Greer v. State
| Decision Date | 25 July 1996 |
| Docket Number | No. 57A03-9510-CR-333,57A03-9510-CR-333 |
| Citation | 669 N.E.2d 751 |
| Parties | Michael D. GREER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Michael Greer appeals his revocation of probation, alleging that he received ineffective assistance of counsel and that the denial of credit for time served while on home detention as a condition of his probation violates Article I, Section 23 of the Indiana Constitution and the Equal Protection Clause of the United States Constitution.
Greer was convicted of two counts of child molesting as class C felonies and sentenced to concurrent terms of eight years imprisonment on both counts in September of 1991. Greer's convictions were affirmed by a memorandum decision of this court.
On October 4, 1993, the trial court granted Greer's petition for sentence modification, suspending the remainder of his sentence and placing him on home detention as a condition of his probation. On April 29, 1994, the trial court modified Greer's sentence and ordered Greer placed in the custody of the Community Residential Correction Center for the remainder of his sentence beginning April 30, 1994.
After a hearing on May 24, 1994, the trial court found that Greer had violated a term of his probation by failing to abstain from the use of alcohol. His probation was revoked and he was ordered to serve the remainder of his sentence in the Indiana Department of Correction. Greer received twenty-five days of Class I credit time for the time he was incarcerated in the Community Residential Correction Center. On October 17, 1994, Greer's sentence was again modified. Greer was placed on probation with the condition of home detention and the remainder of his sentence was suspended.
In January of 1995, a probation violation report was filed, alleging that Greer had violated the terms of his probation by failing to abstain from the use of alcohol. The report further alleged that Greer's father, with whom Greer had been living, no longer wanted him in the home. On January 6, 1995, the court provisionally revoked the probation pending an evidentiary hearing. A hearing was held on March 7, 1995, and the trial court found that Greer had violated the terms of his probation. Greer's probation was again revoked and he was ordered to serve the remainder of his sentence. On March 13, 1995, Greer filed a pro se motion for credit time, requesting credit for the time he spent on home detention from October 5, 1993 through April 29, 1994 and from October 13, 1994 through January 6, 1995. This motion was denied on March 14, 1995.
On June 12, 1995, the trial court granted Greer's petition for permission to file a belated praecipe, which was then filed on this date.
We address the following issues raised by the parties:
I. Whether this court has jurisdiction over this appeal due to Greer's failure to timely file a praecipe.
II. Whether Greer received ineffective assistance of counsel at the probation revocation hearing.
III. Whether the failure to give Greer credit for time served on home detention denied Greer the right to equal treatment under Article I, Section 23 of the Indiana Constitution.
IV. Whether the failure to give Greer credit for time served on home detention denied Greer the right to equal protection of the law under the Fourteenth Amendment of the United States Constitution.
We first address whether Greer's failure to file a timely praecipe requires us to dismiss his appeal for lack of jurisdiction.
An appeal is initiated by the filing of a praecipe in the trial court, and the praecipe must be filed within thirty days of a final appealable order. Ind.Appellate Rule 2(A). The failure to timely file a praecipe is a jurisdictional failure that results in the appeal's dismissal. Moran v. Cook, 644 N.E.2d 179 (Ind.Ct.App.1994). Effective January 1, 1994, the supreme court amended Ind.Post-Conviction Rule 2, permitting a court to grant an appellant leave to file a belated praecipe only if the appellant is seeking a direct appeal of the conviction. Howard v. State, 653 N.E.2d 1389 (Ind.1995).
Here, Greer is appealing from his revocation of probation and the denial of his petition for credit time. However, we need not reach the issue of whether the amendment to the post-conviction rules and Howard apply to the situation before us, because the State has waived its right to contest jurisdiction in this appeal. The State failed to object to Greer's belated praecipe at any time prior to filing its brief in this appeal, either at the trial or appellate level. In Byrd v. State, 592 N.E.2d 690 (Ind.1992), the supreme court necessarily determined that the issue was jurisdiction of the particular case and held that the State had waived its right to challenge a belated praecipe. After noting that the State had numerous opportunities to object to the belated praecipe but failed to do so, the court went on to state:
It is well settled that Indiana's appellate courts look with disfavor upon issues that are raised by a party for the first time on appeal or in original actions without first raising the issue at first opportunity in the trial court. When the State is a party to a state court proceeding, it, like all parties, must comply with the rules then governing, and its actions, like those of all parties, are subject to scrutiny under principles of waiver and estoppel.
[The State's] silence persisted until ... the State filed its motion to dismiss in the appellate court, one day before its brief responding to appellant's brief on the merits was due. At that juncture, the trial court's belated praecipe order remained intact, the record of proceedings had been completed for use on appeal and had been filed, and appellant's brief had been structured and prepared in final form, and duly filed. Because the State did not avail itself of these several opportunities to challenge the availability and regularity of the belated process, it was in no position to make that challenge in its motion to dismiss.
Id. at 691-91 (citations omitted). Similarly, by waiting until filing its appellate brief to raise any objection to the filing of a belated praecipe, the State has waived the right to make its challenge in this case.
Greer contends that he was denied effective assistance of counsel at the probation revocation hearing.
Reversal for ineffective assistance of counsel is appropriate only in cases where a defendant shows both that counsel's performance fell below an objective standard of reasonableness and that the deficient performance so prejudiced the defendant as to deprive him of a fair trial. King v. State, 642 N.E.2d 1389, 1391-92 (Ind.Ct.App.1994). More specifically, the defendant must show that there is a " " Madden v. State, 656 N.E.2d 524, 527-28 (Ind.Ct.App.1995), trans. denied, quoting Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).
The evidence against Greer at the revocation hearing consisted solely of the testimony of his probation officer, Mel Glick. Glick testified that Greer's father had stated that Greer had consumed alcoholic beverages and that he no longer wanted Greer living at his house. Glick further testified that, after the filing of the violation report, he spoke with Greer and Greer admitted consuming alcoholic beverages. Greer's attorney failed to object to Glick's testimony.
First, we address Glick's testimony regarding Greer's father's statements. Clearly, this testimony constituted hearsay, an out-of-court statement offered into evidence to prove the truth of the matter asserted. Ind.Evidence Rule 801(c); Arndt v. State, 642 N.E.2d 224, 227 (Ind.1994). The State argues that hearsay evidence is admissible in probation revocation hearings pursuant to Evid.R. 101(c)(2), which states that the Indiana Rules of Evidence do not apply to "[p]roceedings relating to ... probation...." However, Evid.R. 101(a) states that, if the rules do not cover a specific evidence issue, common or statutory law shall apply. While it is true that a probation revocation hearing is in the nature of a civil proceeding and that probationers are thus not entitled to the full array of constitutional rights afforded at trial, we must conclude that the intent of the Rules of Evidence is not to completely eliminate all evidentiary rules in a probation revocation proceeding. As noted in Payne v. State, 515 N.E.2d 1141 (Ind.Ct.App.1987), the hearsay rule applies in civil proceedings, and we can see no rationale for treating a probationer with less deference than a civil litigant. Id. at 1144. We conclude that the hearsay rule applies in a probation revocation hearing. The State does not offer, and we are not aware of, any applicable hearsay exceptions. Thus, Greer has demonstrated that, had a proper objection been made, the objection should have been sustained. Garrett v. State, 602 N.E.2d 139, 141 (Ind.1992), reh'g denied. Whether or not Greer suffered any harm from the omission depends upon the admission of his own statement to his probation officer.
Greer argues that he received ineffective assistance of counsel when his attorney failed to object to the admission of his statement to his probation officer. Greer contends that the State was required to prove beyond a reasonable doubt that Greer was advised of his Miranda 1 rights and that he knowingly and voluntarily...
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