MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Dec 23 2019, 6:26 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




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Benjamin J. Shoptaw
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jay Ellis,                                              December 23, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1641
        v.                                              Appeal from the Clay Circuit
                                                        Court
State of Indiana,                                       The Honorable Joseph D. Trout,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        11C01-1501-F3-49



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1641 | December 23, 2019              Page 1 of 11
                                       Statement of the Case
[1]   Jay Ellis appeals the trial court’s revocation of his probation. Ellis raises the

      following two issues for our review:


              1.      Whether the trial court denied Ellis his right to counsel.


              2.      Whether the court denied him his right to due process.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2015, Ellis pleaded guilty to rape, as a Level 3 felony. Pursuant to his plea

      agreement, the trial court sentenced Ellis to six years in the Indiana Department

      of Correction, with three years executed and three years suspended to

      probation. In September of 2017, the State filed its first petition to revoke

      Ellis’s probation on the ground that he had committed new offenses of domestic

      battery and resisting law enforcement. After a hearing, the court revoked Ellis’s

      probation and ordered him to serve 250 days incarceration, after which he was

      to return to probation with the additional requirement that he submit to anger

      management courses.


[4]   In May of 2019, the State filed its second petition to revoke Ellis’s probation on

      the ground that he had failed to comply with treatment plans, that he had been

      using illegal substances, and that he had failed to pay his probation fees. On

      May 17, the court held an initial hearing on the State’s second petition. Ellis



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1641 | December 23, 2019   Page 2 of 11
appeared at that hearing pro se, and the State failed to appear. The hearing

proceeded as follows:


        THE COURT: All right. Jay Samuel Ellis. Come on up. Mr.
        Ellis, this is in Cause Number 11C01-1501-F3-49. It’s a Second
        Petition to Revoke your probation. I’ll read it to you in relevant
        part. It was filed on 5/15/19 and the allegations are that on or
        about the 10th day of August, 2015[,] you were convicted of
        Rape, a Level 3 felony[,] and sentenced . . . . On February 12th,
        2018[,] you were found in violation and sentenced to serve [250]
        days . . . and returned to probation . . . . According to Probation
        and the State, your remaining possible penalty is [845] days. . . .
        [S]eventy-five percent . . . of [845] is [633] days. The terms of
        your probation included you comply with treatment, not use
        illegal drugs, and pay your fees. It’s alleged by the State that you
        violated probation by failing to . . . comply with the
        treatment. . . . That you violated probation by admitted to using
        illegal drugs . . . and that you violated your probation by not
        paying your fines, costs, and fees . . . . Now that last one I would
        go ahead and tell you additionally, they have to prove that not
        only that you didn’t pay your fees, but you willfully didn’t pay
        your fees . . . . You understand the allegations and possible
        penalty?


        THE DEFENDANT: Yes.


        THE COURT: Okay. Your constitutional rights in a probation
        case are slightly different than in a criminal case but you still
        have rights. You have a right to an attorney. If you cannot
        afford an attorney, an attorney can be appointed for you at public
        expense. You have a right to a timely fact-finding
        hearing . . . but no right to a trial by jury. At the fact-finding
        hearing you have a right to face your accusers in open court,
        confront them[,] and cross-examine them. You have a right to
        use court subpoenas . . . to compel your own witnesses and

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1641 | December 23, 2019   Page 3 of 11
        evidence to the trial or hearing. You have a right to make the
        State prove a probation violation by a preponderance of the
        evidence. And you have a right to remain silent. Of course they
        could call you to the stand, ask you how you did at
        the . . . [t]reatment program [be]cause that’s not accusing you of
        a crime . . . . But any allegation of drug use, drug use
        admissions, anything like that, you could refuse to answer those
        questions by taking the Fifth Amendment. In fact, any question
        that pertains to a crime in any way charged or uncharged, you
        could refuse to answer . . . . Do you understand?


        THE DEFENDANT: Yes.


        THE COURT: Okay. You have two choices here today. You
        could admit you violated your probation, or you can deny it.
        What do you want to do?


        THE DEFENDANT: I’ll admit that I violated probation.


        THE COURT: All right. Before I can allow you to admit I need
        to know that when you admit there won’t be a fact-finding
        hearing, so you’re waiving and giving up all those
        [c]onstitutional rights I just told you had. Do you want me to
        repeat them . . . ?


        THE DEFENDANT: I got them.


        THE COURT: All right. Thank you. . . .


                                           ***


        THE COURT: Okay. Are you under the influence today of any
        alcohol, drug, medication, or any substance that would cloud
        your thinking?
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1641 | December 23, 2019   Page 4 of 11
              THE DEFENDANT: No.


              THE COURT: Anybody promise you anything, or threaten you
              in any way to have you admit?


              THE DEFENDANT: No.


              THE COURT: All right. For the record, admit or deny the
              allegations in the Second Petition to Revoke Probation?


              THE DEFENDANT. Yes.


      Tr. at 28-31.


[5]   The court then placed Ellis under oath, asked him if the procedural history of

      this cause number was “true,” and then asked him if each of the State’s

      allegations in the second petition was “true.” Id. at 32-33. Ellis replied “[y]es”

      following each of the court’s questions. Id. The court then found as follows:


              All right. Well, I’m unsatisfied that you willfully violated [the
              failure-to-pay-fees allegation], so I’m gonna eliminate [that one].
              I’m gonna find you made a knowing, intelligent, and voluntar[y]
              admission[,] factually based by your own sworn testimony to
              paragraphs 1, 2, and 3 [of the second petition]. . . . I’ll find you
              in violation of probation. Your probation is hereby revoked.


      Id. at 33-34. The court then set the matter for a later sentencing hearing, after

      which it ordered Ellis to serve 730 days in the Indiana Department of

      Correction. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1641 | December 23, 2019   Page 5 of 11
                                     Discussion and Decision
                                      Issue One: Right to Counsel

[6]   We first address Ellis’s argument that the trial court denied him his right to

      counsel at the May 2019 hearing. A defendant in a probation revocation

      hearing is entitled to representation by counsel. Ind. Code § 35-38-2-3(f) (2019).

      However, a defendant may waive his right to counsel and proceed pro se. 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.


[7]   We have repeatedly held the following as sufficient to establish the valid waiver

      of a probationer’s right to counsel:


              the trial court advised [the probationer] that he had the right to be
              represented by an attorney, that he might have an attorney
              appointed if he could not afford one, and of the potential
              consequences of admitting the allegations leveled against him.
              [The probationer] indicated that he understood his rights and that
              he had no questions regarding them.


      Hammerlund v. State, 967 N.E.2d 525, 528 (Ind. Ct. App. 2012); see also Greer v.

      State, 690 N.E.2d 1214, 1217 (Ind. Ct. App. 1998) (upholding the probationer’s

      waiver of counsel following a substantially similar advisement), trans. denied.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1641 | December 23, 2019   Page 6 of 11
[8]   Ellis voluntarily, knowingly, and intelligently waived his right to counsel. The

      court informed him of his right to an attorney. The court informed him that, if

      he could not afford an attorney, the court would appoint one for him at public

      expense. The court explained to Ellis his concomitant fact-finding rights of a

      hearing to the court, compulsory process, and confrontation of witnesses. The

      court explained the State’s burden of proof and Ellis’s right to remain silent.

      The court informed him of the State’s allegations and the penal consequences

      Ellis faced as a result of those allegations. And, before the court asked Ellis if

      he wanted to waive his rights, the court offered to repeat them, to which Ellis,

      who is no stranger to the judicial process, responded, “I got them.” Tr. at 30.


[9]   Still, Ellis asserts that he did not validly waive his right to counsel because

      “[t]he trial court did not provide any explicit opportunity to Ellis to consult with

      counsel” prior to him waiving that right, because the court “never specifically

      inquired whether Ellis wished to be represented by counsel,” and because “Ellis

      never indicated explicitly he was waiving his right to counsel.” Appellant’s Br.

      at 24-25. But Ellis recognizes that “[t]here are no ‘magic words’ a judge must

      utter or script to follow” to determine whether a waiver of counsel was validly

      made. Id. at 24 (citing Hopper v. State, 957 N.E.2d 613, 618 (Ind. 2011)). We

      agree that there are no such magic words. The record demonstrates that the

      court made Ellis aware of the nature, extent, and importance of the right to

      counsel as well as the necessary consequences of waiving that right before Ellis

      made clear to the court that he wished to proceed without counsel.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1641 | December 23, 2019   Page 7 of 11
       Accordingly, we affirm the trial court’s assessment that Ellis validly waived his

       right to counsel at the May 2019 hearing.


                                          Issue Two: Due Process

[10]   We thus turn to Ellis’s argument that the trial court violated his right to due

       process when it held an ex parte hearing without a representative for the State

       present and when, according to Ellis, the court acted as an “advocate” against

       Ellis when it questioned him about the second petition. Appellant’s Br. at 13.

       We initially note that, although Ellis proceeded pro se in the trial court, he “is

       held to the same standards as a trained attorney and is afforded no inherent

       leniency simply by virtue of being self-represented.” Zavodnik v. Harper, 17

       N.E.3d 259, 266 (Ind. 2014). And, as Ellis did not object to proceeding without

       a representative for the State, and he did not object to any of the trial court’s

       questions, Ellis has waived his due process claims for appellate review. See, e.g.,

       Stroud v. State, 809 N.E.2d 274, 286-87 (Ind. 2004).


[11]   Nonetheless, Ellis may be entitled to relief if he can demonstrate fundamental

       error. As our Supreme Court has explained:


               An error is fundamental, and thus reviewable on appeal, if it
               made a fair trial impossible or constituted a clearly blatant
               violation of basic and elementary principles of due process
               presenting an undeniable and substantial potential for harm.
               Fundamental error is a daunting standard that applies only in
               egregious circumstances where the trial judge should have
               corrected the situation sua sponte.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1641 | December 23, 2019   Page 8 of 11
       C.S. v. State, 131 N.E.3d 592, 595-96 (Ind. 2019) (quotation marks, alterations,

       and citations omitted).


[12]   Ellis cannot show fundamental error in the trial court’s decision to proceed

       without a representative for the State. Indeed, Ellis’s argument on this issue

       comes down to his bald assertion that “[t]he record of that initial hearing

       establishes Ellis’s right to a neutral and detached body was sacrificed for

       judicial expediency when the trial court chose to proceed in the absence of” a

       State representative. Appellant’s Br. at 17. But we agree with the State that

       “[t]here is no reason to believe that[,] if the State had been present, a better

       result would have occurred” for Ellis. Appellee’s Br. at 11.


[13]   Moreover, our Supreme Court has expressly recognized that, where the State

       fails to prosecute a petition to revoke probation, no dismissal or continuance is

       required, and “due process permits the judge to deal more directly with the

       matter than would be the case” in criminal trials. Isaac v. State, 605 N.E.2d 144,

       148 (Ind. 1992). The trial court should have continued the hearing until the

       State could appear. But we cannot say that the trial court committed

       fundamental error when it proceeded without the State.


[14]   Ellis likewise cannot show that the trial court’s inquiry of him on the State’s

       second petition converted the court into an advocate. “Particularly in bench

       trials, courts have considerable discretion to question witnesses sua sponte to aid

       in the fact-finding process as long as it is done in an impartial manner.” M.K. v.

       Marion Cty. Dep’t of Child Servs. (In re J.K.), 30 N.E.3d 695, 698 (Ind. 2015). Our


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1641 | December 23, 2019   Page 9 of 11
Supreme Court has summarized examples in which trial courts have crossed the

line of impartiality:


        Recognizing the well-settled due process right to an impartial
        court as necessary to a fair proceeding, we have found
        fundamental error when trial judges’ comments, demeanor, or
        conduct indicated bias. Often, we have focused on the
        challenged conduct’s likely effect on jurors. E.g., Abernathy v.
        State, 524 N.E.2d 12, 13-15 (Ind. 1988) (finding trial judge’s
        conduct prejudicial when he implied disbelief of witness by
        conspicuously propping up his feet and turning his back during a
        witness’s testimony and questioning several witnesses in a
        manner calculated to impeach or discredit); Brannum v. State, 267
        Ind. 51, 52-59, 366 N.E.2d 1180, 1182-84 (1977) (involving a trial
        judge’s comments during voir dire and about a witness’s
        credibility and sua sponte supplementation of jury instructions
        while deliberations were underway); Kennedy v. State, 258 Ind.
        211, 218, 280 N.E.2d 611, 615 (1972) (discussing trial judge’s
        questioning that impeached several witnesses). But we have also
        found violations based on “damaging comments outside the
        presence of the jury.” Everling v. State, 929 N.E.2d 1281, 1290
        (Ind. 2010). And it should go without saying that bench trials,
        too, demand an impartial judge. See Taylor [v. State], 530 N.E.2d
        [1185,] 1187 [(Ind. 1988)] (requiring “impartial” judicial
        questioning of witnesses in bench trials). . . . [T]he Court of
        Appeals has reversed a decision when the trial judge, before
        hearing any testimony, expressed an opinion on the merits based
        on evidence previously presented in a collateral proceeding—
        which violated the judge’s “duty to remain impartial and refrain
        from making unnecessary comments or remarks.” Lake Cnty.
        Div. of Family and Children Servs. v. Charlton, 631 N.E.2d 526, 529
        (Ind. Ct. App. 1994) (citing Harrington [v. State], 584 N.E.2d
        [558,] 561 [(Ind. 1992)]).


Id. at 699.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1641 | December 23, 2019   Page 10 of 11
[15]   Nothing about the trial court asking Ellis if the procedural history of this cause

       number was “true” and if each of the State’s allegations in the second petition

       was “true” was so beyond the court’s discretion as to strip the court of its

       impartiality. Tr. at 32-33. Indeed, Ellis makes no attempt on appeal to

       analogize the court’s questioning here to circumstances akin to those exampled

       above by our Supreme Court. Rather, Ellis merely asserts that, because the

       court asked him some questions without a prosecutor present, the court must

       have been the prosecutor. We reject Ellis’s argument and conclude that he has

       not met his burden on appeal to demonstrate fundamental error.


                                                 Conclusion
[16]   In sum, we affirm the trial court’s revocation of Ellis’s probation.


[17]   Affirmed.


       Vaidik, C.J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1641 | December 23, 2019   Page 11 of 11
