The Indiana Court of Appeals found a man’s due process rights were violated because the state couldn’t prove he was advised of his constitutional rights at his probation revocation hearing. The appeals court ordered further proceedings on the matter, including reducing his period of probation to comply with statute.
Robert Scott Hilligoss was on probation for felony theft when the state sought to revoke his suspended sentence three times based on probation violations. Twice, the court extended his term of probation by a year after Hilligoss admitted to the violations. At the third revocation hearing, he admitted to the violation, his probation was revoked and the court ordered Hilligoss to serve the entire balance of his suspended sentence in the Department of Correction.
Hilligoss admitted to the third probation violation, but contends he was never advised of his rights to confrontation, cross-examination and representation by counsel, as required under I.C. 35-38-2-3(e).
“Because the record is silent with respect to whether Hilligoss was advised of his rights pursuant to Indiana Code Section 35-38-2-3(e) and (f), we must conclude that Hilligoss was not properly advised and, therefore, that he was deprived of his fundamental right to due process,” Judge Edward Najam wrote.
“Thus, we hold that a trial court’s failure to ensure that a probationer who admits to a probation violation has received the advisements as required under Indiana Code Section 35-38-2-3(e) constitutes a fundamental violation of the probationer’s due process rights.”
The judges also held the court erred in extending his probation by more than one year beyond the original term of probation, a violation of I.C. 35-38-2-3(h)(2). They reversed the revocation of Hilligoss’ probation and remanded for further proceedings. The court is required to hold an evidentiary hearing on Hilligoss’ alleged probation violation, or if he admits to the violation, make a record to reflect that he has been properly advised of his rights. Also, the court shall reduce his probation period by six months to bring it into compliance with the statute.
The case is Robert Scott Hilligoss v. State of Indiana, 34A02-1506-CR-529.