Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: CHRISTOPHER A. CAGE Anderson, Indiana

FILED
May 14 2009, 9:14 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
DUSTY KIDD, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 33A05-0812-CR-706

APPEAL FROM THE HENRY SUPERIOR COURT The Honorable Bob A. Witham, Judge Cause No. 33D02-0709-FD-278 May 14, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Dusty Kidd appeals the revocation of his probation. He asserts his waiver of his right to counsel was not knowing, intelligent or voluntary. We reverse and remand. FACTS AND PROCEDURAL HISTORY On July 15, 2008, Kidd appeared for a hearing on the State's petition to order his suspended sentence be executed. The Court and Kidd had the following discussion: The Court: Mr. Kidd, your case, you're here for an Initial Hearing on a Verified Petition to Revoke Suspended Sentence. Before I conduct that hearing, I need to make sure you understand your rights. You do have the right to counsel to represent you. If you want an attorney, but can't afford one, I'd consider appointment of counsel. You cannot be compelled to make any statement or to testify against yourself. You do have the right to remain silent. Anything you'd say, however, could be used against you. You have a right to have a hearing on the allegations made in the Petition to Revoke. At that hearing, the State would have to prove those allegations by a preponderance of the evidence from evidence presented in open court at a final hearing. At that hearing, you'd have a right to confront the witnesses against you and to see, hear and cross examine those witnesses. You'd also have the right to call witnesses in your own behalf and I would assist you in that right by issuing subpoenas at no cost to you. If the Court revokes your probation after conducting a final hearing, you would be entitled to appeal the Court's decision. If you admit the allegations made in the Petition to Revoke today, you would give up and waive each of these rights. If the Court finds you have violated a condition of your probation, the Court could continue you on probation, could modify the conditions of your probation or could Order the execution of your suspended sentence. If the Court Orders the execution of any part of your sentence, you'd be entitled to credit for time served on these charges. Do you understand these rights? Yes, sir. Do you have any questions on any of these rights? No, sir. The Petition in your case, in pertinent part, states: you were found guilty of the offense of Invasion of Privacy, a Class D felony, committed to the Indiana Department of Corrections
2

Mr. Kidd: The Court: Mr. Kidd: The Court:

Mr. Kidd: The Court: Mr. Kidd: The Court:

Mr. Kidd: The Court:

Mr. Kidd: The Court:

[sic] for three (3) years on February 5 of 2008. The Court suspended all but two hundred, twenty-two (222) days of that sentence and the balance was placed on formal probation. Specific terms of probation were imposed on the sentencing date by written Order of the Court. It's alleged you violated the terms and conditions of probation in the following manner: you failed to report to Probation for appointments on February 21, March 27 April 9 May 8th and June 10 of 2008; also that you were assigned to complete "Thinking for a Change" class. You missed seven (7) sessions of that program and a report from Darrel Hughes was attached to the Petition that was filed; also that of June 6 of 2008, you were behind Three Hundred and Twenty Dollars ($320.00) on probation fees and owed Thirty Dollars ($30.00) for an outstanding drug screen fee. Those are the allegations that are contained in this Petition. Do you understand those allegations? Yes. I was, how much time was that, how many days did I have left over from the sentencing? How many days probation? Well, on the suspended sentence. Officer Criswell indicated when you were originally placed on probation, it was for a period of eight hundred and seventy-three (873) days, three (3) years minus two hundred and twenty-two (222) days, which was what was served. Any other questions? (No Audible Answer) Here in a second, I'm going to ask you to either admit or deny that you violated the terms and conditions of probation as alleged in this Petition. If you admit to the Petition today, you are giving up and waiving all those rights I read through a few moments ago. If you admit to the Petition today, then I would set the matter for a Dispositional Hearing. At that hearing, you, Probation Officer Criswell and the State would each be allowed to make recommendations as to what you believe should happen with respect to the violation. If you deny the allegation today, I'd set the matter for a Pre-Hearing Conference and/or a Final Hearing. If we proceed to a final hearing, I would hear evidence presented by the parties and I would make a determination of whether there was a violation of probation, so when I ask you to admit or deny, do you understand what I am asking you to do? Yes. Very well, at this time, Mr. Kidd, I'll ask you to either admit
3

Mr. Kidd: The Court: Mr. Kidd: The Court: Mr. Kidd: The Court: Mr. Kidd: The Court:

or deny that you violated the terms and conditions of probation as alleged in this Petition. Do you admit or do you deny? Admit. Has anyone forced or threatened you to get you to admit? No. Have any promises been made about what will happen if you admit? No. By admitting, you are admitting that the allegations contained in that Petition are true. Is that correct? That's correct. Very well, Mr. Kidd, I'm going to find that your admission is freely and voluntarily made, that there is a factual basis for your admission. I will accept your admission. Pursuant to your admission, I do hereby find you've violated the terms and conditions of probation as alleged in this Petition. I am going to show the matter set for a Dispositional Hearing.

(Tr. at 94-98) (formatting altered). The Court revoked Kidd's probation and ordered him to serve his suspended sentence. DISCUSSION AND DECISION Kidd asserts the court did not adequately determine whether he waived his right to counsel knowingly, intelligently, and voluntarily. Probation revocation implicates a

probationer's liberty interest, so a probationer is entitled to some due process protections. Eaton v. State, 894 N.E.2d 214, 216 (Ind. Ct. App. 2008), trans. denied 898 N.E.2d 1233 (Ind. 2008). In Morrissey v. Brewer, 408 U.S. 471, 482 (1972), the Supreme Court held: The minimum requirements of due process include: (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 crossexamine 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 factfinder as to the evidence relied on and reasons for revoking probation.
4

Eaton, 894 N.E.2d at 216. If a probationer admits violating his conditions of probation, the procedural safeguards of Morrissey are not necessary. Id. A probationer facing revocation also has a right to counsel. Ind. Code

Download Dusty Kidd v. State of Indiana.pdf

Indiana Law