James A. Holder, Sr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 22 2020, 5:40 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Valerie K. Boots Josiah Swinney
Megan Shipley Deputy Attorney General
Marion County Public Defender Agency Indianapolis, Indiana
– Appellate Division
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James A. Holder, Sr., May 22, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1927
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable James K. Snyder,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G02-1708-F3-32259
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020 Page 1 of 11
[1] James Holder (“Holder”) appeals the Marion Superior Court’s order revoking
his probation. He argues that he did not knowingly, intelligently, and
voluntarily waive his right to counsel.
[2] We affirm.
Facts and Procedural History
[3] On February 22, 2018, Holder was convicted of Level 5 felony carrying a
handgun without a license. He was ordered to serve four years with two years
executed in the Department of Correction, one year executed in Community
Corrections, and one year suspended to probation. Holder represented himself
at trial, and prior to making the decision to proceed pro se, he was given the
appropriate advisements about the dangers of self-representation. See
Appellant’s Br. Addendum pp. 10–19.
[4] Holder completed his two-year executed sentence on December 29, 2018, and
he began to serve his one-year executed sentence in Community Corrections.
On June 14, 2019, Community Corrections filed a notice of community
corrections violation. Shortly thereafter, the probation department filed a notice
of probation violation alleging that Holder failed to comply with the terms of
his home detention.
[5] At the initial hearing, Holder was asked whether he had the funds to hire
private counsel or whether he was requesting a public defender. Holder
informed the trial court that he planned to represent himself. The trial court
advised Holder as follows:
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020 Page 2 of 11
THE COURT: Thank you. Mr. Holder how old are you today.
THE DEFENDANT: . . . But I’m 36.
THE COURT: Ok. Are you under the influence of any alcohol
or drugs today?
THE DEFENDANT: No.
THE COURT: Do you suffer from any emotional or mental
disabilities?
THE DEFENDANT: No.
THE COURT: Mr. Holder it is my understanding based on what
you have said to me that you wish to represent yourself. Is that
true?
THE DEFENDANT: Yes.
THE COURT: Did you graduate High School Sir?
THE DEFENDANT: Yes.
THE COURT: Did you graduate college?
THE DEFENDANT: ... [N]o I didn’t graduate college.
THE COURT: And what about Law School then?
THE DEFENDANT: I, no I didn’t graduate Law School.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020 Page 3 of 11
THE COURT: Do you have any formal legal training Sir?
THE DEFENDANT: Um, I took as far as Federal Aviation
Regulations in AIM and I’ve, well I represented myself in this
trial. I was my own lawyer and proper persona in the trial.
THE COURT: So you were convicted?
THE DEFENDANT: Yeah, well yeah.
THE COURT: Ok. So how did you think your performance was
during that trial Sir?
THE DEFENDANT: Based on the unconstitutional things that
happened at trial, I mean and everything else, I think I did very
good.
THE COURT: Ok. So you feel convertible [sic] representing
yourself in a violation case as well?
THE DEFENDANT: Yeah. Well as far as…
THE COURT: Have you read the Indiana code related to
probation and or community corrections violations?
THE DEFENDANT: Actually I had it with me when I got
locked up. It, because I was prepared for this but… told me I
couldn’t bring none of my law, my ID or nothing with me when I
got locked up so.
THE COURT: Ok.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020 Page 4 of 11
THE DEFENDANT: I mean. I’m prepared enough compared.
THE COURT: Do you understand that you are facing potential
prison time for this violation?
THE DEFENDANT: Yes.
THE COURT: And you understand that as a result of that you
have an absolute right to an attorney to represent you during all
of those proceedings?
THE DEFENDANT: Yes Sir.
THE COURT: And it is your desire to waive that right?
THE DEFENDANT: Yes.
THE COURT: Do you feel like you are doing so freely and
voluntarily?
THE DEFENDANT: Yes.
THE COURT: Has anyone forced you, promised you anything
of value given you anything? Threatened you in any way in order
to make you waive your right to counsel?
THE DEFENDANT. No.
THE COURT: So you are doing so of your own free will?
THE DEFENDANT: Yes.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020 Page 5 of 11
June 20, 2019 Tr. pp. 2–4. The trial court accepted Holder’s waiver of counsel.
After Holder requested a contested hearing on the community corrections and
probation violations, the court set the revocation hearing for July 18, 2019.
[6] Throughout the initial hearing and the July 18, 2019 revocation hearing, Holder
challenged the trial court’s jurisdiction over him. He requested a ruling on his
“Averment of Jurisdiction Quo Warranto,” which was filed on December 10,
2018, approximately two weeks before he was released from the Department of
Correction and well before the notice of violations were filed by the probation
department at issue in this appeal. Appellant’s App. pp. 97–106. The trial court
repeatedly informed Holder that he was not entitled to relief on his filing and
that the trial court’s jurisdiction over him could not be contested. See e.g. June
20, 2019 Tr. pp. 7–8; July 18, 2019 Tr. p. 4.
[7] At the July 18, 2019 revocation hearing, the State presented evidence from
Holder’s tracking device that he had violated the terms of his home detention.
The trial court found that the State had proved ten of the fourteen alleged
community corrections violations. The court revoked Holder’s community
corrections placement and probation and ordered him to serve the balance of
his original four-year sentence in the Department of Correction. Holder now
appeals.
Discussion and Decision
[8] Holder argues that he did not knowingly, intelligently, and voluntarily waive
his right to counsel in the probation revocation proceedings.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020 Page 6 of 11
Probation is a favor granted by the State, not a right to which a
criminal defendant is entitled. However, once the State grants
that favor, it cannot simply revoke the privilege at its discretion.
Probation revocation implicates a defendant’s liberty interest,
which entitles him to some procedural due process. Because
probation revocation does not deprive a defendant of his absolute
liberty, but only his conditional liberty, he is not entitled to the
full due process rights afforded a defendant in a criminal
proceeding.
Eaton v. State, 894 N.E.2d 213, 216 (Ind. Ct. App. 2008), trans. denied (internal
citations omitted).
[9] A defendant in a probation revocation hearing is entitled to representation by
counsel. Ind. Code § 35-38-2-3(f) (2019); see also Hodges v. State, 997 N.E.2d 419,
421 (Ind. Ct. App. 2013) (“[A] person serving a community corrections
placement is entitled to certain due process protections before the placement is
revoked, including the right to counsel.”). However, a defendant may waive his
right to counsel and proceed pro se. Cooper v. State, 900 N.E.2d 64, 66 (Ind. Ct.
App. 2009). When he does so, “the record must reflect that the right to counsel
was voluntarily, knowingly, and intelligently waived.” Silvers v. State, 945
N.E.2d 1274, 1276 (Ind. Ct. App. 2011). That is, “[t]he record must show that
the probationer was made aware of the nature, extent, and importance of the
right to counsel as well as the necessary consequences of waiving such a right.”
Id. We review de novo whether a probationer validly waived his right to
counsel. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020 Page 7 of 11
[10] There are no specific words or phrases that a trial court must utter to produce a
valid waiver of counsel by a defendant. Hammerlund v. State, 967 N.E.2d 525,
527–28 (Ind. Ct. App. 2012). 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.” Eaton, 894 N.E.2d at 218 (citations and quotation marks omitted).
[11] Holder argues that we should apply the factors enumerated in Poynter v. State,
749 N.E.2d 1122 (Ind. 2001) to determine whether his waiver of counsel was
knowing, voluntary, and intelligent. But the Poynter factors apply to waiver of
counsel for a criminal defendant entitled to the Sixth Amendment right to
counsel at trial. See Poynter, 749 N.E.2d at 1125–28. An individual serving a
sentence in community corrections or on probation is not entitled to the full
array of constitutional rights afforded to defendants at trial, including the Sixth
Amendment right to counsel. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)
(discussing due process rights for a hearing on a petition to revoke placement in
community corrections). 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).
[12] Holder’s right to counsel at a revocation hearing is bestowed by statute rather
than by constitution. See I.C. § 35-38-2-3(f). The State concedes that the Poynter
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020 Page 8 of 11
factors are relevant to waiver of counsel in a probation revocation proceeding,
but a waiver of a statutory right requires less inquiry than a waiver of a
constitutional right. See Appellee’s Br. at 16 n.4.
[13] Holder voluntarily waived his right to counsel at his criminal trial and
represented himself. He did not challenge that waiver on appeal. The trial court
gave the appropriate advisements required by Poynter.1 See Appellant’s Br.
Addendum pp. 10–19.
[14] The colloquy quoted above established that Holder was informed that he had a
right to an attorney, that he understood that right, and that the trial court
sufficiently inquired whether Holder’s decision to represent himself was
knowing and voluntary. The trial court inquired into Holder’s educational
background and his mental state. Holder’s familiarity with the criminal justice
system is apparent given that he represented himself in his criminal trial. At the
revocation hearing, he cross-examined the State’s witnesses and objected to the
admission of evidence. He also presented argument in his defense of the
allegations.
[15] Moreover, although the trial court did not specifically advise Holder of the
dangers and disadvantages of self-representation, the trial court advised Holder
1
In Poynter, our supreme court adopted four factors to consider when determining whether a defendant has
knowingly, voluntarily, and intelligently waived his right to counsel: (1) the extent of the court's inquiry into
the defendant’s decision, (2) other evidence in the record that establishes whether the defendant understood
the dangers and disadvantages of self-representation, (3) the background and experience of the defendant,
and (4) the context of the defendant’s decision to proceed pro se. 749 N.E.2d at 1127–28).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020 Page 9 of 11
that if the violations were proven, he would be facing prison time. The court
also noted Holder’s self-representation at his criminal trial, and Holder stated
that he felt he represented himself well.
[16] In his brief, Holder cites to his statement at the revocation hearing that he was
not prepared. July 18, 2019 Tr. p. 12. Holder’s statement must be considered in
the context that it was made. Holder refused to abandon his claim that the trial
court lacked jurisdiction over him. Even though Holder was advised that the
revocation hearing would be a contested fact-finding hearing on the community
corrections and probation violation allegations, he argued that the trial court
could not proceed on those allegations until it addressed his jurisdictional
arguments. See July 18, 2019 Tr. pp. 12–14, 18, 20, 32–34. His lack of
preparedness stemmed from his unwavering, erroneous belief that the trial court
lacked jurisdiction over him despite having received numerous advisements to
the contrary.
Conclusion
[17] Having received more than adequate warnings concerning the dangers and
disadvantages of self-representation prior to his waiver of counsel during his
criminal proceedings, and having proceeded pro se during those proceedings,
we conclude that Holder was aware of the danger of representing himself.
Given the totality of the circumstances in this case, we conclude that Holder
knowingly, intelligently, and voluntarily waived his right to counsel in these
probation revocation proceedings.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020 Page 10 of 11
[18] Affirmed.
Riley, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1927 | May 22, 2020 Page 11 of 11