Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
FILED
Jan 26 2012, 9:01 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the CLERK
law of the case. of the supreme court,
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tax court
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
RICHARD H. EDWARDS GREGORY F. ZOELLER
Greencastle, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
RICHARD H. EDWARDS, )
)
Appellant- Defendant, )
)
vs. ) No. 19A04-1101-CR-26
)
STATE OF INDIANA, )
)
Appellee- Plaintiff, )
APPEAL FROM THE DUBOIS SUPERIOR COURT
The Honorable Mark R. McConnell, Judge
Cause No. 19D01-0803-FD-180
January 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Richard H. Edwards, pro se, appeals the trial court’s revocation of his probation.
He raises two issues, which we reorder and restate as whether Edwards received adequate
notice of the alleged violations and whether he validly waived his right to representation
by counsel. Concluding that he received adequate notice consistent with his right to due
process and that he validly waived his right to an attorney, we affirm.
Facts and Procedural History
In July 2008, Edwards pleaded guilty to theft as a Class D felony and was
sentenced to one and one-half years in prison, all suspended to probation. Among others,
the conditions of his probation included 1) a requirement to serve one hundred and eighty
days of “Level 1 Day Reporting”; 2) a requirement to meet with a probation officer on a
monthly basis or as directed; and 3) a prohibition from being charged for a criminal
offense for which there is probable cause. [Appellant’s] Appendix Volume I at 25.
Level 1 Day Reporting is “in essence home detention[,] . . . [with an] electronic monitor
. . . .” Transcript at 36.
In September 2008, the State filed a petition to revoke Edwards’s day reporting.
The service of process for this petition expired in October 2008 without service to
Edwards. In April 2009, the State filed a petition to revoke Edwards’s probation based
on his 1) failure to begin his day reporting; 2) failure to meet with probation officers as
directed; and 3) October 2008 charges, upon a finding of probable cause, of theft and
receiving stolen property, both Class D felonies. In May 2009, the Sheriff filed a return
of service for this revocation petition upon leaving a certified copy at Edwards’s last
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known address. Subsequently, Edwards filed a petition for a hearing on this revocation
petition and the trial court set the matter for a hearing.
On November 9, 2010, Edwards appeared pro se before the trial court for his
initial probation revocation hearing. At this hearing Edwards stated that he did not
receive either the petition to revoke his day reporting or the petition to revoke his
probation. The trial court read to Edwards the revocation petition and asked if he
understood the three allegations. Edwards responded in the affirmative. The trial court
then stated:
COURT: And, Sir, you have a right to have a hearing with regard to this
matter. At that hearing you have the right to confront and cross-examine
witnesses against you. You also have the right to compel witnesses to
appear by using the Court’s subpoena power. You have the right to be
represented by an attorney and if you can’t afford one you could have one
appointed for you by the court at no charge. Do you understand those
rights, Sir?
MR. EDWARDS: Yes.
COURT: And, Sir, do you intend to hire a lawyer?
MR. EDWARDS: No, I intend, Judge, to represent myself.
COURT: Okay.
Id. at 4.
On December 21 and 23, 2010, the trial court held an evidentiary hearing
regarding revocation of Edwards’s probation. Following the hearing, the trial court found
that Edwards violated the terms of his probation, ordered it revoked, and ordered that
Edwards serve his previously suspended sentence of one and one-half years in prison.
Edwards now appeals.
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Discussion and Decision
I. Standard of Review
A probation hearing is civil in nature, and thus the State need only prove the
alleged violations by a preponderance of the evidence. Holmes v. State, 923 N.E.2d 479,
485 (Ind. Ct. App. 2010). We consider the evidence most favorable to the judgment
without reweighing that evidence or judging the credibility of witnesses. Monroe v.
State, 899 N.E.2d 688, 691 (Ind. Ct. App. 2009). If there is substantial evidence of
probative value to support the trial court’s ruling, we will affirm. Holmes, 923 N.E.2d at
485. However, we review de novo a trial court’s finding that a probationer validly
waived his right to counsel. Cooper v. State, 900 N.E.2d 64, 67 (Ind. Ct. App. 2009).
II. Written Notice of Claimed Violations
Probation is a favor granted by the State and is not a right to which all defendants
are entitled. Butler v. State, 951 N.E.2d 255, 259 (Ind. Ct. App. 2011). A probationer
facing revocation of his probation is not entitled to the full panoply of rights he enjoyed
before his conviction. Id. He is, though, entitled to certain due process protections
before his probation may be revoked, including the right to written notice of the claimed
violations. Bumbalough v. State, 873 N.E.2d 1099, 1102 (Ind. Ct. App. 2007). The
notice must be sufficient to allow the probationer to prepare an adequate defense. Bovie
v. State, 760 N.E.2d 1195, 1199 (Ind. Ct. App. 2002).
Edwards complains that he did not receive written notice of his alleged violations
prior to the initial hearing, on November 9, 2010, regarding revocation of his probation.
But there is no requirement that the probationer be provided with written notice of his
alleged violations before the initial hearing. An initial hearing allows the State, the
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probationer, and the trial court to ensure that there is a common understanding of the
allegations, the process, and the plan to proceed. The trial court ensures that the
probationer understands the allegations and has an opportunity to seek private or public
counsel, and the State learns, to some extent, the probationer’s intent to admit or
challenge his revocation. The trial court schedules an evidentiary hearing and all leave
the initial hearing with sufficient understanding to prepare for the evidentiary hearing, at
least insofar as required by due process. Although Indiana cases have repeatedly
explained that a probationer is entitled to written notice of the allegations against him,
none of these cases require written notice prior to an initial hearing. Rather, adequate
notice is required before the evidentiary hearing.
Our ruling in Mathews v. State, 907 N.E.2d 1079 (Ind. Ct. App. 2009),
demonstrates the significance of the initial hearing in the context of due process. In
Mathews, we concluded that a probationer’s right to due process was not violated when
she did not attend the evidentiary hearing because she appeared at the initial hearing,
during which the evidentiary hearing was scheduled.
We addressed the adequacy of notice in Bovie, 760 N.E.2d at 1199 & n.3, in
which the trial court held an evidentiary hearing, found that the probationer resisted law
enforcement and possessed drug paraphernalia, and revoked probation. We reversed this
revocation because the probationer was not notified of the possession allegation until the
evidentiary hearing. Indeed, the detective conceded on cross-examination that the
possession charge could not have arisen out of his own report. We concluded that “[i]t is
error for a probation revocation to be based upon a violation for which the defendant did
not receive notice.” Id. at 1299. This conclusion does not require notice before an initial
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hearing, only before the critical evidentiary hearing following which the trial court
decides whether to revoke probation.
Our supreme court’s opinion in Braxton v. State, 651 N.E.2d 268 (Ind. 1995),
provides guidance on the need for the notice to be written. In Braxton, the probationer
claimed she did not receive adequate written notice that the State sought revocation of her
probation. Our supreme court disagreed upon reviewing the trial court’s actions at the
initial hearing, in which the trial court “made it plain to Braxton and her lawyer that the
reimposition of the suspended 13 year sentence was at stake”; and the prosecutor
explicitly argued for revocation and the defense attorney “argued explicitly and
strenuously” that the trial court not reimpose the same. Id. at 270. This makes clear that
verbal notice at an initial hearing, especially when combined with evidence of actual
notice at the initial hearing, can satisfy the notice requirement of due process prior to
revocation of probation. In support of its conclusion in Braxton, our supreme court cited
Bryce v. State, 545 N.E.2d 1094 (Ind. Ct. App. 1989), trans. denied, in which we
concluded that a probationer’s right to due process was not violated because he
“apparent[ly] . . . received actual notice,” even though he indisputably did not receive
written notice. Id. at 1096.
We believe that Edwards’s filing his own petition for a hearing regarding his
revocation shows that he in fact did receive the certified copy of the revocation petition
which the Sheriff left at his last known address. But even if Edwards did not receive
written notice of the specific allegations which formed the basis for the petition to revoke
his probation, the trial court provided him with verbal and actual notice at the initial
hearing, which he requested, and he affirmed his understanding of the allegations. He
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knew what those allegations were and prepared to cross-examine witnesses at the
subsequent evidentiary hearing. We conclude that Edwards received adequate notice of
his alleged violations of the conditions of his probation.
III. Waiver of Right to Counsel
The right to representation by counsel is also guaranteed by due process to those
who face revocation of their probation. Butler, 951 N.E.2d at 259. When a defendant
proceeds without the benefit of counsel, the record must reflect that he knowingly,
intelligently, and voluntarily waived his right to counsel. Id.; see Bell v. State, 695
N.E.2d 997, 999 (Ind. Ct. App. 1998) (acknowledging that invalid waivers of counsel are
not subject to a harmless error analysis) (citing Penson v. Ohio, 488 U.S. 75 (1988)).
“The record must show that the defendant was made aware of the nature, extent and
importance of the right to counsel and to the necessary consequences of waiving such a
right.” Bumbalough, 873 N.E.2d at 1102 (internal quotation marks and citation omitted).
There are no magic words a judge must utter to ensure a defendant
adequately appreciates the nature of the situation. Rather, determining if a
defendant’s waiver was “knowing and intelligent” depends on the
“particular facts and circumstances surrounding [the] case, including the
background, experience, and conduct of the accused.”
Kubsch v. State, 866 N.E.2d 726, 736 (Ind. 2007) (alteration in original; citation
omitted), cert denied, 553 U.S. 1067 (2008).
At the initial hearing the trial court advised Edwards of his right to an attorney and
his right to be appointed one at no charge if he could not afford one. Edwards stated his
intention to represent himself. Edwards also demonstrated a grasp for the big picture
procedural posture of his case and an understanding of the revocation process. He
advised the court that he filed a petition for post-conviction relief and articulated his
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understanding that the State had thirty days to respond to that petition. He demonstrated
an understanding of the separate and semi-independent nature of these two proceedings
which proceeded simultaneously, and requested a separate evidentiary hearing for his
post-conviction petition and for his probation revocation. Edwards also declared his
intent to subpoena a woman from the Harrison County Probation Department to appear at
the probation revocation hearing. The trial court stated that it would set a hearing
regarding revocation of Edwards’s probation, and told him: “the Court will expect that
[Edwards] would comply with all of the Rules of Evidence and that [he] would have to
conduct [him]self in that case just as if . . [.] uh . . [.] the Court would treat [him] just as if
[he] were represented by counsel.” Tr. at 8. Edwards again expressly affirmed his
understanding and intent to represent himself. Based on the facts of this case and
Edwards’s conduct, we conclude that he knowingly, intelligently, and voluntarily waived
his right to counsel.
Conclusion
Edwards received adequate notice of the alleged violations before, or at the latest
during, the initial hearing, which preceded the evidentiary hearing regarding revocation
of his probation. At the initial hearing he validly waived his right to representation by
counsel. These conclusions lead to the ultimate conclusion that Edwards’s right to due
process was not violated, and we therefore affirm revocation of his probation.
Affirmed.
NAJAM, J., and VAIDIK, J., concur.
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