Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 1 of 16

ATTORNEY FOR APPELLANT

Anthony C. Lawrence

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

George P. Sherman

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Derek Hutchison,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 10, 2017

Court of Appeals Case No.

48A02-1702-CR-340

Appeal from the Madison Circuit 

Court

The Honorable Mark Dudley,

Judge

Trial Court Cause No.

48D01-0605-FB-118

Bradford, Judge.
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 2 of 16

Case Summary

[1] In 2006, Appellant-Respondent Derek Hutchison pled guilty but mentally ill to 

Class B felony rape. In exchange for Hutchison’s guilty plea, AppelleePetitioner the State of Indiana (“the State”) agreed to dismiss other pending 

charges. The trial court accepted Hutchison’s guilty plea and sentenced him to 

a term of twenty years, with fifteen years executed in the Department of 

Correction (“DOC”) and five years suspended to probation.

[2] On November 4, 2016, the State filed a petition alleging that Hutchison had 

violated the terms of his probation by committing several new criminal offenses, 

including unlawful entry by a serious sex offender. An evidentiary hearing was 

conducted on January 10, 2017, at which Hutchison was represented by an 

attorney. At the conclusion of the hearing, the trial court found that Hutchison 

had violated the terms of his probation. Thereafter, the trial court revoked 

Hutchison’s probation and ordered him to serve the entire five-year, previouslysuspended sentence. Neither Hutchison, who claims to suffer from mental 

illness, nor his attorney requested a competency hearing at any time before or 

during the evidentiary hearing.

[3] On appeal, Hutchison contends that the trial court committed fundamental 

error by failing to conduct a competency hearing before revoking his probation. 

Concluding otherwise, we affirm.

Facts and Procedural History
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 3 of 16

[4] Our memorandum decision in Hutchinson’s prior direct appeal, which was 

handed down on November 16, 2007, instructs us to the underlying facts and 

procedural history which have led to the instant probation revocation 

proceeding:

On February 14, 2006, eighteen-year-old Hutchison accompanied 

his mother to St. Joseph’s Hospital in Anderson after she 

complained of a fever. At some point that evening or after 

midnight, Hutchison began roaming around the hospital. 

Initially, he entered the room of eighty-five-year-old patient L.A. 

L.A. awoke to find Hutchison sitting on her bed and rubbing his 

hand across her face. L.A. stated she “fear[ed] for her life.” 

Appellant’s Appendix at 76. As he left her bedside, Hutchison 

ran his hand along L.A.’s breast.

Shortly after leaving L.A.’s room, Hutchison entered the room of 

ninety-two-year-old L.E., also a patient at the hospital. L.E. was 

comatose and had various medical devices assisting her, 

including an IV, an oxygen machine, and a waste extraction 

tube. After attempting to wake L.E., Hutchison lifted L.E.’s 

hospital gown, climbed on top of her, and had vaginal 

intercourse with her for approximately two to three minutes.

Anderson police officers responding to these incidents found 

Hutchison hiding in a basement office of the hospital. The door 

to the office was locked, but Hutchison had gained access by 

climbing over a wall that separated the office from the hospital’s 

common area. When officers apprehended Hutchison, he was 

carrying a plastic tub that contained various items, including 

personal planners, soft drinks, candy, and music CDs, all of 

which were hospital property.

The State charged Hutchison with burglary, a Class C felony; 

theft, a Class D felony; and sexual battery, a Class D felony, 

based on the incidents in the basement office and with L.A. 
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 4 of 16

Shortly thereafter, the State charged Hutchison with rape, a Class 

B felony, based on the incident with L.E. The parties agreed that 

Hutchison would plead guilty to the rape charge and that the 

State would dismiss the burglary, theft, and sexual battery 

charges. Sentencing was left to the trial court’s discretion, except 

that the executed portion of Hutchison’s sentence could not 

exceed fifteen years.

After accepting Hutchison’s plea of guilty but mentally ill, the 

trial court conducted a sentencing hearing. Thereafter the trial 

court issued a sentencing statement, which reads in relevant part 

as follows:

The Court finds aggravation: 1) Prior juvenile 

criminal and delinquent acts; 2) The defendant is in 

need or correctional and/or rehabilitative services 

that can best be provided by commitment to a penal 

facility; 3) The advanced age of the victim; 4) The 

victim was physically infirm at the time of the instant 

offense; and 5) Prior attempts at rehabilitation have 

not been successful. The Court finds mitigation: 1) 

The defendant plead [sic] guilty to the Instant 

Offense, saving the State the time and cost of a trial; 

2) Defendant has a pattern of mental illness and 

diagnosis, none of which constitutes a defense; and 3) 

Defendant’s highly dysfunctional home environment 

and a life of instability.

Id. at 113. Based on these findings, the trial court sentenced 

Hutchison to a total sentence of twenty years, with fifteen years 

executed and five suspended.

Hutchison v. State, 48A02-1611-CR-1059, *1-2 (Ind. Ct. App. Nov. 16, 2007) 

(footnote omitted). Hutchinson’s sentence was affirmed on direct appeal. Id. at 
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 5 of 16

*4. In affirming Hutchinson’s sentence, we noted the following about his 

mental state: 

The record discloses a history of psychiatric treatment and 

mental illness. The PSI states Hutchison was diagnosed with 

Attention Deficit Hyperactivity Disorder when he was three 

years old and, following an evaluation, was recommended for 

placement in a psychiatric facility as early as 2002. However, 

two psychiatric evaluations prepared for a competency hearing 

conclude Hutchison “is capable of determining right from wrong 

and can understand the wrongfulness of his behavior ....,” 

appellant’s app. at 79, and that although Hutchison “presents 

himself as someone who is unable to control behavior and does 

not even remember his behavior.... [H]e was able to understand 

the wrongfulness of the conduct at the time of the offense and 

does not have a psychiatric disorder that interferes with that,” id. 

at 83.

Moreover, Hutchison’s statements at the sentencing hearing do 

not indicate any nexus between his mental illness and the 

offense. Describing his illness as a “demonic spirit,” Hutchison 

initially credited, but ultimately disavowed, his illness’s role in 

the commission of the crime:

What I feel I did was wrong, stupid, it was out of this 

world. I mean, sometimes I feel like it was a 

demonic spirit pulling me in and I had smoked, I 

mean, I had a [sic] very first experience with 

marijuana that day, had smoked like a quarter of a 

joint, but I do not use that as an excuse for my 

behavior. Nothing is. Not even the demonic spirit.

What I did was completely intentional and I take full 

responsibility for it.

Id. at 150.
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 6 of 16

Id. at *3. Hutchison was released from incarceration and placed on probation 

on or about October 21, 2016. 

[5] On November 4, 2016, the State filed a petition alleging that Hutchison had 

violated the terms of his probation by committing several new criminal offenses, 

including unlawful entry by a serious sex offender. An evidentiary hearing was 

conducted on January 10, 2017, at which Hutchison was represented by an 

attorney. It is of note that neither Hutchison nor his attorney requested a 

competency hearing at any time before or during the evidentiary hearing. 

[6] During the evidentiary hearing, the State presented evidence indicating that on 

November 1, 2016, Elwood Police Officer Sherry Wright was working as a 

school resource officer at Elwood Junior-Senior High School when she 

encountered Hutchison. Hutchison came into the school office during school 

hours, identified himself as Mitchel Cruz, and indicated that he had come to 

speak with a student, M.R. When asked how he had gotten into the school, 

Hutchison indicated that “another student had let him in.” Tr. Vol. II, p. 33. 

Hutchison left the school after Officer Wright advised him that the school 

officials “didn’t pull kids out of a classroom just to come down and speak with 

other people in the office.” Tr. Vol. II, p. 33.

[7] The next morning, Elwood Police Officer Andy McGuire was on patrol at the 

school when he observed Hutchison riding a bicycle between an elementary 

school and the junior-senior high school. About this same time, M.R.’s mother 
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 7 of 16

approached Officer McGuire and expressed concern that Hutchison had 

attempted to pick her daughter up from school the day before.

[8] After speaking with M.R.’s mother, Officer McGuire approached Hutchison. 

Hutchison identified himself as Mitchell Cruz and told Officer McGuire that 

“he wanted to apologize to [M.R.’s mother] because for the confusion as what, 

as he put it for trying to pick her daughter up the day prior.” Tr. Vol. II, p. 15. 

Hutchison gave Officer McGuire what he claimed was his parents’ phone

number. He told Officer McGuire that he lived with his parents at a residence 

located on South 25th Street. Hutchison also told Officer McGuire that “he had 

graduated early and that he was just confused and didn’t really know where he 

was and he was trying to find his way home.” Tr. Vol. II, p. 15. Officer 

McGuire pointed Hutchison in the direction of South 25th Street. 

[9] In light of M.R.’s mother’s concern, Officer McGuire decided to follow 

Hutchison home and make sure that his parents were aware of what had 

happened at the school. Officer McGuire testified that 

So I drove down, down the street, was not able to locate him, 

went down to South 25th Street and kept going south and he 

ended up almost running into my car around South 8th Street 

and 25th Street. And then I asked him what he was doing, he 

looked shook up. Told me that he was confused, he was looking 

for his house. I asked him where that was. He said that it was 

over the railroad tracks. I said well you’ve went over the railroad 

tracks and many blocks since then. And then I said the phone 

number you gave me because I tried calling his mom as well, the 

phone number didn’t come back to a working number. And he 

just looked concerned and upset and didn’t know what to say. I 
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 8 of 16

said I’ll just follow you to your house then so I can talk to your 

parents directly. So when I followed him to his house he stopped 

one time to wave towards the house, asked why I was still 

following him there. I said just so I can make sure that your 

parents are aware of what’s going on and you’re trying to pick up 

juveniles from the school. We get to the apartment. As I’m 

starting to get out of the car I said hey just wait right there, I said 

I’ll walk in with you and he almost sprints in a very fast pace 

walk to the house, uses a key and gets in the door and then later 

was identified to me was his stepfather I believe was there at the 

door too kind of confused. He allowed me in and I walked into 

the backroom, which was his mother’s bedroom with him and 

she referred to him by his real name[.]

Tr. Vol. II, pp. 16-17. When asked why he would give Officer McGuire a false 

name, Hutchison indicated that he “wanted to talk to his probation officer.” 

Tr. Vol. II, p. 17. Hutchison’s mother then informed Officer McGuire that 

Hutchison “was on probation for rape.” Tr. Vol. II, p. 18.

[10] Upon receiving this information, Officer McGuire transported Hutchison to the 

police department for an interview. Hutchison consented to be interviewed 

after Officer McGuire informed him of his rights. During this interview, 

Hutchison indicated that he had attempted to approach M.R. because she 

reminded him of “an ex-girlfriend of his and he couldn’t get her out of his mind 

and kept thinking about her” after he encountered M.R. and a group of her 

friends “trick or treating” on Halloween. Tr. Vol. II, p. 18. Hutchison also 

indicated that on October 30, 2016, he had been found in a Sunday school class 

for five-year-olds at East Main Street Church, which also housed the Noah’s 

Ark Preschool. 
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 9 of 16

[11] Hutchison did not dispute that he had entered the school on November 1, 2016 

or had been present on school property on November 2, 2016. He 

acknowledged his legal name during the evidentiary hearing but also provided 

several aliases. However, he did dispute the fact that he was twenty-eight years 

old, claiming that he was seventeen years old. 

[12] Hutchison admitted that he had been convicted of rape “ten (10) years ago” but 

indicated that he did “felt that there was nothing wrong with being in schools.” 

Tr. Vol. II, p. 43. Hutchison indicated that he did not fully understand the 

advisement of rights which had been given to him by Officer McGuire on 

November 2, 2016, and that prior to giving his statement, he had asked to see 

his therapist, Doctor Walter Campbell, who he had been seeing since August of 

2012. Hutchison also indicated that his current psychiatric diagnosis was 

“severe post-traumatic stress disorder” which he claimed stemmed from “my 

being sexually abused when I was eight (8) years old and from, from the, an 

explosion in the Navy Seals[1] and that left me with mild traumatic brain 

injury.” Tr. Vol. II, p. 44. Hutchison further indicated that he had previously 

been diagnosed with borderline personality disorder. 

[13] At the conclusion of the evidentiary hearing, the trial court found that 

Hutchison had violated the terms of his probation. In making this finding, the 

trial court stated the following: 

 

1

 It does not appear that Hutchison was ever a member of the United States Navy, much less the Navy Seals.
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 10 of 16

Mr. Hutchison you really have some issues but not issues to the 

point where they dil, debilitate you to not knowing what you are 

doing. I do have your DOC progress report. There is certainly 

notations [sic] about the treatment that the DOC provided that 

you refused. I’m fully aware of all of this Mr. Hutchison.... I’m 

going to impose a sanction here, but I want you to understand. 

It’s not because I think you ... have no issues in your life. You 

clearly do sir but I have very clear rules that were applied to you 

that were informed to you upon your release from the DOC. 

One of those was not to be on school property.

Tr. Vol. II, p. 60. Thereafter, the trial court revoked Hutchison’s probation and 

ordered him to serve the entire five-year, previously-suspended sentence. This 

appeal follows. 

Discussion and Decision

[14] Probation is a matter of grace left to trial court discretion, not a 

right to which a criminal defendant is entitled. The trial court 

determines the conditions of probation and may revoke 

probation if the conditions are violated. Once a trial court has 

exercised its grace by ordering probation rather than 

incarceration, the judge should have considerable leeway in 

deciding how to proceed. If this discretion were not afforded to 

trial courts and sentences were scrutinized too severely on 

appeal, trial judges might be less inclined to order probation to 

future defendants. Accordingly, a trial court’s sentencing 

decisions for probation violations are reviewable using the abuse 

of discretion standard. An abuse of discretion occurs where the 

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

circumstances.

Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citations omitted).
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 11 of 16

[15] In the instant matter, Hutchison does not argue that the evidence is insufficient 

to prove that he violated the terms of his probation or that the trial court abused 

its discretion in ordering him to serve the entire five-year balance of his 

previously-suspended sentence. Rather, Hutchison argues that the trial court 

committed fundamental error by failing to order a competency evaluation 

before finding that he had violated the terms of his probation.2

[16] “The ‘fundamental error’ exception is extremely narrow, and applies only when 

the error constitutes a blatant violation of basic principles, the harm or potential 

for harm is substantial, and the resulting error denies the defendant 

fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). 

The error claimed must either “make a fair trial impossible” or 

constitute “clearly blatant violations of basic and elementary 

principles of due process.” Clark v. State, 915 N.E.2d 126, 131 

(Ind. 2009). This exception is available only in “egregious 

circumstances.” Brown v. State, 799 N.E.2d 1064, 1068 (Ind.

2003).

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).

[17] In arguing that the trial court committed fundamental error, Hutchison relies on 

our opinion in Donald v. State, 930 N.E.2d 76 (Ind. Ct. App. 2010). In Donald, 

the appellant requested a competency evaluation prior to his probation 

 

2

 In making this argument, Hutchison acknowledges that because he did not raise the issue of the 

competency evaluation below, he is only entitled to relief if the trial court is found to have committed 

fundamental error. 
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 12 of 16

revocation hearing. 930 N.E.2d at 79. The trial court denied this request, 

conducted an evidentiary hearing, and revoked the appellant’s probation. Id. 

On appeal, we concluded that one has a due process right to a competency 

evaluation prior to a probation revocation hearing if such an evaluation is 

warranted. Id. at. 80. “[I]t is within the sound discretion of the trial court 

whether reasonable grounds exist to order a competency evaluation and that 

decision will be reviewed only for an abuse of discretion.” Id. We further 

concluded that the trial court committed fundamental error because it “did not 

reach the issue of whether there were reasonable grounds for a competency 

hearing” after a request for such an evaluation was raised by the appellant. Id. 

Unlike in Donald, however, neither Hutchison nor his attorney requested a 

competency evaluation at any point prior to or during the evidentiary hearing. 

Hutchison’s reliance on this opinion is therefore unavailing. 

[18] Hutchison also cites to the pre-sentence investigation report (“PSI”) that was 

completed in connection to the underlying matter following his guilty plea. As 

to Hutchison’s mental state at the time of sentencing, the PSI provides, in 

relevant part, as follows:

The defendant has a long history of psychiatrict [sic] care. It 

appears he was diagnosed with Attention Deficit Hyperactivity 

Disorder when he was a mere three years old. He was ordered 

for treatment at Behavior Corp. as early as March of 1998....

A psychiatric evaluation prepared October 28, 2002 by Dr. 

Steven H. Berger evaluates the defendant as simply unsocialized, 

rather than psychiatrically ill. A psychiatric evaluation prepared 

October 24, 2002, by Ph.D. David F. Strus states that the 
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 13 of 16

defendant is developing a Mixed Personality Disorder. He is a 

very disturbed young man, has had highly inappropriate models 

and has lived and been raised in an incredibly dysfunctional 

family. He has very little understanding of how relationships 

work and very little concept of how one controls one’s own 

actions. Furthermore, he believes the defendant is not truly 

suicidal, but he is so unstable and so unpredictable that he would 

need to be placed under precautionary status. An evaluation 

prepared by Michael Walker, Educational Doctor for 

Psychological Consultation, prepared October 28, 2002, 

describes the defendant as of low average intelligence, extremely 

impulsive, and unable to delay immediate gratification. 

Although not demonstrating any psychotic features, rather is an 

impulse-driven individual, his risk being in his impulsiveness and 

inability to delay gratification. A follow-up psychological 

evaluation dated October 31, 2002, written by David F. Strus, 

Ph.D., states that the defendant is incredibly immature, has 

almost no judgment-making capacity, is an attention-seeking 

man who really doesn’t mean to be harmful or hurtful 

particularly, but will do whatever is required to create a stir and 

focus attention upon himself. A psychological evaluation 

prepared June 5, 2006, by Dr. Susan M. Anderson diagnosed the 

defendant with Anti-[S]ocial Personality Disorder and Borderline 

Personality Traits, a history of Post[-]Traumatic Stress Disorder, 

and Sexual Paraphelia. He was found competent to stand trial. 

The Summary states the defendant has a long history of Conduct 

Disorder and now as an adult, Anti-Social Personality. There is 

no evidence he was under the influence of drugs at the time of 

the offense, nor psychotic. He presents as someone who is 

unable to control nor remember his behavior. However, the 

doctor believes he was able to understand the wrongfulness of his 

conduct at the time of the offense, and he does not have a 

Psychiatric Disorder interfering with his conduct. A 

psychological evaluation prepared and filed with the Court June 

30, 2006, by Thomas E. Murray, Ed.D. Psychologist, summaries 

his findings as the defendant being able to determine right from 

wrong and understanding the wrongfulness of his behavior. It is 
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 14 of 16

believed the defendant is competent to stand trial, experiencing 

some limitations in assisting his counsel, with significant 

evidence of a mental defect or disorder not present during the 

interview.

Appellant’s App. Vol. II – Confidential, pp. 21-22. As is stated in the abovequoted section, Hutchison was found competent to stand trial in 2006. 

Hutchison has provided no evidence that his mental condition has seriously 

deteriorated since that time. 

[19] It is well-established that “‘not all mental conditions are serious enough to 

relieve one of criminal responsibility.’” Anderson v. State, 699 N.E.2d 257, 261 

(Ind. 1998) (quoting Cate v. State, 644 N.E.2d 546, 547 (Ind. 1994); see also

Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996) (quoting U.S. ex rel. Foster 

v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir. 1984)) (providing that “‘[n]ot every 

manifestation of mental illness demonstrates incompetence to stand trial; rather 

the evidence must indicate a present inability to assist counsel or understand the 

charges’”); Galowski v. Berge, 78 F.3d 1176, 1182 (7th Cir.1996); Medina v. 

Singletary, 59 F.3d 1095, 1107 (11th Cir.1995) (providing that “neither low 

intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can 

be equated with mental incompetence to stand trial”). Furthermore, the trial 

court, having had the opportunity to observe and interact with Hutchison 

during the evidentiary hearing, was in the best position to judge Hutchison’s 

then-current mental state. See Timmons v. State, 500 N.E.2d 1212, 1217 (Ind. 

1986) (providing that the trial court “can observe a defendant’s demeanor, 
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 15 of 16

including any uncooperative behavior, and determine defendant competent to 

stand trial”). 

[20] Hutchison acknowledged that he had been informed upon his release from 

DOC that he was not to be on school property. Nevertheless, less than one 

month after his release from DOC, Hutchison went onto school property on at 

least two separate occasions. Hutchison has presented no evidence which 

indicates that his mental condition prevented him from understanding or 

remembering that he was not supposed to be on school property. In fact, 

Hutchison’s act of providing officers with a false name and telephone number 

suggests he understood that he was not supposed to be on school property.

[21] As is mentioned above, the trial court found that while Hutchison suffered from 

some mental issues, such issues did not “debilitate” Hutchison to the point that 

he did not know what he was doing. Tr. Vol. II, p. 60. The trial court’s 

observations of Hutchison during the evidentiary hearing were an adequate 

basis for the trial court’s determination that Hutchison was competent. See 

Manuel v. State, 535 N.E.2d 1159, 1162 (Ind. 1989) (providing that observations 

of the defendant’s demeanor during hearings before the court are an adequate 

basis for finding that a competency evaluation is not necessary). Hutchison has 

failed to prove that the trial court committed fundamental error by failing to 

order a competency evaluation. 

[22] The judgment of the trial court is affirmed.
Court of Appeals of Indiana | Opinion 48A02-1702-CR-340 | August 10, 2017 Page 16 of 16

May, J., and Barnes, J., concur.