Holder (“Holder”) appeals the Marion Superior Court’s order revoking

      his probation. He argues that he did not knowingly, intelligently, and

      voluntarily waive his right to counsel.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On February 22, 2018, Holder was convicted of Level 5 felony carrying a

      handgun without a license. He was ordered to serve four years with two years

      executed in the Department of Correction, one year executed in Community

      Corrections, and one year suspended to probation. Holder represented himself

      at trial, and prior to making the decision to proceed pro se, he was given the

      appropriate advisements about the dangers of self-representation. See

      Appellant’s Br. Addendum pp. 10–19.


[4]   Holder completed his two-year executed sentence on December 29, 2018, and

      he began to serve his one-year executed sentence in Community Corrections.

      On June 14, 2019, Community Corrections filed a notice of community

      corrections violation. Shortly thereafter, the probation department filed a notice

      of probation violation alleging that Holder failed to comply with the terms of

      his home detention.


[5]   At the initial hearing, Holder was asked whether he had the funds to hire

      private counsel or whether he was requesting a public defender. Holder

      informed the trial court that he planned to represent himself. The trial court

      advised Holder as follows:
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020   Page 2 of 11
        THE COURT: Thank you. Mr. Holder how old are you today.


        THE DEFENDANT: . . . But I’m 36.


        THE COURT: Ok. Are you under the influence of any alcohol
        or drugs today?


        THE DEFENDANT: No.


        THE COURT: Do you suffer from any emotional or mental
        disabilities?


        THE DEFENDANT: No.


        THE COURT: Mr. Holder it is my understanding based on what
        you have said to me that you wish to represent yourself. Is that
        true?


        THE DEFENDANT: Yes.


        THE COURT: Did you graduate High School Sir?


        THE DEFENDANT: Yes.


        THE COURT: Did you graduate college?


        THE DEFENDANT: ... [N]o I didn’t graduate college.


        THE COURT: And what about Law School then?


        THE DEFENDANT: I, no I didn’t graduate Law School.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020   Page 3 of 11
        THE COURT: Do you have any formal legal training Sir?


        THE DEFENDANT: Um, I took as far as Federal Aviation
        Regulations in AIM and I’ve, well I represented myself in this
        trial. I was my own lawyer and proper persona in the trial.


        THE COURT: So you were convicted?


        THE DEFENDANT: Yeah, well yeah.


        THE COURT: Ok. So how did you think your performance was
        during that trial Sir?


        THE DEFENDANT: Based on the unconstitutional things that
        happened at trial, I mean and everything else, I think I did very
        good.


        THE COURT: Ok. So you feel convertible [sic] representing
        yourself in a violation case as well?


        THE DEFENDANT: Yeah. Well as far as…


        THE COURT: Have you read the Indiana code related to
        probation and or community corrections violations?


        THE DEFENDANT: Actually I had it with me when I got
        locked up. It, because I was prepared for this but… told me I
        couldn’t bring none of my law, my ID or nothing with me when I
        got locked up so.


        THE COURT: Ok.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020   Page 4 of 11
        THE DEFENDANT: I mean. I’m prepared enough compared.


        THE COURT: Do you understand that you are facing potential
        prison time for this violation?


        THE DEFENDANT: Yes.


        THE COURT: And you understand that as a result of that you
        have an absolute right to an attorney to represent you during all
        of those proceedings?


        THE DEFENDANT: Yes Sir.


        THE COURT: And it is your desire to waive that right?


        THE DEFENDANT: Yes.


        THE COURT: Do you feel like you are doing so freely and
        voluntarily?


        THE DEFENDANT: Yes.


        THE COURT: Has anyone forced you, promised you anything
        of value given you anything? Threatened you in any way in order
        to make you waive your right to counsel?


        THE DEFENDANT. No.


        THE COURT: So you are doing so of your own free will?


        THE DEFENDANT: Yes.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020   Page 5 of 11
      June 20, 2019 Tr. pp. 2–4. The trial court accepted Holder’s waiver of counsel.

      After Holder requested a contested hearing on the community corrections and

      probation violations, the court set the revocation hearing for July 18, 2019.


[6]   Throughout the initial hearing and the July 18, 2019 revocation hearing, Holder

      challenged the trial court’s jurisdiction over him. He requested a ruling on his

      “Averment of Jurisdiction Quo Warranto,” which was filed on December 10,

      2018, approximately two weeks before he was released from the Department of

      Correction and well before the notice of violations were filed by the probation

      department at issue in this appeal. Appellant’s App. pp. 97–106. The trial court

      repeatedly informed Holder that he was not entitled to relief on his filing and

      that the trial court’s jurisdiction over him could not be contested. See e.g. June

      20, 2019 Tr. pp. 7–8; July 18, 2019 Tr. p. 4.


[7]   At the July 18, 2019 revocation hearing, the State presented evidence from

      Holder’s tracking device that he had violated the terms of his home detention.

      The trial court found that the State had proved ten of the fourteen alleged

      community corrections violations. The court revoked Holder’s community

      corrections placement and probation and ordered him to serve the balance of

      his original four-year sentence in the Department of Correction. Holder now

      appeals.


                                     Discussion and Decision
[8]   Holder argues that he did not knowingly, intelligently, and voluntarily waive

      his right to counsel in the probation revocation proceedings.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020   Page 6 of 11
              Probation is a favor granted by the State, not a right to which a
              criminal defendant is entitled. However, once the State grants
              that favor, it cannot simply revoke the privilege at its discretion.
              Probation revocation implicates a defendant’s liberty interest,
              which entitles him to some procedural due process. Because
              probation revocation does not deprive a defendant of his absolute
              liberty, but only his conditional liberty, he is not entitled to the
              full due process rights afforded a defendant in a criminal
              proceeding.


      Eaton v. State, 894 N.E.2d 213, 216 (Ind. Ct. App. 2008), trans. denied (internal

      citations omitted).


[9]   A defendant in a probation revocation hearing is entitled to representation by

      counsel. Ind. Code § 35-38-2-3(f) (2019); 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.”). However, a defendant may waive his

      right to counsel and proceed pro se. Cooper v. State, 900 N.E.2d 64, 66 (Ind. Ct.

      App. 2009). When he does so, “the record must reflect that the right to counsel

      was voluntarily, knowingly, and intelligently waived.” Silvers v. State, 945

      N.E.2d 1274, 1276 (Ind. Ct. App. 2011). That is, “[t]he record must show that

      the probationer was made aware of the nature, extent, and importance of the

      right to counsel as well as the necessary consequences of waiving such a right.”

      Id. We review de novo whether a probationer validly waived his right to

      counsel. Id.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020   Page 7 of 11
[10]   There are no specific words or phrases that a trial court must utter to produce a

       valid waiver of counsel by a defendant. Hammerlund v. State, 967 N.E.2d 525,

       527–28 (Ind. Ct. App. 2012). Rather, “determining if a defendant's waiver was

       knowing and intelligent depends on the particular facts and circumstances

       surrounding [the] case, including the background, experience, and conduct of

       the accused.” Eaton, 894 N.E.2d at 218 (citations and quotation marks omitted).


[11]   Holder argues that we should apply the factors enumerated in Poynter v. State,

       749 N.E.2d 1122 (Ind. 2001) to determine whether his waiver of counsel was

       knowing, voluntary, and intelligent. But the Poynter factors apply to waiver of

       counsel for a criminal defendant entitled to the Sixth Amendment right to

       counsel at trial. See Poynter, 749 N.E.2d at 1125–28. An individual serving a

       sentence in community corrections or on probation is not entitled to the full

       array of constitutional rights afforded to defendants at trial, including the Sixth

       Amendment right to counsel. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)

       (discussing due process rights for a hearing on a petition to revoke placement in

       community corrections). The United States Supreme Court has held that there

       is no Sixth Amendment right to counsel with respect to a probation revocation

       proceeding. See Gagnon v. Scarpelli, 411 U.S. 778, 781–82 (1973) (explaining that

       “[p]robation revocation . . . is not a stage of criminal prosecution” and holding

       that a probationer, who has already been sentenced, does not have a

       constitutional right to appointed counsel).


[12]   Holder’s right to counsel at a revocation hearing is bestowed by statute rather

       than by constitution. See I.C. § 35-38-2-3(f). The State concedes that the Poynter

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020   Page 8 of 11
       factors are relevant to waiver of counsel in a probation revocation proceeding,

       but a waiver of a statutory right requires less inquiry than a waiver of a

       constitutional right. See Appellee’s Br. at 16 n.4.


[13]   Holder voluntarily waived his right to counsel at his criminal trial and

       represented himself. He did not challenge that waiver on appeal. The trial court

       gave the appropriate advisements required by Poynter.1 See Appellant’s Br.

       Addendum pp. 10–19.


[14]   The colloquy quoted above established that Holder was informed that he had a

       right to an attorney, that he understood that right, and that the trial court

       sufficiently inquired whether Holder’s decision to represent himself was

       knowing and voluntary. The trial court inquired into Holder’s educational

       background and his mental state. Holder’s familiarity with the criminal justice

       system is apparent given that he represented himself in his criminal trial. At the

       revocation hearing, he cross-examined the State’s witnesses and objected to the

       admission of evidence. He also presented argument in his defense of the

       allegations.


[15]   Moreover, although the trial court did not specifically advise Holder of the

       dangers and disadvantages of self-representation, the trial court advised Holder




       1
         In Poynter, our supreme court adopted four factors to consider when determining whether a defendant has
       knowingly, voluntarily, and intelligently waived his right to counsel: (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. 749 N.E.2d at 1127–28).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020                         Page 9 of 11
       that if the violations were proven, he would be facing prison time. The court

       also noted Holder’s self-representation at his criminal trial, and Holder stated

       that he felt he represented himself well.


[16]   In his brief, Holder cites to his statement at the revocation hearing that he was

       not prepared. July 18, 2019 Tr. p. 12. Holder’s statement must be considered in

       the context that it was made. Holder refused to abandon his claim that the trial

       court lacked jurisdiction over him. Even though Holder was advised that the

       revocation hearing would be a contested fact-finding hearing on the community

       corrections and probation violation allegations, he argued that the trial court

       could not proceed on those allegations until it addressed his jurisdictional

       arguments. See July 18, 2019 Tr. pp. 12–14, 18, 20, 32–34. His lack of

       preparedness stemmed from his unwavering, erroneous belief that the trial court

       lacked jurisdiction over him despite having received numerous advisements to

       the contrary.


                                                 Conclusion
[17]   Having received more than adequate warnings concerning the dangers and

       disadvantages of self-representation prior to his waiver of counsel during his

       criminal proceedings, and having proceeded pro se during those proceedings,

       we conclude that Holder was aware of the danger of representing himself.

       Given the totality of the circumstances in this case, we conclude that Holder

       knowingly, intelligently, and voluntarily waived his right to counsel in these

       probation revocation proceedings.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020   Page 10 of 11
[18]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020   Page 11 of 11
