Court of Appeals of Indiana | Opinion 34A02-1506-CR-529 | November 18, 2015 Page 1 of 9

ATTORNEY FOR APPELLANT

Donald E.C. Leicht

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Karl M. Scharnberg

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Robert Scott Hilligoss,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 18, 2015

Court of Appeals Case No.

34A02-1506-CR-529

Appeal from the Howard Circuit 

Court

The Honorable Lynn Murray, 

Judge

Trial Court Cause No.

34C01-0610-FD-247

Najam, Judge.

Statement of the Case

[1] Robert Hilligoss appeals from the trial court’s revocation of his probation. 

Hilligoss presents two issues for our review which we restate as the following 

three issues:
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1. Whether his probationary period had expired at the time 

of the violation alleged in the State’s January 7, 2015, 

petition to revoke his suspended sentence.

2. Whether the trial court denied him his right to due process

when it accepted his admission that he had violated the 

terms of his probation without first advising him of his 

constitutional rights.

3. Whether the trial court erred when it extended the term of 

his probation by more than one year beyond the original 

term of probation.

[2] We reverse and remand with instructions.

Facts and Procedural History 

[3] On November 18, 2009, Hilligoss pleaded guilty to theft, as a Class D felony, 

by a plea agreement. The trial court accepted the plea and, on February 10, 

2010, the court sentenced Hilligoss to three years, with the first year on in-home 

detention and two years suspended to probation. On March 21, 2011, the State 

filed a petition to revoke Hilligoss’ suspended sentence on the grounds that he 

had “made no contact with Probation” after his in-home detention period had 

ended. Appellant’s App. at 79. On October 24, 2012, after Hilligoss had 

admitted to the violation of his probation, the trial court ordered him to serve 

sixteen days of his suspended sentence in jail. In addition, the trial court 

extended Hilligoss’ original term of probation by an additional six months.
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[4] On May 31, 2013, the State filed another petition to revoke Hilligoss’ 

suspended sentence on the grounds that he had “failed to report-in as 

required[.]” Id. at 119. On February 12, 2014, after Hilligoss admitted to the 

violation of his probation, the trial court ordered him to serve twenty-eight days 

in jail. And the court extended his term of probation by another 365 days.

[5] Finally, on January 7, 2015, the State filed a petition to revoke Hilligoss’ 

suspended sentence on the grounds that he had not reported to the probation 

department as required in July 2014. During a hearing on May 27, 2015,

Hilligoss admitted to the violation, and the trial court revoked his probation. 

The trial court ordered Hilligoss to serve the entire balance of his suspended 

sentence, 648 days, in the Department of Correction. This appeal ensued.

Discussion and Decision 

Issue One: Probationary Period

[6] Hilligoss contends that, at the time of the alleged July 2014 violation for failure 

to report, his probationary period had expired. Thus, he maintains that the trial 

court was without jurisdiction to consider the State’s January 7, 2015, petition 

to revoke the suspended sentence. But as the State correctly points out, Indiana 

Code Section 35-38-2-3(c) provides that the issuance of a summons or warrant 

tolls the period of probation until the final determination of the charge. 

Hilligoss’ probation began on February 10, 2011, but it was tolled for two 

periods of time due to alleged violations prior to the State’s January 7, 2015, 

petition to revoke suspended sentence. In particular, the period of probation 
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was tolled for 583 days from March 21, 2011, until October 24, 2012, and for 

257 days from May 13, 2013, until February 12, 2014. As of January 7, 2015, 

then, the remaining period of Hilligoss’ original term of probation, even 

excluding the term extensions imposed by the trial court,1 was approximately 

six months. Accordingly, contrary to Hilligoss’ contention, the original twoyear period of his probation had not expired when the State filed its petition to 

revoke for the alleged July 2014 violation, and the trial court had jurisdiction to 

consider the State’s petition to revoke suspended sentence.

Issue Two: Due Process

[7] Hilligoss next contends that he was denied his right to due process at the 

probation revocation hearing. In particular, he maintains that, prior to 

admitting he had violated the terms of his probation, he was not advised that, 

by making such an admission, he would be giving up his right to confront and 

cross-examine witnesses at an evidentiary hearing where the State would have 

had the burden to prove the alleged violation by a preponderance of the 

evidence. Whether a party was denied due process is a question of law that we 

review de novo. Miller v. Indiana Dep’t of Workforce Dev., 878 N.E.2d 346, 351 

(Ind. Ct. App. 2007).

 

1

 As we discuss below, Hilligoss is correct that the trial court violated Indiana Code Section 35-38-2-3(h)(2)

when it extended the original term of his probation by more than one year beyond the original term of 

probation.
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[8] Because a probation revocation results in a loss of liberty, the probationer must 

be given certain due process rights before his probation may be revoked. Dalton 

v. State, 560 N.E.2d 558, 560 (Ind. Ct. App. 1990) (citing Gagnon v. Scarpelli, 411 

U.S. 778, 782 (1973)). A probationer’s due process rights are codified in

Indiana Code Section 35-38-2-3, which provides in relevant part as follows:

(e) A person may admit to a violation of probation and waive the 

right to a probation violation hearing after being offered the 

opportunity to consult with an attorney. If the person admits to a 

violation and requests to waive the probation violation hearing, the 

probation officer shall advise the person that by waiving the right to a 

probation violation hearing the person forfeits the rights provided in 

subsection (f). . . .

(f) Except as provided in subsection (e), the state must prove the 

violation by a preponderance of the evidence. The evidence shall 

be presented in open court. The person is entitled to 

confrontation, cross-examination, and representation by counsel.

(Emphasis added).

[9] Hilligoss contends that, contrary to Indiana Code Section 35-38-2-3(e), he “was 

never advised of any of [his] rights” under subsection (f). Appellant’s Br. at 4. 

Accordingly, Hilligoss asserts that his “fundamental due process rights were 

denied.” Id. at 5. The State admits that the “trial court does not appear to have 

given [Hilligoss the statutory] advisement.”2 Appellee’s Br. at 7. However, the 

 

2

 The State does not suggest that the statutory requirement that the “probation officer shall advise” the 

probationer of his rights alleviated the trial court of its burden to ensure that Hilligoss was aware of his rights.
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State asserts that Hilligoss “would have admitted the violation even if the court 

had advised him of the rights he was giving up by admitting the violation,” id.

at 3, and the State maintains that Hilligoss has waived this issue for our review 

by raising it for the first time on appeal.

[10] Generally, a party waives an issue if it is raised for the first time on appeal. See 

Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994). “However, we may bypass 

an error that a party procedurally defaults when we believe that the error is . . . 

fundamental.” Id. (quoting Hart v. State, 578 N.E.2d 336, 337 (Ind. 1991)). As 

our supreme court recently stated: “An error is fundamental, and thus 

reviewable despite failure to object, if it made a fair trial impossible or 

constituted a clearly blatant violation of basic and elementary principles of due 

process presenting an undeniable and substantial potential for harm.” Young v. 

State, 30 N.E.2d 719, 726 (Ind. 2015) (quotation marks omitted). However, in 

Young the court clarified that this standard no longer requires the alleged error 

to have been “sufficiently ‘egregious’ or ‘blatant’ [such] that the trial court 

should have acted sua sponte.” Id. at 726 n.6 (clarifying Brewington v. State, 7 

N.E.3d 946, 974 (Ind. 2014)).

[11] Indiana’s courts have recognized fundamental error in the context of probation 

revocation proceedings before. For example, it is well settled that the failure to 

hold an evidentiary hearing on an alleged probation violation denies a 

probationer his due process rights and constitutes fundamental error. Dalton, 

560 N.E.2d at 560. Indeed, “[t]he fundamental requirement of due process is 

the opportunity to be heard at a meaningful time and in a meaningful manner.” 
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Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quotation omitted). Further, “a 

probationer’s admission that he violated the terms of probation does not entitle 

him to less due process than a probationer who contests the asserted

violations.” United States v. Holland, 850 F.2d 1048, 1051 (5th Cir. 1988). 

[12] The State concedes that “[t]he court was required to inform [Hilligoss] that he 

was giving up” his due process rights set out in Indiana Code Section 35-38-2-

3(f). Appellee’s Br. at 7. As with the required Boykin rights at a guilty plea

hearing,

3

the statutory advisements applicable here insure that a probationer’s 

admission “is given with full knowledge of the consequences of such 

admission.” Gray v. State, 481 N.E.2d 158, 161 (Ind. Ct. App. 1985). Because 

the record is silent with respect to whether Hilligoss was advised of his rights 

pursuant to Indiana Code Section 35-38-2-3(e) and (f), we must conclude that 

Hilligoss was not properly advised and, therefore, that he was deprived of his

fundamental right to due process. See, e.g., Ponce v. State, 9 N.E.3d 1265, 1270 

(Ind. 2014) (reiterating that the record of guilty plea proceeding must 

demonstrate that the defendant was advised of his constitutional rights and he 

knowingly and voluntarily waived them).

[13] Thus, we hold that a trial court’s failure to ensure that a probationer who 

admits to a probation violation has received the advisements as required under 

 

3

 With respect to guilty pleas, it is well settled that a failure to strictly comply with the statutorily required 

advisement of Boykin rights constitutes fundamental error. Jones v. State, 467 N.E.2d 757, 760 (Ind. Ct. App. 

1984); see also Boykin v. Alabama, 395 U.S. 238, 243 (1969).
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Indiana Code Section 35-38-2-3(e) constitutes a fundamental violation of the 

probationer’s due process rights. Accordingly, we reverse the trial court’s 

revocation of Hilligoss’ probation. On remand, the trial court shall hold an 

evidentiary hearing on Hilligoss’ alleged probation violation or, if Hilligoss 

admits to the violation, the trial court shall make a record to reflect that 

Hilligoss has been properly advised of his rights in accordance with Indiana 

Code Section 35-38-2-3(e).

4

Issue Three: Term Extensions

[14] Finally, we address Hilligoss’ contention that the trial court erred when it 

extended the term of his probation by more than one year beyond the original 

term of probation in violation of Indiana Code Section 35-38-2-3(h)(2), which 

provides as follows:

If the court finds that the person has violated a condition at any 

time before termination of the period, and the petition to revoke 

is filed within the probationary period, the court may . . .

[e]xtend the person’s probationary period for not more than one 

(1) year beyond the original probationary period.

[15] Again, on October 24, 2012, the trial court extended Hilligoss’ original 

probationary period by an additional six months. And on February 12, 2014, 

 

4

 Because we decide this appeal under the fundamental error doctrine, we need not address the State’s 

argument that Hilligoss forfeited this issue for our review when he did not object in the trial court. However, 

we note the inherent absurdity in the State’s position. The premise of giving an advisement is that the person 

to be advised is unaware of certain information; the premise of the State’s argument for forfeiture is that the 

person who should have been advised should have known enough to put the trial court on notice of its failure 

to advise him.
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the trial court extended his probationary period by an additional 365 days. 

Because those two extensions, taken together, extend Hilligoss’ probationary 

period by more than one year beyond the original probationary period, they 

violate Indiana Code Section 35-38-2-3(h)(2). On remand, we instruct the trial 

court to reduce Hilligoss’ period of probation by six months to bring it in 

compliance with the statute.

[16] Reversed and remanded with instructions.

Kirsch, J., and Barnes, J., concur.