                                                                                  FILED
                                                                            Jul 15 2019, 7:24 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Scott H. Duerring                                           Curtis T. Hill, Jr.
      South Bend, Indiana                                         Attorney General of Indiana

                                                                  Jesse R. Drum
                                                                  Supervising Deputy Attorney
                                                                  General
                                                                  Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Charles Edward Luster,                                      July 15, 2019
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-CR-129
              v.                                                  Appeal from the St. Joseph
                                                                  Superior Court
      State of Indiana,                                           The Honorable John M.
      Appellee-Plaintiff.                                         Marnocha, Judge
                                                                  Trial Court Cause No.
                                                                  71D02-1504-F5-54



      Najam, Judge.


                                         Statement of the Case
[1]   Charles Edward Luster appeals the trial court’s revocation of his placement in

      community corrections. Luster raises one issue for our review, which we revise

      and restate as whether the trial court violated his due process rights when it
      Court of Appeals of Indiana | Opinion 19A-CR-129 | July 15, 2019                              Page 1 of 7
      declined to consider evidence of his lack of competency prior to the hearing on

      the State’s motion to revoke his placement.


[2]   We reverse and remand for further proceedings.


                                   Facts and Procedural History
[3]   In November 2015, Luster pleaded guilty to robbery, as a Level 5 felony. The

      trial court entered judgment of conviction and sentenced Luster to six years,

      with three years executed, three years suspended, and one year of probation.

      On July 12, 2018, the State filed a petition to revoke Luster’s probation. At a

      hearing, Luster admitted to the allegations, and the trial court revoked Luster’s

      placement on probation and ordered him to serve three years in community

      corrections.


[4]   On September 25, James Thompson, a security officer at Luster’s facility, was

      informed that Luster was acting erratically and talking to himself. Officer

      Thompson then reviewed footage from the facility’s security cameras. While

      watching the footage, Officer Thompson observed Luster engage in

      inappropriate sexual conduct in the laundry room, which was against the rules

      of the facility. The State then filed a petition to revoke Luster’s placement in

      community corrections due to his inappropriate conduct.


[5]   On October 1, the court appointed two medical experts to evaluate Luster’s

      competency because the court “ha[d] reason to believe that [Luster] may lack a

      present ability to understand the proceedings and assist in the preparation of

      [his] defense[.]” Appellant’s App. Vol. II at 111. Thereafter, two medical
      Court of Appeals of Indiana | Opinion 19A-CR-129 | July 15, 2019           Page 2 of 7
      experts evaluated Luster. Dr. Evert VanderStoep found that Luster

      “understands his legal situation correctly.” Id. at 119. However, Dr.

      VanderStoep found that Luster “has been psychotic for as long as he can

      remember.” Id. Dr. VanderStoep reviewed two previous psychiatric

      evaluations, which both indicated that Luster suffers from paranoid

      schizophrenia. Dr. VanderStoep opined that, if Luster continued to take the

      proper medications, it would be “possible for him to manage the structure” at

      the community corrections facility. Id. at 120.


[6]   Dr. Warren Sibilla, Jr. also conducted a competency evaluation of Luster. Dr.

      Sibilla concluded that Luster’s symptoms were consistent with bipolar affective

      disorder, substance abuse disorder, and post-traumatic stress disorder. With

      respect to Luster’s competency, Dr. Sibilla concluded that Luster “does not

      demonstrate the capacity to stand trial for the charges in this legal matter.” Id.

      at 130 (emphasis removed).


[7]   The trial court held a hearing on the State’s petition to revoke Luster’s

      placement in community corrections. However, while the court acknowledged

      at the beginning of the hearing that it had ordered a competency evaluation, the

      court nonetheless concluded that “the statute concerning competency [Indiana

      Code Section 35-36-3-1] contemplates [a] prejudgment [assessment] and of

      course this is post-judgment by a long shot.” Tr. at 2. As such, the trial court

      did not consider the competency evaluations but proceeded with the hearing.




      Court of Appeals of Indiana | Opinion 19A-CR-129 | July 15, 2019            Page 3 of 7
[8]   At the conclusion of the hearing, the court found that Luster had violated the

      conditions of his placement. Accordingly, the court revoked Luster’s placement

      in community corrections and ordered him to serve the remaining three years of

      his sentence at the Department of Correction. This appeal ensued.


                                       Discussion and Decision
[9]   Luster contends that the trial court erred when it did not consider evidence of

      his competency prior to the hearing on the State’s petition to revoke his

      placement in community corrections. 1 Here, the trial court appointed the

      medical experts to evaluate Luster’s competency pursuant to Indiana Code

      Section 35-36-3-1(a) (2018), which provides:


               If at any time before the final submission of any criminal case to
               the court or the jury trying the case, the court has reasonable
               grounds for believing that the defendant lacks the ability to
               understand the proceedings and assist in the preparation of a
               defense, the court shall immediately fix a time for a hearing to
               determine whether the defendant has that ability.


      However, at the hearing on the State’s petition, the trial court determined that

      that statute “contemplates prejudgment and . . . this is post-judgment by a long

      shot[.]” Tr. at 2. Accordingly, the court determined that Indiana Code Section




      1
        Luster frames the issue as whether the trial court abused its discretion when it excluded evidence, and the
      State responds accordingly. However, the substance of Luster’s argument is that the trial court erred when it
      did not consider evidence of his competency.

      Court of Appeals of Indiana | Opinion 19A-CR-129 | July 15, 2019                                  Page 4 of 7
       35-36-3-1 does not apply to Luster’s community corrections revocation

       proceeding and it declined to consider the experts’ evaluations.


[10]   On appeal, Luster maintains that the trial court erred when it concluded that

       that statute does not apply to his revocation proceeding because “the question

       of a defendant’s competency to stand trial may be raised at any time[.]”

       Appellant’s Br. at 7. To support his contention, Luster relies on our Supreme

       Court’s opinion in Smith v. State, 443 N.E.2d 1187 (Ind. 1983). However, our

       Supreme Court in Smith held that a defendant cannot waive the question of

       pretrial competency by failing to raise the issue of his competency before the

       fact-finder considers the merits of his criminal case. Id. at 1188-89. That is not

       the issue in this appeal, where Luster challenges only the ability of the trial

       court to consider his competency prior to a revocation hearing, not a criminal

       proceeding. 2


[11]   Luster’s incorrect reliance on Smith notwithstanding, there is no question that,

       as a matter of constitutional law, persons in community corrections and similar

       placements are entitled to competency hearings, where the facts support such a




       2
         Luster also contends that, based on the Supreme Court’s holding in Smith, the trial court erred when it
       concluded that Indiana Code Section 35-36-3-1 did not apply to community corrections revocation
       proceedings. However, as discussed above, the Court in Smith did not address the ability of a trial court to
       consider his competency prior a revocation hearing. Further, this Court has previously held that a defendant
       “did not have a statutory right to a competency hearing because he was not standing for trial, but rather was
       participating in a probation revocation hearing, which is a matter that takes place after the final submission of
       a criminal case to the trier of fact.” Donald v. State, 930 N.E.2d 76, 79 (Ind. Ct. App. 2010) (emphasis in
       original). Similarly, here, a community corrections revocation proceeding is a matter that takes place after
       the final submission of a criminal case to the trier of fact. Accordingly, Indiana Code Section 35-36-3-1(a)
       does not apply to Luster’s proceeding.

       Court of Appeals of Indiana | Opinion 19A-CR-129 | July 15, 2019                                      Page 5 of 7
       hearing, prior to the revocation of their placement. While “probationers do not

       receive the full array of constitutional rights that defendants at trial receive,” a

       probationer at a revocation hearing is entitled to the following minimum

       requirements of due process: notice of the claimed violations, disclosure of the

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

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

       detached hearing body. Donald v. State, 930 N.E.2d 76, 79 (Ind. Ct. App. 2010).

       But “[w]ithout competency,” many of those due process rights guaranteed to

       probationers at probation revocation proceedings “would be rendered useless.”

       Id. at 80. As such, “the Due Process Clause of the United States Constitution

       requires that a defendant be competent when participating in a probation

       revocation hearing.” Id. at 79. And it is well settled that “the due process rights

       for revocation of community corrections placement and probation hearings are

       the same.” Madden v. State, 25 N.E.3d 791, 795 (Ind. Ct. App. 2015). Thus,

       just as a defendant has a due process right to be competent at a probation

       revocation hearing, a defendant participating in a community corrections

       revocation hearing also has a due process right to be competent during the

       proceedings against him.


[12]   Here, the trial court was on notice that further inquiry into Luster’s competency

       may have been warranted. Indeed, the trial court sua sponte appointed two

       medical experts to evaluate Luster’s competency because it “ha[d] reason to

       believe that Luster may lack a present ability to understand the proceedings and

       assist in the preparation of [his] defense[.]” Appellant’s App. Vol. II at 111.


       Court of Appeals of Indiana | Opinion 19A-CR-129 | July 15, 2019             Page 6 of 7
       However, the court then declined to consider the experts’ reports, which

       substantiated the court’s original concern. Because the trial court did not

       consider evidence of Luster’s competency prior to the hearing on the State’s

       petition to revoke his placement, the court violated his due process rights. We

       therefore reverse the trial court’s revocation of Luster’s placement in

       community corrections, and we remand with instructions for the trial court to

       consider the competency evaluations and to determine whether Luster is

       competent to understand and participate in the proceedings against him.


[13]   Reversed and remanded with instructions.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-129 | July 15, 2019          Page 7 of 7
