Hilligoss v. State
| Decision Date | 18 November 2015 |
| Docket Number | No. 34A02–1506–CR–529.,34A02–1506–CR–529. |
| Parties | Robert Scott HILLIGOSS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Donald E.C. Leicht, Kokomo, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
, Judge.
[1] Robert Hilligoss appeals from the trial court's revocation of his probation. Hilligoss presents two issues for our review which we restate as the following three issues:
[2] We reverse and remand with instructions.
[3] On November 18, 2009, Hilligoss pleaded guilty to theft, as a Class D felony, by a plea agreement. The trial court accepted the plea and, on February 10, 2010, the court sentenced Hilligoss to three years, with the first year on in-home detention and two years suspended to probation. On March 21, 2011, the State filed a petition to revoke Hilligoss' suspended sentence on the grounds that he had “made no contact with Probation” after his in-home detention period had ended. Appellant's App. at 79. On October 24, 2012, after Hilligoss had admitted to the violation of his probation, the trial court ordered him to serve sixteen days of his suspended sentence in jail. In addition, the trial court extended Hilligoss' original term of probation by an additional six months.
[4] On May 31, 2013, the State filed another petition to revoke Hilligoss' suspended sentence on the grounds that he had “failed to report-in as required[.]” Id. at 119. On February 12, 2014, after Hilligoss admitted to the violation of his probation, the trial court ordered him to serve twenty-eight days in jail. And the court extended his term of probation by another 365 days.
[5] Finally, on January 7, 2015, the State filed a petition to revoke Hilligoss' suspended sentence on the grounds that he had not reported to the probation department as required in July 2014. During a hearing on May 27, 2015, Hilligoss admitted to the violation, and the trial court revoked his probation. The trial court ordered Hilligoss to serve the entire balance of his suspended sentence, 648 days, in the Department of Correction. This appeal ensued.
[6] Hilligoss contends that, at the time of the alleged July 2014 violation for failure to report, his probationary period had expired. Thus, he maintains that the trial court was without jurisdiction to consider the State's January 7, 2015, petition to revoke the suspended sentence. But as the State correctly points out, Indiana Code Section 35–38–2–3(c)
provides that the issuance of a summons or warrant tolls the period of probation until the final determination of the charge. Hilligoss' probation began on February 10, 2011, but it was tolled for two periods of time due to alleged violations prior to the State's January 7, 2015, petition to revoke suspended sentence. In particular, the period of probation was tolled for 583 days from March 21, 2011, until October 24, 2012, and for 257 days from May 13, 2013, until February 12, 2014. As of January 7, 2015, then, the remaining period of Hilligoss' original term of probation, even excluding the term extensions imposed by the trial court,1 was approximately six months. Accordingly, contrary to Hilligoss' contention, the original two-year period of his probation had not expired when the State filed its petition to revoke for the alleged July 2014 violation, and the trial court had jurisdiction to consider the State's petition to revoke suspended sentence.
[7] Hilligoss next contends that he was denied his right to due process at the probation revocation hearing. In particular, he maintains that, prior to admitting he had violated the terms of his probation, he was not advised that, by making such an admission, he would be giving up his right to confront and cross-examine witnesses at an evidentiary hearing where the State would have had the burden to prove the alleged violation by a preponderance of the evidence. Whether a party was denied due process is a question of law that we review de novo. Miller v. Indiana Dep't of Workforce Dev., 878 N.E.2d 346, 351 (Ind.Ct.App.2007)
.
[8] Because a probation revocation results in a loss of liberty, the probationer must be given certain due process rights before his probation may be revoked. Dalton v. State, 560 N.E.2d 558, 560 (Ind.Ct.App.1990)
(citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ). A probationer's due process rights are codified in Indiana Code Section 35–38–2–3, which provides in relevant part as follows:
(Emphasis added).
[9] Hilligoss contends that, contrary to Indiana Code Section 35–38–2–3(e)
, he “was never advised of any of [his] rights” under subsection (f). Appellant's Br. at 4. Accordingly, Hilligoss asserts that his “fundamental due process rights were denied.” Id. at 5. The State admits that the “trial court does not appear to have given [Hilligoss the statutory] advisement.”2 Appellee's Br. at 7. However, the State asserts that Hilligoss “would have admitted the violation even if the court had advised him of the rights he was giving up by admitting the violation,” id. at 3, and the State maintains that Hilligoss has waived this issue for our review by raising it for the first time on appeal.
[10] Generally, a party waives an issue if it is raised for the first time on appeal. See Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994)
. “However, we may bypass an error that a party procedurally defaults when we believe that the error is ... fundamental.” Id. (quoting Hart v. State, 578 N.E.2d 336, 337 (Ind.1991) ). As our supreme court recently stated: “An error is fundamental, and thus reviewable despite failure to object, if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” Young v. State, 30 N.E.3d 719, 726 (Ind.2015) (quotation marks omitted). However, in Young the court clarified that this standard no longer requires the alleged error to have been “sufficiently ‘egregious' or ‘blatant’ [such] that the trial court should have acted sua sponte.” Id. at 726 n. 6 (clarifying Brewington v. State, 7 N.E.3d 946, 974 (Ind.2014) ).
[11] Indiana's courts have recognized fundamental error in the context of probation revocation proceedings before. For example, it is well settled that the failure to hold an evidentiary hearing on an alleged probation violation denies a probationer his due process rights and constitutes fundamental error. Dalton, 560 N.E.2d at 560
. Indeed, “[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quotation omitted). Further, “a probationer's admission that he violated the terms of probation does not entitle him to less due process than a probationer who contests the asserted violations.” United States v. Holland, 850 F.2d 1048, 1051 (5th Cir.1988).
Ponce v. State, 9 N.E.3d 1265, 1270 (Ind.2014) ().
[13] Thus, we hold that a trial court's failure to ensure that a probationer who admits to a probation violation has received the advisements as required under Indiana Code Section 35–38–2–3(e)
constitutes a fundamental violation of the probationer's due process rights. Accordingly, we reverse the trial court's revocation of...
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