from the Franklin Circuit Court.The Honorable J. Steven Cox,
Judge.Trial Court Cause No.24C01-1108-FB-48
Kimberly A. Jackson Indianapolis, Indiana Attorney for
T. Hill, Jr. Attorney General of Indiana Tyler Banks Deputy
Attorney General Indianapolis, Indiana Attorneys for Appellee
Sharpnack, Senior Judge
of the Case
Timothy Allen appeals from the trial court's order
revoking his probation and imposing the execution of
Allen's previously-suspended, twenty-year sentence in the
Department of Correction, contending that he did not waive
his right to counsel at the fact-finding hearing on the
petition to revoke his probation. The State agrees that the
record does not reflect a valid waiver of the right to
counsel. We reverse and remand.
and Procedural History
Allen pleaded guilty to conspiracy to manufacture
methamphetamine for which he received a twenty-year suspended
sentence to be served on supervised probation. The probation
violation petition at issue here alleged that Allen had
committed new crimes involving dealing in methamphetamine, as
a Level 3 felony, possession of methamphetamine, as a Level 5
felony, illegal possession of precursors, a Level 6 felony,
and maintaining a common nuisance, a Level 6 felony.
Allen appeared pro se at his initial hearing on the petition,
which was conducted at the same time as the initial hearing
on the new allegations filed under a separate cause number.
The trial court advised Allen of his rights under the newly
filed charges. At that time, Allen told the trial court that
he needed an attorney. Tr. p. 5. The trial court indicated
that the issue would be addressed later. After the trial
court completed the advisement of rights with respect to all
pending issues, allegations, and charges, the court asked
Allen why he could not hire his own counsel. Allen responded
by saying that he would attempt to hire private counsel, but
that he was currently without funds to do so. The trial court
then addressed Allen's potential eligibility for pauper
counsel as follows:
THE COURT: Okay, the Court will enter preliminary pleas of
not guilty on your behalf and denial on the probation
violation and we'll set the matter for an omnibus date,
uh, for May the 10th, set the matter for a
pre-trial which you're ordered to attend . . . unless you
have an attorney on the 8th of June, 2017 at 1:00
o'clock. And you're still receiving benefits?
[ALLEN]: Yes, I [am] getting ready to go . . . Your Honor.
I'm getting ready to go to rehab, uh, suppose[d] to be
tomorrow. . . .
THE COURT: Why can't you hire counsel?
[ALLEN]: Well, I'm going to try, Your Honor, but I've
got to see how much money I can save because I've still
got . . . . I don't got [sic] control of my money. My
sister does, but she pays all my bills. I'm going to save
. . . . get an attorney if I can. ...