Dale M. Thomas v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 01 2020, 9:14 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office LLC Attorney General of Indiana
Brooklyn, Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dale M. Thomas, May 1, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2217
v. Appeal from the Franklin Circuit
Court
State of Indiana, The Honorable Clay M.
Appellee-Plaintiff. Kellerman, Judge
Trial Court Cause No.
24C02-1701-F6-81
Darden, Senior Judge.
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Statement of the Case
[1] Dale M. Thomas appeals the trial court’s judgment revoking his probation. We
affirm.
Issue
[2] Thomas raises one issue, which we restate as: whether the trial court erred in
determining that Thomas had knowingly, intelligently, and voluntarily waived
his right to counsel during probation revocation proceedings.
Facts and Procedural History
[3] On January 25, 2017, the State charged Thomas with possession of
methamphetamine, a Level 6 felony, and possession of marijuana, a Class B
misdemeanor. On January 31, 2017, the State amended the charging
information to add a charge of maintaining a common nuisance, a Level 6
felony.
[4] Also, on January 31, 2017, the trial court held an initial hearing on the charge
of maintaining a common nuisance, during which the trial court advised
Thomas of his constitutional rights. Thomas also signed an advisement of his
rights. The document advised Thomas that he had “a right to have a lawyer
and to consult him during all critical states of a criminal proceeding including
the initial hearing.” Appellant’s App. Vol. 2, p. 21.
[5] Thomas, by counsel, and the State subsequently negotiated a plea agreement.
Thomas agreed to plead guilty to the charges of possession of
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methamphetamine and possession of marijuana, and the State agreed to dismiss
the charge of maintaining a common nuisance. The State further agreed to
recommend the following sentence to the trial court: (1) for the charge of
possession of methamphetamine, twenty-four months in the county jail, with
fifteen months suspended to probation; and (2) for the charge of possession of
marijuana, six months in the county jail, with three months suspended to
probation, to be served concurrently with the sentence for possession of
methamphetamine.
[6] On August 21, 2018, Thomas signed an advisement of rights in connection with
the plea agreement. Among other topics, the document advised Thomas that
he agreed that his “guilty plea has been made knowingly and voluntarily and no
promises, threats or force have been used to make you plead guilty.” Id. at 61.
The document further advised:
You have the right to be represented by an attorney. If you
cannot afford an attorney, the Court will appoint an attorney for
you. You have the right to a continuance in which to hire an
attorney and to have you [sic] attorney prepare you [sic] case and
subpoena witnesses. If you choose to proceed without an
attorney, you will be giving up these rights.
Id. By signing the advisement of rights, Thomas certified “that [he has] read the
above statements, [understood] each paragraph, and [wished] to waive and
hereby do waive each and every right enumerated.” Id.
[7] On August 21, 2018, the trial court held a hearing on the plea agreement. The
trial court accepted Thomas’ guilty plea. On September 6, 2018, the trial court
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issued an amended order sentencing Thomas pursuant to the parties’ plea
agreement. The State dismissed the charge of maintaining a common nuisance.
[8] Thomas served the executed portion of his sentence and was released to
probation on January 28, 2019. That same day, he met with a probation officer
to review and sign an order detailing the terms and conditions of his probation.
On January 29, 2019, the trial court issued the order.
[9] Among other terms and conditions of probation, Thomas agreed to “[r]eport to
the Probation Department as directed by [the] Probation Officer, keep all
appointments and answer all reasonable inquiries.” Id. at 72. Thomas also
agreed to notify the probation officer of all changes of address, and that he
could not move out of Franklin County without “written permission of [the]
Probation Officer.” Id.
[10] On March 8, 2019, the Franklin County Probation Office filed with the trial
court a Verified Petition of Probation Violation (the Petition). A probation
officer alleged that Thomas had: (1) missed two scheduled appointments with
his probation officer; and (2) had moved out of his residence and left the state,
moving to Florida. The officer further stated Thomas had failed to submit
proof that he was seeking treatment for substance abuse.
[11] On March 14, 2019, the trial court issued an order determining that the State’s
Petition contained facts sufficient to establish probable cause for an arrest
warrant and, accordingly, ordered the trial court clerk to issue a warrant for
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Thomas’ arrest. Thomas was subsequently arrested under circumstances not set
forth in the record.
[12] On August 15, 2019, Thomas appeared before the trial court for an initial
hearing on the Petition. Judge Kellerman had also presided over Thomas’
guilty plea and sentencing hearing. At the beginning of the initial hearing, the
trial court advised Thomas as follows:
Mr. Thomas, you have the right to take this matter to a hearing
at which time the burden will be on the State to prove that you
violated the terms and conditions of probation. You do have the
right to face all witnesses against you and to see them, question
them, cross-examine those Witnesses. You also have the right to
call Witnesses to testify on your own behalf. The Court can
assist you in that right by issuing subpoenas. You do have the
right to remain silent[.] Anything that you do say, can and will,
be used against you. You also have the right to be heard in your
own defense and to be represented by an attorney. If you cannot
afford an attorney and meet certain criteria, the Court can
appoint one for you.
Tr. Vol. 2, p. 4.
[13] Thomas stated that he understood his rights as stated by the trial court, and that
he was not under the influence of alcohol or drugs. The trial court also asked
Thomas for his age, and Thomas stated he was twenty-seven. Next, the trial
court reviewed the Petition with Thomas, and Thomas agreed that he
understood the State’s allegations.
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[14] Thomas denied the allegations set forth in the Petition. When the trial court
asked Thomas what he planned to do about an attorney, Thomas responded:
I would like to represent myself pro se and also, I would like to, I
would like to file a motion for a Habeous [sic] Corpus Fast and
Speedy Trial and I also would like to file a Motion for Releasal
[sic] because of the 72-hour law. This is the first time I’ve been to
Court. I’ve been arrested on this warrant since, since the 6th of
this month, of August 6th I’ve been arrested and it is now August
15th and this is the first time I’ve been in Court. And I know that
I have 72-hours to be arraigned. It’s the law. I looked it up in
the law library.
Id. at 6-7.
[15] After Thomas’s statement, the following discussion occurred:
THE COURT: Okay. Before we proceed, I do want you to
understand that you are facing, this is a petition to show that it,
it's alleging that you violated felony probation. Do you
understand that?
MR. THOMAS: Yes, sir.
THE COURT: And do you understand that you are going to be
held to the same standards as the State of Indiana meaning that
Ms. Brier is the person handling this case for the State. She
understands the Rules of Procedures. She understands the Rules
of Evidence. She knows how to try and prepare a case; do you
understand that?
MR. THOMAS: Yes, sir.
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THE COURT: All of that applies to you whether you have an
attorney or not.
MR. THOMAS: Yes, sir.
THE COURT: Knowing that, do you still want to proceed
without counsel?
MR. THOMAS: Yes, sir.
Id. at 7.
[16] Next, the trial court denied Thomas’ motion for speedy trial and instructed him
to file a written habeas corpus petition. The trial court then decided to set bond
and asked the prosecutor to describe Thomas’ conviction record. The
prosecutor discussed Thomas’s two prior criminal cases. The trial court set a
bond amount, scheduled the dispositional hearing, and ordered Thomas to
appear for the hearing. Later, the trial court issued an order describing the
initial hearing. The trial court stated, “the Court advises the Defendant of the
perils of proceeding without counsel.” Appellant’s App. Vol. 2, p. 84.
[17] On August 29, 2019, the trial court held a dispositional hearing. At the State’s
request, the trial court took judicial notice of the plea agreement and sentencing
order, the order containing the terms and conditions of probation, and the
record of the August 15, 2019 initial hearing on the State’s Petition. Thomas
represented himself. At the conclusion of the hearing, the trial court
determined Thomas had violated the terms and conditions of his probation.
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The trial court imposed an aggregate sentence of fifteen months, to be served in
the county jail. This appeal followed.
Discussion and Decision
[18] Thomas argues that the trial court erred in allowing him to waive his right to
counsel and represent himself during probation revocation proceedings, because
he contends his waiver was not knowing, intelligent, and voluntary.
[19] Probation is a favor granted by the State, not a right to which a defendant is
entitled. Butler v. State, 951 N.E.2d 255, 259 (Ind. Ct. App. 2011). “A
probation revocation proceeding is in the nature of a civil action, as there is no
formal finding of guilt or innocence, and the alleged violation need be proven
only by a preponderance of the evidence.” State v. Cass, 635 N.E.2d 225, 226
(Ind. Ct. App. 1994), trans. denied. As a result, a defendant at a probation
revocation hearing does not have all of the rights he or she possessed prior to
conviction. Isaac v. State, 605 N.E.2d 144, 148 (Ind. 1992).
[20] “There are certain due process rights, of course, that inure to a probationer at a
revocation hearing.” Id. These rights include representation by counsel. Id.; see
also Ind. Code § 35-38-2-3(f) (2015) (probationers are entitled to representation
by counsel). When a defendant proceeds without counsel, the record must
reflect that the defendant knowingly, intelligently, and voluntarily waived the
right to counsel. Butler, 951 N.E.2d at 259. “[D]etermining if a defendant’s
waiver was ‘knowing and intelligent’ depends on the ‘particular facts and
circumstances surrounding [the] case, including the background, experience,
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and conduct of the accused.’” Kubsch v. State, 866 N.E.2d 726, 736 (Ind. 2007)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed.
1461 (1938)). We review de novo a trial court’s finding that a defendant waived
the right to counsel. Butler, 951 N.E.2d at 260.
[21] Thomas concedes that the trial court “properly advised [him] of his due process
rights and of the potential consequences if his probation was revoked . . . .”
Appellant’s Br. p. 7. He argues that the trial court failed to ascertain that he
was competent to represent himself and failed to ensure that he was aware of
the pitfalls of waiving the assistance of counsel.
[22] Under the particular facts and circumstances of this case, we conclude the trial
court had ample evidence from which it could conclude that Thomas was
competent to represent himself. The same trial judge had also presided over
Thomas’s guilty plea proceedings. During those proceedings, Thomas had
signed a waiver of rights document, which described in detail Thomas’s rights,
which he indicated he understood. In addition, at the beginning of the August
15, 2019 initial hearing, the trial court advised him of other due process rights,
which Thomas also indicated he understood. The trial court learned that
Thomas was twenty-seven years old, well into adulthood, and was not under
the influence of any drugs or alcohol.
[23] Further, when Thomas asked to represent himself, he also asked for a speedy
trial and indicated that he thought he should be released because he believed he
had been held in jail for too long without an initial hearing. Thomas thus
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indicated some familiarity with criminal law and procedure. He also informed
the court he had been using the jail’s law library to conduct research. Finally,
in the course of setting bond during the initial hearing, the trial court learned
from the prosecutor that Thomas had been the subject of at least two prior
criminal cases. This is ample evidence from which the trial court could have
determined Thomas was sufficiently intelligent and experienced to represent
himself. See Cooper v. State, 900 N.E.2d 64, 70-71 (Ind. Ct. App. 2009) (trial
court adequately investigated Cooper’s competency; Cooper understood the
allegations against him and, despite being a high school dropout, was twenty-
five years old, could read and write, was not under the influence of substances,
had been involved with the court system before, and was aware of his right to
counsel).
[24] Turning to whether Thomas was sufficiently informed of the perils of
proceeding without counsel, the Indiana Supreme Court has “deliberately
eschewed any attempt to formulate a rigid list of required warnings, talismanic
language, or formulaic checklist.” Hopper v. State, 957 N.E.2d 613, 619 (Ind.
2011), on reh’g. Nevertheless, a trial court’s complete failure to inform a
probationer of the perils of waiving the right to counsel is grounds for reversal.
See, e.g., Eaton v. State, 894 N.E.2d 213, 217 (Ind. Ct. App. 2008) (trial court
advised probationer of right to counsel but did not address whether probationer
wanted the assistance of counsel, or wished to waive the right to counsel, before
asking probationer to admit or deny allegations), trans. denied; Bumbalough v.
State, 873 N.E.2d 1099, 1102 (Ind. Ct. App. 2007) (trial court informed
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probationer of right to counsel but did not discuss waiver of that right with
probationer); Bell v. State, 695 N.E.2d 997, 999 (Ind. Ct. App. 1998) (trial court
failed to advise probationer of his right to counsel and did not attempt to
determine whether probationer wanted to waive that right).
[25] In contrast to those cases, in Thomas’ case the trial court provided ample
warning to Thomas of the perils of waiving the right to counsel. Thomas was
represented by counsel during the plea agreement negotiation phase and during
guilty plea proceedings. He signed an advisement of rights in conjunction with
his guilty plea, in which he indicated he understood that an attorney’s tasks
included preparing a defense and subpoenaing witnesses.
[26] Next, at the beginning of the August 15, 2019 initial hearing on the State’s
Petition, the trial court informed Thomas that during the evidentiary hearing,
Thomas would have the right to cross-examine the State’s witnesses and the
right to call witnesses for his own defense. The trial court further stated that
Thomas had the right to counsel. After Thomas stated he wanted to represent
himself, the trial court reminded him that this case involved a felony
conviction, which is a serious matter. Finally, the trial court informed Thomas
that: (1) he would be held to the same standards of conduct as the deputy
prosecutor; and (2) the deputy prosecutor understood the rules of procedure and
knew how to prepare and try a case. Under these facts and circumstances, we
conclude Thomas was sufficiently informed of the perils of waiving the right to
counsel. See Cooper, 900 N.E.2d at 69 (probationer knowingly waived right to
counsel; trial court advised probationer of due process rights including the right
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to cross-examine and the right to present evidence; court also advised
probationer of the potential sentencing consequences of being found in
violation of probation).
Conclusion
[27] For the reasons stated above, we affirm the judgment of the trial court.
[28] Affirmed.
Bailey, J., and Vaidik, J., concur.
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