COA: Woman forfeited right to directly appeal revocation of probation

A Brazil woman won’t get post-conviction relief from the Court of Appeals of Indiana after the panel determined she forfeited her rights to appeal the revocation of her probation because she admitted to violating its terms.

Belinda Dobrowolski was charged with Level 6 felony battery resulting in moderate bodily injury after hitting her sister in the face with a cordless drill in November 2018.

Dobrowolski pled guilty to the offense, and in February 2019 the Parke Circuit Court sentenced her to a term of 545 days. The trial court ordered Dobrowolski to serve 116 days executed and ordered the remainder of her sentence suspended to probation.

Three months later, Dobrowolski pled guilty to Class A misdemeanor driving with a suspended license. The trial court entered judgment of conviction with respect to that offense and found the offense constituted a violation of her terms of probation. The trial court ordered Dobrowolski to continue probation subject to the original terms and conditions.

In March 2020, the state filed a second notice of probation violation alleging Dobrowolski committed Class A misdemeanor theft and Class B misdemeanor interfering with a drug or alcohol screening test. The notice of probation violation also alleged Dobrowolski tested positive for marijuana.

The state filed an addendum to the notice of probation violation alleging Dobrowolski committed the additional criminal offenses of Level 6 felony unlawful possession of a syringe and Level 6 felony possession of a narcotic drug. The trial court appointed counsel for Dobrowolski, and in October 2020 the trial court extended her term of probation and ordered her to perform 20 hours of community service.

The state filed another notice of probation violation in May 2021 alleging Dobrowolski had failed to complete the previously court-ordered community service and she did not maintain contact with her probation officer.

During a hearing, the trial court told Dobrowolski she had the right to a hearing where the state would be required to prove that she did knowingly or intentionally violated her probation. Dobrowolski declined, saying, “I’ll go ahead and plead guilty today if I can” before affirming she understood she was waving her rights to an attorney and hearing.

Thus, the trial court revoked Dobrowolski’s probation and ordered her to serve a 365-day executed term.

The trial court appointed a public defender in July 2021 to represent Dobrowolski for the purpose of perfecting a motion to file a belated notice of appeal. The trial court then granted Dobrowolski’s motion.

On appeal, Dobrowolski argued she did not knowingly, intelligently, and voluntarily waive her right to counsel before the trial court accepted her admission to violating the terms of her probation.

However, the Court of Appeals found dispositive an issue raised by the state — whether Dobrowolski’s appeal should’ve been dismissed because she forfeited her right to file a direct appeal of the finding she violated her terms of probation when she admitted the violation.

In affirming, the Court of Appeals agreed with the state, finding Dobrowolski should’ve filed for post-conviction relief under Post-Conviction Rule 1 instead of Rule 2.

“Post-Conviction Rule 2 enables an ‘eligible defendant’ to file a belated notice of appeal if, but for the defendant’s failure to timely file a notice of appeal, the defendant ‘would have the right to challenge on direct appeal a conviction or sentence after a trial or plea of guilty[.],’” Judge Melissa May wrote for the court.

“However, a defendant forfeits the right to challenge a conviction on direct appeal after pleading guilty,” she continued. “Likewise, a probationer may not challenge on direct appeal a finding the probationer violated the conditions of his probation after admitting a violation.”

The case is Belinda Dobrowolski v. State of Indiana, 21A-CR-1775.

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