Wooten v. State

• Decision Date: 24 March 2011
• Docket Number: No. 49A02–1004–CR–586.,49A02–1004–CR–586.
• Citation: 946 N.E.2d 616
• Parties: Jeffrey WOOTEN, Appellant–Petitioner,v.STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

946 N.E.2d 616

Jeffrey WOOTEN, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 49A02–1004–CR–586.

Court of Appeals of Indiana.

March 24, 2011.

Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Jeffrey Wooten appeals the trial court's revocation of his probation. Wooten asserts that he was not on probation at the time of the trial court's order and, therefore, he is being wrongfully imprisoned. The State asserts that this court has no jurisdiction over Wooten's appeal because Indiana Post–Conviction Rule 2 does not permit belated appeals from the revocation of probation. We agree with the State. Further, there is substantial evidence in the record that supports the trial court's conclusion that Wooten was properly before it for a probation revocation proceeding. Thus, we also decline Wooten's invitation to exercise jurisdiction under our inherent authority to hear appeals that present a matter of great public interest.

Dismissed.

FACTS AND PROCEDURAL HISTORY

On March 13, 2003, the State charged Wooten with possession of cocaine, as a Class B felony; possession of marijuana, as a Class A misdemeanor; and resisting law enforcement, as a Class A misdemeanor. On December 10, 2003, Wooten pleaded guilty to the charges of possession of cocaine and resisting law enforcement. On February 19, 2004, the trial court sentenced Wooten to ten years, with six years executed and four years suspended, and with two of the suspended years to be served on formal probation. Wooten signed his conditions for probation that same day.

The next day, Wooten began serving the executed term of his sentence with the Hoch Correctional Consultants and Services (“HOCCS”) home detention program in Marion County. Shortly thereafter, on July 27, 2004, an HOCCS representative filed a notice of violation against Wooten for his alleged failure to maintain a home phone and to notify HOCCS of his “location and[/]or residence.” Appellant's App. at 64. On August 5, HOCCS amended its notice to include an allegation that Wooten had refused to submit to a drug test. After a hearing on August 19, the court ordered Wooten to be placed on “strict compliance” within the HOCCS program. Id. at 15.

On September 12, 2006, HOCCS filed a new notice of violation against Wooten, alleging that Wooten had been charged with a new crime that was pending in the Marion Superior Court. On October 5, Wooten pleaded guilty to that new charge as well as to the HOCCS notice of violation. Wooten agreed to have his placement with HOCCS revoked and to serve “the remainder of the executed portion of [that] sentence at the Indiana Department of Correction [ (“DOC”) ], with such sentence to be served consecutively” to the sentence imposed for his new conviction. Id. at 70. The trial court accepted Wooten's plea and stated that he was to have “probation after [his] executed sentence.” Id. at 18 (capitalization removed). However, according to the court's amended abstract of judgment, Wooten was to serve six years executed with no time suspended. On October 18, 2006, HOCCS released Wooten to the DOC.

On May 23, 2007, the trial court ordered Wooten to be released to a community transition program over the State's objection. Wooten was to be supervised by the Indianapolis parole district. On July 4, 2009, Wooten was released from parole, but Wooten's parole officer did not notify his probation officer of that release until December 16, 2009. The probation officer immediately called and spoke with Wooten. Wooten “stated he was not aware that he had [p]robation [ and] that [p]arole told him all he had to do was two years [p]arole....” Id. at 80. The probation officer informed Wooten that he still had two years of probation to complete, and Wooten agreed to register with probation.

The next day, the probation officer filed a notice of probation violation based on a plea agreement Wooten had negotiated in Hendricks County. According to that plea agreement, on June 28, 2009, Wooten had operated a vehicle with a lifetime suspension, a Class C felony, and had operated a vehicle while intoxicated, as a Class A misdemeanor. Wooten agreed to serve one year executed.

On January 14, 2010, the trial court held a hearing on the State's notice of probation violation. At that hearing, the court engaged Wooten in the following colloquy:

[Wooten's attorney]: [Wooten] wants to admit to allegation number one.... And I believe he wants to make a statement.

[The court]: What do you want to say, sir?

[Wooten]: ... during the time that I caught the Hendricks County case, I was currently on parole.... I had maybe ... days. And once ... I got off of parole, parole told me that I was done with everything. So I assumed that I was done with everything, but no one had informed me that I needed to go report to probation. In December ... [the] probation department called me on my cell phone and told me that it was a misunderstanding [and] that they thought I was supposed to g[e]t off parole in 2011. They found out I got out in July of '09 and they told me that I needed to come down and get processed. So December 21st I went down to the probation department, got processed. They set me up an appointment to see my probation officer on January the 11th. I went to the probation department and she said that I had a warrant. And they locked me up. And I explained to the lady that I talked to at the probation department that I had a case in Hendricks County that I have already signed a plea on and I asked them would—they told me that there wasn't gonna be any violations against me because it was a misunderstandin' on they (sic) behalf. And I never knew that I was supposed to be on any type of probation. I thought I was done with my sentence.

* * *

[The court]: Well, you know that you are not to engage in criminal conduct, ever, right?

[Wooten]: Yes.

[The court]: And that's the nature of the violation that you admitted. It's not some reporting thing, which I could understand. When did he first report to Marion County Probation?

[The State]: That date, Your Honor, was 12–21–2009.

[The court]: And is there a signed conditions of probation? Because his record indicates that he got two years probation at the time of sentencing.

[The State]: Yes, Your Honor. Dated 2–19–04.

[The court]: So when you got sentenced, on February 19th, '04, you signed your conditions of probation. So you did know that you were on probation.

[Wooten]: I figured that—figured that they gave me parole, two years parole instead of two years probation.

[The court]: Well, you figured wrong.

[Wooten]: Because when I did ... the parole, the two years parole no one ever told me that I needed to report to probation.

[The court]: But the Judge told you that you were on probation. No Judge ever told you that you weren't on probation. And when you got sentenced, Judge Young said two years of probation. You signed the order of probation indicating that you got a copy of that and read it.

[Wooten]: Yeah, I never made it to probation.

[The court]: I understand, but you were supposed to. And you didn't. But instead apparently you were driving when you weren't supposed to and using alcohol while you were driving.

[Wooten's attorney]: ... It's very possible that between '04 when he pled and '09 being released from DOC that maybe he did forget....

[The court]: I understand that and if it was just a failure to report, I can understand the mix-up. But this is engaging in new criminal conduct ... which is wrong no matter whether he is on or off parole or probation or not on any kind of paper at all. You can't engage in criminal conduct. So it's not a defense to this type of violation that I didn't know.

* * *

[The court]: ... And he's got another case pending, a serious case, a C felony case in another county. The Court finds he's admitted to being in violation and that he was properly arrested for his new offenses. The [C]ourt does, like I said, understand that there could be confusion about his duty to report. That's not the nature of this violation. It's the engaging in criminal conduct[,] which is always illegal. And it is probably the most serious violation of probation. The Court is going to impose two of the four years at the [DOC].

Transcript at 5–11. The court did not inform Wooten of his right to appeal the court's revocation of his probation.

On April 28, 2010, Wooten filed a petition for permission to file a belated notice of appeal with the trial court, pursuant to Indiana Post–Conviction Rule 2. On May 7, the court granted Wooten's motion and appointed him pauper counsel on May 19. On August 5, Wooten's attorney filed a motion for a hearing on the belated notice of appeal. The court held the hearing on August 19 and affirmed its order granting Wooten's belated notice of appeal. This appeal ensued.

DISCUSSION AND DECISION

Wooten appeals the trial court's revocation of his probation, asserting that he was not on probation when the trial court ordered him to serve two more years at the DOC. In support, Wooten relies exclusively on the October 5, 2006, amended abstract of judgment, which fails to state a suspended term for his sentence. Our standard of review is clear:

Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. Sanders v. State, 825 N.E.2d 952 (Ind.Ct.App.2005). The trial court determines the conditions of probation and may revoke probation if the conditions are violated. Ind.Code Ann. § 35–38–2–3 (West 2007); Goonen v. State, 705 N.E.2d 209 (Ind.Ct.App.1999). Once a trial court has exercised its grace by ordering probation rather than incarceration, the judge should have considerable leeway in deciding how to proceed. If this...