Michael Sidelinger v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Jun 10 2015, 9:30 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey S. Jacob Gregory F. Zoeller Jacob, Hammerle & Johnson Attorney General of Indiana Zionsville, Indiana Cynthia L. Ploughe Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Sidelinger, June 10, 2015

Appellant-Defendant, Court of Appeals Cause No. 06A05-1411-CR-543 v. Appeal from the Boone Superior State of Indiana, Court The Honorable Rebecca McClure, Appellee-Plaintiff, Judge Cause No. 06D02-0709-FB-1015

Robb, Judge.

Case Summary and Issues [1] In early 2013, the State filed two petitions to revoke Michael Sidelinger’s

probation, alleging that he violated his probation by using methamphetamine

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and by committing new criminal offenses of burglary and theft. The trial court

eventually revoked Sidelinger’s probation. He raises two issues on appeal: (1)

whether it was a violation of due process to hold Sidelinger’s probation

violation hearing before resolution of his new criminal charges; and (2) whether

there was sufficient evidence to establish that he violated the terms of his

probation. Concluding that the timing of Sidelinger’s hearing did not violate

his right to due process and that there was sufficient evidence of his probation

violations, we affirm.

Facts and Procedural History [2] On September 14, 2007, the State charged Sidelinger with four counts of Class

B felony burglary and four counts of Class D felony theft. On October 2, 2012,

Sidelinger pled guilty to four counts of Class B felony burglary, and the State

dismissed the remaining charges. On the same date, Sidelinger was sentenced

to sixteen years, with nine years and 256 days executed and the remainder

suspended to probation.1 [3] On January 16, 2013, the State filed a petition to revoke Sidelinger’s probation,

alleging he committed new crimes of burglary and theft in Carroll County, for

which he had been charged, and also that he used methamphetamine. On

February 19, 2013, the State filed a second petition to revoke Sidelinger’s

1 Sidelinger’s executed sentence amounted to time served.

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probation, alleging that he had also committed and been charged with burglary

and theft in Boone County. [4] After several continuances, a hearing was held on October 23, 2014. Sidelinger

admitted to using methamphetamine while on probation, and he also admitted

to committing burglary in Boone County, for which he had been convicted after

pleading guilty. Sidelinger did not admit to the allegations of burglary and theft

in Carroll County, because that case was not yet resolved. The State presented

evidence supporting that allegation through testimony from Delphi Police

Department Officer Stephen Mullin. Sidelinger chose not to cross-examine

Officer Mullin at the hearing. The trial court found the State proved its

allegations by a preponderance of evidence and ordered Sidelinger to serve the

remainder of his sentence with the Department of Correction. This appeal

followed.

Discussion and Decision I. Standard of Review [5] “Probation is a matter of grace left to trial court discretion, not a right to which

a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.

2013) (citation omitted). The trial court has discretion to set probation

conditions and to revoke probation upon violation of a condition. Id. Thus, an

appeal from a trial court’s finding of a violation and the resulting sanction are

reviewed only for an abuse of discretion. Id. An abuse of discretion occurs if

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the decision is clearly against the logic and effect of the facts and circumstances

or if it is contrary to law. Id.

II. Due Process [6] Sidelinger contends that holding his probation revocation hearing prior to

resolution of his new criminal charges in Carroll County violated his

constitutional rights. Specifically, he claims he was denied his “right to

confront and cross-examine adverse witnesses,” although his argument also

contains reference to his right to be free from self-incrimination. See Appellant’s

Brief at 3-4. [7] Although probationers are not entitled to the full spectrum of constitutional

rights afforded to a defendant in a criminal trial, there remain some due process

limits on the revocation of probation. Woods v. State, 892 N.E.2d 637, 640 (Ind.

2008). Our supreme court has identified the minimum due process

requirements afforded to a probationer at a revocation hearing: “(a) written

notice of the claimed violations of probation; (b) disclosure of the evidence

against him; (c) an opportunity to be heard and present evidence; (d) the right to

confront and cross-examine adverse witnesses; and (e) a neutral and detached

hearing body.” Id. [8] At the revocation hearing, Sidelinger was given the opportunity to cross-

examine the State’s witness, and he declined. See Transcript at 17. Thus, there

is no merit to his claim that he was denied an opportunity to confront and

cross-examine adverse witnesses at his hearing.

Court of Appeals of Indiana | Memorandum Decision 06A05-1411-CR-543 | June 10, 2015 Page 4 of 6 [9] To the extent that Sidelinger is attempting to make a more general due process

argument or one based on his privilege against self-incrimination, he cites no

case law or statutory provision supporting his position that a probation

revocation hearing cannot be held until resolution of his new criminal charges.

Indiana Code section 35-38-2-3, wherein due process requirements for

probation revocation hearings are codified, see Woods, 892 N.E.2d at 640,

contains no requirement that the hearing be held only after resolution of new

criminal charges. Moreover, this court has previously held that a probation

revocation hearing based on new criminal charges need not wait until after

resolution of those charges. See Davis v. State, 743 N.E.2d 793, 794-96 (Ind. Ct.

App. 2001), trans. denied. Sidelinger has not persuaded us that our decision in

Davis was incorrect.

III. Probation Violation [10] Sidelinger also argues that there was not sufficient evidence to support a finding

that he violated his probation. The trial court’s discretion to revoke probation is

triggered by a violation of a condition of probation. Ind. Code § 35-38-2-3(a).

The State must prove a violation by a preponderance of the evidence. Ind.

Code § 35-38-2-3(f). [11] Sidelinger claims that the State’s evidence of his probation violations was

insufficient because the timing of his hearing prevented him from properly

defending against the State’s allegations. But as discussed above, holding the

hearing before resolution of his charges in Carroll County did not violate his

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due process rights. Even if introduction of evidence concerning recent crimes in

Carroll County was improper, Sidelinger’s admissions to the State’s other

allegations of burglary and methamphetamine use are sufficient to support the

trial court’s finding of a probation violation and the resulting revocation of

probation. “When a probationer admits to the violations, the procedural

safeguards [required for a revocation hearing] and the evidentiary hearing are

unnecessary. Instead, the court can proceed to the second step of the inquiry

and determine whether the violation warrants revocation.” Woods, 892 N.E.2d

at 640. And this court has previously said that “[t]he violation of a single

condition of probation is sufficient to revoke probation.” Snowberger v. State,

938 N.E.2d 294, 296 (Ind. Ct. App. 2010). Thus, the trial court was presented

with sufficient evidence to find Sidelinger violated probation.

Conclusion [12] Concluding Sidelinger’s due process rights were not violated and that there was

sufficient evidence that he violated the terms of his probation, we affirm. [13] Affirmed.

May, J., and Mathias, J., concur.

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