MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 29 2018, 9:15 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Davis, August 29, 2018
Appellant-Defendant, Court of Appeals Case No.
57A03-1709-CR-2124
v. Appeal from the Noble Circuit
Court
State of Indiana, The Honorable Michael J. Kramer,
Appellee-Plaintiff. Judge
Trial Court Cause No.
57C01-0806-FC-29
Robb, Judge.
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Case Summary and Issue
[1] Timothy Davis appeals following the revocation of his probation. He raises one
issue for our review which we restate as whether he knowingly, voluntarily, and
intelligently waived his right to counsel before admitting to violating his
probation. Concluding that, under the totality of the circumstances, Davis
validly waived his right to counsel for his probation revocation hearing, we
affirm.
Facts and Procedural History
[2] On October 16, 2008, Davis pleaded guilty to nonsupport of a dependent child
as a Class C felony. On November 13, 2008, the trial court sentenced Davis to
eight years with the Indiana Department of Correction (“DOC”). The trial
court suspended all of Davis’ sentence to probation.
[3] The State filed its first notice of probation violation on October 20, 2009,
alleging multiple violations, including that Davis had tested positive for alcohol,
had provided a dilute urine specimen on two separate occasions, had failed to
report for a scheduled appointment with his probation officer, and had failed to
make his child support payments. At his initial hearing, the trial court advised
Davis of his right to counsel and appointed him a public defender. After
advising Davis of his constitutional rights, the effect of any admission or denial
of the allegations, and the possible sanctions, the trial court accepted Davis’
admission to the probation violations. At the dispositional hearing, the trial
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court modified Davis’ sentence to seven years and ordered Davis to serve the
first two years with the DOC. The trial court suspended the remaining five
years to probation.
[4] Davis failed to report to begin serving the executed portion of his sentence. As
a result, on April 7, 2010, the State filed its second notice of probation
violation. By December 27, 2011, Davis was back in custody, and the trial
court ordered him to commence serving the two years it had previously
imposed. Davis completed the executed portion of his sentence on September
20, 2012, and was returned to probation.
[5] On February 19, 2013, the State filed its third notice of probation violation,
alleging, among other things, that Davis had recently been arrested for domestic
violence. At the initial hearing on this latest notice of violation, Davis was
advised of his right to counsel and was appointed a public defender. Davis
entered into a pre-trial diversion agreement pursuant to which the State agreed
to dismiss the pending domestic violence charge if Davis complied with his
probation and did not commit any new offenses for one year.
[6] The State filed its fourth notice of probation violation on January 28, 2014, in
which it alleged, among other things, that Davis had failed to report for
scheduled appointments with his probation officer and that he had failed to
make scheduled child support payments. By June of 2014, Davis was in
custody in Elkhart County, having violated his probation in an unrelated
matter. The initial hearing on the State’s fourth notice of probation violation
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was held on June 25, 2014. The trial court advised Davis of his right to counsel
and appointed him a public defender. On July 24, 2014, after having been
advised of his constitutional rights, the effect of any admission or denial, and
possible sanctions, Davis admitted the allegations contained in the State’s
notice of violation. On December 18, 2014, the trial court returned Davis to
probation for the remaining portion of his suspended sentence.
[7] The State filed its fifth notice of probation violation on June 27, 2016, alleging,
among other things, that Davis had violated the terms of his probation by being
arrested for the new offenses of disorderly conduct, resisting law enforcement,
and criminal mischief. At the August 1, 2016, initial hearing, the trial court
advised Davis of his right to counsel. Davis indicated that he wished to hire an
attorney, and the trial court granted him an extension of time to do so. On
October 6, 2016, the trial court granted Davis another extension of time to
retain a lawyer. By December 15, 2016, Davis had not yet retained counsel.
The trial court asked Davis if he required a public defender. Davis initially
indicated that he desired a public defender but then requested that the trial court
grant him an additional extension to hire counsel. The trial court granted Davis
an extension until March of 2017 to retain counsel.
[8] On March 9, 2017, Davis appeared without private counsel at a status hearing
on the State’s fifth notice of probation violation. Although Davis admitted in
open court that he would fail a drug test if subjected to one that day, the trial
court denied the State’s request to incarcerate Davis pending trial. Davis
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indicated his desire to hire an attorney once he received his income tax refund.
The trial court set the matter for trial and advised Davis as follows:
At that, the State will call witnesses to show that you’ve violated
your probation and argue that you go to prison I would assume
or possibly argue that you go to prison on this. If you show up
without an attorney you will have waived your right to an
attorney and I need to tell you now that, that you may be a very
bad disadvantage by showing up without an attorney. . . . And as
you were advised over six (6) months ago if you can’t afford an
attorney or nine (9) months ago the court will appoint one for
you but you’ve chosen not to ask for that and that’s your right
not to ask for a public defender and to either hire your own
attorney, it’s also your right to represent yourself but you do need
to understand that you may, you will be going against skilled trial
attorneys who are knowledgeable about the law, and I don’t
know what sort of experience you have in the law or any sort of
training or knowledge that you have but I do need to warn you
the dangers of going forward because you will be expected and
held in the same standard as an attorney in interviewing, in
asking questions of witnesses, in objecting to possible
objectionable uh, information or evidence that the State is trying
to get in that could be kept out of evidence against you with a
proper and timely objection uh, you will be required to uh,
question your own witnesses from the witness stand uh, cross
examine witnesses called by the State, make proper objections,
make appropriate closing arguments and opening statements and
an attorney could also possibly negotiate with the prosecutor to
try to resolve this short of the fact finding hearing. But this has
been going on since August.
Transcript, Volume 2 at 22-23. The trial court then asked Davis if he
understood the dangers of coming to the trial date without an attorney, and
Davis confirmed that he did. The trial court also advised Davis that if he
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changed his mind and wished to request a public defender, he should notify the
court within two weeks in order to allow his public defender adequate time to
prepare. On April 27, 2017, Davis appeared without an attorney and admitted
to the allegations contained in the State’s fifth notice, pursuant to an agreement
with the State under which he would pay increased child support and be
returned to probation. The trial court accepted the State’s recommendation to
return Davis to probation but counseled him, “don’t count on having another
chance after this.” Id. at 34. The trial court commended Davis on his progress
and noted that “if you relapse and start using again that everything is going to
fall apart in your life including in this case and going to prison for this time.”
Id.
[9] On July 17, 2017, the State filed its sixth notice of probation violation in which
it alleged, among other things, that Davis had missed scheduled addictions
treatment, had tested positive for alcohol, and had failed to make scheduled
child support payments. At the initial hearing on the newest violation notice,
the trial court advised Davis of the nature of the new allegations. The trial
court advised Davis that if he was found to have violated his probation, he
could be continued on probation under the same or different terms, for the same
or a different period of time, or he could be ordered to serve up to the amount
of time that had been suspended. Davis indicated that he understood, and the
trial court asked him if he would be hiring an attorney. Davis replied that he
would if he could be released upon his own recognizance. The trial court
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denied that request. The trial court set the matter for an August 31, 2017,
hearing on the violation.
[10] Davis was not released on bond prior to the August 31 hearing. On August 15,
2017, the trial court received a letter from Davis in which he requested to be
reinstated to probation. Davis told the trial court, “Sir[,] I’m guilty of every
violation . . . .” Appellant’s Appendix, Volume II at 124. In a second letter
filed with the trial court on August 24, 2017, Davis wrote as follows:
* Pro Se *
So now Timothy J. Davis comes before the courts pleading guilty
to my violations seeking a O.R. bond to obtain immediate
employment . . . .
Id. at 126.
[11] At the August 31 hearing, Davis appeared without counsel. Davis indicated to
the trial court when asked that he was representing himself at the hearing.
Davis did not respond when the trial court asked him if he would like to
attempt to qualify for a public defender. Davis indicated that he wished to
admit the violations. Davis confirmed when asked that he had not consumed
any intoxicants in the previous twenty-four hours. The trial court asked Davis,
“And you do you [sic] the right to be represented by an attorney as I mentioned
and if you can’t afford one the court will appoint one and you wish to give that
up, is that right?” Tr., Vol. 2 at 43. Davis responded, “Yes.” Id. The trial
court reiterated the possible sanctions following a probation violation admission
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as well as the trial process rights he was waiving. Davis confirmed again that
he understood that he had a right to an attorney and that he was waiving that
right.
[12] Davis admitted to a factual basis for his plea, and the trial court found that he
had violated his probation. The trial court ordered Davis to serve his previously
modified and suspended seven-year sentence, with credit for the two years he
had already served. This appeal ensued.
Discussion and Decision
[13] Davis contends that his waiver of his right to counsel for his sixth probation
violation was not knowing, voluntary, and intelligent because the trial court
failed to make adequate inquiries and advisements to establish a valid waiver.
I. Direct Appeal Challenge
[14] We begin by addressing the State’s argument that Davis may not properly
challenge the validity of his waiver of counsel on direct appeal. Rather, the
State asserts that the validity of a guilty plea to a probation violation may only
be challenged through a petition for post-conviction relief. The State relies in
part on Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996), in which our supreme
court held that post-conviction relief, not a direct appeal, is the proper vehicle
for challenging a conviction that is the result of a guilty plea. See State’s Brief of
Appellee at 9. Another panel of this court has applied Tumulty to probation
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revocations. See Huffman v. State, 822 N.E.2d 656, 659-60 (Ind. Ct. App. 2005)
(relying on Post-Conviction Rule 1(1)(a)(5)).
[15] However, several other cases on direct appeal have addressed the merits of a
probationer’s claim that his waiver of counsel was invalid. Sparks v. State, 983
N.E.2d 221 (Ind. Ct. App. 2013); Hammerlund v. State, 967 N.E.2d 525 (Ind. Ct.
App. 2012); Butler v. State, 951 N.E.2d 255 (Ind. Ct. App. 2011); Cooper v. State,
900 N.E.2d 64 (Ind. Ct. App. 2009); Eaton v. State, 894 N.E.2d 213 (Ind. Ct.
App. 2008), trans. denied. Given that our supreme court has yet to expressly
extend Tumulty to probation revocation proceedings as well as our preference
for deciding cases on the merits, we will address Davis’ arguments in this direct
appeal.
II. Knowing, Voluntary, and Intelligent Waiver
[16] Although probation is a favor granted by the State and not a right to which a
defendant is entitled, a defendant still has some due process protections before
his probation may be revoked. Cooper, 900 N.E.2d at 66. One of those due
process protections is the right to be represented by counsel. Ind. Code § 35-38-
2-3(e). If a defendant elects to proceed without counsel, the record must reflect
that he waived his right to counsel knowingly, voluntarily, and intelligently.
Cooper, 900 N.E.2d at 66.
[17] There are no specific words or phrases that a trial court must utter to produce a
valid waiver of counsel by a defendant. Hammerlund, 967 N.E.2d at 527-28.
Rather, “determining if a defendant’s waiver was knowing and intelligent
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depends on the particular facts and circumstances surrounding [the] case,
including the background, experience, and conduct of the accused.” Eaton, 894
N.E.2d at 218 (citations and quotation marks omitted). “We review de novo a
trial court’s finding that a defendant waived his right to counsel.” Butler, 951
N.E.2d at 260.
[18] In Hammerlund, the trial court advised the defendant that he had the right to be
represented by counsel during his probation revocation proceedings and that a
public defender would be appointed for him if he could not afford counsel. 967
N.E.2d at 525-26. In addition, the trial court advised Hammerlund that, in the
event he was found to have violated his probation, the trial court could
continue him on probation, modify the conditions of his probation, or order
him to serve his suspended sentence. Id. at 526. Hammerlund indicated that he
understood his rights and had no questions about them. Id. at 529. The court
on appeal held that, based on the totality of these circumstances, Hammerlund
had knowingly, intelligently, and voluntarily waived his right to counsel before
admitting to violating his probation. Id.
[19] Here, at Davis’ initial hearing on the instant probation violations, the trial court
advised Davis of the nature of the allegations against him and advised him of
the possible sanctions should he be found to have violated his probation.
Although the trial court did not advise Davis that he had a right to counsel at
public expense at this initial hearing, our examination of the record indicates
that the trial court had advised Davis of that right at every other initial hearing
held on the probation violations in this matter and that counsel was appointed
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for Davis for three of his previous violation proceedings. In light of Davis’
experience in this case alone, we conclude that, despite the trial court’s failure
to expressly advise him at this initial hearing that he had a right to counsel at
public expense, Davis was aware of that right yet expressed his desire to hire
private counsel.
[20] Furthermore, before proceeding at the evidentiary hearing on August 31, 2017,
the trial court asked Davis if he would like to attempt to qualify for a public
defender. Davis did not answer, but he did indicate that he intended to admit
to the violations. Before accepting his admission, the trial court twice
confirmed with Davis that he knew that he had a right to counsel at public
expense but that he chose to forgo it. Because Davis received essentially the
same advisements and inquiries at issue in Hammerlund, under the totality of the
circumstances, we conclude that Davis’ waiver of counsel was knowing,
voluntary, and intelligent.
[21] Davis contends that “[d]espite these circumstances suggesting Davis was
unemployed and the trial court’s knowledge of Davis’s substantial payment
delinquencies, the trial court did not appoint counsel for Davis.” Amended
Brief of the Appellant at 17. This argument confounds the issues of waiver of
counsel and ability to pay and ignores the fact that Davis indicated to the trial
court at his initial hearing that he wished to hire private counsel, which he was
entitled to do.
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[22] Davis further argues that the trial court should have made more inquiries
regarding his decision to proceed pro se, his understanding of the dangers of
self-representation, his education and background, and the context of his
decision to plead guilty. Id. at 19-22. We note that it may always be alleged
that a trial court could have provided more advisements or made more inquiries
into a defendant’s decision to proceed pro se. As to understanding the dangers
of self-representation and the context of Davis’ decision to admit the violations,
when a probationer proceeds pro se and chooses to admit the alleged violation,
his valid waiver of counsel may be established even if he was not advised of the
pitfalls of self-representation. Hammerlund, 967 N.E.2d at 528. Davis filed two
letters with the trial court prior to the August 31 hearing expressing his desire to
admit to the allegations, and, in any event, the trial court had just months
before provided Davis with detailed warnings regarding the dangers of self-
representation. Given that there are no specific words or phrases that a trial
court must use to establish a valid waiver of counsel, Eaton, 894 N.E.2d at 218,
and given the particular circumstances of this case, we conclude that Davis’
waiver of counsel was knowing, voluntary, and intelligent.
Conclusion
[23] Concluding that Davis knowingly, voluntarily, and intelligently waived his
right to counsel before admitting to violating his probation, we affirm the trial
court’s revocation order.
[24] Affirmed.
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Najam, J., and Altice, J., concur.
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