Robert Scott Hilligoss v. State of Indiana ( 2015 )


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  •                                                                               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:
    
          Court of Appeals of Indiana | Opinion 34A02-1506-CR-529 | November 18, 2015               Page 1 of 9
                  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
    
    
          Court of Appeals of Indiana | Opinion 34A02-1506-CR-529 | November 18, 2015   Page 3 of 9
          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.”
    
           Court of Appeals of Indiana | Opinion 34A02-1506-CR-529 | November 18, 2015   Page 6 of 9
           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).
    
           Court of Appeals of Indiana | Opinion 34A02-1506-CR-529 | November 18, 2015                            Page 7 of 9
           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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