probation revocation hearing in Indiana

2019As long as the proper procedures have Court of Appeals of Indiana | Memorandum Decision 19A-CR-535 | September 5, 2019 Page 3 of 5 been followed in conducting a probation revocation hearing, “the trial court may order execution of a suspended sentence upon a finding of a violation by a preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999).

2019As long as the proper procedures have been followed in conducting a probation revocation hearing, “the trial court may order execution of a suspended sentence upon a finding of a violation by a preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999).

2014DISCUSSION AND DECISION Our standard of review of probation revocations is well-settled: A probation revocation hearing “is not to be equated with an adversarial criminal proceeding.” Cox v. State, 706 N.E.2d 547, 550 (Ind.1999), reh’g denied.

2012In a probation revocation hearing, “the State need only prove the alleged violations by a preponderance of the evidence.” Cox, 706 N.E.2d at 551 (citations omitted).

2020Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007), reh’g denied. [7] While Jones did object to admission of Deputy Czupryna’s probable cause affidavit, Jones did not object to Deputy Czupryna’s testimony at the probation revocation hearing.

2019However, the Supreme Court concluded that the substantial trustworthiness test was "the more effective means for determining the hearsay evidence that should be admitted at a probation revocation hearing." Id. at 441 . *1115 [27] The substantial trustworthiness test provides for a trial court determination of whether the evidence reaches "a certain level of reliability, or if it has a substantial guarantee of trustworthiness." Id.

2019See, e.g., Figures v. State, 920 N.E.2d 267, 273 (Ind. Ct. App. 2010) (explaining that admission of evidence in a probation revocation hearing is harmless error if there are independent grounds for a court to revoke probation).

2017See, e.g., Figures v. State, 920 N.E.2d 267, 273 (Ind. Ct. App. 2010) (explaining that admission of evidence in a probation revocation hearing is harmless error if there are independent grounds for a court to revoke probation).

2016Accordingly, these issues are waived.2 See Marsh v. State, 818 N.E.2d 143, 145 (Ind. Ct. App. 2004) (noting that the failure to object to hearsay evidence at a probation revocation hearing waives the issue for appeal); see also Small v. State, 736 N.E.2d 742, 747 (Ind. 2000) (holding, where the defendant contended that his right to confront witnesses was violated, that the defendant did not object on confrontation grounds at trial and that the claim of error was waived). [12] With respect to Jackson’s assertion the evidence is insufficient to support the court’s finding that he violated his pr

2009See Marsh v. State, 818 N.E.2d 143, 145 (Ind.Ct.App.2004) (noting that at a probation revocation hearing, the failure to object to the admission of hearsay evidence waives the issue for appeal).

2020Mateyko v. State, 901 N.E.2d 554, 558 (Ind. Ct. App. 2009), trans. denied.

2019Mateyko v. State , 901 N.E.2d 554 , 558 (Ind. Ct. App. 2009), trans. denied .

2019Indiana Code subsection 35-38-2-3(h)(3) allows a trial court, in case of a violation of the terms of probation, to “[o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing” and the “[c]onsideration and imposition of any alternatives to incarceration is a ‘matter of grace’ left to the discretion of the trial court.” Monday v. State, 671 N.E.2d 467, 469 (Ind. Ct. App. 1996). [6] Under the circumstances of this case, Selig has failed to establish an abuse of discretion.

1998With respect to ordering the original sentence to be executed, we have previously held that “[s]o long as the proper procedures have been followed in conducting a probation revocation hearing pursuant to IC 35-38-2-3, the trial court may order execution of a suspended sentence upon a finding of a violation by a preponderance of the evidence.” Monday v. State, 671 N.E.2d 467, 468 (Ind.Ct.App.1996) (citing Mitchell v. State, 619 N.E.2d 961, 963 (Ind.Ct.App.1993), overruled on other grounds, 659 N.E.2d 220 , 223 n. 2 (Ind.Ct.App.1995)).

2020See Henderson v. State, 544 N.E.2d 507 , 512–13 (Ind. 1989) (noting that exclusionary rule is not fully applicable in probation revocation hearings); Grubb v. State, 734 N.E.2d 589 , 592–93 (Ind. Ct. App. 2000) (holding that exclusionary rule did not bar introduction of statements obtained in violation of probationer’s Fifth Amendment rights at probation revocation proceeding), trans. denied; Dulin v. State, 169 Ind. App. 211 , 219–20, 346 N.E.2d 746, 752 (1976) (holding that exclusionary rule is not fully applicable in probation revocation hearings).3 Instead, in a probation revocation hearin

2018Grubb v. State, 734 N.E.2d 589, 591 (Ind. Ct. App. 2000), trans. denied.

2014“A defendant at a probation revocation hearing is not endowed with all the same rights he possessed prior to his conviction.” Isaac v. State, 605 N.E.2d 144, 148 (Ind. 1992).

2004In Isaac v. State, 605 N.E.2d 144 (Ind.1992), cert. denied, 508 U.S. 922 , 113 S.Ct. 2373 , 124 L.Ed.2d 278 (1993), our supreme court held that a defendant at a probation revocation hearing does not have all the same rights he or she possessed prior to his conviction.

2017See Mitchell v. State, 619 N.E.2d 961, 963-64 (Ind. Ct. App. 1993), overruled on other grounds by Patterson v. State, 659 N.E.2d 220 , 223 n.2 (Ind. Ct. App. 1995).

1998With respect to ordering the original sentence to be executed, we have previously held that “[s]o long as the proper procedures have been followed in conducting a probation revocation hearing pursuant to IC 35-38-2-3, the trial court may order execution of a suspended sentence upon a finding of a violation by a preponderance of the evidence.” Monday v. State, 671 N.E.2d 467, 468 (Ind.Ct.App.1996) (citing Mitchell v. State, 619 N.E.2d 961, 963 (Ind.Ct.App.1993), overruled on other grounds, 659 N.E.2d 220 , 223 n. 2 (Ind.Ct.App.1995)).

2016See, 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).

2001King v. State, 642 N.E.2d 1389, 1398 (Ind.Ct.

2020Eaton 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.

2013Cf. Eaton, 894 N.E.2d at 216-17 (a waiver of counsel during a probation revocation hearing must be made knowingly and voluntarily).

2019Smith v. State, 971 N.E.2d 86, 90 (Ind. 2012) (citing Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007)). “‘[I]deally [the trial court should explain] on the record why the hearsay [is] reliable and why that reliability [is] substantial enough to supply good cause for not producing . . . live witnesses.’” Reyes, 868 N.E.2d at 442 (quoting United States v. Kelley, 446 F.3d 688, 693 (7th Cir. 2006)).

2012See also id. at 691 (“Morrissey’s articulation of a limited confrontation right in revocation proceedings was explicitly grounded in considerations of due process, not the Sixth Amendment. ... [N]othing in [Crawford ] can be read to suggest that Morrissey and Gag-non have been implicitly altered....”); Rose, 171 P.3d at 258-59 (“Crawford does not change the due process standard for confrontation in a probation revocation hearing” (citing Reyes and Kelley , among others)); Marquis, 257 P.3d at 778-79 (test for determining good cause grounded in minimum due process requirements set forth in Morr

2017And Puckett held that it was improper for a trial court to consider, at a probation revocation hearing, whether the original plea was too lenient. 956 N.E.2d at 1187 .

2017As long as the proper procedures have been followed in conducting a probation revocation hearing, “the trial court may order execution of a suspended sentence upon a finding of a violation by a preponderance of the evidence.” Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999). [13] In Puckett, this Court observed that the trial court’s statements of reasons for entirely revoking a defendant’s probation were problematic. 956 N.E.2d at 1186-1187 .

2016He asserts the detectives were simply Court of Appeals of Indiana | Memorandum Decision 48A05-1512-CR-2174 | July 29, 2016 Page 6 of 8 “relaying information that had been gathered as a result of . . . interviews with witnesses . . . .” Brief of Appellant at 12-13. [8] In Whatley v. State, 847 N.E.2d 1007, 1010 (Ind. Ct. App. 2006), we held that a probable cause affidavit prepared and signed by the officer listed as the affiant bore sufficient indicia of reliability to be introduced into evidence at a probation revocation hearing.

2016“An abuse of discretion occurs if the decision is against the logic and effect of the facts and circumstances before the court.” Id. [9] A probation revocation hearing is in the nature of a civil proceeding.

1998Gagnon v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973); Payne v. State, 515 N.E.2d 1141, 1144 (Ind.Ct.App.1987); Isaac v. State, 605 N.E.2d 144, 148 (Ind.1992), cert. denied 508 U.S. 922 , 113 S.Ct. 2373 , 124 L.Ed.2d 278 (1993) (A defendant at a probation revocation hearing is not endowed with all the same rights he possessed prior to his conviction).

1998In Payne v. State, 515 N.E.2d 1141 (Ind.Ct.App.1987), we found that the trial court improperly admitted hearsay evidence over proper objection in a probation revocation hearing.

2017We “will not lightly Court of Appeals of Indiana | Memorandum Decision 49A05-1612-PC-2834 | December 14, 2017 Page 14 of 23 speculate as to what may or may not have been an advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d 40, 42 (Ind. 1998). [22] “Because a probation revocation hearing is a civil proceeding, we apply a less stringent standard of review in assessing counsel’s performance.” Jordan v. State, 60 N.E.3d 1062, 1068 (Ind. Ct. App. 2016) (citation and

2016Probation Revocation Counsel [12] With respect to a claim of ineffective assistance of counsel during the revocation hearing, we have stated that, because a probation revocation hearing “is a civil proceeding, we apply a less stringent standard of review in assessing counsel’s performance” and that, “[i]f 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.” Jordan v. State, 60 N.E.3d 1062, 1068 (Ind. Ct. App. 2016) (quoting Childers v. State, 656 N.E.2d 514, 5

2018Pittman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001), trans. denied.

2018Pitman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001), trans. denied.

2019“This does not mean that hearsay evidence may be admitted willy-nilly in a probation revocation hearing.” Id. [10] In Reyes, the Indiana Supreme Court adopted the substantial trustworthiness test for determining the hearsay evidence that should be admitted at a probation revocation hearing.

2017However, this “does not mean that hearsay evidence may be admitted willy-nilly in a probation revocation hearing.” Id.

2023Id. (citing Ashba v. State, 570 N.E.2d 937 (Ind. Ct. App. 1991), aff’d, 580 N.E.2d 244 (Ind. 1991), cert. denied (1992).

1998With respect to ordering the original sentence to be executed, we have previously held that “[s]o long as the proper procedures have been followed in conducting a probation revocation hearing pursuant to IC 35-38-2-3, the trial court may order execution of a suspended sentence upon a finding of a violation by a preponderance of the evidence.” Monday v. State, 671 N.E.2d 467, 468 (Ind.Ct.App.1996) (citing Mitchell v. State, 619 N.E.2d 961, 963 (Ind.Ct.App.1993), overruled on other grounds, 659 N.E.2d 220 , 223 n. 2 (Ind.Ct.App.1995)).

2019Smith v. State, 971 N.E.2d 86, 90 (Ind. 2012) (citing Reyes v. State, 868 N.E.2d 438, 442 (Ind. 2007)). “‘[I]deally [the trial court should explain] on the record why the hearsay [is] reliable and why that reliability [is] substantial enough to supply good cause for not producing . . . live witnesses.’” Reyes, 868 N.E.2d at 442 (quoting United States v. Kelley, 446 F.3d 688, 693 (7th Cir. 2006)).

2017Instead, the Indiana Supreme Court has determined that when a court receives hearsay evidence during a probation revocation hearing, it must assess the evidence’s reliability and may admit it as evidence only if it is “substantially trustworthy.” Smith v. State, 971 N.E.2d 86, 90 (Ind. 2012). [12] In the current case, the State presented testimony from Sergeant Austin Helton, a shift supervisor with the Duvall Residential Center (the Center).

2020Nonetheless, a probationer has certain due process rights at a probation revocation hearing, which include “the right to confront and cross-examine adverse witnesses.” Woods v. State, 892 N.E.2d 637, 649 (Ind. 2008); see also Ind. Code § 35-38-2-3 (f) (stating probationer in revocation proceeding “is entitled to confrontation, cross-examination, and representation by counsel”).

2019"A probation revocation hearing is civil in nature, and the State's burden is to prove the alleged violations by a preponderance of the evidence." Id.

2013We noted that, while the Indiana Rules of Evidence, including those governing hearsay, do not apply in such proceedings, this “does not mean that hearsay evidence may be admitted willy-nilly in a probation revocation hearing.” Id. at 232 (citing Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007)).

2012To offer hearsay evidence at a probation revocation hearing, the State must demonstrate “good cause” for utilizing the hearsay, which means that the hearsay “bears substantial guarantees of trustworthiness.” Id.

2025When faced with a challenge to the sufficiency of the State’s evidence at a probation revocation hearing, “we consider only the evidence most favorable to the judgment— without regard to weight or credibility—and will affirm if ‘there is substantial evidence of probative value to support the trial court’s conclusion that a probationer has violated any condition of probation.’” Murdock v. State, 10 Court of Appeals of Indiana | Opinion 24A-CR-1576 | September 19, 2025 Page 14 of 18 N.E.3d 1265 , 1267 (Ind. 2014) (quoting Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995)). [28] First, Rosenbourg

2003Cox, 706 N.E.2d at 551 (citing Brazton v. State, 651 N.E.2d 268, 270 (Ind.1995)); McKnight v. State, 787 N.E.2d 888, 893 (Ind.Ct.App.2003).

2020If 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.” Court of Appeals of Indiana | Memorandum Decision 20A-CR-761 | July 8, 2020 Page 3 of 6 Id. at (quoting Childers v. State, 656 N.E.2d 514, 517 (Ind. Ct. App. 1995), trans. denied) (brackets in Jordan).

2016Probation Revocation Counsel [12] With respect to a claim of ineffective assistance of counsel during the revocation hearing, we have stated that, because a probation revocation hearing “is a civil proceeding, we apply a less stringent standard of review in assessing counsel’s performance” and that, “[i]f 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.” Jordan v. State, 60 N.E.3d 1062, 1068 (Ind. Ct. App. 2016) (quoting Childers v. State, 656 N.E.2d 514, 5