                                                                                 FILED
                                                                          Jul 22 2016, 9:24 am

                                                                                 CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Daniel K. Whitehead                                        Gregory F. Zoeller
      Yorktown, Indiana                                          Attorney General of Indiana
                                                                 Michael Gene Worden
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      David Anthony Jordan,                                      July 22, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 48A02-1510-CR-1846
              v.                                                 Appeal from the Madison Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Dennis Carroll,
      Appellee-Plaintiff.                                        Special Judge
                                                                 Trial Court Cause No.
                                                                 48D03-0108-CF-270



      Pyle, Judge.


                                         Statement of the Case
[1]   David Anthony Jordan (“Jordan”) appeals the trial court’s order revoking his

      probation and ordering him to serve part of his previously suspended sentence.

      Jordan does not challenge the sufficiency of the evidence underlying his


      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016                     Page 1 of 14
      probation violation or the trial court’s ruling that he serve twelve years of his

      previously suspended sentence. Instead, he challenges the validity of the

      probation itself. Specifically, he argues that: (1) the special judge did not have

      authority to enter the revocation order; (2) the original judge, who had

      previously recused himself from the case, did not have authority to place him

      on probation; and (3) his probation revocation counsel was ineffective because

      counsel failed to challenge the validity of Jordan’s probation on the basis that it

      was imposed by the previously-recused judge. Concluding that Jordan has

      waived his challenges to the judges’ authority and has failed to meet his burden

      on his ineffective assistance of counsel claim, we affirm the trial court’s order

      revoking Jordan’s probation.


[2]   We affirm.


                                                      Issues
              1. Whether Jordan has waived his challenge to the special judge’s
              authority to enter the revocation order.

              2. Whether Jordan has waived his collateral challenge to the
              original judge’s authority to modify his sentence and place him on
              probation.

              3. Whether Jordan’s probation revocation counsel rendered
              ineffective assistance of counsel.




      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016   Page 2 of 14
                                                         Facts1
[3]   The relevant procedural facts follow. On August 14, 2001, the State charged

      Jordan with: Count I, Class B felony burglary; Count II, Class C felony

      stalking; Count III, Class B misdemeanor invasion of privacy; and Count IV,

      Class B misdemeanor criminal mischief. The cause was assigned to Circuit

      Court #3 and the Honorable Thomas Newman, Jr. (“Judge Newman”).


[4]   On January 7, 2002, Jordan, pursuant to a plea agreement, pled guilty to

      Counts I, II, and IV in exchange for the dismissal of Count III. Thereafter,

      Judge Newman sentenced Jordan to concurrent terms of twenty (20) years on

      Count I, eight (8) years on Count II, and six (6) months on Count IV. This

      aggregate twenty (20) year sentence was to be served in the Department of

      Correction and served consecutively to two other criminal causes.2 Thereafter,

      Jordan filed a direct appeal and challenged the sentence imposed in this case. 3

      Our Court affirmed his sentence in a memorandum decision issued on




      1
        We note that Jordan’s counsel, in an attempt to be helpful, has reproduced the entire transcript from
      Jordan’s probation revocation hearing and included it in his Appendix. Aside from this reproduction being
      “a waste of paper and unnecessarily bloating the record on appeal,” see Steve Silveus Ins., Inc. v. Goshert, 873
      N.E.2d 165, 172 (Ind. Ct. App. 2007), it also violates Appellate Rule 50(F), which explicitly instructs that
      “parties should not reproduce any portion of the Transcript in the Appendix” because the “Transcript is
      transmitted to our Court pursuant to Appellate Rule 12(B)[.]” (Emphasis added).

      2
        These criminal causes were 48D03-0011-DF-346 (“Cause DF-346”) and 48D03-0109-CF-295 (“Cause CF-
      295”), in which he also entered a guilty plea. The trial court imposed an aggregate sentence of three (3) years
      in Cause DF-346 and an aggregate sentence of twenty (20) years in Cause CF-295.
      3
          In that same appeal, Jordan also appealed the sentences imposed in Cause DF-346 and Cause CF-295.


      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016                             Page 3 of 14
      December 2, 2002. See Jordan v. State, 48A05-0204-CR-148 (Ind. Ct. App. Dec.

      2, 2002).


[5]   In 2002 and then again in 2003, Jordan filed a petition for post-conviction relief,

      both of which he was allowed to withdraw without prejudice. He then filed an

      amended petition in June 2006.4 Following a hearing, Judge Newman denied

      Jordan’s petition for post-conviction relief on January 3, 2007. Jordan appealed

      the denial of post-conviction relief, and we affirmed the trial court’s judgment

      in a memorandum decision in October 2007. See Jordan v. State, 48A04-0703-

      PC-125 (Ind. Ct. App. Oct. 18, 2007), trans. denied.


[6]   Thereafter, between 2008 and 2011, Jordan filed numerous motions to reduce

      his sentence or to have it modified to run concurrently with his two other

      criminal causes. Judge Newman denied each of these motions.


[7]   Subsequently, on January 18, 2013, Judge Newman entered an order recusing

      himself from Jordan’s case,5 and the Honorable Dennis Carroll (“Special Judge

      Carroll”) accepted jurisdiction as special judge on February 20, 2013.

      However, despite Judge Newman’s recusal, he continued to hold hearings and

      issue orders in this case. For example, on September 15, 2014, Judge Newman

      held a hearing on Jordan’s April 2014 motion to modify his sentence. Judge




      4
       In Jordan’s amended post-conviction petition, he challenged his guilty pleas from this cause and Causes
      DF-346 and CF-295.
      5
          In that same order, Judge Newman also recused himself from Cause DF-346 and Cause CF-295.


      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016                        Page 4 of 14
      Newman granted Jordan’s motion and ordered Jordan “released from the

      Department of Corrections [sic] and placed in Work Release for the remainder

      of his sentence[,]” which was sixteen plus years. (App. 40). Additionally, on

      July 20, 2015, Judge Newman held a hearing on Jordan’s January 2015 request

      to modify his sentence from work release to probation. Judge Newman granted

      Jordan’s motion to modify his sentence and placed him on probation for the

      balance of his 6,126-day sentence. Jordan did not object to or otherwise

      challenge Judge Newman’s authority to enter this order and place him on

      probation.


[8]   Three weeks later, on August 11, 2015, the State filed a notice of probation

      violation, alleging that Jordan had violated his probation by: (1) committing

      new criminal offenses;6 (2) failing to abstain from alcohol; and (3) violating his

      curfew. On August 31, 2015, Judge Newman held the initial hearing on

      Jordan’s probation violation allegations, and Jordan denied the allegations.

      The transcript of this hearing is not part of the record on appeal. Nevertheless,

      there is no indication in the record that Jordan objected to Judge Newman’s

      authority at this hearing.




      6
       The notice of probation violation alleged that, on July 24, 2015, had committed and been charged with:
      Count I, Level 6 felony criminal confinement; Count II, Level 6 felony residential entry; Count III, Class A
      misdemeanor battery; Count IV, Class A misdemeanor interference with reporting of a crime; and Count V,
      Class A misdemeanor theft.

      Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016                         Page 5 of 14
[9]    On October 1, 2015, Special Judge Carroll presided over the evidentiary

       hearing. At the beginning of the hearing, Special Judge Carroll stated:


               We are in a Circuit Division Three case that I serve as Special
               Judge on in 48D03-0108-CF-270. We were here last week and
               there was a continuance and Mr. Kopp is here again on behalf of
               the State of Indiana. If there are any preliminary matters we can
               take care of those, otherwise we can get on with the evidence . . .
               . So are we ready to move forward?

       (Tr. 4). Jordan’s counsel responded, “Yes, Your Honor.” (Tr. 5). Jordan did

       not object to the validity of the probation or the allegations. Nor did he object

       to Special Judge Carroll’s authority to preside over the probation proceeding.


[10]   During the hearing, the State questioned Jordan’s probation officer, Tony New

       (“Probation Officer New”), about Jordan’s alleged violations. The State also

       had Probation Officer New explain the procedural anomaly that had occurred

       in the case. Specifically, Probation Officer New testified that, in July 2015,

       Judge Newman held a hearing and placed Jordan on probation even though

       Special Judge Carroll was the presiding judge over the case. Probation Officer

       New testified that “[a]s it turn[ed] out[,] Judge Carroll was actually the Special

       Judge . . . on the case at that time” but that apparently “[n]obody recalled that

       that had changed at some point before that.” (Tr. 43-44). When the State

       asked Probation Officer New, “But [Jordan’s case] ha[d] a 48D03 cause

       number and for whatever reason nobody realized that Judge Carroll had

       jurisdiction over this case and not Judge Newman?”, he replied that he “didn’t

       realize it.” (Tr. 44). Jordan still did not object to the validity of the probation

       or Special Judge Carroll’s authority to preside over the probation proceeding.
       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016    Page 6 of 14
[11]   Special Judge Carroll determined that Jordan had violated his probation by

       committing another crime (battery, criminal confinement, and interference with

       the reporting of a crime), and he ordered Jordan to serve twelve (12) years of his

       previously suspended sentence. Jordan now appeals.


                                                     Decision
       Jordan does not challenge the sufficiency of the evidence that he violated

       probation or the trial court’s ruling that he serve twelve years of his previously

       suspended sentence. Instead, he challenges the validity of the trial court’s

       revocation order and the validity of the existence of his probation. Specifically,

       he argues that: (1) Special Judge Carroll did not have authority to enter the

       revocation order; (2) Judge Newman, who had previously recused from the

       case, did not have authority to modify his sentence and place him on probation;

       and (3) his probation revocation counsel was ineffective for failing to challenge

       the validity of his probation. We will address each argument in turn.


       1. Authority of Special Judge to Enter Revocation Order

[12]   We first address Jordan’s main challenge to the revocation of his probation. He

       contends that Special Judge Carroll did not have authority to hold a probation

       evidentiary hearing and to enter an order ruling that he had violated his

       probation because Special Judge Carroll “relinquished jurisdiction and Judge

       Newman [had] reassumed case jurisdiction.” (Jordan’s Br. 7).


[13]   The State argues that Jordan has waived appellate review of any challenge to

       Special Judge Carroll’s authority to hold the revocation hearing and to enter the

       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016   Page 7 of 14
       probation revocation order because Jordan “raised no objection whatsoever to

       Judge Carroll presiding over the probation revocation hearing.” (State’s Br.

       11). We agree.


[14]   Our Indiana Supreme Court has explained that “[t]he proper inquiry for a

       reviewing court when faced with a challenge to the authority and jurisdiction of

       a court officer to enter a final appealable order is first to ascertain whether the

       challenge was properly made in the trial court so as to preserve the issue for

       appeal.” Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994). The Floyd Court also

       explained that “it has been the long-standing policy of this court to view the

       authority of the officer appointed to try a case not as affecting the jurisdiction of

       the court.” Id. “Therefore, the failure of a party to object at trial to the

       authority of a court officer to enter a final appealable order waives the issue for

       appeal.” Id.


[15]   Here, Jordan did not object at the probation revocation evidentiary hearing to

       Special Judge Carroll’s authority to preside over the hearing or to enter an order

       in the proceeding. Accordingly, Jordan has waived review of any challenge to

       the authority of Special Judge Carroll to preside over and enter an order in this

       probation revocation proceeding. See, e.g., Floyd, 650 N.E.2d at 32; Tapia v.

       State, 753 N.E.2d 581, 588 (Ind. 2001) (holding that a post-conviction

       petitioner’s failure to object to a magistrate’s authority to preside over his

       proceedings resulted in waiver of any appellate challenge to the magistrate’s

       authority). See also Bivins v. State, 485 N.E.2d 89, 92 (Ind. 1985) (“We have

       held that where a defendant does not object to an irregularity in the

       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016       Page 8 of 14
       appointment of a special judge, he accepts the appointment, submits to the

       jurisdiction, and waives the irregularity.”).7


       2. Authority of Original Judge to Order Probation


[16]   Next, we turn to Jordan’s alternative attack on the validity of the probation

       revocation order, which he mounts by attacking the validity of his underlying

       probation. Specifically, Jordan argues that Judge Newman did not have

       authority to place him on probation because he had recused from the case and

       that his order placing him on probation was “invalid.” (Jordan’s Br. 15).

       Jordan contends that because Judge Newman’s probation placement order was

       invalid, then Special Judge Carroll’s order revoking his probation was equally

       invalid.


[17]   Like Jordan’s challenge to Special Judge Carroll’s authority, he has also waived

       any appellate challenge to Judge Newman’s authority. See Floyd, 650 N.E.2d at

       32. In January 2015, Jordan filed a motion to modify his sentence from work

       release to probation. On July 20, 2015, Judge Newman held a hearing, granted

       Jordan’s motion, and placed him on probation for the balance of his 6,126-day

       sentence. Jordan has not shown that he previously objected to Judge

       Newman’s authority to hold the hearing on his motion or to enter the order




       7
         We also reject Jordan’s suggestion that Special Judge Carroll committed fundamental error because he
       “should have acted, irrespective of the parties’ failure to object or otherwise preserve the error for appeal.”
       (Jordan’s Br. 15). As Jordan makes no cogent argument to support this suggestion, he has waived the
       argument. See Ind. Appellate Rule 46(A)(8)(a).

       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016                              Page 9 of 14
       placing him on probation. Nor has Jordan shown why he did not appeal the

       probation order after it was entered in July 2015, and he may not do so now.

       As the State correctly contends, Jordan’s “collateral challenge to the authority

       of Judge Newman to enter an order granting [him] probation is unavailable for

       consideration in this subsequent appeal from Special Judge Carroll’s revocation

       of [Jordan’s] probation.” (State’s Br. 16). See Floyd, 650 N.E.2d at 32 (holding

       that the failure of a party to object below to the authority of a court officer to

       enter a final appealable order waives the issue for appeal).


       3. Ineffective Assistance of Probation Revocation Counsel


[18]   Lastly, we will turn to Jordan’s ineffective assistance of counsel claim. Jordan

       contends that his probation revocation counsel rendered ineffective assistance

       by failing to challenge the validity of his probation. Citing to the ineffective

       assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668

       (1984), reh’g denied, Jordan contends that his counsel rendered deficient

       performance because he failed to object to validity of Jordan’s probation on the

       basis that it was ordered by the recused Judge Newman. He further contends

       that there was prejudice because there was a “reasonable probability” that

       Special Judge Carroll would have vacated all of Judge Newman’s prior orders,

       with “no resulting [probation] sanction imposed.” (Jordan’s Br. 18).


[19]   The State responds that “[t]his allegation of ineffective assistance of probation

       revocation counsel is entirely without merit because [Jordan] had no Sixth

       Amendment right to the effective assistance of counsel during the probation


       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016   Page 10 of 14
       revocation proceeding.” (State’s Br. 17). The State reasons that “[t]he Sixth

       Amendment right to counsel applies only to critical stages of a criminal

       prosecution[,]” (State’s Br. 17) (citing Cox v. State, 854 N.E.2d 1187, 1195 (Ind.

       Ct. App. 2006)), and that, because a probation revocation proceeding is civil in

       nature, “he did not have any Sixth Amendment right to counsel” in this

       proceeding. (State’s Br. 17) (citing Gagnon v. Scarpelli, 411 U.S. 778, 781-82

       (1973)).


[20]   We acknowledge that “[a] probation hearing is civil in nature[,]” Cox v. State,

       706 N.E.2d 547, 551 (Ind. 1999), reh’g denied, and “that probationers do not

       receive the same constitutional rights that defendants receive at trial.” Reyes v.

       State, 868 N.E.2d 438, 440 (Ind. 2007), reh’g denied. Indeed, 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). See also

       Reyes, 868 N.E.2d at 440 n.1 (recognizing that the Sixth Amendment right to

       confrontation does not apply to probation revocation proceedings). 8 “Although




       8
         We note that our Indiana Supreme Court has held that “[t]he right to the assistance of counsel extends to
       several situations deemed ‘critical stages’ in the proceeding[,]” including “revocation of probation and
       deferred sentencing proceedings[.]” Hernandez v. State, 761 N.E.2d 845, 849 (Ind. 2002) (citing Mempa v.
       Rhay, 389 U.S. 128, 137, (1967)), reh’g denied. However, in Gagnon, the Supreme Court explained that the
       right to counsel holding in Mempa was limited to where a probationer had “a combined revocation and
       sentencing hearing” and did not apply “where the probationer was sentenced at the time of trial.” Gagnon,
       411 U.S. at 781 (emphasis added).

       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016                        Page 11 of 14
       probationers are not entitled to the full array of constitutional rights afforded

       defendants at trial, ‘the Due Process Clause of the Fourteenth Amendment

       [does] impose [ ] procedural and substantive limits on the revocation of the

       conditional liberty created by probation.’” Woods v. State, 892 N.E.2d 637, 640

       (Ind. 2008) (quoting Debro v. State, 821 N.E.2d 367, 374 (Ind. 2005)).9 In

       addition to these due process rights, INDIANA CODE § 35-38-2-3(f) provides that

       a probationer in a revocation hearing “is entitled to . . . representation by

       counsel.”


[21]   We cannot, however, agree with the State’s suggestion that we can outright

       dismiss, without reviewing, Jordan’s ineffective assistance of probation counsel

       claim because he did not have a Sixth Amendment right to counsel at the

       probation revocation hearing. Indeed, Jordan does not argue that he was

       denied a right to probation revocation counsel. Instead, he contends that he

       received ineffective assistance from his probation revocation counsel.


[22]   In Childers v. State, 656 N.E.2d 514 (Ind. Ct. App. 1995), our Court addressed

       the standard to be applied when a defendant asserts a claim that his probation

       revocation counsel rendered ineffective assistance of counsel during the

       revocation hearing.




       9
        The minimum requirements of due process provided to a probationer at a revocation hearing include: “(a)
       written notice of the claimed violations of probation; (b) disclosure of the evidence against him; (c) an
       opportunity to be heard and present evidence; (d) the right to confront and cross-examine adverse witnesses;
       and (e) a neutral and detached hearing body.” Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).



       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016                        Page 12 of 14
                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.


[23]   Childers, 656 N.E.2d at 517 (citing Baum v. State, 533 N.E.2d 1200, 1201 (Ind.

       1989)). In Baum, our Indiana Supreme Court explained that, because a “right

       to counsel in post-conviction proceedings is guaranteed by neither the Sixth

       Amendment of the United States Constitution nor art. 1, § 13 of the

       Constitution of Indiana[,]” there was no requirement that the “constitutional

       standards be employed when judging the performance of counsel when

       prosecuting a post-conviction petition at the trial level or at the appellate level.”

       Baum, 533 N.E.2d at 1201. The Baum Court explained that, therefore, “a lesser

       standard responsive more to the due course of law or due process of law

       principles which are at the heart of the civil post-conviction remedy” should be

       applied. Id. Similarly, given the civil nature of probation revocation

       proceedings and the corresponding due process rights applicable in such

       proceedings, we will apply the Baum standard to Jordan’s claim of ineffective

       assistance of probation revocation counsel.10 See id.; see also Hill v. State, 960



       10
          We acknowledge that, in prior cases, other panels of our Court have applied the Strickland standard when
       reviewing a claim that counsel rendered ineffective assistance during a probation revocation hearing. See,
       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 does not, however,
       appear that the question of the applicability of the Sixth Amendment or the standard of review was raised in
       these cases.

       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016                        Page 13 of 14
       N.E.2d 141, 143 (Ind. 2012) (holding that the Baum standard was the

       “appropriate standard” for judging the performance of counsel in a Post-

       Conviction Rule 2—or a belated notice of appeal—proceeding), reh’g denied.


[24]   Applying this “lesser” standard, we conclude that Jordan has failed to show

       that his probation revocation counsel rendered ineffective assistance of counsel

       by failing, during the October 2015 revocation hearing, to raise an objection to

       the validity of Judge Newman’s July 2015 order placing Jordan on probation.

       Jordan’s counsel appeared at the revocation hearing, questioned witnesses and

       introduced exhibits on behalf of Jordan, and offered argument regarding

       sanctions. Additionally, Jordan has not alleged or shown that he was deprived

       of a procedurally fair hearing. Based on our standard of review, the record

       before us, and the specific facts of this case, we conclude that Jordan has failed

       to show that he received the ineffective assistance of probation revocation

       counsel.11 See, e.g., Childers, 656 N.E.2d at 517 (holding that the defendant

       failed to show that his probation revocation counsel was ineffective).


[25]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       11
          Even if we were to review Jordan’s claim under the Strickland standard, we would equally conclude that he
       failed to prove his ineffective assistance of counsel claim. Jordan’s ineffective assistance of counsel claim is
       premised upon the assumption that an objection to Judge Newman’s July 2015 probation order would have
       resulted in Special Judge Carroll vacating “all rulings” of Judge Newman. (Jordan’s Br. 18). Jordan,
       however, apparently fails to realize that vacating all of Judge Newman’s orders would include Judge
       Newman’s September 2014 order releasing Jordan from the Department of Correction.

       Court of Appeals of Indiana | Opinion 48A02-1510-CR-1846 | July 22, 2016                          Page 14 of 14
