Jeffrey Sparks v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Sep 17 2020, 7:50 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
J. Clayton Miller Curtis T. Hill, Jr.
Jordan Law, LLC Attorney General of Indiana
Richmond, Indiana
Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffrey Sparks, September 17, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-986
v. Appeal from the Union Circuit
Court
State of Indiana, The Honorable Matthew Cox,
Appellee-Plaintiff. Judge
Trial Court Cause No.
81C01-1502-F4-39
Mathias, Judge.
[1] Jeffrey Sparks (“Sparks”) appeals from the order of the Union Circuit Court
revoking his probation and ordering him to serve two years of his previously
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suspended sentence. On appeal, Sparks contends that the trial court did not
properly advise him of his right to counsel and that he did not knowingly and
intelligently waive his right to counsel. Concluding that the trial court properly
advised Sparks of his right to counsel and that Sparks knowingly and
intelligently waived this right, we affirm.
Facts and Procedural History
[2] On February 27, 2015, the State charged Sparks with two counts of Level 4
felony dealing in a narcotic drug. Sparks later pleaded guilty to one count of
Level 4 felony dealing in a narcotic drug, and, in exchange, the State dismissed
the other charge. On February 12, 2016, the trial court sentenced Sparks to six
years, with two years executed and four years suspended to probation. Sparks
was released from incarceration and began his probation in July 2016.
[3] Just over a year later, on August 1, 2017, the State filed a petition alleging that
Sparks had violated the terms of his probation. Sparks admitted to the
allegations on January 8, 2018, and the trial court revoked six months of the
previously suspended sentence and ordered Sparks to serve that six months on
home detention, then return to probation.
[4] On January 31, 2019, the State filed its second petition alleging that Sparks had
violated the terms of his probation. Sparks again admitted to the allegations,
and on August 19, 2019, the trial court ordered Sparks to serve twenty days in
jail, followed by more probation.
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[5] On February 13, 2020, the State filed its third petition alleging that Sparks had
violated the terms of his probation. This petition alleged that Sparks had been
charged with disorderly conduct and admitted to his probation officer that he
had used methamphetamine, fentanyl, and ecstasy in the prior two months. The
trial court held an initial hearing on March 2, 2020, at which the trial court
advised several defendants of their rights as follows:
You have the right to be represented by an attorney at every
critical stage of your case, which includes everything from plea
negotiations, to trial and to an appeal. You have the right to hire
your own attorney. If you choose to hire your own attorney, you
must do so within twenty days, if you’ve been charged with a
felony, or ten days from today, if you’ve been charged only with
one or more misdemeanors. If you cannot afford an attorney, the
Court may appoint one for you, if you qualify as being truly
indigent. However, you do have the right to proceed on your
own and without an attorney. If you choose to proceed on your own
and without an attorney, you are advised that attorneys have education,
training and experience in plea negotiations, they’re better able to identify
and evaluate potential defenses and evidentiary or procedure[al] issues
that may exist in your case. . . .
If the State has filed a petition to revoke your probation and or
community corrections supervision, your rights are the same with
the following exceptions[:]
“You have the right to a trial to the court and not to a jury. Next,
the State must prove the allegations in your petition by a
preponderance of the evidence[,] not beyond a reasonable doubt
because your case is civil in nature and not criminal. And the
other difference is . . . you do not have the right to remain silent
at your trial because your case is civil and not criminal, and the
State could potentially call you as a witness to testify against
yourself.”
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Tr. pp. 4–5 (emphasis added).
[6] The court then addressed Sparks individually, advising him of the nature of the
allegations in the petition and informing him that, if the court found that he
violated the terms of his probation, “you have three years and one hundred
sixty days of revocable time that could be served at the Indiana Department of
Corrections.” Id. at 7. Sparks informed the court that he understood. The
following colloquy then ensued:
THE COURT: Do you wish to admit or deny the
allegation today?
THE DEFENDANT: I wish to plead guilty, your Honor.
[Sparks placed under oath]
THE COURT: . . . Has anyone forced you, in any way,
to admit that you violated your
probation?
THE DEFENDANT: No, your Honor.
THE COURT: Do you understand all of your rights?
THE DEFENDANT: Yes, your Honor.
THE COURT: Including the right to be represented by
an attorney?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you wish to go forward without an
attorney today?
THE DEFENDANT: Yes, your Honor.
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THE COURT: And you understand the amount of
time that is revocable?
THE DEFENDANT: Yes, your Honor.
THE COURT: Three years plus one hundred and sixty
days?
THE DEFENDANT: Yes, your Honor.
THE COURT: And, again, no one has forced you, in
any way, to admit that you violated
your probation?
THE DEFENDANT: No, your Honor.
THE COURT: And are you under the influence of any
alcohol, drugs or prescribed
medication?
THE DEFENDANT: No, your Honor.
THE COURT: Does the State have any questions?
THE STATE: No. No, Judge.
THE COURT: Jeff, do you now admit that you
violated your probation?
THE DEFENDANT: Yes, your Honor.
THE COURT: The Court will accept your admission
and the Court will enter judgment that
you violated your probation. . . .
Id. at 7–8.
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[7] After hearing arguments by both the State and Sparks regarding the sanction to
be imposed, the trial court stated:
Because this is your third violation, Jeff, I am going to revoke
two years of the previously suspended sentence. Once that two
year period is served, you will remain on probation as desired
and will get you back into services. Until then, you will spend,
uh, two years, do one, at the Indiana Department of Correction[]
to serve your third violation. Uh, I could revoke the entire time.
In fact, uh, I probably should since this is the third violation, uh,
but I’m not going to. I’m going to keep you, back on probation
for the last one year and one hundred and sixty days of the
suspended sentence.
Id. at 12. Sparks now appeals.
Applicable Law and Standard of Review
[8] We have repeatedly noted that probation is a favor granted by the State, not a
right to which a defendant is entitled. Butler v. State, 951 N.E.2d 255, 259 (Ind.
Ct. App. 2011) (citing Cooper v. State, 900 N.E.2d 64, 66 (Ind. Ct. App. 2009)).
Thus, a probationer facing a petition to revoke his probation is not entitled to
the full panoply of rights he enjoyed before his 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 only by a preponderance of the
evidence. Id. Still, a probationer is entitled to certain due process protections
before his probation may be revoked. Id. Among these rights is the right to
counsel. Id. (citing Ind. Code § 35-38-2-3(f) (providing that a probationer is
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entitled to the rights of “confrontation, cross-examination, and representation
by counsel” at a revocation hearing)).
[9] When a probationer proceeds without the benefit of counsel, the record must
indicate that he knowingly, intelligently, and voluntarily waived his right to
counsel. Id. (citing Cooper, 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 say to
ensure a defendant adequately appreciates the nature of the situation. Id. (citing
Kubsch v. State, 866 N.E.2d 726, 736 (Ind. 2007)). Instead, determining if a
probationer’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. (quoting Kubsch, 866 N.E.2d at
736).
[10] 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. Id. (citing Greer v.
State, 690 N.E.2d 1214, 1217 (Ind. Ct. App. 1998), trans. denied)1. “[W]hen a
1
Our supreme court’s original opinion in Hopper v. State, 934 N.E.2d 1086, 1088 (Ind. 2010) (“Hopper I ”),
arguably abrogated Greer by requiring, without carving out exceptions for 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
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pro se probationer in a revocation proceeding chooses to admit his alleged
probation violation, the trial court is not required to warn him of the dangers of
self-representation because he will not be going to trial” and is not in danger of
“conviction” at the hands of the state. Id. at 260.
[11] Our review of a trial court’s ruling that a defendant waived his right to counsel
is de novo. Id. (citing Cooper, 900 N.E.2d at 67).
Discussion and Decision
[12] Sparks claims that the trial court failed to specifically advise him regarding his
right to counsel and the consequences of waiving that right. He therefore argues
that he did not knowingly, intelligently, and voluntarily waive his right to
counsel. We disagree.
[13] The trial court gave an advisement of rights to a number of people, including
Sparks, that specifically informed him of his right to counsel and that an
attorney would be appointed for him if he could not afford to hire one. 2 And
even though it was not required to do so, the trial court informed Sparks that an
procedural problems in the prosecution’s case.” See Hammerlund v. State, 967 N.E.2d 525, 528 (Ind. Ct. App.
2012). However, “[o]n rehearing, [] 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.’” Id. (quoting Hopper v.
State, 957 N.E.2d 613, 619 (Ind. 2011) (“Hopper II”). We therefore concluded that “Greer, while perhaps once
abrogated, is again good law and may serve as guidance to trial courts and practitioners.” Id.2
Sparks’s argument that he may have not listened to or understand the en masse advisement is mere
speculation. Sparks admits he was present during the advisement, and there is no indication that Sparks is
unable to hear and understand the English language. To the contrary, Sparks spoke clearly and intelligently
with the trial court.
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attorney has education and experience that would be helpful in identifying
defenses, evidentiary and procedural issues, and in negotiating a plea agreement
with the State. The trial court also individually questioned Sparks to ensure that
he understood his rights (including his right to counsel), that Sparks was not
under the influence of any intoxicating substances, and that he was not being
coerced. And the trial court informed Sparks of the potential sanctions he faced
if he admitted to violating his probation. Still, Sparks indicated that he wished
to proceed pro se and admit the violations.
[14] Under similar facts and circumstances, we have previously held that a
probationer knowingly waived his right to counsel. See Butler, 951 N.E.2d at
261 (holding that probationer knowingly waived his right to counsel where the
trial court told him that he had a right to an attorney, that one would be
appointed for him if he could not afford an attorney, and trial court confirmed
that probationer wanted to proceed without an attorney and admit to the
violation); Cooper, 900 N.E.2d at 70 (holding that defendant knowingly waived
his right to counsel at probation hearing where the court clearly set out the
alleged violations and the potential sanctions, informed the probationer of his
right to an attorney, inquired into probationer’s background, ensured that he
was under no coercion or other undue influence, and probationer stated that he
did not need an attorney); Greer, 690 N.E.2d at 1217 (holding that defendant
knowingly waived his right to counsel at probation hearing where the trial court
advised him of his right to counsel, that one would be appointed for him if he
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could not afford to hire private counsel, and warned him of the consequences
that might result if he admitted to the alleged violations).
[15] Furthermore, Sparks is not unfamiliar with the criminal justice system. In this
case alone, he was charged, pleaded guilty, and participated in two prior
probation revocation hearings. Additionally, the pre-sentence investigation
report reveals that Sparks has an extensive criminal history consisting of at least
nine prior convictions. See Butler, 951 N.E.2d at 261 (noting probationer’s
extensive experience with the criminal justice system as supporting its
conclusion that he knowingly waived his right to counsel).
[16] Sparks’s citation to Eaton v. State, 894 N.E.2d 213, 217 (Ind. Ct. App. 2008),
trans. denied, is unavailing, as that case is readily distinguishable. In Eaton, the
trial court asked the probationer if he wanted to hire private counsel or have a
public defender appointed. Eaton replied that he was indigent and “if I did have
an attorney it would have to be an appointed one.” Id. Without pursuing the
matter any further, the trial court then asked Eaton if he wished to admit or
deny the allegations, and the issue of counsel was not brought up again. Under
these facts, we held that “Eaton’s statement falls short of expressing an
unequivocal desire to proceed without counsel. Indeed, it seems to be more a
request for counsel than a refusal, even if an equivocal one.” Id.[17] The facts of this case are very different from those in Eaton: here, the trial court
advised Sparks of his right to counsel, that one would be appointed if he could
not afford counsel, the advantages of having counsel, and the consequences of
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revocation. Still, Sparks indicated his desire to proceed without counsel. Eaton
is therefore not controlling.
Conclusion
[18] The trial court properly advised Sparks of his right to counsel, the advantages of
representation by counsel, and the consequences of admitting to the violations
and further ensured that Sparks was not under the influence of any substances
or subject to coercion. Sparks also had experience in the criminal justice system.
Still, Sparks indicated his desire to proceed without an attorney. We therefore
conclude that Sparks knowingly and intelligently waived his right to counsel,
and we affirm the judgment of the trial court.
[19] Affirmed.
Bradford, C.J., and Najam, J., concur.
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