Marks v. State
| Decision Date | 25 March 2021 |
| Docket Number | Court of Appeals Case No. 20A-CR-2012 |
| Citation | 167 N.E.3d 744 (Table) |
| Parties | Christopher R. MARKS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant: John M. Haecker, Squiller & Hamilton, LLP, Auburn, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana
[1] Christopher Marks appeals the trial court's revocation of his probation and order that he serve his previously suspended sentence. He raises multiple issues for our review, which we restate as: (1) whether the trial court violated his right to self-representation; and (2) whether the trial court abused its discretion when it revoked his probation. Concluding that the trial court did not violate Marks’ right to self-representation and that the trial court did not abuse its discretion, we affirm.
[2] In 2018, the State charged Marks with nonsupport of a dependent, a Level 6 felony. Following a jury trial in 2019, Marks was found guilty. Subsequently, the trial court sentenced Marks to two years in the DeKalb County Jail, all suspended to probation. The conditions of Marks’ probation included that he work regularly or actively seek employment and that he pay child support as ordered in cause number 17C01-1209-JP-102. See Appellant's Appendix, Volume 2 at 7-9. At the time of the jury trial Marks was unemployed and owed $16,420.09 in child support. Id. at 25.1
[3] On February 12, 2020, the State filed a petition to revoke or modify probation alleging that Marks violated the rules of his probation by failing to "make any payments towards his child support order in 17C01-1209-JP-102" and by not maintaining employment as required. Id. at 10. The State calculated that as of September 25, 2020, Marks owed $27,937.09 in child support. Transcript, Volume II at 8; Exhibits, Volume III at 7. Marks did not pay any child support between his trial and the State's petition to revoke probation. See id.
[4] At the evidentiary hearing on the petition to revoke, Marks represented himself. However, the trial court also appointed standby counsel. See Tr., Vol. II at 4. Marks’ girlfriend, Jennifer Stetler, testified that Marks was looking for employment and that she had witnessed Marks interviewing for jobs over the phone and via Skype. Stetler also testified that Marks watched her children during the day while she worked.2
[5] Marks called himself to testify; however, the trial court had standby counsel conduct the direct examination, stating:
[6] Marks testified that he actively seeks employment, spending "three to five hours a day on job boards looking for employment." Id. at 28. Marks has also applied and interviewed for various jobs.3 However, Marks testified that he was unemployed at the time of the revocation hearing in part because the State had Marks’ driver's license suspended when he stopped paying child support. See id. at 23. Marks further testified that due to being "obsessive-compulsive, agoraphobic and a germophobe [he] cannot work in kitchens[,]" and due to arthritis
in his back he is prevented from obtaining other types of employment.4
[7] The trial court found that Marks had violated his probation by "failing to make any payments toward his child support order entered under Cause No. 17C01-1209-JP-102." Appealed Order at 1; see Tr., Vol. 2 at 29. The trial court revoked his probation and ordered the balance of the suspended sentence be served in its entirety. Marks now appeals.
[8] The respondent in a probation revocation has a statutory right to counsel. Eaton v. State , 894 N.E.2d 213, 216 (Ind. Ct. App. 2008), trans. denied. Implicit in the right to counsel is the right to self-representation. Jackson v. State , 992 N.E.2d 926, 932 (Ind. Ct. App. 2013), trans. denied. Marks argues that he has a constitutional right to self-representation guaranteed by the Sixth Amendment to the United States Constitution which was denied when the trial court prohibited him from conducting his own direct examination.5 We disagree.
[9] While the United States Supreme Court has held that the Due Process Clause applies to probation revocation hearings, Gagnon v. Scarpelli, 411 U.S. 778, 781-82 (1973), it is well settled that probationers are not entitled to the full array of constitutional rights afforded defendants at trial, Cox v. State , 706 N.E.2d 547, 549 (Ind. 1999). The due process rights applicable in a probation revocation allow for procedures that are more flexible than in a criminal prosecution. Id. at 550. Such flexibility allows courts to enforce lawful orders, address an offender's personal circumstances, and protect public safety, sometimes within limited time periods. Id.
[10] Our supreme court has stated:
There are certain due process rights, of course, which inure to a probationer at a revocation hearing. These include written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine adverse witnesses, and a neutral and detached hearing body. Indiana Code § 35-38-2-3 [f] also ensures the probationer the right to confrontation, cross-examination, and representation by counsel.
Issac v. State , 605 N.E.2d 144, 148 (Ind. 1992) (citations and footnote omitted). We have subsequently held that although " Indiana Code section 35-38-2-3(f) provides probationers the statutory right to counsel in probation-revocation proceedings, this is not a right guaranteed by the Sixth Amendment[.]" Gibson v. State , 154 N.E.3d 823, 825 (Ind. Ct. App. 2020). Therefore, self-representation is similarly not a right guaranteed by the Sixth Amendment in a probation revocation proceeding. However, we must determine whether Marks’ statutory right to self-representation under Indiana Code section 35-38-2-3(f) was violated.
[11] During his probation revocation hearing, Marks actively represented himself. He moved for a continuance of the hearing, made evidentiary objections, cross-examined a witness, and conducted direct examination of a witness. See Tr., Vol. II at 4-16. However, when Marks called himself as a witness, the trial court required that standby counsel question Marks, stating, "I'm ... not going to allow you to just speak on anything that happens to come to your mind."6 Id. at 22. Marks contends that the trial court "could simply have required that Marks ask himself questions rather than testify in narrative fashion." Brief of Appellant at 11.7 However, Marks also acknowledges that the "trial court did not terminate [his] self-representation; it only prohibited him from conducting his own direct examination[.]" Id. at 10.
[12] Moreover, we note that Marks does not claim that he was prejudiced by standby counsel's questioning. We have emphasized the importance of this factor when a probationer claims that they were inadequately advised regarding self-representation in a revocation hearing. See Hammerlund v. State, 967 N.E.2d 525, 529 (Ind. Ct. App. 2012). Hammerlund deals with the waiver of counsel and thus is not directly analogous with this case; however, the right to self-representation during a probation revocation hearing is similarly at issue. Therefore, we find Hammerlund instructive in analyzing the case at hand.
[13] In Hammerlund, the probationer did Id. Thus, we concluded that the probationer in Hammerlund failed to establish that his waiver of counsel was anything other than knowing, intelligent, and voluntary.
[14] Similarly, Marks claims his right to self-representation was violated without saying how he was harmed by standby counsel conducting his direct examination. Marks makes no argument that standby counsel's questioning was ineffective, contradicted his planned defense, or prevented him from presenting any particular information to the trial court. Therefore, we conclude that the trial court did not violate Marks’ right to self-representation under Indiana Code section 35-38-2-3(f).
[15] Probation is a "matter of grace" left to the discretion of the trial court, not a right to which a criminal defendant is entitled. Prewitt v. State , 878 N.E.2d 184, 188 (Ind. 2007). "The trial court determines the conditions of probation and may revoke probation if the conditions are violated." Id. The State need only prove the alleged violations by a preponderance of the evidence, and we will consider all the evidence most favorable to the judgment of the trial court without reweighing that evidence or judging the credibility of the witnesses. Monroe v. State , 899 N.E.2d 688, 691 (Ind. Ct. App. 2009).
[16] If the court finds that a person has violated a condition of probation at any time before termination of the probationary period, and the petition to revoke is filed within the probationary period, the court may impose one or more sanctions, including ordering execution of all or part of the sentence that was suspended at the time of initial sentencing. Ind. Code § 35-38-2-3(h). A trial court's decision imposing sanctions for probation violations is reviewable using the abuse of discretion standard. Sanders v. State , 825 N.E.2d 952, 956 (Ind. Ct. App. 2005), trans. denied. An abuse of discretion occurs if the trial court's decision is against the logic and effect of the facts and circumstances, or when the trial court misinterprets the law. Madden v. State , 25 N.E.3d 791, 795 (Ind. Ct. App. 2015), ...
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