Bradley Kay v. State of Indiana (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                       FILED
    regarded as precedent or cited before any                              Dec 09 2019, 10:39 am
    court except for the purpose of establishing                                CLERK
    the defense of res judicata, collateral                                 Indiana Supreme Court
    Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Megan Shipley                                           Curtis T. Hill, Jr.
    Marion County Public Defender Agency                    Attorney General
    Appellate Division
    Indianapolis, Indiana                                   Lauren A. Jacobsen
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Bradley Kay,                                            December 9, 2019
    Appellant-Defendant,                                    Court of Appeals Case No.
    19A-CR-1523
    v.                                              Appeal from the Marion Superior
    Court
    State of Indiana,                                       The Honorable Barbara Crawford,
    Appellee-Plaintiff                                      Judge
    Trial Court Cause No.
    49G01-0111-CF-217377
    Crone, Judge.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019                Page 1 of 6
    Case Summary
    [1]   Bradley Kay appeals the revocation of his community corrections and
    probation placements, asserting that he was denied fundamental due process at
    his revocation hearing because the trial court did not ensure that he was advised
    of the rights he was forfeiting before he admitted to committing a violation of
    the terms of his placements. We agree and therefore reverse and remand for a
    new hearing.
    Facts and Procedural History
    [2]   In September 2001, Kay went to Payroll Check Cashing and attempted to cash
    a check in his name from Knight Transportation Administrative Services.
    However, Kay had never worked for Knight Transportation and was not due
    any type of financial compensation from it. In November 2001, the State
    charged Kay with class C felony forgery and class D felony forgery. In March
    2003, pursuant to a plea agreement, Kay pled guilty to the class C felony. In
    April 2003, the trial court sentenced Kay to eight years, with three years to be
    served on community corrections and five years suspended, with three of those
    years to be served on probation.
    [3]   In September 2003, the State filed a notice of community corrections violation
    alleging that Kay had left the community corrections residential facility on a job
    search and failed to return. In October 2003, the State filed a notice of
    probation violation based on the same allegation. A warrant was issued for
    Kay’s arrest.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019   Page 2 of 6
    [4]   In May 2019, Kay was arrested. On May 30, 2019, the trial court held a
    hearing on the community corrections and probation violations. At the
    beginning of the hearing, Kay requested a public defender, and the trial court
    determined that he was indigent and appointed a public defender to represent
    him. Kay’s appointed counsel received copies of the notices of violation, and
    the trial court read the allegation on the record. Then, the trial court discussed
    Kay’s credit time with the representatives from community corrections and the
    probation department and asked them what they would like to see as a sanction
    for the violation, and each recommended revocation.
    [5]   The trial court asked Kay’s counsel for comment, and he informed the trial
    court that Kay would like to make a statement. The trial court said, “Okay, I
    have already sworn you in; where have you been for sixteen (16) years?” Tr.
    Vol. 2 at 7. Kay replied that he had been in Colorado and Wyoming. The trial
    court asked Kay if he left the community corrections facility and never came
    back. Kay answered affirmatively, apologized for his actions, and noted that he
    had turned himself in and had not been arrested or convicted of anything since
    he left. The trial court then informed Kay that it was finding a violation. The
    trial court revoked Kay’s community corrections placement and ordered him to
    serve the remainder of the three-year sentence in the Department of Correction.
    The trial court also revoked Kay’s probation and ordered him to serve one year
    in community corrections and four years suspended to probation. This appeal
    ensued.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019   Page 3 of 6
    Discussion and Decision
    [6]   Kay argues that the trial court did not ensure that he was advised of the rights
    he was forfeiting before he admitted to violating the terms of his placements,
    resulting in fundamental error and requiring reversal and a new hearing. The
    State agrees.
    [7]   Before a defendant’s probation or community corrections placement is revoked,
    the defendant must be afforded certain due process protections. See Cox v. State,
    
    706 N.E.2d 547
    , 549 (Ind. 1999) (“We hold that the due process requirements
    expressed by this court for probation revocations are also required when the
    trial court revokes a defendant’s placement in a community corrections
    program.”). These due process rights are codified in Indiana Code Section 35-
    38-2-3, which provides in relevant part,
    (e) A person may admit to a violation of probation and waive the
    right to a probation violation hearing after being offered the
    opportunity to consult with an attorney. If the person admits to a
    violation and requests to waive the probation violation hearing,
    the probation officer shall advise the person that by waiving the
    right to a probation violation hearing the person forfeits the rights
    provided in subsection (f)....
    (f) Except as provided in subsection (e), the state must prove the
    violation by a preponderance of the evidence. The evidence shall
    be presented in open court. The person is entitled to
    confrontation, cross-examination, and representation by counsel.
    [8]   In Hilligoss v. State, 
    45 N.E.3d 1228
    (Ind. Ct. App. 2015), another panel of this
    court addressed the same claim Kay raises. There, as here, the defendant had
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019   Page 4 of 6
    not been advised of the due process rights he was forfeiting as required by
    subsection (e). In reviewing his claim of fundamental error, the Hilligoss court
    reasoned as follows:
    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 v. State,
    
    560 N.E.2d 558
    , 560 (Ind. Ct. App. 1990)]. 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 (1976)]. 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).
    …. [T]he statutory advisements applicable here insure that a
    probationer’s admission “is given with full knowledge of the
    consequences of such admission.” Gray v. State, 
    481 N.E.2d 158
    ,
    161 (Ind. Ct. App. 1985).
    
    Id. at 1231-32.
    Accordingly, the Hilligoss court held 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.” 
    Id. at 1232.
    [9]   We agree with the reasoning in Hilligoss. Here, there is no dispute that Kay was
    not advised of the rights he was forfeiting before he admitted to violating the
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019   Page 5 of 6
    terms of his placements. 1 The trial court’s failure to ensure that Kay was
    advised as required by Section 35-38-2-3(e) constitutes fundamental error, and
    therefore we reverse the revocation of Kay’s alternative placements and remand
    for a new hearing. 2
    [10]   Reversed and remanded.
    May, J., and Pyle, J., concur.
    1
    The State does not suggest that the statutory requirement that the “probation officer shall advise” the person
    of the rights being forfeited by admitting a violation relieved the trial court of its responsibility to ensure that
    Kay was aware of his rights.
    2
    Because we are remanding for a new hearing, we need not address Kay’s argument that he was denied his
    right to allocution.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-1523 | December 9, 2019                        Page 6 of 6
    

Document Info

Docket Number: 19A-CR-1523

Filed Date: 12/9/2019

Precedential Status: Precedential

Modified Date: 12/9/2019