      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                           Dec 31 2015, 9:01 am

      regarded as precedent or cited before any
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Marielena Duerring                                      Gregory F. Zoeller
      South Bend, Indiana                                     Attorney General of Indiana
                                                              Karl M. Scharnberg
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Daniel R. Ross,                                         December 31, 2015
      Appellant-Defendant,                                    Court of Appeals Case No.
                                                              20A05-1504-CR-146
              v.                                              Appeal from the Elkhart Superior
                                                              Court
      State of Indiana,                                       The Honorable Teresa L. Cataldo,
      Appellee-Plaintiff.                                     Judge
                                                              Trial Court Cause No.
                                                              20D03-0601-FB-7



      Mathias, Judge.


[1]   Daniel Ross (“Ross”) pleaded guilty in the Elkhart Superior Court to Class B

      felony dealing in cocaine or a narcotic drug. The trial court ordered Ross to


      Court of Appeals of Indiana | Memorandum Decision 20A05-1504-CR-146 | December 31, 2015   Page 1 of 10
      serve fifteen years in the Department of Correction with nine years suspended

      to probation. After being released from prison, Ross violated the terms of his

      probation, and he admitted the violation. The trial court then ordered him to

      serve three years and ninety days of his suspended sentence with ninety days

      executed in the Department of Correction and the remaining three years served

      on home detention. Ross then violated the terms of the community corrections

      program while on home detention. The State subsequently filed a probation

      violation petition, and after Ross’s admission of the violation, the trial court

      ordered him to serve the remainder of his previously suspended sentence. On

      appeal, Ross argues that his admission of his second probation violation was

      not voluntary and that the trial court abused its discretion in ordering him to

      serve the remainder of his suspended sentence.


[2]   We affirm.

                                      Facts and Procedural History


[3]   On May 11, 2006, Ross pleaded guilty to Class B felony dealing in cocaine or a

      narcotic drug. The trial court ordered him to serve fifteen years in the

      Department of Correction with nine years suspended to probation on February

      18, 2008. After completing the executed portion of his sentence, Ross was

      released to probation on October 11, 2011.


[4]   The State filed a petition alleging that Ross had violated his probation on May

      10, 2013. The trial court held a hearing on August 14, 2013, and Ross admitted

      that he ingested illicit drugs in violation of his probation. The trial court ordered

      Court of Appeals of Indiana | Memorandum Decision 20A05-1504-CR-146 | December 31, 2015   Page 2 of 10
      him to serve three years and ninety days of his previously suspended sentence

      with ninety days executed at the Department of Correction and the remaining

      three years served on home detention. The court suspended the remainder of

      Ross’s original nine-year suspended sentence to probation. Appellant’s App. p.

      79.


[5]   On December 29, 2014, Elkhart Community Corrections filed a notice of

      violation with the trial court alleging that Ross tested positive for

      methamphetamine and that two glass pipes with residue and a bottle of

      ephedrine pills were discovered in his home. The State subsequently filed a

      violation of probation petition referencing the same allegations listed in the

      Community Corrections petition.


[6]   The trial court held a probation violation hearing on January 15, 2015. At the

      hearing, the court informed Ross of the allegations against him, his right to an

      attorney, his right to an evidentiary hearing with the opportunity to confront

      and cross-examine witnesses, his right against self-incrimination, his right to an

      appeal, and the penalties that could be imposed if the court found that he

      violated probation. Tr. pp. 3-5. The court also confirmed that Ross understood

      the allegations brought against him, his rights, and the possible penalties that

      could be imposed if he was found in violation. Tr. p. 5.

[7]   After some expressed indecision, Ross told the court that he did not wish to be

      represented by an attorney. The court again reminded Ross that it could impose

      the remainder of his nine-year suspended sentence. Ross acknowledged that he


      Court of Appeals of Indiana | Memorandum Decision 20A05-1504-CR-146 | December 31, 2015   Page 3 of 10
      understood the court’s statement and then admitted his second probation

      violation as alleged. The trial court revoked his probation and ordered him to

      serve the remainder of his suspended sentence in the Department of Correction.

      The probation department determined that Ross was entitled to 540 days credit

      time that would be applied toward the nine-year executed sentence. Ross now

      appeals.

                                            I. Ross’s Admission


[8]   Ross argues that his admission was not knowing and voluntary because the

      court did not properly and correctly advise him of the reasons why he was in

      court or the maximum and minimum sentence that he could face if found in

      violation of probation.1 “Probation is a favor granted by the State, not a right to

      which a criminal defendant is entitled.” Cooper v. State, 900 N.E.2d 64, 66 (Ind.

      Ct. App. 2009) (quoting Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App.

      2005)). A probationer faced with a petition to revoke his probation is not

      entitled to the full panoply of rights he enjoyed prior to conviction. Rosa v. State,

      832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005). For instance, “[t]he rules of

      evidence do not apply in a revocation proceeding, and the State’s burden of

      proof is lower, as the State need prove an alleged violation of probation by only

      a preponderance of evidence.” Id.




      1
       Ross incorrectly alleges that State did not file a violation of probation petition. Appellant’s
      Br. at 4. In fact, the State filed the violation of probation petition on January 13, 2015.
      Appellee’s App. p. 1.

      Court of Appeals of Indiana | Memorandum Decision 20A05-1504-CR-146 | December 31, 2015   Page 4 of 10
[9]    A defendant is entitled to certain due process protections prior to the revocation

       of his probation. Bell v. State, 695 N.E.2d 997, 998 (Ind. Ct. App. 1998). These

       protections include written notice of the claimed violation, disclosure of

       evidence against him, the opportunity to be heard and present evidence, the

       right to confront and cross-examine witnesses, and a neutral and detached

       hearing body. Id. The defendant is also entitled to representation by counsel. Id.

       (citing Ind. Code § 35-38-2-2(e)). When a probationer proceeds pro se and

       chooses to admit rather than to challenge his alleged probation violation, his

       knowing, intelligent, and voluntary waiver of counsel may be established even

       if the record does not show that he was warned of the pitfalls of self-

       representation. Greer v. State, 690 N.E.2d 1214, 1217 (Ind. Ct. App. 1998).


[10]   The transcript from Ross’s revocation hearing provides:


               The Court: Mr. Ross, we’re here on a violation of probation
               petition. And we’re here on the initial hearing on that violation.
               The --the purpose of this hearing is to inform you of the
               allegations against you and what your legal rights are. If you do
               not understand the charges or what your legal rights are, please
               let me know and I will explain them more fully.


               You have the right to have an attorney represent you. If you
               want an attorney to represent you but cannot afford one, the
               court will appoint an attorney for you if you qualify. But you
               should request the court to do so as soon as possible.


               If you choose to deny the allegations, you have the right to have
               an evidentiary hearing, which is basically a trial. At this hearing
               the [S]tate would have to prove one or more of the allegations by
               a preponderance of the evidence. You would have the right to
       Court of Appeals of Indiana | Memorandum Decision 20A05-1504-CR-146 | December 31, 2015   Page 5 of 10
        confront and cross-examine the witnesses against you. You
        would also have the right to subpoena witnesses at no cost to
        testify in your behalf.


        At your evidentiary hearing, you cannot be compelled to testify
        against yourself regarding any allegations that you were --that
        you have committed a new criminal offense, because you have
        the right to remain silent regarding those new criminal charges.
        As to all other allegations, however, you may be placed under
        oath and called to give testimony against yourself. You have the
        right to appeal the court’s decision if the court finds that you
        violated your probation, after an evidentiary hearing. If the court
        finds that you violated a condition of your probation, it may
        continue or extend your probation, modify the conditions of your
        probation, or order you to serve the balance of your suspended
        jail sentence.


        ***


        It looks like from your original sentencing, nine years of your
        fifteen-year term was suspended. So that means that any or all of
        that suspended nine years can now be imposed, probation can be
        extended or again any other sanction that the court would deem
        appropriate can be imposed. Do you understand the allegations
        made in the probation violation?


        Ross: Yes, ma’am.


        The Court: Do you understand your rights?


        Ross: I do.


        The Court: And do you understand the possible penalty for that
        violation?

Court of Appeals of Indiana | Memorandum Decision 20A05-1504-CR-146 | December 31, 2015   Page 6 of 10
               Ross: I’m not sure I did until today—


               The Court: But now you understand that those nine years that
               were suspended can be imposed.


               Ross: I do.


       Tr. pp. 3-5.

[11]   As this portion of the transcript reflects, the trial court set out the allegations of

       the probation violation and explained to Ross his rights and the possibility that

       he could have his original nine-year suspended sentence reinstated. Ross stated

       that he understood what the court communicated to him. We therefore

       conclude that the trial court properly advised Ross of the nature of the violation

       and the potential penalties he could face, and as such his admission to the

       probation violation was voluntary.

                                       II. Revocation of Probation


[12]   Ross further argues that the trial court erred in revoking his probation and

       ordering him to serve the remainder of his previously suspended nine-year

       sentence. He specifically contends that the trial court only had authority to

       revoke his home detention placement. We treat a hearing on a petition to

       revoke a placement in a community corrections program the same way as we

       do a hearing on a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549

       (Ind. 1999). We review a trial court’s sentencing decision for a probation

       violation as an abuse of discretion. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1504-CR-146 | December 31, 2015   Page 7 of 10
       App. 2012) (citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). An abuse

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

       the facts and circumstances. Id.


[13]   Probation revocation is a two-step process. Cox v. State, 850 N.E.2d 485, 488

       (Ind. Ct. App. 2006).2 First, the court must make a factual determination that a

       violation of probation has occurred. Id. When a probationer admits to the

       violation, the court can proceed to the second step of the inquiry and determine

       if the violation warrants revocation. Id. In making a determination of whether

       the violation warrants revocation, the probationer must be given an opportunity

       to present evidence that mitigates his violation. Id.


[14]   Upon a revocation of probation, a trial court may impose one or more of the

       following sanctions: (1) continue the person on probation, with or without

       modifying or enlarging the conditions; (2) extend the person’s probationary

       period for not more than one (1) year beyond the original probationary period;

       or (3) order execution of all or part of the sentence that was suspended at the

       time of the initial sentencing. Alford, 965 N.E.2d at 135; Ind. Code § 35-38-2-

       3(h)(1)–(3).


[15]   Ross contends that because he was placed in a community corrections program,

       the trial court was required to suspend the sentence for a fixed period, to end no

       later than the date the suspended sentence expires. See Ind. Code § 35-38-2.6-4.



       2
           This case is unrelated to the aforementioned Cox case.

       Court of Appeals of Indiana | Memorandum Decision 20A05-1504-CR-146 | December 31, 2015   Page 8 of 10
       He argues that the suspended sentence would expire after he completed his

       home detention placement.

[16]   This argument is based on the premise that the trial court’s August 14, 2013,

       order did not suspend to probation the remaining portion of Ross’s previously

       suspended nine-year sentence. This is not accurate. When Ross was sanctioned

       for his first probation violation, the trial court ordered him to serve a three-year

       and ninety-day sentence with ninety days to be executed in the Department of

       Correction and the remaining three years to be served on home detention. The

       trial court also specifically suspended the remainder of Ross’s previously

       suspended nine-year sentence to probation, which had not yet expired at the

       time of the probation violation hearing. Appellant’s App. p. 79.


[17]   At the probation violation hearing, Ross admitted that he violated probation,

       and the court then determined that Ross’s violation warranted revocation of

       probation. The court considered that this was Ross’s second probation violation

       related to illegal drug use and then appropriately imposed the remaining portion

       of his previously suspended nine-year sentence. For all of these reasons, the trial

       court did not abuse its discretion in revoking Ross’s probation and ordering him

       to serve the remainder of his suspended sentence executed in the Department of

       Correction.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1504-CR-146 | December 31, 2015   Page 9 of 10
                                                  Conclusion


[18]   We conclude that Ross’s admission was voluntary and that the trial court did

       not abuse its discretion when it revoked Ross’s probation and ordered him to

       serve the remainder of his previously suspended sentence.


[19]   Affirmed.


       Baker, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A05-1504-CR-146 | December 31, 2015   Page 10 of 10
