FOR PUBLICATION

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JAY RODIA                                       GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                MICHELLE BUMGARNER
                                                Deputy Attorney General
                                                Indianapolis, Indiana

                                                                         Apr 23 2013, 9:25 am
                               IN THE
                     COURT OF APPEALS OF INDIANA

PAUL SPARKS,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
               vs.                              )      No. 49A02-1207-CR-593
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                        APPEAL FROM THE MARION SUPERIOR COURT
                              The Honorable Robert Altice, Judge
                                Cause No. 49G02-1202-FC-8723




                                      April 23, 2013



                     OPINION ON REHEARING - FOR PUBLICATION



ROBB, Chief Judge
       The State has petitioned for rehearing of this court’s decision in Sparks v. State, 983

N.E.2d 221 (Ind. Ct. App. 2013), in which we held that the trial court did not handle Sparks’s

probation revocation hearing in a way that comports with his due process rights, and we

reversed and remanded for a new probation revocation hearing. We grant the petition for

rehearing for the sole purpose of clarifying what is required on remand, but affirm our

opinion in all respects.1

       The State’s petition reiterates its original argument that an evidentiary hearing was not

required because Sparks admitted to the probation violation after consulting with his

attorney. However, as was well-explained in the opinion, Sparks’s admission was suspect in

light of the comment made by the trial court. Thus, the particular circumstances surrounding

Sparks’s admission rendered the lack of an evidentiary hearing in this case fundamental

error. Our decision did not change established Indiana law that a probationer may admit to a

probation violation and waive the right to a probation violation hearing. See Ind. Code § 35-

38-2-3(e).

       On remand, the trial court must conduct an evidentiary hearing in which the State

proves by a preponderance of evidence that Sparks violated his probation. The State cannot

rely on Sparks’s original admission, which this court held was suspect. If Sparks chooses to,

once again, admit to the probation violation, there would no longer be a need for an

evidentiary hearing, as long as both the trial court and the State abide by due process

requirements.


       1
           Sparks has not filed a brief in response to the petition for rehearing.

                                                        2
MAY, J., and PYLE, J., concur.




                                 3
