Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020 Page 1 of 12

MEMORANDUM DECISION

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

Cara Schaefer Wieneke

Wieneke Law Office LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Dale M. Thomas,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 1, 2020

Court of Appeals Case No.

19A-CR-2217

Appeal from the Franklin Circuit 

Court

The Honorable Clay M. 

Kellerman, Judge

Trial Court Cause No.

24C02-1701-F6-81

Darden, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2217 | May 1, 2020 Page 2 of 12

Statement of the Case

[1] Dale M. Thomas appeals the trial court’s judgment revoking his probation. We 

affirm.

Issue

[2] Thomas raises one issue, which we restate as: whether the trial court erred in 

determining that Thomas had knowingly, intelligently, and voluntarily waived 

his right to counsel during probation revocation proceedings.

Facts and Procedural History

[3] On January 25, 2017, the State charged Thomas with possession of 

methamphetamine, a Level 6 felony, and possession of marijuana, a Class B 

misdemeanor. On January 31, 2017, the State amended the charging 

information to add a charge of maintaining a common nuisance, a Level 6 

felony.

[4] Also, on January 31, 2017, the trial court held an initial hearing on the charge 

of maintaining a common nuisance, during which the trial court advised 

Thomas of his constitutional rights. Thomas also signed an advisement of his 

rights. The document advised Thomas that he had “a right to have a lawyer 

and to consult him during all critical states of a criminal proceeding including 

the initial hearing.” Appellant’s App. Vol. 2, p. 21.

[5] Thomas, by counsel, and the State subsequently negotiated a plea agreement. 

Thomas agreed to plead guilty to the charges of possession of 
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methamphetamine and possession of marijuana, and the State agreed to dismiss 

the charge of maintaining a common nuisance. The State further agreed to 

recommend the following sentence to the trial court: (1) for the charge of 

possession of methamphetamine, twenty-four months in the county jail, with 

fifteen months suspended to probation; and (2) for the charge of possession of 

marijuana, six months in the county jail, with three months suspended to 

probation, to be served concurrently with the sentence for possession of 

methamphetamine.

[6] On August 21, 2018, Thomas signed an advisement of rights in connection with 

the plea agreement. Among other topics, the document advised Thomas that 

he agreed that his “guilty plea has been made knowingly and voluntarily and no 

promises, threats or force have been used to make you plead guilty.” Id. at 61. 

The document further advised:

You have the right to be represented by an attorney. If you 

cannot afford an attorney, the Court will appoint an attorney for 

you. You have the right to a continuance in which to hire an 

attorney and to have you [sic] attorney prepare you [sic] case and 

subpoena witnesses. If you choose to proceed without an 

attorney, you will be giving up these rights.

Id. By signing the advisement of rights, Thomas certified “that [he has] read the 

above statements, [understood] each paragraph, and [wished] to waive and 

hereby do waive each and every right enumerated.” Id.

[7] On August 21, 2018, the trial court held a hearing on the plea agreement. The 

trial court accepted Thomas’ guilty plea. On September 6, 2018, the trial court 
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issued an amended order sentencing Thomas pursuant to the parties’ plea 

agreement. The State dismissed the charge of maintaining a common nuisance.

[8] Thomas served the executed portion of his sentence and was released to 

probation on January 28, 2019. That same day, he met with a probation officer 

to review and sign an order detailing the terms and conditions of his probation. 

On January 29, 2019, the trial court issued the order.

[9] Among other terms and conditions of probation, Thomas agreed to “[r]eport to 

the Probation Department as directed by [the] Probation Officer, keep all 

appointments and answer all reasonable inquiries.” Id. at 72. Thomas also 

agreed to notify the probation officer of all changes of address, and that he 

could not move out of Franklin County without “written permission of [the] 

Probation Officer.” Id.

[10] On March 8, 2019, the Franklin County Probation Office filed with the trial 

court a Verified Petition of Probation Violation (the Petition). A probation 

officer alleged that Thomas had: (1) missed two scheduled appointments with 

his probation officer; and (2) had moved out of his residence and left the state, 

moving to Florida. The officer further stated Thomas had failed to submit 

proof that he was seeking treatment for substance abuse.

[11] On March 14, 2019, the trial court issued an order determining that the State’s 

Petition contained facts sufficient to establish probable cause for an arrest 

warrant and, accordingly, ordered the trial court clerk to issue a warrant for 
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Thomas’ arrest. Thomas was subsequently arrested under circumstances not set 

forth in the record.

[12] On August 15, 2019, Thomas appeared before the trial court for an initial 

hearing on the Petition. Judge Kellerman had also presided over Thomas’ 

guilty plea and sentencing hearing. At the beginning of the initial hearing, the 

trial court advised Thomas as follows:

Mr. Thomas, you have the right to take this matter to a hearing 

at which time the burden will be on the State to prove that you 

violated the terms and conditions of probation. You do have the 

right to face all witnesses against you and to see them, question 

them, cross-examine those Witnesses. You also have the right to 

call Witnesses to testify on your own behalf. The Court can 

assist you in that right by issuing subpoenas. You do have the 

right to remain silent[.] Anything that you do say, can and will, 

be used against you. You also have the right to be heard in your 

own defense and to be represented by an attorney. If you cannot 

afford an attorney and meet certain criteria, the Court can 

appoint one for you.

Tr. Vol. 2, p. 4.

[13] Thomas stated that he understood his rights as stated by the trial court, and that 

he was not under the influence of alcohol or drugs. The trial court also asked 

Thomas for his age, and Thomas stated he was twenty-seven. Next, the trial 

court reviewed the Petition with Thomas, and Thomas agreed that he 

understood the State’s allegations.
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[14] Thomas denied the allegations set forth in the Petition. When the trial court 

asked Thomas what he planned to do about an attorney, Thomas responded:

I would like to represent myself pro se and also, I would like to, I 

would like to file a motion for a Habeous [sic] Corpus Fast and 

Speedy Trial and I also would like to file a Motion for Releasal 

[sic] because of the 72-hour law. This is the first time I’ve been to 

Court. I’ve been arrested on this warrant since, since the 6th of 

this month, of August 6th I’ve been arrested and it is now August 

15th and this is the first time I’ve been in Court. And I know that 

I have 72-hours to be arraigned. It’s the law. I looked it up in 

the law library.

Id. at 6-7.

[15] After Thomas’s statement, the following discussion occurred:

THE COURT: Okay. Before we proceed, I do want you to 

understand that you are facing, this is a petition to show that it, 

it's alleging that you violated felony probation. Do you 

understand that?

MR. THOMAS: Yes, sir.

THE COURT: And do you understand that you are going to be 

held to the same standards as the State of Indiana meaning that 

Ms. Brier is the person handling this case for the State. She 

understands the Rules of Procedures. She understands the Rules 

of Evidence. She knows how to try and prepare a case; do you 

understand that?

MR. THOMAS: Yes, sir.
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THE COURT: All of that applies to you whether you have an 

attorney or not.

MR. THOMAS: Yes, sir.

THE COURT: Knowing that, do you still want to proceed 

without counsel?

MR. THOMAS: Yes, sir.

Id. at 7.

[16] Next, the trial court denied Thomas’ motion for speedy trial and instructed him 

to file a written habeas corpus petition. The trial court then decided to set bond 

and asked the prosecutor to describe Thomas’ conviction record. The 

prosecutor discussed Thomas’s two prior criminal cases. The trial court set a 

bond amount, scheduled the dispositional hearing, and ordered Thomas to 

appear for the hearing. Later, the trial court issued an order describing the 

initial hearing. The trial court stated, “the Court advises the Defendant of the 

perils of proceeding without counsel.” Appellant’s App. Vol. 2, p. 84.

[17] On August 29, 2019, the trial court held a dispositional hearing. At the State’s 

request, the trial court took judicial notice of the plea agreement and sentencing 

order, the order containing the terms and conditions of probation, and the 

record of the August 15, 2019 initial hearing on the State’s Petition. Thomas 

represented himself. At the conclusion of the hearing, the trial court 

determined Thomas had violated the terms and conditions of his probation. 
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The trial court imposed an aggregate sentence of fifteen months, to be served in 

the county jail. This appeal followed.

Discussion and Decision

[18] Thomas argues that the trial court erred in allowing him to waive his right to 

counsel and represent himself during probation revocation proceedings, because 

he contends his waiver was not knowing, intelligent, and voluntary.

[19] Probation is a favor granted by the State, not a right to which a defendant is 

entitled. Butler v. State, 951 N.E.2d 255, 259 (Ind. Ct. App. 2011). “A 

probation revocation proceeding is in the nature of a civil action, as there is no 

formal finding of guilt or innocence, and the alleged violation need be proven 

only by a preponderance of the evidence.” State v. Cass, 635 N.E.2d 225, 226 

(Ind. Ct. App. 1994), trans. denied. As a result, a defendant at a probation 

revocation hearing does not have all of the rights he or she possessed prior to 

conviction. Isaac v. State, 605 N.E.2d 144, 148 (Ind. 1992).

[20] “There are certain due process rights, of course, that inure to a probationer at a 

revocation hearing.” Id. These rights include representation by counsel. Id.; see 

also Ind. Code § 35-38-2-3(f) (2015) (probationers are entitled to representation 

by counsel). When a defendant proceeds without counsel, the record must 

reflect that the defendant knowingly, intelligently, and voluntarily waived the

right to counsel. Butler, 951 N.E.2d at 259. “[D]etermining if a defendant’s 

waiver was ‘knowing and intelligent’ depends on the ‘particular facts and 

circumstances surrounding [the] case, including the background, experience, 
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and conduct of the accused.’” Kubsch v. State, 866 N.E.2d 726, 736 (Ind. 2007)

(quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 

1461 (1938)). We review de novo a trial court’s finding that a defendant waived 

the right to counsel. Butler, 951 N.E.2d at 260.

[21] Thomas concedes that the trial court “properly advised [him] of his due process 

rights and of the potential consequences if his probation was revoked . . . .” 

Appellant’s Br. p. 7. He argues that the trial court failed to ascertain that he

was competent to represent himself and failed to ensure that he was aware of 

the pitfalls of waiving the assistance of counsel.

[22] Under the particular facts and circumstances of this case, we conclude the trial 

court had ample evidence from which it could conclude that Thomas was 

competent to represent himself. The same trial judge had also presided over 

Thomas’s guilty plea proceedings. During those proceedings, Thomas had 

signed a waiver of rights document, which described in detail Thomas’s rights, 

which he indicated he understood. In addition, at the beginning of the August 

15, 2019 initial hearing, the trial court advised him of other due process rights, 

which Thomas also indicated he understood. The trial court learned that 

Thomas was twenty-seven years old, well into adulthood, and was not under 

the influence of any drugs or alcohol.

[23] Further, when Thomas asked to represent himself, he also asked for a speedy 

trial and indicated that he thought he should be released because he believed he 

had been held in jail for too long without an initial hearing. Thomas thus 
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indicated some familiarity with criminal law and procedure. He also informed 

the court he had been using the jail’s law library to conduct research. Finally, 

in the course of setting bond during the initial hearing, the trial court learned 

from the prosecutor that Thomas had been the subject of at least two prior 

criminal cases. This is ample evidence from which the trial court could have 

determined Thomas was sufficiently intelligent and experienced to represent 

himself. See Cooper v. State, 900 N.E.2d 64, 70-71 (Ind. Ct. App. 2009) (trial 

court adequately investigated Cooper’s competency; Cooper understood the 

allegations against him and, despite being a high school dropout, was twentyfive years old, could read and write, was not under the influence of substances, 

had been involved with the court system before, and was aware of his right to 

counsel).

[24] Turning to whether Thomas was sufficiently informed of the perils of 

proceeding without counsel, the Indiana Supreme Court has “deliberately 

eschewed any attempt to formulate a rigid list of required warnings, talismanic 

language, or formulaic checklist.” Hopper v. State, 957 N.E.2d 613, 619 (Ind. 

2011), on reh’g. Nevertheless, a trial court’s complete failure to inform a

probationer of the perils of waiving the right to counsel is grounds for reversal. 

See, e.g., Eaton v. State, 894 N.E.2d 213, 217 (Ind. Ct. App. 2008) (trial court 

advised probationer of right to counsel but did not address whether probationer 

wanted the assistance of counsel, or wished to waive the right to counsel, before 

asking probationer to admit or deny allegations), trans. denied; Bumbalough v. 

State, 873 N.E.2d 1099, 1102 (Ind. Ct. App. 2007) (trial court informed 
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probationer of right to counsel but did not discuss waiver of that right with 

probationer); Bell v. State, 695 N.E.2d 997, 999 (Ind. Ct. App. 1998) (trial court 

failed to advise probationer of his right to counsel and did not attempt to 

determine whether probationer wanted to waive that right).

[25] In contrast to those cases, in Thomas’ case the trial court provided ample 

warning to Thomas of the perils of waiving the right to counsel. Thomas was 

represented by counsel during the plea agreement negotiation phase and during 

guilty plea proceedings. He signed an advisement of rights in conjunction with 

his guilty plea, in which he indicated he understood that an attorney’s tasks 

included preparing a defense and subpoenaing witnesses.

[26] Next, at the beginning of the August 15, 2019 initial hearing on the State’s 

Petition, the trial court informed Thomas that during the evidentiary hearing, 

Thomas would have the right to cross-examine the State’s witnesses and the 

right to call witnesses for his own defense. The trial court further stated that 

Thomas had the right to counsel. After Thomas stated he wanted to represent 

himself, the trial court reminded him that this case involved a felony 

conviction, which is a serious matter. Finally, the trial court informed Thomas 

that: (1) he would be held to the same standards of conduct as the deputy 

prosecutor; and (2) the deputy prosecutor understood the rules of procedure and 

knew how to prepare and try a case. Under these facts and circumstances, we 

conclude Thomas was sufficiently informed of the perils of waiving the right to 

counsel. See Cooper, 900 N.E.2d at 69 (probationer knowingly waived right to 

counsel; trial court advised probationer of due process rights including the right 
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to cross-examine and the right to present evidence; court also advised 

probationer of the potential sentencing consequences of being found in 

violation of probation).

Conclusion

[27] For the reasons stated above, we affirm the judgment of the trial court.

[28] Affirmed.

Bailey, J., and Vaidik, J., concur.