Nov 18 2015, 6:07 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E.C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Scott Hilligoss, November 18, 2015
Appellant-Defendant, Court of Appeals Case No.
34A02-1506-CR-529
v. Appeal from the Howard Circuit
Court
State of Indiana, The Honorable Lynn Murray,
Appellee-Plaintiff. Judge
Trial Court Cause No.
34C01-0610-FD-247
Najam, Judge.
Statement of the Case
[1] Robert Hilligoss appeals from the trial court’s revocation of his probation.
Hilligoss presents two issues for our review which we restate as the following
three issues:
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1. Whether his probationary period had expired at the time
of the violation alleged in the State’s January 7, 2015,
petition to revoke his suspended sentence.
2. Whether the trial court denied him his right to due process
when it accepted his admission that he had violated the
terms of his probation without first advising him of his
constitutional rights.
3. Whether the trial court erred when it extended the term of
his probation by more than one year beyond the original
term of probation.
[2] We reverse and remand with instructions.
Facts and Procedural History
[3] On November 18, 2009, Hilligoss pleaded guilty to theft, as a Class D felony,
by a plea agreement. The trial court accepted the plea and, on February 10,
2010, the court sentenced Hilligoss to three years, with the first year on in-home
detention and two years suspended to probation. On March 21, 2011, the State
filed a petition to revoke Hilligoss’ suspended sentence on the grounds that he
had “made no contact with Probation” after his in-home detention period had
ended. Appellant’s App. at 79. On October 24, 2012, after Hilligoss had
admitted to the violation of his probation, the trial court ordered him to serve
sixteen days of his suspended sentence in jail. In addition, the trial court
extended Hilligoss’ original term of probation by an additional six months.
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[4] On May 31, 2013, the State filed another petition to revoke Hilligoss’
suspended sentence on the grounds that he had “failed to report-in as
required[.]” Id. at 119. On February 12, 2014, after Hilligoss admitted to the
violation of his probation, the trial court ordered him to serve twenty-eight days
in jail. And the court extended his term of probation by another 365 days.
[5] Finally, on January 7, 2015, the State filed a petition to revoke Hilligoss’
suspended sentence on the grounds that he had not reported to the probation
department as required in July 2014. During a hearing on May 27, 2015,
Hilligoss admitted to the violation, and the trial court revoked his probation.
The trial court ordered Hilligoss to serve the entire balance of his suspended
sentence, 648 days, in the Department of Correction. This appeal ensued.
Discussion and Decision
Issue One: Probationary Period
[6] Hilligoss contends that, at the time of the alleged July 2014 violation for failure
to report, his probationary period had expired. Thus, he maintains that the trial
court was without jurisdiction to consider the State’s January 7, 2015, petition
to revoke the suspended sentence. But as the State correctly points out, Indiana
Code Section 35-38-2-3(c) provides that the issuance of a summons or warrant
tolls the period of probation until the final determination of the charge.
Hilligoss’ probation began on February 10, 2011, but it was tolled for two
periods of time due to alleged violations prior to the State’s January 7, 2015,
petition to revoke suspended sentence. In particular, the period of probation
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was tolled for 583 days from March 21, 2011, until October 24, 2012, and for
257 days from May 13, 2013, until February 12, 2014. As of January 7, 2015,
then, the remaining period of Hilligoss’ original term of probation, even
excluding the term extensions imposed by the trial court,1 was approximately
six months. Accordingly, contrary to Hilligoss’ contention, the original two-
year period of his probation had not expired when the State filed its petition to
revoke for the alleged July 2014 violation, and the trial court had jurisdiction to
consider the State’s petition to revoke suspended sentence.
Issue Two: Due Process
[7] Hilligoss next contends that he was denied his right to due process at the
probation revocation hearing. In particular, he maintains that, prior to
admitting he had violated the terms of his probation, he was not advised that,
by making such an admission, he would be giving up his right to confront and
cross-examine witnesses at an evidentiary hearing where the State would have
had the burden to prove the alleged violation by a preponderance of the
evidence. Whether a party was denied due process is a question of law that we
review de novo. Miller v. Indiana Dep’t of Workforce Dev., 878 N.E.2d 346, 351
(Ind. Ct. App. 2007).
1
As we discuss below, Hilligoss is correct that the trial court violated Indiana Code Section 35-38-2-3(h)(2)
when it extended the original term of his probation by more than one year beyond the original term of
probation.
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[8] Because a probation revocation results in a loss of liberty, the probationer must
be given certain due process rights before his probation may be revoked. Dalton
v. State, 560 N.E.2d 558, 560 (Ind. Ct. App. 1990) (citing Gagnon v. Scarpelli, 411
U.S. 778, 782 (1973)). A probationer’s due process rights are codified in
Indiana Code Section 35-38-2-3, which provides in relevant part as follows:
(e) A person may admit to a violation of probation and waive the
right to a probation violation hearing after being offered the
opportunity to consult with an attorney. If the person admits to a
violation and requests to waive the probation violation hearing, the
probation officer shall advise the person that by waiving the right to a
probation violation hearing the person forfeits the rights provided in
subsection (f). . . .
(f) Except as provided in subsection (e), the state must prove the
violation by a preponderance of the evidence. The evidence shall
be presented in open court. The person is entitled to
confrontation, cross-examination, and representation by counsel.
(Emphasis added).
[9] Hilligoss contends that, contrary to Indiana Code Section 35-38-2-3(e), he “was
never advised of any of [his] rights” under subsection (f). Appellant’s Br. at 4.
Accordingly, Hilligoss asserts that his “fundamental due process rights were
denied.” Id. at 5. The State admits that the “trial court does not appear to have
given [Hilligoss the statutory] advisement.”2 Appellee’s Br. at 7. However, the
2
The State does not suggest that the statutory requirement that the “probation officer shall advise” the
probationer of his rights alleviated the trial court of its burden to ensure that Hilligoss was aware of his rights.
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State asserts that Hilligoss “would have admitted the violation even if the court
had advised him of the rights he was giving up by admitting the violation,” id.
at 3, and the State maintains that Hilligoss has waived this issue for our review
by raising it for the first time on appeal.
[10] Generally, a party waives an issue if it is raised for the first time on appeal. See
Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994). “However, we may bypass
an error that a party procedurally defaults when we believe that the error is . . .
fundamental.” Id. (quoting Hart v. State, 578 N.E.2d 336, 337 (Ind. 1991)). As
our supreme court recently stated: “An error is fundamental, and thus
reviewable despite failure to object, if it made a fair trial impossible or
constituted a clearly blatant violation of basic and elementary principles of due
process presenting an undeniable and substantial potential for harm.” Young v.
State, 30 N.E.2d 719, 726 (Ind. 2015) (quotation marks omitted). However, in
Young the court clarified that this standard no longer requires the alleged error
to have been “sufficiently ‘egregious’ or ‘blatant’ [such] that the trial court
should have acted sua sponte.” Id. at 726 n.6 (clarifying Brewington v. State, 7
N.E.3d 946, 974 (Ind. 2014)).
[11] Indiana’s courts have recognized fundamental error in the context of probation
revocation proceedings before. For example, it is well settled that the failure to
hold an evidentiary hearing on an alleged probation violation denies a
probationer his due process rights and constitutes fundamental error. Dalton,
560 N.E.2d at 560. Indeed, “[t]he fundamental requirement of due process is
the opportunity to be heard at a meaningful time and in a meaningful manner.”
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Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quotation omitted). Further, “a
probationer’s admission that he violated the terms of probation does not entitle
him to less due process than a probationer who contests the asserted
violations.” United States v. Holland, 850 F.2d 1048, 1051 (5th Cir. 1988).
[12] The State concedes that “[t]he court was required to inform [Hilligoss] that he
was giving up” his due process rights set out in Indiana Code Section 35-38-2-
3(f). Appellee’s Br. at 7. As with the required Boykin rights at a guilty plea
hearing,3 the statutory advisements applicable here insure that a probationer’s
admission “is given with full knowledge of the consequences of such
admission.” Gray v. State, 481 N.E.2d 158, 161 (Ind. Ct. App. 1985). Because
the record is silent with respect to whether Hilligoss was advised of his rights
pursuant to Indiana Code Section 35-38-2-3(e) and (f), we must conclude that
Hilligoss was not properly advised and, therefore, that he was deprived of his
fundamental right to due process. See, e.g., Ponce v. State, 9 N.E.3d 1265, 1270
(Ind. 2014) (reiterating that the record of guilty plea proceeding must
demonstrate that the defendant was advised of his constitutional rights and he
knowingly and voluntarily waived them).
[13] Thus, we hold that a trial court’s failure to ensure that a probationer who
admits to a probation violation has received the advisements as required under
3
With respect to guilty pleas, it is well settled that a failure to strictly comply with the statutorily required
advisement of Boykin rights constitutes fundamental error. Jones v. State, 467 N.E.2d 757, 760 (Ind. Ct. App.
1984); see also Boykin v. Alabama, 395 U.S. 238, 243 (1969).
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Indiana Code Section 35-38-2-3(e) constitutes a fundamental violation of the
probationer’s due process rights. Accordingly, we reverse the trial court’s
revocation of Hilligoss’ probation. On remand, the trial court shall hold an
evidentiary hearing on Hilligoss’ alleged probation violation or, if Hilligoss
admits to the violation, the trial court shall make a record to reflect that
Hilligoss has been properly advised of his rights in accordance with Indiana
Code Section 35-38-2-3(e).4
Issue Three: Term Extensions
[14] Finally, we address Hilligoss’ contention that the trial court erred when it
extended the term of his probation by more than one year beyond the original
term of probation in violation of Indiana Code Section 35-38-2-3(h)(2), which
provides as follows:
If the court finds that the person has violated a condition at any
time before termination of the period, and the petition to revoke
is filed within the probationary period, the court may . . .
[e]xtend the person’s probationary period for not more than one
(1) year beyond the original probationary period.
[15] Again, on October 24, 2012, the trial court extended Hilligoss’ original
probationary period by an additional six months. And on February 12, 2014,
4
Because we decide this appeal under the fundamental error doctrine, we need not address the State’s
argument that Hilligoss forfeited this issue for our review when he did not object in the trial court. However,
we note the inherent absurdity in the State’s position. The premise of giving an advisement is that the person
to be advised is unaware of certain information; the premise of the State’s argument for forfeiture is that the
person who should have been advised should have known enough to put the trial court on notice of its failure
to advise him.
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the trial court extended his probationary period by an additional 365 days.
Because those two extensions, taken together, extend Hilligoss’ probationary
period by more than one year beyond the original probationary period, they
violate Indiana Code Section 35-38-2-3(h)(2). On remand, we instruct the trial
court to reduce Hilligoss’ period of probation by six months to bring it in
compliance with the statute.
[16] Reversed and remanded with instructions.
Kirsch, J., and Barnes, J., concur.
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