Cooper v. State

• Decision Date: 09 December 2009
• Docket Number: No. 49S02-0904-CR-135.,49S02-0904-CR-135.
• Citation: 917 N.E.2d 667
• Parties: Cornelius COOPER, Appellant (Respondent below), v. STATE of Indiana, Appellee (Petitioner below).
• Court: Indiana Supreme Court

917 N.E.2d 667

Cornelius COOPER, Appellant (Respondent below), v.STATE of Indiana, Appellee (Petitioner below).

No. 49S02-0904-CR-135.

Supreme Court of Indiana.

December 9, 2009.

Ann M. Sutton, Marion County Public Defender, Bryan Lee Ciyou, Ciyou & Dixon, P.C., Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0709-CR-780

RUCKER, Justice.

The trial court revoked the defendant's probation and the defendant did not appeal.Instead he filed a motion to reconsider, which the trial court denied.The defendant then appealed challenging the propriety of the original order revoking his probation.We conclude that the only matter properly before us is the denial of the defendant's motion to reconsider.And on this issue we affirm the judgment of the trial court.

Facts and Procedural History

On January 16, 2002, Cornelius Cooper was charged with several drug related offenses.Under terms of an agreement he pleaded guilty to dealing in cocaine as a Class B felony and possession of cocaine and a firearm, a Class C felony.In return, the State dismissed the remaining charges.On February 4, 2004, the trial court sentenced Cooper to an executed term of eight years incarceration with twelve years suspended and two years probation upon release from the Department of Correction.The record is unclear as to when Cooper completed his term.But in any event on April 24, 2007, the State filed a notice of probation violation¹ alleging that Cooper had been arrested and charged with carrying a handgun without a license, as a Class C felony; strangulation, a Class D felony; domestic battery, as a Class D felony; and battery as a Class A misdemeanor.Appellant's App.at 47.²All of which grew out of an alleged confrontation between Cooper and his wife occurring on April 14, 2007.

At a probation revocation hearing conducted on May 10, 2007, the deputy prosecutor advised the trial court that the State had offered Cooper a nine year sentence if he admitted violating probation and that in return the State would dismiss the pending charges.Tr.at 3.The trial court ordered a brief recess to allow Cooper an opportunity to confer with his lawyer.When the hearing resumed the record shows that Cooper and his lawyer engaged in an extended dialogue the upshot of which was that Cooper insisted he had not violated the terms of his probation and that he would not agree to accept nine years incarceration.Tr.at 4-7.The trial court then declared, "Okay well I've reviewed the probable cause affidavit.That I believe that a crime was committed, that we will show that his probation is revoked.That he's got twelve years...."Tr.at 7.No witnesses were called and no evidence was introduced.When Cooper asked "[i]n the event that this case is like I said it was what would it do for my probation sir,"the trial court responded, "[t]hen you will probably get back out on probation."Tr.at 8.Cooper did not appeal the trial court's judgment.

Within a few weeks, the State dismissed the charges underlying the probation revocation based in large part on Cooper's wife recanting statements she had allegedly given police.As a consequence on July 30, 2007, all parties appeared in court for a hearing on what was referred to as a motion to "reconsider."Tr.at 13;Appellant's App.at 49-50.Not concluding that day, the matter was continued until August 6, 2007.Both sides introduced evidence.More specifically the defense called four witnesses including Cooper and his wife.The essence of the defense claim was that on April 14, 2007, Wife got into an argument in her home with an unknown woman—identified as Cooper's girlfriend—and as a consequence Wife received some scratches and bruises.By the time Cooper arrived the woman was gone; but Wife and Cooper began to argue and Wife called 911 because she"wanted [Cooper] to leave."Tr.at 57.According to Wife she"started hitting [Cooper]"Tr.at 54, but other than holding her arms to prevent being struck, Cooper did not hit her and did not prevent her from leaving the room.Id.Among other things Cooper testified "I never touched my wife."Tr.at 96.

The State introduced evidence and testimony that on April 14, 2007, officers received a call of a domestic disturbance at a residence later identified as Cooper's home informing them that a "male was beating a female" and that the "male possibly had a shotgun and he was taking it to a friends [sic] house."Tr.at 138.The officers arrived on the scene and spoke to a visibly shaken and crying woman—later identified as Cooper's wife—who informed the officers that she and Cooper had gotten into a physical altercation and that he"pushed her down on the bed started hitting her in her upper chest area and her arm ... he took one hand and put it on her throat and was, and what she said was choking her."Tr.at 123.The officers observed "redness about her neck and upper chest area and she had some blood spots on her shirt and what appeared to be some type of injury on her hand."Tr.at 121.Photographs of Wife's injuries were introduced into evidence.Ex.at 29, 30.Wife also advised the officers that Cooper "had a shotgun and that when he went and got it she was afraid that he was going to shoot her and her son."Tr.at 123-24.The officers spoke with the son who informed them that he heard his mother and father arguing and that "he saw his dad with a long gun" and that he got it from "[t]he closet."Tr.at 127.The record shows that no shotgun was ever found.However when officers searched the closet they found "it was very dusty back there but there was an area on the floor that appeared to be the impression of the butt of a gun."Tr.at 131.Cooper was subsequently handcuffed and arrested.The State also called as a witness the deputy prosecutor originally assigned to the criminal case.The deputy testified that he had spoken with Wife by telephone and she informed him that certain things did not happen as described in the police report.Tr.at 143.However, Wife did say that at one point "she was held and prevented from leaving the bedroom as they were in an argument...."Tr.at 142.

After listening to the evidence and entertaining arguments of counsel, the trial court declared, "there's not anything there that can convinces [sic] me that [I] should have done anything different then [sic] I did when I did before so your Motion to Reconsider is denied sentence remains the same."Tr.at 165.

Cooper appealed contending: (1)the trial court violated his right to due process by summarily revoking his probation without providing an opportunity to present witnesses, cross examine witnesses, or to be heard, and (2) the subsequent hearing did not cure the violation because the trial court impermissibly shifted the State's burden of proof to Cooper.Acknowledging that Cooper did not timely appeal his probation revocation, a divided panel of the Court of Appeals determined that it had inherent discretionary authority to entertain Cooper's appeal because it qualified as a rare and exceptional case of great public interest.Cooper v. State,894 N.E.2d 993, 995(Ind.Ct.App.2008)(citingLugar v. State ex rel. Lee,270 Ind. 45, 383 N.E.2d 287, 289(1978)).Addressing Cooper's substantive claim the Court of Appeals reversed the judgment of the trial court and remanded this cause for a new probation revocation hearing.Having previously granted transfer, we now affirm the judgment of the trial court.

Discussion

Probation is a matter of grace and a conditional liberty which is a favor, not a right.Johnson v. State,659 N.E.2d 194, 198(Ind.Ct.App.1995).The trial court determines the conditions of probation and may revoke probation if those conditions are violated.The decision to revoke probation is within the sound discretion of the trial court.Reyes v. State,868 N.E.2d 438, 440(Ind.2007).And its decision is reviewed on appeal for abuse of that discretion.Prewitt v. State,878 N.E.2d 184, 188(Ind.2007).Although probationers are not entitled to the full array of constitutional rights afforded defendants at trial, "the Due Process Clause of the Fourteenth Amendment[does] impose [ ] procedural and substantive limits on the revocation of the conditional liberty created by probation."Woods v. State,892 N.E.2d 637, 640(Ind.2008)(quotingDebro v. State,821 N.E.2d 367, 374(Ind.2005)(citingCox v. State,706 N.E.2d 547, 549(Ind.1999);Black v. Romano,471 U.S. 606, 610, 105 S.Ct. 2254, 85 L.Ed.2d 636(1985))).The minimum requirements of due process that inure to a probationer at a revocation hearing include: (a) written notice of the claimed violations of probation; (b) disclosure of the evidence against him; (c) an opportunity to be heard and present evidence; (d) the right to confront and cross-examine adverse witnesses; and (e) a neutral and detached hearing body.Woods,892 N.E.2d at 640;see alsoInd. Code § 35-38-2-3(requiring that an evidentiary hearing be held on the revocation and providing for confrontation and cross-examination of witnesses by the probationer).

In this case it is abundantly clear that at his probation revocation hearing Cooper was not afforded even a minimal amount of due process.He was not afforded the opportunity to present evidence; no evidence against Cooper was presented and as a consequence he obviously had no opportunity to cross-examine witnesses.Cooper's only opportunity to be heard was to inquire what would happen if "this case is like I said it was what would it do for my probation sir[]" to which the trial court replied "[t]hen you will probably get back out on probation."Tr.at 8.Had Cooper timely challenged on appeal the trial court's decision to revoke his probation, without a doubt the appellate courts would...