Dobrowolski v. State

• Decision Date: 14 April 2022
• Docket Number: Court of Appeals Case No. 21A-CR-1775
• Citation: 186 N.E.3d 1168
• Parties: Belinda DOBROWOLSKI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

186 N.E.3d 1168

Belinda DOBROWOLSKI, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 21A-CR-1775

Court of Appeals of Indiana.

FILED April 14, 2022

Attorney for Appellant: Kay Beehler, Terre Haute, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian McLean, Supervising Deputy Attorney General, Indianapolis, Indiana

May, Judge.

[1] Belinda Dobrowolski appeals following the trial court's revocation of her probation and order that she spend 365 days of her previously suspended sentence in jail. Dobrowolski argues she did not knowingly, intelligently, and voluntarily waive her right to counsel before the trial court accepted her admission to violating the terms of her probation, but we find dispositive an issue raised by the State—whether Dobrowolski's appeal should be dismissed because she forfeited her right to file a direct appeal of the finding she violated her terms of probation when she admitted the violation. We agree with the State and dismiss Dobrowolski's appeal.

Facts and Procedural History

[2] On November 9, 2018, the State charged Dobrowolski with Level 6 felony domestic battery resulting in moderate bodily injury¹ after Dobrowolski hit her sister in the face with a cordless drill.² Dobrowolski pled guilty to the offense, and on February 26, 2019, the trial court sentenced Dobrowolski to a term of 545 days. The trial court ordered Dobrowolski to serve 116 days executed and ordered the remainder of her sentence suspended to probation.

[3] On May 9, 2019, Dobrowolski pled guilty to Class A misdemeanor driving while her license had been suspended.³ The trial court entered judgment of conviction with respect to that offense, and in the domestic battery case, the trial court found Dobrowolski's commission of the offense constituted a violation of her terms of probation, which required her to abide by all laws. The trial court ordered Dobrowolski to continue probation subject to the original terms and conditions.

[4] On March 17, 2020, the State filed a second notice of probation violation. The State alleged Dobrowolski violated the terms of her probation by committing two new criminal offenses, Class A misdemeanor theft⁴ and Class B misdemeanor interfering with a drug or alcohol screening test.⁵ The notice of probation violation also alleged Dobrowolski tested positive for marijuana in violation of the condition of her probation that she not use illegal substances. On April 16, 2020, the State filed an addendum to the notice of probation violation alleging Dobrowolski committed the additional criminal offenses of Level 6 felony unlawful possession of a syringe⁶ and Level 6 felony possession of a narcotic drug.⁷ The trial court appointed counsel for Dobrowolski, and on October 1, 2020, the trial court extended her term of probation and ordered Dobrowolski to perform twenty hours of community service.

[5] On May 29, 2021, the State filed another notice of probation violation. The State alleged Dobrowolski had failed to complete the previously court-ordered twenty hours of community service and she did not maintain contact with her probation officer. At the hearing on June 1, 2021, the court advised:

COURT: You do have the right to a hearing where the State would be required to prove that you did knowingly or intentionally violate your probation. You're entitled to confront the witnesses against you and to bring forth and compel your own witnesses. Do you understand the violation, the possible penalties and your rights? Do you understand the violation?

BELINDA DOBROWOLSKI: Yes. Yes, I do. I'll go ahead and plead guilty today if I can.

COURT: Okay. Well let me go through some things. You understand by admitting to the violation today you're waiving your right to an attorney and your right to a hearing?

BELINDA DOBROWOLSKI: Yes, sir.

(Tr. Vol. II at 26-27.) Dobrowolski admitted she failed to complete the required twenty hours of community service. The court found Dobrowolski voluntarily waived her rights and she violated the terms and conditions of her probation. The court then scheduled another hearing for June 15, 2021.

[6] At the June 15, 2021, hearing, Dobrowolski asked for more time to complete her community service requirement. The trial court revoked Dobrowolski's probation and ordered her to serve a 365-day executed term. On July 27, 2021, the trial court appointed a public defender to represent Dobrowolski for the purpose of perfecting a motion to file a belated notice of appeal. The trial court then granted Dobrowolski's motion pursuant to Post-Conviction Rule 2 to file a belated appeal on August 16, 2021.

Discussion and Decision

[7] Dobrowolski argues the trial court's brief inquiry concerning her intention to proceed pro se was insufficient to render her waiver of counsel knowing and voluntary. However, the State asks us to dismiss Dobrowolski's appeal because it constitutes an improper use of Post-Conviction Rule 2. Dobrowolski did not file a reply brief addressing the State's argument. "Where an appellant fails to file a response to a cross-appeal, the cross-appellant may prevail if its brief presents a prima facie case of error. Prima facie error is error at first sight, on first appearance, or on the face of it." Sand Creek Country Club, Ltd. v. CSO Architects, Inc. , 582 N.E.2d 872, 875-76 (Ind. Ct. App. 1991) (internal citations and quotation marks omitted).

[8] Post-Conviction Rule 2 enables an "eligible defendant" to file a belated notice of appeal if, but for the defendant's failure to timely file a notice of appeal, the defendant "would have the right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty[.]" However, a defendant forfeits the right to challenge a conviction on direct appeal after pleading guilty. See Alvey v. State , 911 N.E.2d 1248, 1250 (Ind. 2009) (holding defendant could not challenge trial court's ruling on motion to suppress after pleading guilty to the underlying charge). Likewise, a probationer may not challenge on direct appeal a finding the probationer violated the conditions of his probation after admitting a violation. See Kirkland v. State , 176 N.E.3d 986, 989 (Ind. Ct. App. 2021) (declining to address improperly brought direct appeal challenge to the validity of probationer's waiver of his right to counsel and probation violation admission). To challenge the validity of her waiver of counsel, Dobrowolski must file a petition for postconviction relief under Post-Conviction Rule 1.⁸ Because she has not done so, we dismiss her appeal.⁹ See id. ("[W]e conclude that Kirkland's appellate arguments are not properly before us and are more appropriately brought through a petition for post-conviction relief. Therefore, we dismiss his appeal without prejudice so that he may pursue post-conviction relief proceedings if he so chooses.").

Conclusion

[9] Dobrowolski forfeited her right to directly appeal the finding she violated her terms of probation when she admitted the...