David Anthony Jordan v. State of Indiana

FILED
Jul 22 2016, 9:24 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel K. Whitehead Gregory F. Zoeller
Yorktown, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Anthony Jordan, July 22, 2016
Appellant-Defendant, Court of Appeals Case No.
48A02-1510-CR-1846
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Dennis Carroll,
Appellee-Plaintiff. Special Judge
Trial Court Cause No.
48D03-0108-CF-270
Pyle, Judge.
Statement of the Case
[1] David Anthony Jordan (“Jordan”) appeals the trial court’s order revoking his
probation and ordering him to serve part of his previously suspended sentence.
Jordan does not challenge the sufficiency of the evidence underlying his
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probation violation or the trial court’s ruling that he serve twelve years of his
previously suspended sentence. Instead, he challenges the validity of the
probation itself. Specifically, he argues that: (1) the special judge did not have
authority to enter the revocation order; (2) the original judge, who had
previously recused himself from the case, did not have authority to place him
on probation; and (3) his probation revocation counsel was ineffective because
counsel failed to challenge the validity of Jordan’s probation on the basis that it
was imposed by the previously-recused judge. Concluding that Jordan has
waived his challenges to the judges’ authority and has failed to meet his burden
on his ineffective assistance of counsel claim, we affirm the trial court’s order
revoking Jordan’s probation.
[2] We affirm.
Issues
1. Whether Jordan has waived his challenge to the special judge’s
authority to enter the revocation order.
2. Whether Jordan has waived his collateral challenge to the
original judge’s authority to modify his sentence and place him on
probation.
3. Whether Jordan’s probation revocation counsel rendered
ineffective assistance of counsel.
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Facts1
[3] The relevant procedural facts follow. On August 14, 2001, the State charged
Jordan with: Count I, Class B felony burglary; Count II, Class C felony
stalking; Count III, Class B misdemeanor invasion of privacy; and Count IV,
Class B misdemeanor criminal mischief. The cause was assigned to Circuit
Court #3 and the Honorable Thomas Newman, Jr. (“Judge Newman”).
[4] On January 7, 2002, Jordan, pursuant to a plea agreement, pled guilty to
Counts I, II, and IV in exchange for the dismissal of Count III. Thereafter,
Judge Newman sentenced Jordan to concurrent terms of twenty (20) years on
Count I, eight (8) years on Count II, and six (6) months on Count IV. This
aggregate twenty (20) year sentence was to be served in the Department of
Correction and served consecutively to two other criminal causes.2 Thereafter,
Jordan filed a direct appeal and challenged the sentence imposed in this case. 3
Our Court affirmed his sentence in a memorandum decision issued on
1
We note that Jordan’s counsel, in an attempt to be helpful, has reproduced the entire transcript from
Jordan’s probation revocation hearing and included it in his Appendix. Aside from this reproduction being
“a waste of paper and unnecessarily bloating the record on appeal,” see Steve Silveus Ins., Inc. v. Goshert, 873
N.E.2d 165, 172 (Ind. Ct. App. 2007), it also violates Appellate Rule 50(F), which explicitly instructs that
“parties should not reproduce any portion of the Transcript in the Appendix” because the “Transcript is
transmitted to our Court pursuant to Appellate Rule 12(B)[.]” (Emphasis added).
2
These criminal causes were 48D03-0011-DF-346 (“Cause DF-346”) and 48D03-0109-CF-295 (“Cause CF-
295”), in which he also entered a guilty plea. The trial court imposed an aggregate sentence of three (3) years
in Cause DF-346 and an aggregate sentence of twenty (20) years in Cause CF-295.
3
In that same appeal, Jordan also appealed the sentences imposed in Cause DF-346 and Cause CF-295.
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December 2, 2002. See Jordan v. State, 48A05-0204-CR-148 (Ind. Ct. App. Dec.
2, 2002).
[5] In 2002 and then again in 2003, Jordan filed a petition for post-conviction relief,
both of which he was allowed to withdraw without prejudice. He then filed an
amended petition in June 2006.4 Following a hearing, Judge Newman denied
Jordan’s petition for post-conviction relief on January 3, 2007. Jordan appealed
the denial of post-conviction relief, and we affirmed the trial court’s judgment
in a memorandum decision in October 2007. See Jordan v. State, 48A04-0703-
PC-125 (Ind. Ct. App. Oct. 18, 2007), trans. denied.
[6] Thereafter, between 2008 and 2011, Jordan filed numerous motions to reduce
his sentence or to have it modified to run concurrently with his two other
criminal causes. Judge Newman denied each of these motions.
[7] Subsequently, on January 18, 2013, Judge Newman entered an order recusing
himself from Jordan’s case,5 and the Honorable Dennis Carroll (“Special Judge
Carroll”) accepted jurisdiction as special judge on February 20, 2013.
However, despite Judge Newman’s recusal, he continued to hold hearings and
issue orders in this case. For example, on September 15, 2014, Judge Newman
held a hearing on Jordan’s April 2014 motion to modify his sentence. Judge
4
In Jordan’s amended post-conviction petition, he challenged his guilty pleas from this cause and Causes
DF-346 and CF-295.
5
In that same order, Judge Newman also recused himself from Cause DF-346 and Cause CF-295.
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Newman granted Jordan’s motion and ordered Jordan “released from the
Department of Corrections [sic] and placed in Work Release for the remainder
of his sentence[,]” which was sixteen plus years. (App. 40). Additionally, on
July 20, 2015, Judge Newman held a hearing on Jordan’s January 2015 request
to modify his sentence from work release to probation. Judge Newman granted
Jordan’s motion to modify his sentence and placed him on probation for the
balance of his 6,126-day sentence. Jordan did not object to or otherwise
challenge Judge Newman’s authority to enter this order and place him on
probation.
[8] Three weeks later, on August 11, 2015, the State filed a notice of probation
violation, alleging that Jordan had violated his probation by: (1) committing
new criminal offenses;6 (2) failing to abstain from alcohol; and (3) violating his
curfew. On August 31, 2015, Judge Newman held the initial hearing on
Jordan’s probation violation allegations, and Jordan denied the allegations.
The transcript of this hearing is not part of the record on appeal. Nevertheless,
there is no indication in the record that Jordan objected to Judge Newman’s
authority at this hearing.
6
The notice of probation violation alleged that, on July 24, 2015, had committed and been charged with:
Count I, Level 6 felony criminal confinement; Count II, Level 6 felony residential entry; Count III, Class A
misdemeanor battery; Count IV, Class A misdemeanor interference with reporting of a crime; and Count V,
Class A misdemeanor theft.
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[9] On October 1, 2015, Special Judge Carroll presided over the evidentiary
hearing. At the beginning of the hearing, Special Judge Carroll stated:
We are in a Circuit Division Three case that I serve as Special
Judge on in 48D03-0108-CF-270. We were here last week and
there was a continuance and Mr. Kopp is here again on behalf of
the State of Indiana. If there are any preliminary matters we can
take care of those, otherwise we can get on with the evidence . . .
. So are we ready to move forward?
(Tr. 4). Jordan’s counsel responded, “Yes, Your Honor.” (Tr. 5). Jordan did
not object to the validity of the probation or the allegations. Nor did he object
to Special Judge Carroll’s authority to preside over the probation proceeding.
[10] During the hearing, the State questioned Jordan’s probation officer, Tony New
(“Probation Officer New”), about Jordan’s alleged violations. The State also
had Probation Officer New explain the procedural anomaly that had occurred
in the case. Specifically, Probation Officer New testified that, in July 2015,
Judge Newman held a hearing and placed Jordan on probation even though
Special Judge Carroll was the presiding judge over the case. Probation Officer
New testified that “[a]s it turn[ed] out[,] Judge Carroll was actually the Special
Judge . . . on the case at that time” but that apparently “[n]obody recalled that
that had changed at some point before that.” (Tr. 43-44). When the State
asked Probation Officer New, “But [Jordan’s case] ha[d] a 48D03 cause
number and for whatever reason nobody realized that Judge Carroll had
jurisdiction over this case and not Judge Newman?”, he replied that he “didn’t
realize it.” (Tr. 44). Jordan still did not object to the validity of the probation
or Special Judge Carroll’s authority to preside over the probation proceeding.
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[11] Special Judge Carroll determined that Jordan had violated his probation by
committing another crime (battery, criminal confinement, and interference with
the reporting of a crime), and he ordered Jordan to serve twelve (12) years of his
previously suspended sentence. Jordan now appeals.
Decision
Jordan does not challenge the sufficiency of the evidence that he violated
probation or the trial court’s ruling that he serve twelve years of his previously
suspended sentence. Instead, he challenges the validity of the trial court’s
revocation order and the validity of the existence of his probation. Specifically,
he argues that: (1) Special Judge Carroll did not have authority to enter the
revocation order; (2) Judge Newman, who had previously recused from the
case, did not have authority to modify his sentence and place him on probation;
and (3) his probation revocation counsel was ineffective for failing to challenge
the validity of his probation. We will address each argument in turn.
1. Authority of Special Judge to Enter Revocation Order
[12] We first address Jordan’s main challenge to the revocation of his probation. He
contends that Special Judge Carroll did not have authority to hold a probation
evidentiary hearing and to enter an order ruling that he had violated his
probation because Special Judge Carroll “relinquished jurisdiction and Judge
Newman [had] reassumed case jurisdiction.” (Jordan’s Br. 7).
[13] The State argues that Jordan has waived appellate review of any challenge to
Special Judge Carroll’s authority to hold the revocation hearing and to enter the
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probation revocation order because Jordan “raised no objection whatsoever to
Judge Carroll presiding over the probation revocation hearing.” (State’s Br.
11). We agree.
[14] Our Indiana Supreme Court has explained that “[t]he proper inquiry for a
reviewing court when faced with a challenge to the authority and jurisdiction of
a court officer to enter a final appealable order is first to ascertain whether the
challenge was properly made in the trial court so as to preserve the issue for
appeal.” Floyd v. State, 650 N.E.2d 28, 32 (Ind. 1994). The Floyd Court also
explained that “it has been the long-standing policy of this court to view the
authority of the officer appointed to try a case not as affecting the jurisdiction of
the court.” Id. “Therefore, the failure of a party to object at trial to the
authority of a court officer to enter a final appealable order waives the issue for
appeal.” Id.
[15] Here, Jordan did not object at the probation revocation evidentiary hearing to
Special Judge Carroll’s authority to preside over the hearing or to enter an order
in the proceeding. Accordingly, Jordan has waived review of any challenge to
the authority of Special Judge Carroll to preside over and enter an order in this
probation revocation proceeding. See, e.g., Floyd, 650 N.E.2d at 32; Tapia v.
State, 753 N.E.2d 581, 588 (Ind. 2001) (holding that a post-conviction
petitioner’s failure to object to a magistrate’s authority to preside over his
proceedings resulted in waiver of any appellate challenge to the magistrate’s
authority). See also Bivins v. State, 485 N.E.2d 89, 92 (Ind. 1985) (“We have
held that where a defendant does not object to an irregularity in the
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appointment of a special judge, he accepts the appointment, submits to the
jurisdiction, and waives the irregularity.”).7
2. Authority of Original Judge to Order Probation
[16] Next, we turn to Jordan’s alternative attack on the validity of the probation
revocation order, which he mounts by attacking the validity of his underlying
probation. Specifically, Jordan argues that Judge Newman did not have
authority to place him on probation because he had recused from the case and
that his order placing him on probation was “invalid.” (Jordan’s Br. 15).
Jordan contends that because Judge Newman’s probation placement order was
invalid, then Special Judge Carroll’s order revoking his probation was equally
invalid.
[17] Like Jordan’s challenge to Special Judge Carroll’s authority, he has also waived
any appellate challenge to Judge Newman’s authority. See Floyd, 650 N.E.2d at
32. In January 2015, Jordan filed a motion to modify his sentence from work
release to probation. On July 20, 2015, Judge Newman held a hearing, granted
Jordan’s motion, and placed him on probation for the balance of his 6,126-day
sentence. Jordan has not shown that he previously objected to Judge
Newman’s authority to hold the hearing on his motion or to enter the order
7
We also reject Jordan’s suggestion that Special Judge Carroll committed fundamental error because he
“should have acted, irrespective of the parties’ failure to object or otherwise preserve the error for appeal.”
(Jordan’s Br. 15). As Jordan makes no cogent argument to support this suggestion, he has waived the
argument. See Ind. Appellate Rule 46(A)(8)(a).
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placing him on probation. Nor has Jordan shown why he did not appeal the
probation order after it was entered in July 2015, and he may not do so now.
As the State correctly contends, Jordan’s “collateral challenge to the authority
of Judge Newman to enter an order granting [him] probation is unavailable for
consideration in this subsequent appeal from Special Judge Carroll’s revocation
of [Jordan’s] probation.” (State’s Br. 16). See Floyd, 650 N.E.2d at 32 (holding
that the failure of a party to object below to the authority of a court officer to
enter a final appealable order waives the issue for appeal).
3. Ineffective Assistance of Probation Revocation Counsel
[18] Lastly, we will turn to Jordan’s ineffective assistance of counsel claim. Jordan
contends that his probation revocation counsel rendered ineffective assistance
by failing to challenge the validity of his probation. Citing to the ineffective
assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668
(1984), reh’g denied, Jordan contends that his counsel rendered deficient
performance because he failed to object to validity of Jordan’s probation on the
basis that it was ordered by the recused Judge Newman. He further contends
that there was prejudice because there was a “reasonable probability” that
Special Judge Carroll would have vacated all of Judge Newman’s prior orders,
with “no resulting [probation] sanction imposed.” (Jordan’s Br. 18).
[19] The State responds that “[t]his allegation of ineffective assistance of probation
revocation counsel is entirely without merit because [Jordan] had no Sixth
Amendment right to the effective assistance of counsel during the probation
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revocation proceeding.” (State’s Br. 17). The State reasons that “[t]he Sixth
Amendment right to counsel applies only to critical stages of a criminal
prosecution[,]” (State’s Br. 17) (citing Cox v. State, 854 N.E.2d 1187, 1195 (Ind.
Ct. App. 2006)), and that, because a probation revocation proceeding is civil in
nature, “he did not have any Sixth Amendment right to counsel” in this
proceeding. (State’s Br. 17) (citing Gagnon v. Scarpelli, 411 U.S. 778, 781-82
(1973)).
[20] We acknowledge that “[a] probation hearing is civil in nature[,]” Cox v. State,
706 N.E.2d 547, 551 (Ind. 1999), reh’g denied, and “that probationers do not
receive the same constitutional rights that defendants receive at trial.” Reyes v.
State, 868 N.E.2d 438, 440 (Ind. 2007), reh’g denied. Indeed, the United States
Supreme Court has held that there is no Sixth Amendment right to counsel with
respect to a probation revocation proceeding. See Gagnon v. Scarpelli, 411 U.S.
778, 781-82 (1973) (explaining that “[p]robation revocation . . . is not a stage of
criminal prosecution” and holding that a probationer, who has already been
sentenced, does not have a constitutional right to appointed counsel). See also
Reyes, 868 N.E.2d at 440 n.1 (recognizing that the Sixth Amendment right to
confrontation does not apply to probation revocation proceedings). 8 “Although
8
We note that our Indiana Supreme Court has held that “[t]he right to the assistance of counsel extends to
several situations deemed ‘critical stages’ in the proceeding[,]” including “revocation of probation and
deferred sentencing proceedings[.]” Hernandez v. State, 761 N.E.2d 845, 849 (Ind. 2002) (citing Mempa v.
Rhay, 389 U.S. 128, 137, (1967)), reh’g denied. However, in Gagnon, the Supreme Court explained that the
right to counsel holding in Mempa was limited to where a probationer had “a combined revocation and
sentencing hearing” and did not apply “where the probationer was sentenced at the time of trial.” Gagnon,
411 U.S. at 781 (emphasis added).
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probationers are not entitled to the full array of constitutional rights afforded
defendants at trial, ‘the Due Process Clause of the Fourteenth Amendment
[does] impose [ ] procedural and substantive limits on the revocation of the
conditional liberty created by probation.’” Woods v. State, 892 N.E.2d 637, 640
(Ind. 2008) (quoting Debro v. State, 821 N.E.2d 367, 374 (Ind. 2005)).9 In
addition to these due process rights, INDIANA CODE § 35-38-2-3(f) provides that
a probationer in a revocation hearing “is entitled to . . . representation by
counsel.”
[21] We cannot, however, agree with the State’s suggestion that we can outright
dismiss, without reviewing, Jordan’s ineffective assistance of probation counsel
claim because he did not have a Sixth Amendment right to counsel at the
probation revocation hearing. Indeed, Jordan does not argue that he was
denied a right to probation revocation counsel. Instead, he contends that he
received ineffective assistance from his probation revocation counsel.
[22] In Childers v. State, 656 N.E.2d 514 (Ind. Ct. App. 1995), our Court addressed
the standard to be applied when a defendant asserts a claim that his probation
revocation counsel rendered ineffective assistance of counsel during the
revocation hearing.
9
The minimum requirements of due process provided to a probationer at a revocation hearing include: “(a)
written notice of the claimed violations of probation; (b) disclosure of the evidence against him; (c) an
opportunity to be heard and present evidence; (d) the right to confront and cross-examine adverse witnesses;
and (e) a neutral and detached hearing body.” Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).
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Because [a probation revocation hearing] is a civil proceeding,
we apply a less stringent standard of review in assessing counsel’s
performance. If counsel appeared and represented the petitioner
in a procedurally fair setting which resulted in judgment of the
court, it is not necessary to judge his performance by rigorous
standards.
[23] Childers, 656 N.E.2d at 517 (citing Baum v. State, 533 N.E.2d 1200, 1201 (Ind.
1989)). In Baum, our Indiana Supreme Court explained that, because a “right
to counsel in post-conviction proceedings is guaranteed by neither the Sixth
Amendment of the United States Constitution nor art. 1, § 13 of the
Constitution of Indiana[,]” there was no requirement that the “constitutional
standards be employed when judging the performance of counsel when
prosecuting a post-conviction petition at the trial level or at the appellate level.”
Baum, 533 N.E.2d at 1201. The Baum Court explained that, therefore, “a lesser
standard responsive more to the due course of law or due process of law
principles which are at the heart of the civil post-conviction remedy” should be
applied. Id. Similarly, given the civil nature of probation revocation
proceedings and the corresponding due process rights applicable in such
proceedings, we will apply the Baum standard to Jordan’s claim of ineffective
assistance of probation revocation counsel.10 See id.; see also Hill v. State, 960
10
We acknowledge that, in prior cases, other panels of our Court have applied the Strickland standard when
reviewing a claim that counsel rendered ineffective assistance during a probation revocation hearing. See,
e.g., Truitt v. State, 853 N.E.2d 504, 507 (Ind. Ct. App. 2006); Marsh v. State, 818 N.E.2d 143, 145 (Ind. Ct.
App. 2004); Decker v. State, 704 N.E.2d 1101, 1103 (Ind. Ct. App. 1999); King v. State, 642 N.E.2d 1389, 1391-
92 (Ind. Ct. App. 1994); Sims v. State, 547 N.E.2d 895, 896-97 (Ind. Ct. App. 1989). It does not, however,
appear that the question of the applicability of the Sixth Amendment or the standard of review was raised in
these cases.
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N.E.2d 141, 143 (Ind. 2012) (holding that the Baum standard was the
“appropriate standard” for judging the performance of counsel in a Post-
Conviction Rule 2—or a belated notice of appeal—proceeding), reh’g denied.
[24] Applying this “lesser” standard, we conclude that Jordan has failed to show
that his probation revocation counsel rendered ineffective assistance of counsel
by failing, during the October 2015 revocation hearing, to raise an objection to
the validity of Judge Newman’s July 2015 order placing Jordan on probation.
Jordan’s counsel appeared at the revocation hearing, questioned witnesses and
introduced exhibits on behalf of Jordan, and offered argument regarding
sanctions. Additionally, Jordan has not alleged or shown that he was deprived
of a procedurally fair hearing. Based on our standard of review, the record
before us, and the specific facts of this case, we conclude that Jordan has failed
to show that he received the ineffective assistance of probation revocation
counsel.11 See, e.g., Childers, 656 N.E.2d at 517 (holding that the defendant
failed to show that his probation revocation counsel was ineffective).
[25] Affirmed.
Kirsch, J., and Riley, J., concur.
11
Even if we were to review Jordan’s claim under the Strickland standard, we would equally conclude that he
failed to prove his ineffective assistance of counsel claim. Jordan’s ineffective assistance of counsel claim is
premised upon the assumption that an objection to Judge Newman’s July 2015 probation order would have
resulted in Special Judge Carroll vacating “all rulings” of Judge Newman. (Jordan’s Br. 18). Jordan,
however, apparently fails to realize that vacating all of Judge Newman’s orders would include Judge
Newman’s September 2014 order releasing Jordan from the Department of Correction.
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