Paul Sparks v. State of Indiana ( 2013 )

    JAY RODIA                                      GREGORY F. ZOELLER
    Indianapolis, Indiana                          Attorney General of Indiana
                                                   MICHELLE BUMGARNER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana
                                                                            Feb 26 2013, 8:54 am
                                   IN THE
                         COURT OF APPEALS OF INDIANA                               CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court
    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
                                        February 26, 2013
                                  OPINION - FOR PUBLICATION
    ROBB, Chief Judge
                                       Case Summary and Issue
           Paul B. Sparks’s probation was revoked and he was ordered to serve the entirety of his
    previously-suspended sentence at the Department of Correction after he admitted to violating
    a condition of his probation. He now appeals, raising two issues, one of which we restate and
    find dispositive: whether the trial court violated Sparks’s due process rights in its handling
    of his probation revocation hearing. Concluding that Sparks’s due process rights were
    violated, we reverse and remand for a new probation revocation hearing.
                                     Facts and Procedural History
           Sparks was convicted of battery, a Class C felony, and invasion of privacy, a Class A
    misdemeanor, following a guilty plea entered on May 2, 2012. On May 9, 2012, he was
    sentenced to concurrent, suspended terms of five years for the battery and one year for the
    invasion of privacy. The trial court placed Sparks on probation for two years with the
    condition that he would participate in an inpatient treatment program for alcohol abuse in the
    Hebron Center in Bloomington, Indiana, for one year followed by a second year of treatment
    in a program approved by the probation department and the Hebron Center. On May 22,
    2012, the State filed a notice of probation violation, alleging that Sparks left the Hebron
    Center on May 17, 2012, without notice.
           The parties appeared before the trial court on June 29, 2012, for a probation violation
    hearing. At the hearing, during a short conversation with the court, the State explained that
    Sparks had left the Hebron Center after only a few days of attendance. The court responded:
    “Right. So he left after three days. If he is willing to accept responsibility for his actions . . .
    I was thinking of giving him a four year sentence if he’ll do that. Otherwise, if you want to
    have a hearing, we can have a hearing.” Transcript at 5. The State informed the court that it
    would rather have a hearing, but after a recess, the attorneys informed the court that Sparks
    had decided to admit to the violation. Under oath, Sparks admitted that he left the Hebron
    Center on May 17. The court then reminded Sparks of the sentencing hearing at which the
    court had informed him that he had been given “the deal of a lifetime.” Id. at 7. When
    Sparks was given the opportunity to address the court, he indicated that he wanted to return
    to the Hebron Center and that he wanted to continue addressing his drinking problem. The
    trial court revoked Sparks’s probation and ordered him to serve the entirety of his five year
    suspended sentence. Sparks now appeals.1
                                             Discussion and Decision
                                            I.       Standard of Review
            Probation is a favor granted by the State and is not a right to which a criminal
    defendant is entitled. Cooper v. State, 
    917 N.E.2d 667
    , 671 (Ind. 2009). The decision to
    revoke probation lies within the sound discretion of the trial court. Id. Thus, a trial court’s
    decision to revoke probation and its subsequent sentencing decision is reviewed for an abuse
    of discretion. Prewitt v. State, 
    878 N.E.2d 184
    , 188 (Ind. 2007). However, because
              Sparks did not file a post-conviction relief petition prior to filing this direct appeal. A panel of this
    court has held that an alleged error during a guilty plea in a probation revocation hearing must be challenged
    by a post-conviction relief petition. Huffman v. State, 
    822 N.E.2d 656
    , 660 (Ind. Ct. App. 2005). The court in
    Huffman based its decision on our supreme court’s decision in Tumulty v. State, 
    666 N.E.2d 394
    , 396 (Ind.
    1996), in which the court held that a guilty plea leading to a criminal conviction must be challenged by a post-
    conviction relief petition and not a direct appeal. The issue of whether the rule in Tumulty should be extended
    to probation revocation hearings remains unsettled. We have chosen to address the probation revocation issue
    probation revocation implicates the probationer’s conditional liberty interest, the probationer
    is entitled to some procedural due process. Cooper, 917 N.E.2d at 671-72. Thus, if a
    reviewing court finds that a violation of due process took place, it must reverse and remand
    with instructions to conduct a revocation hearing consistent with due process requirements.
    Id. at 672.
                                     II.     Probation Revocation
            Probation revocation is a two-step process. Woods v. State, 
    892 N.E.2d 637
    , 640 (Ind.
    2008). First, the court must make a factual determination that a violation of a condition of
    probation has taken place. Id. Second, if a violation is proven, the trial court must determine
    whether the violation warrants revocation of the probation. Id. While a defendant is not
    entitled to full due process rights for a probation revocation, due process requires the
            (a) written notice of the claimed violations of [probation]; (b) disclosure to the
            [probationer] of evidence against him; (c) opportunity to be heard in person
            and to present witnesses and documentary evidence; (d) the right to confront
            and cross-examine adverse witnesses (unless the hearing officer specifically
            finds good cause for not allowing confrontation); (e) a ‘neutral and detached’
            hearing body . . . ; and (f) a written statement by the factfinders as to the
            evidence relied on and reasons for revoking [probation].
    Parker v. State, 
    676 N.E.2d 1083
    , 1085 (Ind. Ct. App. 1997) (quoting Morrissey v. Brewer,
    408 U.S. 471
    , 489 (1972)). Indiana has codified the due process requirements and requires
    that an evidentiary hearing be held to determine whether the State has proven the probation
    violation by a preponderance of the evidence. Ind. Code § 35-38-2-3(d), (f). Failure to hold
    in this case on the merits.
    an evidentiary hearing is a fundamental error and requires reversal. Eckes v. State, 
    562 N.E.2d 443
    , 445 (Ind. Ct. App. 1990). If a probationer admits to the violation, an evidentiary
    hearing is not required. Ind. Code § 35-38-2-3(e). But if the probationer is unrepresented,
    the court must advise him of his right to counsel even if he or she decides to admit the
    probation violation. Eaton v. State, 
    894 N.E.2d 213
    , 217 (Ind. Ct. App. 2008), trans. denied.
    If there is an admission, the court can go to the second step of the process to determine
    whether the violation warrants revocation, but the probationer must be given an opportunity
    to provide mitigating evidence suggesting that the violation does not warrant revocation.
    Woods, 892 N.E.2d at 640.
           An evidentiary hearing did not take place in this case. And while Sparks admitted to
    violating a term of his probation, this admission came following the trial court’s comment
    that it was inclined to give him four years if he accepted responsibility for his actions. The
    trial court’s comment at the outset of the hearing overlooks the fact that the probationer has a
    constitutional and statutory right to an evidentiary hearing in which the State proves the
    probation violation by a preponderance of the evidence before the trial court decides whether
    a condition of probation was violated. A trial court’s failure to hold an evidentiary hearing
    prior to revoking probation requires reversal even if there is sufficient evidence in the record
    to support the revocation of the probation. See Eckes, 562 N.E.2d at 445. Also, an informal
    conversation between the court and the parties does not constitute an evidentiary hearing and
    does not comport with a probationer’s due process rights. See Dalton v. State, 
    560 N.E.2d 558
    , 560 (Ind. Ct. App. 1990).
           Sparks argues that his admission was not made voluntarily and knowingly in light of
    the trial court’s comment. He contends that the trial court’s comment “actually misled” him
    to believe that he would receive a four year sentence, but the court later ordered him to serve
    his full five year term. The State argues that while Sparks may have formed a mistaken
    belief as to the sentence he would receive if he admitted to the probation violation, he was
    not actually misled by the court.
           In support of his argument, Sparks cites Sims v. State, 
    547 N.E.2d 895
     (Ind. Ct. App.
    1989), trans. denied. In Sims, the defendant argued in a post-conviction relief petition that
    his probation violation admission was not voluntary, knowing, and intelligent and that he had
    been “actually misled” by his attorney and an agent of his substance abuse program as to the
    consequences of admitting to the probation violation. Id. at 897. The post-conviction court
    denied his petition. This court noted that a defendant must be “actually misled” and not just
    form a mistaken belief, id. at 898 (citing White v. State, 
    497 N.E.2d 893
     (Ind. 1986)), but,
    ultimately, refused to reweigh the evidence and affirmed the post-conviction court’s holding
    that the admission was voluntary, knowing, and intelligent. Id. at 898.
           In this case, unlike Sims, there was no finding by a factfinder regarding whether
    Sparks’s admission was voluntary and knowing. The record is not clear as to whether Sparks
    was “actually misled” regarding the consequences of his admission, though there appears to
    be some evidence that he did not understand the consequences of his admission. For
    example, after Sparks admitted that he had left the Hebron Center on May 17, 2012, the
    following exchange took place between the court and Sparks:
           The court: And you understand as a result of that that makes you in violation
           of your probation?
           The defendant: I do, Your Honor.
           The court: You understand I’m going to revoke your probation?
           The defendant: No, I didn’t understand that—I was going to—I wanted to talk
           to you.
    Tr. at 7. Moreover, the nature of the trial court’s comment at the outset of the hearing lends
    support to the contention that Sparks’s admission was not voluntary and knowing.
           We note that even though both parties have advanced their arguments regarding
    whether Sparks’s admission was voluntary and knowing, it is not settled in Indiana that a
    probation violation admission must be made knowingly and voluntarily akin to a guilty plea.
    Cf. Eaton, 894 N.E.2d at 216-17 (a waiver of counsel during a probation revocation hearing
    must be made knowingly and voluntarily). In Sims, the court, in a footnote, stated that “[w]e
    do not actually decide whether an admission to a probation violation must be voluntary,
    knowing and intelligent, but discuss the issue in those terms since both parties have argued in
    that manner.” 547 N.E.2d at 897 n.4. The court went on to note that many federal courts
    have held that many of the requirements that apply to guilty pleas do not apply to probation
    revocation proceedings. Id.
           Like the court in Sims, we do not decide the issue of whether a probation violation
    admission must be made voluntarily, knowingly, and intelligently in Indiana. Rather, we
    base our decision on the cumulative effect of the lack of an evidentiary hearing, the
    unknowing nature of Sparks’s admission, and the trial court’s comment. Thus, while an
    evidentiary hearing is not required if the defendant admits to the probation violation, the lack
    of an evidentiary hearing in this case in light of the trial court’s comment and the suspect
    quality of Sparks’s admission constitutes fundamental error.2 Accordingly, we reverse and
    remand for a new probation revocation hearing consistent with the requirements of due
            The trial court did not handle the probation revocation hearing in a way that comports
    with Sparks’s due process rights. Therefore, we reverse and remand for a new probation
    revocation hearing.
    MAY, J., and PYLE, J., concur.
               Sparks also argues that the five-year sentence ordered by the trial court was an abuse of discretion in
    light of the court’s comment that it would likely give him four years if he was willing to accept responsibility
    for his actions. Because we find a violation of due process, we do not decide this issue, but note that a trial
    court has “considerable leeway” when making sentencing decisions for probation violations. Prewitt, 878
    N.E.2d at 188.