Timothy Hammerlund v. State of Indiana , 2012 Ind. App. LEXIS 232 ( 2012 )

FILED
May 17 2012, 9:07 am
FOR PUBLICATION CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TIMOTHY HAMMERLUND, )
)
Appellant–Cross-Appellee–Defendant, )
)
vs. ) No. 33A05-1110-CR-562
)
STATE OF INDIANA, )
)
Appellee–Cross-Appellant–Plaintiff. )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable Bob A. Witham, Judge
Cause No. 33D02-1005-FD-130
May 17, 2012
OPINION - FOR PUBLICATION
BRADFORD, Judge
Appellant–Cross-Appellee–Defendant Timothy Hammerlund appeals following
the trial court’s revocation of his probation, contending that his waiver of counsel was not
knowing and voluntary. We affirm.
FACTS AND PROCEDURAL HISTORY
On August 2, 2010, Hammerlund agreed to plead guilty to Class D felony
possession of a controlled substance in exchange for the dismissal of three other charges.
That day, the trial court sentenced Hammerlund to one and one-half years of
incarceration, all suspended and with one year and forty-six days suspended to probation.
On August 11, 2011, the State filed a Second Amended Verified Petition to Revoke
Suspended Sentence, on the basis that Hammerlund had failed a drug screen.
On September 19, 2011, at the initial hearing on the petition to revoke, the
following exchange took place:
THE COURT: You do have the right to counsel to
represent you. If you want an attorney, but cannot afford one, I’ll consider
appointment of counsel. You cannot be compelled to make any statement
or to testify against yourself at the hearing, but anything you say could be
used against you. You have a right to have a hearing on the allegations
made in the Petition to Revoke. At that hearing, the State would have to
prove the allegations by a preponderance of the evidence from evidence
presented in open court at a final hearing. You would also have the right to
confront the witnesses against you and to see, hear and cross examine those
witnesses. You’d also have the right to call witnesses in your own behalf
and I would assist you in that matter by issuing subpoenas at no cost to you.
If the Court revokes your probation after conducting a final hearing, you
would be entitled to appeal the Court’s decision. If you admit the
allegations made in the Petition to Revoke today, you would give up and
waive each of these rights. If the Court finds that you have violated a
condition of your probation, the Court could continue you on probation,
modify the conditions of that probation or order the revocation of your
suspended sentence. If the Court orders the revocation of your suspended
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sentence, you would be entitled to credit for any time served on these
charges. Do you understand these rights?
MR. HAMMERLUND: Yes, Your Honor.
THE COURT: Any questions on any of these rights?
MR. HAMMERLUND: No, Your Honor.
THE COURT: The Second Amended Petition, in
pertinent part state, the matters set forth in the original Petition and prior
petitions are incorporated by reference. This alleges you further violated
the terms and conditions o[f] probation in the following manner: on July
27, 2011, you submitted to a random urinalysis through the Probation
Department. The results of that screen were return[ed] by AIT
Laboratories. They indicated positive for the presence of Benzodiazepine,
specifically Alprazolam, and also the Court notes, or Probation noted you
have had a prior hearing set on violation for today’s date at 10:30 a.m.
That’s the allegation that is contained in this petition. Do you understand
the allegation?
MR. HAMMERLUND: Yes, Your Honor.
THE COURT: Do you have any questions on that
allegation?
MR. HAMMERLUND: I have spoken with the probation officer
and she asked me and I was honest with her. The reason why I had that,
I’m not on my prescription Paxil. I had an interview with the two, two
district attorney, or the two people, the prosecutors in Madison County for
the capital case, the murder of Steven Rogers and I just, I don’t have the
(Inaudible-stamping) with the depression. I just don’t have the coping
skills. I haven’t been able to start the [intensive outpatient treatment].
THE COURT: So, if I understand what you’re saying is,
when you met with Officer Klenke, you admitted that you took some type
of a Benzodiazepine that you weren’t prescribed. That’s what you’re
telling me?
MR. HAMMERLUND: I wasn’t prescribed it, but when she
asked me if I was to take a drug screen, what would the outcome be and I
told her and then I wanted to explain to her the reason why, because I didn’t
want to have any anxiety attacks and I have really bad anxiety attacks in a
meeting with Prosecutors about what happened to me and…
* * * *
THE COURT: All right. So, from what you’re saying,
are you telling me that you are admitting to violating the terms and
conditions of probation by testing positive for that substance?
MR. HAMMERLUND: Yes, Your Honor.
THE COURT: Has anyone threatened or forced you to
admit to that?
MR. HAMMERLUND: No, Your Honor.
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THE COURT: Any promises been made about what will
happen if you admit?
MR. HAMMERLUND: No, Your Honor.
THE COURT: You understand that by admitting you’re
admitting the truth that you did test positive for that substance? Is that
correct?
MR. HAMMERLUND: Yes, Your Honor.
THE COURT: And you also understand that if you
admit, you’re giving up and waiving all those rights I went through earlier.
You understand that?
MR. HAMMERLUND: Yes, Your Honor.
Tr. pp. 40-43.
The trial court found that Hammerlund had violated the terms of his probation and
ordered that one year of his previously-suspended sentence be served.
DISCUSSION AND DECISION1
Whether Hammerlund’s Waiver of Counsel was Knowing and Voluntary
Hammerlund contends that the waiver of counsel at his probation revocation
hearing was not knowing and voluntary because the trial court did not question him
regarding whether he was aware of the nature, extent, and importance of the right to
counsel or the pitfalls of waiving it.
Probation is a favor granted by the State, not a right to which a
defendant is entitled. Cooper v. State, 900 N.E.2d 64, 66 (Ind. Ct. App.
2009). A probationer faced with a petition to revoke his probation is not
entitled to the full panoply of rights he enjoyed before the conviction. Id.For instance, the rules of evidence do not apply in a revocation proceeding,
and the State need prove an alleged violation of probation by only a
preponderance of the evidence. Id.A defendant is entitled to certain due process protections before the
revocation of his probation. Id. One of these protections is the right to
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The State cross-appeals, arguing that Hammerlund should not be able to challenge the
revocation of his probation on direct appeal, having admitted to violating its terms. In the interests of
deciding cases on the narrowest possible grounds and of avoiding additional and unnecessary litigation in
this case, we leave this broader question for another day.
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counsel. Id.; see also Ind. Code § 35-38-2-3(e) (“The person [in a
revocation proceeding] is entitled to confrontation, cross-examination, and
representation by counsel.”). When a defendant proceeds without the
benefit of counsel, the record must reflect that he knowingly, intelligently,
and voluntarily waived his right to counsel. Cooper v. State, 900 N.E.2d at
66. That is, the trial court must determine the defendant’s competency to
represent himself and establish a record of the waiver. Id. “There are no
magic words a judge must utter to ensure a defendant adequately
appreciates the nature of the situation.” Kubsch v. State, 866 N.E.2d 726,
736 (Ind. 2007), reh’g denied. “Rather, determining if a defendant’s
waiver was knowing and intelligent depends on the particular facts and
circumstances surrounding the case, including the background, experience,
and conduct of the accused.” Id. (quotations omitted).
Moreover, when a probationer proceeds pro se and chooses to admit
rather than to challenge his alleged probation violation, his knowing,
intelligent, and voluntary waiver of counsel may be established even if the
record does not show that he was warned of the pitfalls of self-
representation. Greer v. State, 690 N.E.2d 1214, 1217 (Ind. Ct. App.
1998), trans. denied, abrogated by Hopper v. State, 934 N.E.2d 1086 (Ind.
2010), reh’g granted.
We review de novo a trial court’s finding that a defendant waived
his right to counsel. Cooper, 900 N.E.2d at 67.
Butler v. State, 951 N.E.2d 255, 259-60 (Ind. Ct. App. 2011).
In Greer, we stated the following regarding waiving the right to counsel in cases
where a probationer admits to violating the terms of his probation:
We believe that a probationer who chooses to admit his probation
violation places himself in a situation similar to that of a defendant who
chooses to plead guilty to criminal charges. Neither person is in danger of
“conviction” at the hands of the State. It is unnecessary to warn such a
person of the pitfalls of self-representation, for those pitfalls exist only
when he is confronted with prosecutorial activity which is designed to
establish his culpability.
Greer, 690 N.E.2d at 1217.
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This is an appropriate place to say a few words regarding the precedential effect of
Greer. It is true that the original opinion in Hopper v. State, 934 N.E.2d 1086, 1088 (Ind.
2010) on reh’g, 957 N.E.2d 613 (Ind. 2011) (“Hopper I”), arguably abrogated Greer by
requiring, without carving out exceptions for guilty pleas or admissions to allegations of
probation violations, that
in the future a defendant expressing a desire to proceed without counsel is
to be advised of the dangers of going to trial … and also be informed that
an attorney is usually more experienced in plea negotiations and better able
to identify and evaluate any potential defenses and evidentiary or
procedural problems in the prosecution’s case.
Hopper I, 934 N.E.2d at 1088. On rehearing, however, the Indiana Supreme Court
adopted a more flexible, case-specific approach to such matters and cited Greer and other
cases with approval, saying that “[t]hese cases and others like them may serve as helpful
comparative guideposts to trial and appellate courts.” Hopper v. State, 957 N.E.2d 613,
619 (Ind. 2011) (“Hopper II”). Under the circumstances, it seems clear that Greer, while
perhaps once abrogated, is again good law and may serve as guidance to trial courts and
practitioners.
Returning to the facts of the instant case, the trial court advised Hammerlund that
he had the right to be represented by an attorney, that he might have an attorney
appointed if he could not afford one, and of the potential consequences of admitting the
allegations leveled against him. Hammerlund indicated that he understood his rights and
that he had no questions regarding them. After Hammerlund admitted to violating the
terms of his probation, the trial court again asked him if he understood that he was
waiving the rights it had advised him of earlier, and Hammerlund indicated that he did.
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These facts relating to Hammerlund’s waiver of counsel are essentially identical to
those in Greer, in which we concluded that Greer’s waiver of counsel was valid. “At his
initial hearing, Greer was advised of many things, including the following: that he had the
right to be represented by an attorney; that an attorney might be appointed to represent
him; and that certain consequences would or might result if he admitted the alleged
violation of probation.” Id. “This record, which also indicates that Greer understood the
trial judge’s advisements, establishes Greer’s knowing, intelligent, and voluntary waiver
of counsel.” Id. Hammerlund was given essentially the same advisements cited by the
Greer court and indicated on the record that he understood them. We conclude,
therefore, that the record here establishes Hammerlund’s knowing, intelligent, and
voluntary waiver of counsel.
Moreover, we note that Hammerlund does not contend, much less establish, that
he suffered any prejudice whatsoever. The Indiana Supreme Court recently emphasized
the importance of this factor in the totality-of-the-circumstances approach that it has
adopted:
Hopper himself may be the best illustration of why the totality of the
circumstances approach serves better than the per se rule. He claims only a
lack of an advisement. He does not articulate any negative impact or
particularized prejudice. He makes no argument of injustice or innocence.
He certainly never says, “I didn’t do it.” … Hopper never offers evidence
that he would have received a better deal with advice of counsel or that he
would have accepted counsel if the judge had told him that lawyers were so
much better at plea bargaining.
Hopper II, 957 N.E.2d at 623.
Like the defendant in Hopper II, Hammerlund simply claims he was inadequately
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advised without saying how it harmed him. Hammerlund does not claim that the State’s
evidence was weak, he would have received a better deal had he been represented, or he
would have accepted counsel had he been differently advised. Taken as a whole, the
record fails to establish that Hammerlund’s waiver of counsel was anything other than
knowing, intelligent, and voluntary.
The judgment of the trial court is affirmed.
VAIDIK, J., and CRONE, J., concur.
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