MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Apr 18 2018, 9:34 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                         Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana

                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary Mitchell,                                           April 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         78A01-1707-CR-1611
        v.                                               Appeal from the Switzerland
                                                         Circuit Court
State of Indiana,                                        The Honorable W. Gregory Coy,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         78C01-0902-FC-599



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 78A01-1707-CR-1611| April 18, 2018                Page 1 of 8
                                               Case Summary
[1]   Gary W. Mitchell appeals the trial court’s revocation of probation and

      imposition of his previously-suspended sentence. We reverse and remand for

      further proceedings.


                                                        Issue
[2]   The sole issue before us is whether the record establishes that Mitchell

      knowingly, voluntarily, and intelligently waived his right to counsel before

      being sanctioned for violating probation.


                                                       Facts
[3]   On June 30, 2006, the State charged Mitchell with Class C felony operating a

      vehicle with a lifetime suspension, Class A misdemeanor operating a vehicle

      while intoxicated endangering a person, and Class C misdemeanor operating a

      vehicle while intoxicated. On July 10, 2007, he pled guilty as charged, and on

      August 15, 2007, the trial court sentenced him to eight years with four years

      suspended on the Class C felony and one year on the Class A misdemeanor, to

      be served concurrently. The trial court entered judgment of conviction on

      August 27, 2007.1


[4]   On September 7, 2007, Mitchell moved to stay the remainder of his sentence, or

      in the alternative, for a change of placement to electronic home monitoring or



      1
       The trial court dismissed the Class C misdemeanor conviction as a lesser-included offense of the Class A
      misdemeanor.

      Court of Appeals of Indiana | Memorandum Decision 78A01-1707-CR-1611| April 18, 2018             Page 2 of 8
      work release so that he could maintain his employment and insurance benefits.

      After a hearing, the trial court entered an order on October 22, 2007, allowing

      Mitchell to serve the executed portion of his sentence of four years on work

      release under supervision of Southeast Regional Community Correction

      (“SRCC”) and placing Mitchell on probation for eight years. One condition of

      Mitchell’s community corrections placement was that he would comply with all

      rules established by the Sheriff of Dearborn County and SRCC. We affirmed

      Mitchell’s sentence. Mitchell v. State, No. 78A01-0710-CR-495, slip op. at 8

      (Ind. Ct. App. Feb. 29, 2008).


[5]   On November 12, 2008, the Switzerland County Probation Department filed a

      verified petition of probation violation, alleging that Mitchell was arrested for

      another criminal offense on November 7, 2008, while he was on work release.

      The trial court conducted a fact-finding hearing on June 30, 2010.2 Mitchell

      appeared with counsel, N. Alan Miller, III, and admitted to the probation

      violation. Miller asked that the sanction hearing be “set out 30 to 45 days in

      regard to witnesses that we would like to call.” Fact-Finding Tr. p. 4. The trial

      court scheduled a sanction hearing for August 20, 2010. Mitchell failed to

      appear, and a warrant was issued for his arrest. Miller withdrew his appearance

      one week later.




      2
          The June 2010 fact-finding occurred after three continuances and two changes of counsel.

      Court of Appeals of Indiana | Memorandum Decision 78A01-1707-CR-1611| April 18, 2018           Page 3 of 8
[6]   Seven years later, on June 13, 2017, Mitchell was arrested on the outstanding

      warrant. He appeared pro se before the trial court on June 14, 2017. The trial

      court did not read advisements regarding Mitchell’s right to counsel or ask if he

      desired counsel before determining that Mitchell’s admitted 2010 violation

      warranted revocation of his previously-suspended sentence. Mitchell asked for

      “leniency” and stated that he had led a law-abiding life since 2010, was the sole

      income earner in his household, and maintained health insurance for his wife,

      who suffers from a debilitating condition, and adult step-daughter, who is

      autistic. When asked why he had absconded for seven years, Mitchell replied,

      “I just started a family, got married, [and was] working.” Sanction Hearing Tr.

      p. 4. The trial court stated,


              We can give you credit for the August 6, 2009 to November 4,
              2009. I do not believe that gets you all the way to two (2) actual
              years. You would have had to have done 730 days and my
              rough calculation would show that you did about 467. So you
              never completed your sentence. You were arrested again and
              you have chosen not to address this matter for a considerable
              period of time. Anything else you want to say before the Court
              pronounces sentence?


      Id. at 5-6. Mitchell responded that he was daunted by “the restitution or the

      amends or whatever as far as program and . . . wasn’t ready to come to terms

      with that part of it yet.” Id. at 6, 7. The trial court revoked the previously-

      suspended portion of Mitchell’s sentence and committed him to the

      Department of Correction for four years. He now appeals.




      Court of Appeals of Indiana | Memorandum Decision 78A01-1707-CR-1611| April 18, 2018   Page 4 of 8
                                                      Analysis
[7]   Mitchell argues that the trial court denied him due process in revoking his

      previously-suspended sentence and ordering him to serve four years in the

      Department of Correction. Specifically, he argues that the trial court failed to

      advise him of his right to counsel before revoking his previously-suspended

      sentence. 3 Appellant’s Br. p. 8. Decisions to revoke probation and to impose

      sanctions for a probation violation are within the sound discretion of the trial

      court. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). We review such

      decisions for an abuse of that discretion. Id. A trial court abuses its discretion

      by ruling in a way that is clearly against the logic and effect of the facts and

      circumstances before it, or by misinterpreting the law. Id.


[8]   Probation and community corrections programs serve as alternatives to

      commitment to the DOC, and both are made at the sole discretion of the trial

      court. McQueen v. State, 862 N.E.2d 1237, 1242 (Ind. Ct. App. 2007).

      Community corrections is “a program consisting of residential and work

      release, electronic monitoring, day treatment, or day reporting[.]” Ind. Code §

      35-38-2.6-2. A defendant is not entitled to serve a sentence in either probation

      or a community corrections program. Id. Rather, placement in either is a




      3
        Mitchell also claims that his due process rights were violated because “he was not advised that his counsel
      withdrew,” and he “was not allowed a hearing to present mitigating evidence as to why his probation should
      not be revoked.” Appellant’s Br. p. 8. Because we find his right to counsel claim to be dispositive, we do not
      reach these additional claims, save to note that each of these “grievances” resulted directly from his failure to
      appear in 2010. He was not denied information about his counsel’s withdrawal; rather, he was unaware (but
      surely should have surmised) the fact of his counsel’s withdrawal because he absconded for seven years. Nor
      was he was denied a hearing; rather, he failed to appear for the sanction hearing that was scheduled in 2010 to
      facilitate his then-counsel’s efforts to secure witnesses favorable to him. Fact-Finding Tr. p. 4.

      Court of Appeals of Indiana | Memorandum Decision 78A01-1707-CR-1611| April 18, 2018                 Page 5 of 8
       “matter of grace” and a “conditional liberty that is a favor, not a right.”

       McQueen, 862 N.E.2d at 1242 (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind.

       1999)). However, once the State grants that favor, it cannot simply revoke the

       privilege at its discretion. Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App.

       1997). Probation revocation implicates a defendant’s liberty interest, which

       entitles him or her to some procedural due process. Id. (citing Morrissey v.

       Brewer, 408 U.S. 471, 482, 92 S. Ct. 2593, 2600-2601 (1972)).


[9]    When faced with a petition to revoke probation, a probationer is not entitled to

       the full panoply of rights enjoyed prior to the conviction. Rosa v. State, 832

       N.E.2d 1119, 1121 (Ind. Ct. App. 2015). However, a petitioner is entitled to

       certain due process protections such as representation by counsel. Cooper v.

       State, 900 N.E.2d 64, 66 (Ind. Ct. App. 2009); see also, I.C. § 35-38-2-3(e).


[10]   If a petitioner makes the decision to proceed without the benefit of counsel, we

       must be confident that the record reflects that the right to counsel was

       voluntarily, knowingly, and intelligently waived. Cooper, 900 N.E.2d at 66.

       Without such, we are without an adequate record to establish waiver. Id. We

       recognize that there are no magic words a trial court must utter to ensure that

       the defendant appreciates the situation, but the particular facts must show that

       the defendant understands, based on his background, experience, and conduct,

       the nature of the situation. Id.; see also Bell v. State, 695 N.E.2d 997, 999 (Ind.

       Ct. App. 1998) (Where a probationer proceeds without counsel, the record must

       show that (s)he was made aware of the nature, extent, and importance of the

       right to counsel as well as the necessary consequences of waiving such a right.).

       Court of Appeals of Indiana | Memorandum Decision 78A01-1707-CR-1611| April 18, 2018   Page 6 of 8
       If the record fails to establish that the probationer’s waiver of the right to

       counsel was voluntary, knowing, and intelligent, then reversal is required even

       if the probationer, without the benefit of counsel, admitted the violations.

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


[11]   Although Mitchell was represented by counsel at the 2010 violation hearing, the

       record reveals that there was no knowing, voluntary, and intelligent waiver of

       counsel at the 2017 sanction hearing.4 He was never fully questioned about his

       ability to understand and appreciate the proceedings. Nor was he advised

       regarding the importance of the right to counsel and the dangers and pitfalls of

       self-representation. This was error. Because the trial court did not establish

       that Mitchell understood that he had a right to counsel if he could not afford to

       retain his own, that he was waiving that right, and that certain dangers inure to

       proceeding pro se, we must conclude that its order revoking Mitchell’s

       previously-suspended sentence should be reversed and the case remanded for a

       new sanction hearing, at which Mitchell may be represented by counsel.


                                                    Conclusion
[12]   The record does not establish that Mitchell voluntarily, knowingly, and

       intelligently waived his right to counsel before the trial court sanctioned him for




       4
         We fully appreciate the irony of the situation that befell the trial court here. Having previously granted
       Mitchell (and his then-counsel) grace to schedule favorable witnesses for a 2010 sanction hearing, only to be
       met with a seven-year absconder, the trial court sentenced Mitchell immediately upon his 2017 arrest. Irony
       aside, the fact remains that the record does not reflect a valid waiver of Mitchell’s right to counsel.


       Court of Appeals of Indiana | Memorandum Decision 78A01-1707-CR-1611| April 18, 2018               Page 7 of 8
       violating probation. We reverse and remand for further proceedings consistent

       with this opinion.


[13]   Reversed and remanded.


[14]   Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 78A01-1707-CR-1611| April 18, 2018   Page 8 of 8
