Pursuant
 Pursuanttoto Ind.Appellate            65(D),
                Ind.Appellate Rule 65(D),
this
 thisMemorandum
       MemorandumDecisionDecisionshall notnot
                                   shall   be
regarded   as  precedent    or cited
 be regarded as precedent or cited     before           Jan 22 2015, 6:17 am
any   court
 before  any except    for the
             court except        purpose
                            for the purposeof
establishing  the defense
 of establishing            of res judicata,
                     the defense      of res
collateral
 judicata,estoppel,
            collateralorestoppel,
                         the law of
                                  orthe
                                     thecase.
                                         law
 of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE                               GREGORY F. ZOELLER
Wieneke Law Office, LLC                             Attorney General of Indiana
Plainfield, Indiana
                                                    JODI KATHRYN STEIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SHAWN J. RIGGLE,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 84A04-1407-CR-341
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )



                        APPEAL FROM THE VIGO SUPERIOR COURT
                            The Honorable David R. Bolk, Judge
                              Cause No. 84D03-1310-FD-3255



                                         January 22, 2015


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Shawn J. Riggle appeals the revocation of his placement in community corrections.

Riggle raises one issue which we revise and restate as whether the trial court abused its

discretion in revoking his placement in community corrections and ordering that he serve

the remaining portion of his sentence in the Department of Correction (“DOC”). The State

argues, in part, that this appeal should be dismissed as moot. We affirm.

                         FACTS AND PROCEDURAL HISTORY

       In December 2013, the State charged Riggle in an amended information with: Count

I, burglary as a class C felony; Count II, theft as a class D felony; Count III, auto theft as a

class D felony; Count IV, theft as a class D felony; and Count V, possession of a controlled

substance as a class D felony. The State alleged that Riggle was an habitual offender.

       On March 27, 2014, Riggle pled guilty to a lesser included offense of residential

entry as a class D felony under Count I, two counts of theft as class D felonies under Counts

II and IV, and being an habitual offender. The court sentenced Riggle to three years for

his convictions under Counts I, II, and IV, enhanced the sentence for Count I by four years

based upon Riggle’s status as an habitual offender, and ordered that the sentences be served

concurrently. The court further ordered that the first two years of the sentence be executed

as a direct commitment to the Vigo County Home Detention Program under the supervision

of Vigo County Community Corrections, and that Riggle have ten days to pay the initial

fee to Vigo County Community Corrections and to begin serving his sentence. The order

states that Riggle “shall not be released from the Vigo County Jail until such time as he has

paid the initial fee and made arrangements to begin immediately serving his sentence.”

                                               2
Appellant’s Appendix at 54. The court ordered the remaining five years of the sentence

suspended.

       On June 20, 2014, the State filed a petition to revoke direct commitment alleging

that Riggle had failed to begin service of his direct commitment. On June 23, 2014, the

court held a hearing. At the beginning, the court informed Riggle of the allegation and that

“[i]f [he was] found to have violated the terms of [his] direct commitment, the issue before

the Court is where [he would] serve that sentence . . . .” Transcript at 4. Riggle indicated

that he understood the allegation and that he understood what was “at stake.” Id. The

following exchange then occurred:

       COURT:        You have a right to have a lawyer. If you’d like to have one,
                     can’t afford one, one will be appointed for you. Mr. Riggle, do
                     you wish to have a lawyer represent you?

       [Riggle]:     Uh, no. I’m fine.

       COURT:        You’re going to proceed without a lawyer?

       [Riggle]:     Yeah.

       COURT:        Okay. And you understand that you have a right to have one?

       [Riggle]:     Yes.

       COURT:        One will be appointed to you at no expense if you wish to have
                     one –

       [Riggle]:     Yes.

       COURT:        - and can’t afford one.

       [Riggle]:     Yes.


                                               3
       COURT:         Mr. Riggle um, then I’m gonna show that you’ve made a
                      knowing and voluntary, intelligent waiver of your right to
                      counsel. I’m gonna ask you Mr. Riggle if you admit or deny
                      that you’ve violated the terms of your direct commitment?

       [Riggle]:      I admit.

Id. at 4-5.

       When asked what he wished to tell the court, Riggle stated that he did not have a

“place in Vigo County to do home detention,” that when “it got changed from pre-trial

home detention to uh, well it was G.P.S., to regular home detention” he “had to come up

with money again, which [he] didn’t have the money,” that he “really hate[d] to miss these

last three (3) months of summer,” that “there’s so much work out there, and about eight

[sic] (80) to ninety percent (90%) of my employment comes from these three (3) summer

months,” that he had two dependents, and that it would be “hard for [him] not to be there

to help support them financially.” Id. at 7-8. When asked by the court if he paid the initial

fee, Riggle stated:

       I don’t - no, I haven’t. Because it’s got changed on me twice. It was pre-
       trial, so I didn’t have to pay anything, and then uh, I didn’t have a home in
       Vigo County. They made me do it in Vigo County. My home’s in Clay
       County, so no, I didn’t get it, I didn’t get it paid, but then when I come up
       with the money, then it was, was no longer G.P.S., it was uh, I had to have a
       home. It just, it’s been changed on me about three (3) times. No I haven’t
       paid it, but I do have access to the money. I asked for the Courts to grant me
       an additional twenty (20) days until the Third (3rd) of August to get that
       money.

Id. at 9. The following exchange then occurred:

       COURT:         But as you sit here today –


                                             4
       [Riggle]:     – and that motion was denied.

       COURT:        I mean, as the Court indicated in its response to your pro se
                     request –

       [Riggle]:     Right.

       COURT:        – you had asked – I mean, back in March the Court tried to get
                     you into – and you’ve not been able to do it. We’re three (3)
                     months down the line, we’re under a Federal lawsuit, there are
                     two hundred and seventy-six (276) people in the Vigo County
                     Jail –

       [Riggle]:     I know. I’m –

       COURT:        – we’re over our cap, and the Court’s received several letters
                     from you in the past saying you’re gonna be able to get the
                     money, and you haven’t. I mean it’s - this has, this sentence
                     has to be served somewhere, and in three (3) months you
                     haven’t been able to come up with the funds to begin to serve
                     it somewhere, and the Court’s simply unwilling to give you
                     additional time in the hope that you can come up with money
                     at some future point. Um, so I, I don’t think the Court really
                     has any choice. I’m gonna order the balance of the sentence
                     be served at the Indiana Department of Corrections. Your
                     probation time, I’m not, I’m not revoking any of your
                     probation. You don’t have the money, you don’t have the
                     money.

Id. at 9-11. The court revoked Riggle’s direct commitment and ordered that the balance of

the executed portion of the sentence be executed at the DOC.

                                      DISCUSSION

       We initially address the State’s argument that we should dismiss the appeal and then

turn to whether the trial court properly revoked Riggle’s placement in community

corrections.


                                            5
A.     Mootness

       The State argues that this appeal should be dismissed as moot because the issue is

where Riggle was to serve his two-year executed sentence and Riggle was released from

the DOC for this two-year executed sentence on October 16, 2014, and began serving his

five-year suspended sentence at that time. The State asserts that Riggle’s five-year

suspended sentence is not affected by or subject to this appeal. In his reply brief, Riggle

argues that this appeal is not moot because he still has a legally cognizable interest in the

outcome because he now has a direct placement revocation on his record and this case falls

under the public interest exception to the mootness doctrine.

       In Smith v. State, 971 N.E.2d 86, 87 (Ind. 2012), the defendant argued that the

introduction of certain hearsay evidence at the hearing revoking his community corrections

placement violated his due process right to confrontation. The State filed a motion to

dismiss alleging that the appeal was moot. 971 N.E.2d at 88-89. The Court observed that

the defendant conceded that he had served his sentence and held that the defendant’s

argument related to the application of Ind. Code § 35-38-2.6-6, in which he claimed that

he was entitled to home-detention good time credit toward his sentence, was in fact moot.

Id. at 89. The Court then held:

       Nevertheless, we will consider Smith’s argument that his due process right
       to confrontation was violated by the admission of State’s Exhibit 1. As
       mentioned above, the trial court’s finding that Smith had violated the terms
       of his community-corrections placement was based on this exhibit. And a
       finding that Smith violated the terms of his community-corrections
       placement may have negative collateral consequences. See Ind. Code § 35-
       38-1-7.1(a)(6) (2008) (violation of community-corrections placement may

                                             6
       be a statutory aggravating factor in the event Smith is sentenced for
       committing another crime); see also Hamed v. State, 852 N.E.2d 619, 621-
       22 (Ind. Ct. App. 2006) (addressing merits of claim because of possible
       negative collateral consequences).

Id. To the extent that Riggle challenges his sentence, we find that issue moot. However,

with respect to his argument that the trial court improperly revoked his placement, we will

address the merits of his argument. See id.

B.     Revocation

       Generally, a defendant is not entitled to serve a sentence in either probation or a

community corrections program. Monroe v. State, 899 N.E.2d 688, 691 (Ind. Ct. App.

2009). “Rather, placement in either is a ‘matter of grace’ and a ‘conditional liberty that is

a favor, not a right.’” Id. (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh’g

denied). For the purposes of appellate review, we treat a hearing on a petition to revoke a

placement in a community corrections program such as home detention the same as we do

a probation revocation hearing. Id. (citing Cox, 706 N.E.2d at 549). The State needs to

prove the alleged violations by a preponderance of the evidence. Id. Probation revocation

is a two-step process. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). First, the court

must make a factual determination that a violation of a condition of probation actually

occurred. Id. If a violation is proven, then the trial court must determine if the violation

warrants revocation of the probation. Id. We will consider all the evidence most favorable

to supporting the judgment of the trial court without reweighing that evidence or judging

the credibility of the witnesses. Monroe, 899 N.E.2d at 691. If there is substantial evidence


                                              7
of probative value to support the trial court’s conclusion that a defendant has violated any

terms of home detention, we will affirm its decision to revoke home detention. Id. The

violation of a single condition of home detention is sufficient to revoke home detention.

See Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App. 1999).

       1.     Right to Counsel

       Riggle argues that his waiver of counsel was not valid because he was never advised

of the potential pitfalls of self-representation. The State argues that this was not a complex

proceeding that required the nuance of counsel or the presentation of evidence. The State

points out that Riggle had been represented by counsel at sentencing and was well aware

of his right to counsel and points to his extensive criminal history.

       Persons facing revocation of their community-corrections placements are entitled to

certain due process rights at their revocation hearings, including a right to counsel. See

Cox, 706 N.E.2d at 550 (holding that a defendant in a community corrections program is

entitled to representation by counsel); see also Ind. Code § 35-38-2-3(f) (“The person

[alleged to have violated probation] is entitled to . . . representation by counsel.”).

       “The law is well settled that whenever a defendant proceeds without the benefit of

counsel, the record must reflect that the right to counsel was voluntarily, knowingly, and

intelligently waived.” Bumbalough v. State, 873 N.E.2d 1099, 1102 (Ind. Ct. App. 2007).

That is, the trial court must determine the defendant’s competency to represent himself and

establish a record of the waiver. Id. “The record must show that the defendant was made

aware of the ‘nature, extent and importance’ of the right to counsel and to the necessary

                                               8
consequences of waiving such a right. Id. (quoting Bell v. State, 695 N.E.2d 997, 999 (Ind.

Ct. App. 1998)).

       “There is no particular formula or script that must be read to the defendant. The

information that must be given ‘will depend on a range of case-specific factors, including

the defendant’s education or sophistication, the complex or easily grasped nature of the

charge, and the stage of the proceeding.’” Hopper v. State, 957 N.E.2d 613, 618 (Ind.

2011) (quoting Iowa v. Tovar, 541 U.S. 77, 88 (2004)). Other factors to consider are “(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.” Id. However, both the United States

Supreme Court and the Indiana Supreme Court “have deliberately eschewed any attempt

to formulate a rigid list of required warnings, talismanic language, or formulaic checklist.”

Id. at 619. Important to our appellate review is consideration of “what purposes a lawyer

can serve at the particular stage of the proceedings in question, and what assistance he

could provide to an accused at that stage.” Id. (quoting Patterson v. Illinois, 487 U.S. 285,

298 (1988)). We review de novo a trial court’s finding that a defendant waived his right to

counsel. Cooper v. State, 900 N.E.2d 64, 67 (Ind. Ct. App. 2009).

       In Greer v. State, we stated the following regarding waiving the right to counsel in

cases where a probationer admits to violating the terms of his probation:



                                             9
        We believe that a probationer who chooses to admit his probation violation
        places himself in a situation similar to that of a defendant who chooses to
        plead guilty to criminal charges. Neither person is in danger of “conviction”
        at the hands of the State. It is unnecessary to warn such a person of the
        pitfalls of self-representation, for those pitfalls exist only when he is
        confronted with prosecutorial activity which is designed to establish his
        culpability. It is therefore clear that, when a probationer who proceeds pro
        se 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.

690 N.E.2d 1214, 1217 (Ind. Ct. App. 1998), trans. denied.1

        The court informed Riggle that if he was found to have violated the terms of his

direct commitment the issue would be where he would serve his sentence, that he had the

right to a lawyer, and that one would be appointed at no expense if he could not afford one.


        1
            In Hammerlund v. State, this court commented on the precedential effect of Greer by stating:

                It is true that the original opinion in Hopper v. State, 934 N.E.2d 1086, 1088 (Ind.
        2010) on reh’g, 957 N.E.2d 613 (Ind. 2011) (“Hopper I”), arguably abrogated Greer by
        requiring, without carving out exceptions for guilty pleas or admissions to allegations of
        probation violations, that

                  in the future a defendant expressing a desire to proceed without counsel is
                  to be advised of the dangers of going to trial . . . and also be informed that
                  an attorney is usually more experienced in plea negotiations and better able
                  to identify and evaluate any potential defenses and evidentiary or
                  procedural problems in the prosecution’s case.

        Hopper I, 934 N.E.2d at 1088. On rehearing, however, the Indiana Supreme Court adopted
        a more flexible, case-specific approach to such matters and cited Greer and other cases
        with approval, saying that “[t]hese cases and others like them may serve as helpful
        comparative guideposts to trial and appellate courts.” Hopper v. State, 957 N.E.2d 613,
        619 (Ind. 2011) (“Hopper II”). Under the circumstances, it seems clear that Greer, while
        perhaps once abrogated, is again good law and may serve as guidance to trial courts and
        practitioners.

967 N.E.2d 525, 528 (Ind. Ct. App. 2012). We also observe that the Court in Hopper II stated that when a
general rehearing is granted, the case stands before the court as if it had never been decided, and that the
Court treated the rehearing as a general rehearing. See Hopper II, 957 N.E.2d at 616.
                                                       10
The court also asked Riggle if he understood the allegation, what was at stake, and his right

to have an attorney. Riggle stated that he understood the allegation and what was at stake

and that he was going to proceed without an attorney. Riggle’s responses to the court’s

questions were direct and unequivocal. We observe that the presentence investigation

report (“PSI”) filed in the underlying cause number on April 23, 2014, states that Riggle

obtained his GED, reported no history of mental illness, had four adjudications as a

juvenile, had fourteen prior misdemeanor convictions and ten prior felony convictions as

an adult, and had his probation revoked eleven times. The record shows that the trial court

advised Riggle of his right to counsel and that Riggle unequivocally waived that right.

Under the circumstances, we conclude that Riggle was adequately advised of his right to

counsel and that he knowingly, intelligently, and voluntarily waived that right. See Butler

v. State, 951 N.E.2d 255, 261-262 (Ind. Ct. App. 2011) (holding that the defendant was

adequately advised of his right to counsel and knowingly, intelligently, and voluntarily

waived his right).

       2.     Ability to Pay

       Riggle argues that his community corrections placement was impermissibly

revoked due to his temporary inability to pay. The State concedes that Riggle is correct

that revocation based upon the failure to pay is improper where a probationer had no ability

to pay, but argues that that is not what happened here. The State argues that “[t]he simple

fact is that [Riggle] never enrolled in the home detention program to begin with, and the

trial court did not ‘revoke’ that placement,” the trial court modified the placement for the

                                             11
executed two-year sentence because Riggle failed to enroll in the program, and Riggle “was

required to pay an initiation fee to enroll, and he failed to do so.” Appellee’s Brief at 14.

The State asserts that Riggle could not meet the basic requirements of that program,

including the requirement that he have a home in Vigo County. The State also argues that

Riggle had three months within which to secure the funds to enroll in the program and he

presented no evidence at the hearing that he had an inability to pay the initiation fee to

enroll in the program, and in fact said that he did have access to the money.

       Our system’s practice of revoking an offender’s probation or community corrections

placement due to the offender’s failure to pay fees creates an unavoidable dilemma.

Offenders should not be allowed to skirt the consequences of their actions, and those

consequences at times include the payment of fees and fines. But we are loathe to abide a

system that affords different justice to the wealthy and the impoverished. A difficult line

must therefore be drawn between enforcing financial conditions of a sentence and allowing

impecunious offenders to support themselves and their dependents. We strike a balance

among these concerns by requiring that an offender’s ‘ability to pay’ be considered before

imposing imprisonment as a sanction for failure to comply with financial conditions

associated with a sentence. In Runyon v. State, the Indiana Supreme Court held that if the

violation of a probation condition involves a financial obligation, then the probationer must

be shown to have recklessly, knowingly, or intentionally failed to pay. 939 N.E.2d 613,

616 (Ind. 2010). See also Ind. Code § 35-38-2-3(g) (“Probation may not be revoked for

failure to comply with conditions of a sentence that imposes financial obligations on the

                                             12
person unless the person recklessly, knowingly, or intentionally fails to pay.”). The Court

determined “[a]s to the fact of violation, the statute expressly imposes the burden of proof

upon the State. But with respect to the ability to pay, the burden of proof is not explicitly

designated.” Id. The Court held, “it is the State’s burden to prove both the violation and

the requisite state of mind in order to obtain a probation revocation.” Id. With respect to

the ability to pay, the Court held that it is the defendant probationer’s burden “to show facts

related to an inability to pay and indicating sufficient bona fide efforts to pay so as to

persuade the trial court that further imprisonment should not be ordered.” Id. at 617 (citing

Woods v. State, 892 N.E.2d at 641). If the offender is able to make this showing, then the

trial court “must consider alternative measures of punishment other than imprisonment.”

Id. at 616 (quoting Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 2073 (1983)).

       The trial court revoked Riggle’s community correction placement while also saying

to Riggle: “You don’t have the money, you don’t have the money.” Transcript at 11.

Standing alone, this would appear to be a clear finding that Riggle had an inability to pay

the fees at issue. However, a closer look at the record reveals that Riggle made no effort

whatsoever to show facts related to an inability to pay. Upon questioning by the court as

to whether he paid the fees, Riggle testified at one point: “No I haven’t paid it, but I do

have access to the money.” Transcript at 9.

       After reviewing this record, it is not difficult to imagine that Riggle may have had

at least a temporary inability to pay the fee at issue. If that is true, it is certainly unfortunate.

But the fact is that Riggle completely failed in his burden to present any evidence or

                                                 13
argument to the trial court regarding an inability to pay. Consequently, his argument on

appeal is too speculative to entitle him to a reversal. Under the circumstances, we cannot

say that Riggle demonstrated an inability to pay or sufficient bona fide efforts to pay or

that the court abused its discretion in revoking his placement in community corrections.

       We also observe that Riggle testified that he did not have a home in Vigo County in

which to do home detention, and it seems that Riggle’s residence was located in Clay

County, which borders Vigo County. The record indicates that both Riggle and the trial

court may have been under the impression that Riggle needed to live in Vigo County in

order to serve his home detention sentence, and it is conceivable that Riggle’s lack of

payment was a result of his belief that he must also pay for a place to live in Vigo County.

Ind. Code § 35-38-2.5-5.5(b) provides:

       If the offender [sentenced to home detention] resides in a county that is
       adjacent to the county in which the sentencing court is located, the
       supervision of the offender may be conducted by either the:

                 (1)   probation department; or

                 (2)   community corrections program;

       located in the county in which the sentencing court is located.

Had Riggle known that his sentence could be supervised by Vigo County Community

Corrections without requiring him to move from Clay County to Vigo County, it is possible

that Riggle’s revocation could have been avoided. Although this is of no particular help to

Riggle, the trial court’s awareness of this option may prevent any troublesome confusion

in the future.

                                             14
                                    CONCLUSION

      For the foregoing reasons, we affirm the trial court’s revocation of Riggle’s

placement in community corrections.

      Affirmed.

BAILEY, J., and ROBB, J., concur.




                                        15
