Amber Gibson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Jul 08 2020, 8:59 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
Tyler G. Banks
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Amber Gibson, July 8, 2020
Appellant/Respondent, Court of Appeals Case No.
20A-CR-761
Appeal from the Vermillion
v. Circuit Court
The Hon. Robert M. Hall, Special
Judge
State of Indiana,
Trial Court Cause No.
Appellee/Petitioner. 83C01-1412-F1-1
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-761 | July 8, 2020 Page 1 of 6
Case Summary
[1] Following Amber Gibson’s 2017 plea of guilty but mentally ill to Level 3 felony
child molesting and Level 6 felony maintaining a common nuisance, the trial
court sentenced her to seven years of incarceration and suspended her sentence
to probation. In March of 2020, Gibson admitted to violating the terms of her
probation by committing another crime, and the trial court ordered her to serve
three years of her previously-suspended sentence, to be followed by four years
on probation. Gibson contends that she received ineffective assistance of
probation-revocation counsel. Because we disagree, we affirm.
Facts and Procedural History
[2] On December 2, 2014, the State charged Gibson with Level 1 felony child
molesting and Level 6 felony maintaining a common nuisance. On September
4, 2016, Gibson pled guilty but mentally ill to Level 3 felony child molesting
and Level 6 felony maintaining a common nuisance. In May of 2017, Gibson
underwent a psychological evaluation and was determined to have a mild
intellectual disability and an I.Q. of 67. On February 13, 2018, the trial court
sentenced Gibson to seven years of incarceration, all suspended to probation,
save time served awaiting trial.
[3] On September 12, 2019, the State moved to revoke Gibson’s probation on the
basis that she had committed Level 6 felony failure to reside at a sex offender
registered address or location. On March 4, 2020, at a hearing at which Gibson
was represented by counsel, Gibson admitted to violating the terms of her
probation by committing failure to reside at a sex offender registered address or
Court of Appeals of Indiana | Memorandum Decision 20A-CR-761 | July 8, 2020 Page 2 of 6
location, and the trial court ordered that she serve three years of her previously-
suspended sentence, followed by four years of probation.
Discussion and Decision
[4] Gibson argues that she received ineffective assistance of probation-revocation
counsel because counsel failed to argue that her mental disability was a
circumstance that mitigated against imposing part of her previously-suspended
sentence. Those who have already been convicted enjoy fewer constitutional
protections than those entitled to the presumption of innocence before
conviction. Weida v. State, 94 N.E.3d 682, 687 (Ind. 2018) (citing Bratcher v.
State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013)). While Indiana Code section
35-38-2-3(f) provides probationers the statutory right to counsel in probation-
revocation proceedings, this is not a right guaranteed by the Sixth Amendment
to the United States Constitution. Gagnon v. Scarpelli, 411 U.S. 778, 781–82
(1973). Consequently, a claim of ineffective assistance in this context is not
reviewed under the Sixth-Amendment-based standard established in Strickland
v. Washington, 466 U.S. 668 (1984). See Jordan v. State, 60 N.E.3d 1062, 1068–
69 (Ind. Ct. App. 2016) (concluding that ineffective-assistance claims in
probation-revocation hearings are not evaluated pursuant to the Strickland
standard).
“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.”
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Id. at (quoting Childers v. State, 656 N.E.2d 514, 517 (Ind. Ct. App. 1995), trans.
denied) (brackets in Jordan). In applying this standard, we are bound by the
Indiana Supreme Court’s recent decision in A.M. v. State, 134 N.E.3d 361 (Ind.
2019), in which it concluded that Strickland did not apply in juvenile
disposition-modification hearings, which—like probation-revocation
proceedings—are civil proceedings in which the right to effective counsel flows
from the Due Process Clause of the Fourteenth Amendment, not the Sixth. Id.at 365 (citing, with approval, Childers, 656 N.E.2d at 517 (declining to apply
Strickland in probation-revocation proceeding)).
[5] Gibson draws our attention to Mickens v. Taylor, 535 U.S. 162 (2002), Hernandez
v. State, 761 N.E.2d 845 (Ind. 2002), and Williams v. State, 883 N.E.2d 192 (Ind.
Ct. App. 2008), as support for the proposition that the more-stringent Strickland
standard does, in fact, apply in probation-revocation proceedings. Mickens,
quite simply, does not contain any language even suggesting that the Sixth
Amendment applies to probation-revocation proceedings.1 Moreover, while
Hernandez stands for the propositions that counsel is required at critical stages of
criminal cases and that a probation-revocation proceeding is a critical stage, it
says nothing about how counsel’s performance should be evaluated in that
1
Mickens addresses the question of whether a conflict of interest amounts to ineffective assistance in a habeas
corpus proceeding. Mickens, 535 U.S. at 164-65. While Mickens does include an examination of Wood v.
Georgia, 450 U.S. 261 (1981), a conflict-of-interest case involving a probation revocation, it does not address
the standard of review to be used in such cases or state that they are governed by the Sixth Amendment.
Mickens, 535 U.S. at 169–72. Indeed, Wood itself specifically reiterates that “due process protections apply to
parole and probation revocations.” Wood, 450 U.S. at 271 (citing Gagnon, 411 U.S. at 781–82) (emphasis
added).
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context. Hernandez, 761 N.E.2d at 849. As for Williams, while it is one of a
handful of cases out of this court in which we have applied Strickland in the
probation-revocation context, there is no indication that the question of the
proper standard of review was raised in any of those cases, much less decided.
See Williams, 883 N.E.2d at 196–97; see also, 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 would seem that no Indiana appellate court
that has actually addressed the question has concluded that Strickland applies in
a probation-revocation context. Much more importantly, to the extent that any
cases can be interpreted as standing for the proposition that the Strickland
standard applies to a probation-revocation proceeding, they have been
superseded by the binding precedent of A.M., which clarifies that Strickland does
not apply in civil proceedings. Gibson’s reliance on Mickens, Hernandez, and
Williams (and similar cases) is misplaced.
[6] The question, then, is whether counsel appeared and represented Gibson in a
procedurally fair setting which resulted in a judgment of the court. See Jordan,
60 N.E.3d at 1068–69. Gibson does not claim, much less establish, that any of
the above requirements were not satisfied in this case. Any such claim would
have been without merit in any event, as our review of the record indicates that
Gibson was represented by counsel throughout the proceeding, there was no
sign of procedural unfairness, and the proceeding resulted in a judgment of the
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court. Gibson has failed to establish that she received ineffective assistance of
probation-revocation counsel.
[7] The judgment of the trial court is affirmed.
Baker, J., and Pyle, J., concur.
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