Paul Sparks v. State of Indiana , 2013 Ind. App. LEXIS 183 ( 2013 )


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  • FOR PUBLICATION
    ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:
    JAY RODIA                                       GREGORY F. ZOELLER
    Indianapolis, Indiana                           Attorney General of Indiana
    MICHELLE BUMGARNER
    Deputy Attorney General
    Indianapolis, Indiana
    Apr 23 2013, 9:25 am
    IN THE
    COURT OF APPEALS OF INDIANA
    PAUL SPARKS,                                    )
    )
    Appellant-Defendant,                     )
    )
    vs.                              )      No. 49A02-1207-CR-593
    )
    STATE OF INDIANA,                               )
    )
    Appellee-Plaintiff.                      )
    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable Robert Altice, Judge
    Cause No. 49G02-1202-FC-8723
    April 23, 2013
    OPINION ON REHEARING - FOR PUBLICATION
    ROBB, Chief Judge
    The State has petitioned for rehearing of this court’s decision in Sparks v. State, 
    983 N.E.2d 221
     (Ind. Ct. App. 2013), in which we held that the trial court did not handle Sparks’s
    probation revocation hearing in a way that comports with his due process rights, and we
    reversed and remanded for a new probation revocation hearing. We grant the petition for
    rehearing for the sole purpose of clarifying what is required on remand, but affirm our
    opinion in all respects.1
    The State’s petition reiterates its original argument that an evidentiary hearing was not
    required because Sparks admitted to the probation violation after consulting with his
    attorney. However, as was well-explained in the opinion, Sparks’s admission was suspect in
    light of the comment made by the trial court. Thus, the particular circumstances surrounding
    Sparks’s admission rendered the lack of an evidentiary hearing in this case fundamental
    error. Our decision did not change established Indiana law that a probationer may admit to a
    probation violation and waive the right to a probation violation hearing. See 
    Ind. Code § 35
    -
    38-2-3(e).
    On remand, the trial court must conduct an evidentiary hearing in which the State
    proves by a preponderance of evidence that Sparks violated his probation. The State cannot
    rely on Sparks’s original admission, which this court held was suspect. If Sparks chooses to,
    once again, admit to the probation violation, there would no longer be a need for an
    evidentiary hearing, as long as both the trial court and the State abide by due process
    requirements.
    1
    Sparks has not filed a brief in response to the petition for rehearing.
    2
    MAY, J., and PYLE, J., concur.
    3
    

Document Info

Docket Number: 49A02-1207-CR-593

Citation Numbers: 985 N.E.2d 1140, 2013 WL 1736519, 2013 Ind. App. LEXIS 183

Judges: Robb, Pyle

Filed Date: 4/23/2013

Precedential Status: Precedential

Modified Date: 11/11/2024