ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Robert D. King, Jr. Steve Carter 

Indianapolis, Indiana Attorney General of Indiana 

 Richard C. Webster 

 Deputy Attorney General 

 Indianapolis, Indiana 

______________________________________________________________________________ 

In the 

Indiana Supreme Court 

_________________________________ 

No. 49S04-0808-CR-469 

BRIAN WOODS, 

 Appellant (Defendant below), 

v. 

STATE OF INDIANA, 

 Appellee (Plaintiff below). 

_________________________________ 

Appeal from the Marion Superior Court, Criminal Division Room 20 

No. 49G20-0203-FA-072222 

The Honorable William Young, Judge 

_________________________________ 

On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-0612-CR-748 

_________________________________ 

August 27, 2008 

Rucker, Justice. 
Facts and Procedural History 

On March 19, 2002, Brian Woods was charged in a seven count Information with various 

drug related offenses. Under terms of an agreement, Woods pleaded guilty to two of the seven 

counts: conspiracy to commit dealing in cocaine as a Class A felony and dealing in marijuana as 

a Class D felony. In exchange for his plea, the State dismissed the remaining counts and Woods 

was sentenced to a total term of twenty years with five years executed and fifteen years 

suspended. Woods was placed on probation for 730 days following his release from the 

Department of Correction. 

On December 28, 2005, the State filed a Notice of Probation Violation alleging that 

Woods had failed to submit to a urinalysis drug test, failed a urinalysis drug test, and failed to 

pay in full court ordered fees. 

A probation revocation hearing was scheduled for January 19, 2006. At the start of the 

hearing the parties informed the trial court that they had reached an agreement. Under which, 

Woods would admit to the violations as alleged. In exchange his probation would be extended 

for one year, Woods would enter a drug treatment program, and he would be tested weekly for 

drug use. Woods also would be placed on what the parties referred to as “strict compliance,” 

which the deputy prosecutor explained as meaning “[any] other violation of any terms or 

conditions of his probation will result in full backup of 15 years.” Tr. at 4. When the trial court 

asked Woods if he knew what “strict compliance” meant, he responded “[y]es sir” and the trial 

judge emphasized, “You’ll go to jail if you don’t do what you’re supposed to do [in] the 

slightest, that’s 15 years in your case . . . .” Id. The trial court entered an appropriate order, and 

Woods’ probation was extended until January 14, 2007. 

On October 30, 2006, the State filed a second Notice of Probation Violation, this time 

alleging Woods failed to report for urinalysis drug testing on three separate occasions, failed to 

report as directed to the probation department, and failed to make a good-faith effort to pay court 

ordered fees. At a revocation hearing held November 30, 2006, the trial court inquired about the 

status of the case. The deputy prosecutor responded that in the event the trial court found a 

2
probation violation, Woods faced 15 years – the remainder of his term. As a consequence, the 

deputy prosecutor advised the court, “I’ve agreed to offer him 12 years . . . .” Tr. at 8. At that 

point, addressing the court Woods replied, “Can I explain why I missed sir?” Id. The following 

exchange then occurred: 

The Court: No because it doesn’t matter, because you’re on strict 

compliance you weren’t allowed to miss remember? 

Mr. Woods: Yes. 

The Court: So do you want the 12 or not? 

Mr. Woods: I guess I’ve got to take it. 

The Court: You don’t have to but you wouldn’t do to[o] well if 

you didn’t. 

Mr. Woods: Yeah. 

The Court: You don’t want 15 I know that right? 

Mr. Woods: No I don’t. 

The Court: So 12 years, 28 days credit indigent as to fines costs 

and fees. 

Tr. at 9. The trial court entered an order accordingly.1

 Woods appealed complaining the court 

denied him due process by preventing him from explaining why he violated the terms of 

probation. The Court of Appeals affirmed the judgment of the trial court deciding in part that 

because of the strict compliance, “Woods’s situation is akin to one in which a fact-finder has no 

discretion to continue probation.” Woods v. State, 877 N.E.2d 188, 190 (Ind. Ct. App. 2007) 

(footnote omitted). We grant transfer and affirm the trial court’s judgment, but on grounds 

different from our colleagues. 

 

1

 Although the trial court made no specific finding that Woods violated the terms of his probation, 

Woods’ acknowledgment that he “missed” was an apparent reference to his failure to report for urinalysis 

testing. In any event, Woods makes no claim on appeal that he did not violate the terms of probation or 

that the evidence was not sufficient to support a violation. 

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Standard of Review 

 The decision to revoke probation is within the sole discretion of the trial court. Reyes v. 

State, 868 N.E.2d 438, 440 (Ind. 2007). And its decision is reviewed on appeal for abuse of that 

discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). On review, we consider only the 

evidence most favorable to the judgment without reweighing that evidence or judging the 

credibility of the witnesses. Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995). If there is 

substantial evidence of probative value to support the trial court’s decision that a defendant has 

violated any terms of probation, the reviewing court will affirm its decision to revoke probation. 

Id. 

Discussion 

Woods contends the trial court’s refusal to allow him the opportunity to explain why he 

violated the terms of his probation denied him minimum due process. The State responds that no 

such opportunity was required because Woods was placed on “strict compliance.” According to 

the State no explanation would have mattered because “any” violation would have resulted in the 

trial court imposing the full outstanding term of Woods’ sentence.2

 Br. of Appellee at 6. 

Although probationers are not entitled to the full array of constitutional rights afforded 

defendants at trial, “the Due Process Clause of the Fourteenth Amendment [does] impose [] 

procedural and substantive limits on the revocation of the conditional liberty created by 

probation.” Debro v. State, 821 N.E.2d 367, 374 (Ind. 2005) (citing Cox v. State, 706 N.E.2d 

547, 549 (Ind. 1999); Black v. Romano, 471 U.S. 606, 610 (1985)). The minimum requirements 

of due process that inure to a probationer at a revocation hearing include: (a) written notice of the 

claimed violations of probation; (b) disclosure of the evidence against him; (c) an opportunity to 

 

2

 The State also argues that “[t]he trial court did not deny Defendant due process because he agreed to 

‘strict compliance.’” Br. of Appellee at 6. Although it does not say so in express terms the State 

apparently analogizes the acceptance of strict compliance with that of entering a plea agreement. Creech 

v. State, 887 N.E.2d 73, 74 (Ind. 2008) (Defendants who bargain to plead guilty in return for favorable 

outcomes “give up a plethora of substantive claims and procedural rights.”). We reject this comparison. 

A defendant who enters a plea agreement knowingly, intelligently, and voluntarily is hardly similarly 

situated to a defendant who is advised in essence either agree to strict compliance or go to jail now for 

violating probation. 

4
be heard and present evidence; (d) the right to confront and cross-examine adverse witnesses; 

and (e) a neutral and detached hearing body. Isaac v. State, 605 N.E.2d 144, 148 (Ind. 1992). 

Probation revocation is a two-step process. First, the court must make a factual 

determination that a violation of a condition of probation actually occurred. If a violation is 

proven, then the trial court must determine if the violation warrants revocation of the probation. 

Morrissey v. Brewer, 408 U.S. 471, 479-80 (1972); Stephens v. State, 818 N.E.2d 936, 941-42 

(Ind. 2004) (observing the statutory scheme “reflects the Legislature’s intent that trial courts 

have the flexibility both to use and to terminate probation when appropriate”). Indiana has 

codified the due process requirements of Morrissey in Indiana Code section 35-38-2-3 by 

requiring that an evidentiary hearing be held on the revocation and providing for confrontation 

and cross-examination of witnesses by the probationer. When a probationer admits to the 

violations, the procedural safeguards of Morrissey 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. Morrissey, 408 U.S. at 480. However, even a probationer who 

admits the allegations against him must still be given an opportunity to offer mitigating evidence 

suggesting that the violation does not warrant revocation. United States v. Holland, 850 F.2d 

1048, 1051 (5th Cir. 1988) (per curiam). 

We first observe that our research reveals no reported decision examining the concept or 

exploring the implications of strict compliance probation. In one sense all probation requires 

“strict compliance.” That is to say probation is a matter of grace. Prewitt, 878 N.E.2d at 188. 

And once the trial court extends this grace and sets its terms and conditions, the probationer is 

expected to comply with them strictly. If the probationer fails to do so, then a violation has 

occurred. But even in the face of a probation violation the trial court may nonetheless exercise 

its discretion in deciding whether to revoke probation. Clark County Council v. Donahue, 873 

N.E.2d 1038, 1039 (Ind. 2007) (“Indiana trial court judges have the authority to award, 

supervise, and revoke probation. The probationary scheme is deliberately designed to give trial 

judges the flexibility to make quick, case-by-case determinations.”). 

5
In any event the very notion that violation of a probationary term will result in revocation 

no matter the reason is constitutionally suspect. For example, failure to pay a probation user fee 

where the probationer has no ability to pay certainly cannot result in a probation revocation. See, 

e.g., Black, 471 U.S. at 614 (No automatic revocation “[w]here a fine or restitution is imposed as 

a condition of probation, and ‘the probationer has made all reasonable efforts to pay . . . yet 

cannot do so through no fault of his own.’”) (internal quotations omitted); see also Morrissey, 

408 U.S. at 488 (Discussing the minimum due process requirements at a parole revocation 

hearing the Court declared, “The parolee must have an opportunity to be heard and to show, if he 

can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest 

that the violation does not warrant revocation.”). And what of a probationer not reporting to his 

probation officer because he was in a coma in a hospital? Or consider a failed urinalysis test 

because of prescription medication a probationer is taking on orders from his treating physician. 

Although not a defense to revocation, lack of volition is often a factor pertinent to a disposition 

in a revocation proceeding. United States v. Warner, 830 F.2d 651, 657-58 (7th Cir. 1987) 

(“While good faith and lack of willfulness does not preclude finding a probation violation, 

defendant could and did raise his alleged good faith before the court as a factor for the court to 

consider in deciding whether to revoke probation.”); see also State v. Johnson, 514 P.2d 1073, 

1076 (Wash. Ct. App. 1973) (Fundamental fairness required the trial court to consider whether 

the probationer was insane at the time the alleged violations occurred, not as a defense to the 

alleged violations, but to make it possible for the trial court to have all the information necessary 

to make the judgment justice demands.). 

 We acknowledge that telling a defendant that he is on “strict compliance” is a dramatic 

way of putting him on notice that he is on a short leash and has been given one final chance to 

“get his act together.” Nonetheless due process requires that a defendant be given the 

opportunity to explain why even this final chance is deserving of further consideration. By 

denying Woods this opportunity, the trial court erred. However, on this record Woods is not 

entitled to relief. 

To reverse a trial court’s decision to exclude evidence, there must have been error by the 

court that affected the defendant’s substantial rights and the defendant must have made an offer 

6
7

of proof or the evidence must have been clear from the context. Stroud v. State, 809 N.E.2d 274, 

283 (Ind. 2004). “This offer to prove is necessary to enable both the trial court and the appellate 

court to determine the admissibility of the testimony and the prejudice which might result if the 

evidence is excluded.” Wiseheart v. State, 491 N.E.2d 985, 991 (Ind. 1986). The purpose of an 

offer of proof is to convey the point of the witness’s testimony and provide the trial judge the 

opportunity to reconsider the evidentiary ruling. State v. Wilson, 836 N.E.2d 407, 409 (Ind. 

2005). Equally important, it preserves the issue for review by the appellate court. Id. 

Neither on direct appeal nor on transfer to this Court does Woods make any attempt to 

explain why he violated the terms of his probation. More importantly, Woods did not make an 

offer of proof to the trial court. Generally this failure is fatal to his claim. Wisehart, 491 N.E.2d 

at 991, cf. Biddinger v. State, 868 N.E.2d 407, 412-13 (Ind. 2007) (addressing contention that 

trial court erred in denying defendant opportunity to make a statement in allocution where claim 

preserved by written statement submitted as an offer of proof). See also United States v. 

Leasure, 122 F.3d 837, 841 (9th Cir. 1997) (holding resentencing inappropriate unless the 

defendant can identify specific statements on appeal that he would have made at sentencing that 

likely would have impacted his sentence); Neff v. State, 696 S.W.2d 736, 740 (Ark. 1985) 

(Where the right of allocution is completely ignored by the court, a defendant must affirmatively 

prove prejudice after a proper objection in the trial court.). 

Conclusion 

 We affirm the judgment of the trial court. 

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.