MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                        Jul 08 2020, 8:59 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                            CLERK
                                                                        Indiana Supreme Court
purpose of establishing the defense of res judicata,                       Court of Appeals
                                                                             and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                        Curtis T. Hill, Jr.
Brownsburg, Indiana                                    Attorney General of Indiana
                                                       Tyler G. Banks
                                                       Supervising Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE

    COURT OF APPEALS OF INDIANA

Amber Gibson,                                              July 8, 2020
Appellant/Respondent,                                      Court of Appeals Case No.
                                                           20A-CR-761
                                                           Appeal from the Vermillion
        v.                                                 Circuit Court
                                                           The Hon. Robert M. Hall, Special
                                                           Judge
State of Indiana,
                                                           Trial Court Cause No.
Appellee/Petitioner.                                       83C01-1412-F1-1




Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-CR-761 | July 8, 2020                     Page 1 of 6
                                           Case Summary
[1]   Following Amber Gibson’s 2017 plea of guilty but mentally ill to Level 3 felony

      child molesting and Level 6 felony maintaining a common nuisance, the trial

      court sentenced her to seven years of incarceration and suspended her sentence

      to probation. In March of 2020, Gibson admitted to violating the terms of her

      probation by committing another crime, and the trial court ordered her to serve

      three years of her previously-suspended sentence, to be followed by four years

      on probation. Gibson contends that she received ineffective assistance of

      probation-revocation counsel. Because we disagree, we affirm.


                            Facts and Procedural History
[2]   On December 2, 2014, the State charged Gibson with Level 1 felony child

      molesting and Level 6 felony maintaining a common nuisance. On September

      4, 2016, Gibson pled guilty but mentally ill to Level 3 felony child molesting

      and Level 6 felony maintaining a common nuisance. In May of 2017, Gibson

      underwent a psychological evaluation and was determined to have a mild

      intellectual disability and an I.Q. of 67. On February 13, 2018, the trial court

      sentenced Gibson to seven years of incarceration, all suspended to probation,

      save time served awaiting trial.

[3]   On September 12, 2019, the State moved to revoke Gibson’s probation on the

      basis that she had committed Level 6 felony failure to reside at a sex offender

      registered address or location. On March 4, 2020, at a hearing at which Gibson

      was represented by counsel, Gibson admitted to violating the terms of her

      probation by committing failure to reside at a sex offender registered address or


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-761 | July 8, 2020   Page 2 of 6
      location, and the trial court ordered that she serve three years of her previously-

      suspended sentence, followed by four years of probation.


                                 Discussion and Decision
[4]   Gibson argues that she received ineffective assistance of probation-revocation

      counsel because counsel failed to argue that her mental disability was a

      circumstance that mitigated against imposing part of her previously-suspended

      sentence. Those who have already been convicted enjoy fewer constitutional

      protections than those entitled to the presumption of innocence before

      conviction. Weida v. State, 94 N.E.3d 682, 687 (Ind. 2018) (citing Bratcher v.

      State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013)). While Indiana Code section

      35-38-2-3(f) provides probationers the statutory right to counsel in probation-

      revocation proceedings, this is not a right guaranteed by the Sixth Amendment

      to the United States Constitution. Gagnon v. Scarpelli, 411 U.S. 778, 781–82

      (1973). Consequently, a claim of ineffective assistance in this context is not

      reviewed under the Sixth-Amendment-based standard established in Strickland

      v. Washington, 466 U.S. 668 (1984). See Jordan v. State, 60 N.E.3d 1062, 1068–

      69 (Ind. Ct. App. 2016) (concluding that ineffective-assistance claims in

      probation-revocation hearings are not evaluated pursuant to the Strickland

      standard).

              “Because [a probation revocation hearing] is a civil proceeding, we
              apply a less stringent standard of review in assessing counsel’s
              performance. If counsel appeared and represented the petitioner
              in a procedurally fair setting which resulted in judgment of the
              court, it is not necessary to judge his performance by rigorous
              standards.”


      Court of Appeals of Indiana | Memorandum Decision 20A-CR-761 | July 8, 2020   Page 3 of 6
      Id. at (quoting Childers v. State, 656 N.E.2d 514, 517 (Ind. Ct. App. 1995), trans.

      denied) (brackets in Jordan). In applying this standard, we are bound by the

      Indiana Supreme Court’s recent decision in A.M. v. State, 134 N.E.3d 361 (Ind.

      2019), in which it concluded that Strickland did not apply in juvenile

      disposition-modification hearings, which—like probation-revocation

      proceedings—are civil proceedings in which the right to effective counsel flows

      from the Due Process Clause of the Fourteenth Amendment, not the Sixth. Id.

      at 365 (citing, with approval, Childers, 656 N.E.2d at 517 (declining to apply

      Strickland in probation-revocation proceeding)).

[5]   Gibson draws our attention to Mickens v. Taylor, 535 U.S. 162 (2002), Hernandez

      v. State, 761 N.E.2d 845 (Ind. 2002), and Williams v. State, 883 N.E.2d 192 (Ind.

      Ct. App. 2008), as support for the proposition that the more-stringent Strickland

      standard does, in fact, apply in probation-revocation proceedings. Mickens,

      quite simply, does not contain any language even suggesting that the Sixth

      Amendment applies to probation-revocation proceedings.1 Moreover, while

      Hernandez stands for the propositions that counsel is required at critical stages of

      criminal cases and that a probation-revocation proceeding is a critical stage, it

      says nothing about how counsel’s performance should be evaluated in that




      1
        Mickens addresses the question of whether a conflict of interest amounts to ineffective assistance in a habeas
      corpus proceeding. Mickens, 535 U.S. at 164-65. While Mickens does include an examination of Wood v.
      Georgia, 450 U.S. 261 (1981), a conflict-of-interest case involving a probation revocation, it does not address
      the standard of review to be used in such cases or state that they are governed by the Sixth Amendment.
      Mickens, 535 U.S. at 169–72. Indeed, Wood itself specifically reiterates that “due process protections apply to
      parole and probation revocations.” Wood, 450 U.S. at 271 (citing Gagnon, 411 U.S. at 781–82) (emphasis
      added).



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-761 | July 8, 2020                          Page 4 of 6
      context. Hernandez, 761 N.E.2d at 849. As for Williams, while it is one of a

      handful of cases out of this court in which we have applied Strickland in the

      probation-revocation context, there is no indication that the question of the

      proper standard of review was raised in any of those cases, much less decided.

      See Williams, 883 N.E.2d at 196–97; see also, e.g., Truitt v. State, 853 N.E.2d 504,

      507 (Ind .Ct. App. 2006); Marsh v. State, 818 N.E.2d 143, 145 (Ind. Ct. App.

      2004); Decker v. State, 704 N.E.2d 1101, 1103 (Ind. Ct. App. 1999); King v. State,

      642 N.E.2d 1389, 1391–92 (Ind. Ct. App. 1994); Sims v. State, 547 N.E.2d 895,

      896–97 (Ind. Ct. App. 1989). It would seem that no Indiana appellate court

      that has actually addressed the question has concluded that Strickland applies in

      a probation-revocation context. Much more importantly, to the extent that any

      cases can be interpreted as standing for the proposition that the Strickland

      standard applies to a probation-revocation proceeding, they have been

      superseded by the binding precedent of A.M., which clarifies that Strickland does

      not apply in civil proceedings. Gibson’s reliance on Mickens, Hernandez, and

      Williams (and similar cases) is misplaced.

[6]   The question, then, is whether counsel appeared and represented Gibson in a

      procedurally fair setting which resulted in a judgment of the court. See Jordan,

      60 N.E.3d at 1068–69. Gibson does not claim, much less establish, that any of

      the above requirements were not satisfied in this case. Any such claim would

      have been without merit in any event, as our review of the record indicates that

      Gibson was represented by counsel throughout the proceeding, there was no

      sign of procedural unfairness, and the proceeding resulted in a judgment of the



      Court of Appeals of Indiana | Memorandum Decision 20A-CR-761 | July 8, 2020   Page 5 of 6
      court. Gibson has failed to establish that she received ineffective assistance of

      probation-revocation counsel.

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


      Baker, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A-CR-761 | July 8, 2020   Page 6 of 6
