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