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COA splits, reverses probation revocation

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The Indiana Court of Appeals was split today in its decision to reverse the revocation of a defendant's probation. The judges didn't agree that the probation revocation hearing comported with due process.

Judges Carr Darden and Margret Robb believed the circumstances surrounding Paul Davis' case were similar to that of Martin v. State, 813 N.E.2d 388 (Ind. Ct. App. 2004). In that case, the trial court revoked Martin's probation after he admitted being arrested and that charges were pending, but the state provided no evidence or the probable cause affidavit for the charges prior to the court finding he violated his probation. The appellate court overturned the revocation, finding the evidence was insufficient to support revoking his probation.

In Davis v. State, No. 49A04-0907-CR-379, Davis' attorney admitted at the probation revocation hearing that Davis had been arrested but didn't state what the allegations were. His attorney also told the judge "The agreement is twelve years DOC contingent also upon the fact that if he beats that Court Five case, we would be allowed to come back to have the twelve years revisited."

Just as in Martin, the state failed to provide evidence that Davis had committed a criminal offense. The trial court was unaware as to the specific allegations and Davis' attorney only admitted that Davis was arrested.

"As there was only an admission to an arrest without a probable cause finding and neither party entered the probable cause affidavit into evidence, we find that the probation revocation hearing denied Davis minimum due process," wrote Judge Darden.

The majority also rejected the state's argument that Davis wasn't entitled to due process rights because he admitted to violating his probation. But when the admission itself is insufficient to support a probation revocation, it doesn't render the procedural due process safeguards and evidentiary hearing unnecessary, wrote the judge.

In his dissent, Judge Paul Mathias acknowledged that an arrest, standing alone, doesn't support the revocation of probation, but Davis didn't just admit he had been arrested. He also referred to the agreement between Davis and the state that he agreed his probation would be revoked, but he would have the right to revisit the issue if he was acquitted on the pending charges.

"Here, Davis not only admitted to the historical fact that he had been arrested, his counsel also agreed that his probation would be revoked. Although Davis did not personally speak during the revocation hearing, his counsel's admission is binding on him," he wrote.

For these reasons, he would hold Davis wasn't denied due process and would uphold his probation revocation.

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

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  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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