COA orders new probation violation hearing in pro se case

The Indiana Court of Appeals has ordered a trial court to give a Franklin County man a new fact-finding hearing on the petition to revoke his probation after determining he did not voluntarily, knowingly and intelligently waive his right to counsel at the hearing.

In Timothy Allen v. State of Indiana, 24A05-1706-CR-1303, Timothy Allen received a 20-year suspended sentence, to be served on supervised probation, after he pleaded guilty to conspiracy to manufacture methamphetamine. However, Allen was later alleged to have violated his probation by committing new crimes involving various felony drug offenses.

A probation violation petition was filed against him, and at a subsequent hearing he appeared pro se and told the Franklin Circuit Court he needed an attorney. When the court asked him why he could not hire an attorney, Allen said he would attempt to hire counsel, but was currently without the funds to do so. After some discussion in which the court indicated it did not know whether Allen was requesting that an attorney be appointed for him, he finally told the court he would try to save money and hire counsel.

However, Allen appeared at the subsequent fact-finding hearing pro se. The trial court decided to move forward with the hearing, as Allen had indicated he would hire an attorney, but did not do so. The court did not inquire into his ability to pay for counsel or advise him of the dangers of proceeding pro se.

At the end of the hearing, the trial court determined Allen had violated the conditions of his probation and imposed the execution of the previously suspended 20-year sentence. But in a Tuesday opinion, the Indiana Court of Appeals reversed that decision, finding Allen did not waive his right to counsel.

Specifically, Senior Judge John T. Sharpnack wrote the appellate court agreed with a portion of the state’s appellate brief that read, “The trial court did not establish that Allen understood that he had a right to counsel if he could not afford to retain his own, that he was waiving that right, and that certain dangers inure to proceeding pro se.”

“Without such, we are without an adequate record to establish waiver,” Sharpnack wrote. “We recognize that there are no magic words a trial court must utter to ensure that the defendant appreciates the situation, but the particular facts must show that the defendant understands, based on his background, experience, and conduct, the nature of the situation.”

The case was remanded for a new fact-finding hearing.

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