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Allen v. State

Court of Appeals of Indiana

October 17, 2017

Timothy Allen, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal 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 Appellant

          Curtis T. Hill, Jr. Attorney General of Indiana Tyler Banks Deputy Attorney General Indianapolis, Indiana Attorneys for Appellee

          Sharpnack, Senior Judge

         Statement of the Case

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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. ...

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