Court of Appeals of Indiana | Memorandum Decision 73A01-1612-CR-2722 | June 15, 2017 Page 1 of 7

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

Joel M. Schumm

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Richard K. Dean,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 15, 2017

Court of Appeals Case No.

73A01-1612-CR-2722

Appeal from the Shelby Superior 

Court

The Honorable David N. Riggins, 

Judge

Trial Court Cause No.

73D02-1508-F6-242

Robb, Judge.
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Case Summary and Issue

[1] The trial court revoked Richard Dean’s probation and ordered him to serve the 

entirety of his previously suspended sentence at the Indiana Department of 

Correction (“DOC”) after he admitted to violating conditions of his probation. 

Dean now raises one issue on appeal: whether his waiver of counsel was 

knowing, intelligent, and voluntary. Concluding Dean did not make a 

knowing, intelligent, and voluntary waiver of counsel, we reverse and remand 

for a new probation revocation hearing.

Facts and Procedural History

[2] On August 5, 2015, the State of Indiana charged Dean with cheating on a 

gambling game, a Level 6 felony. Eventually, the State and Dean reached a 

plea agreement and the trial court entered judgment of conviction as a Class A 

misdemeanor. The trial court sentenced Dean to 365 days in the DOC with 

363 of those days suspended to probation. Dean’s probation conditions 

provided that Shelby County and Delaware County would share supervision 

and revocation authority over Dean.

[3] On August 16, 2016, the Shelby County Probation Office filed a revocation 

petition alleging Dean failed to report to scheduled probation appointments in 

both Shelby County and Delaware County and that his whereabouts were 

unknown. The probation department later amended its revocation petition and 

alleged Dean committed a new crime in Madison County.
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[4] On November 30, 2016, the trial court held a hearing on the revocation 

petition. Dean was not represented by counsel. At the revocation hearing, the 

following exchange occurred:

The Court: The State of Indiana wants me to revoke your 

probation saying you failed to report to probation as 

ordered, saying you failed to respond to letters, and 

you failed to report . . . in Delaware County, failed 

to report to Shelby County, and you didn’t respond 

to letters. . . . [T]hey also said you committed a 

new offense, possession of methamphetamine and 

possession of a controlled substance in Madison 

County. Now, before I can revoke your probation, 

you’re entitled to a hearing in the matter. At that 

hearing you have the right to be represented by an 

attorney. If you cannot afford an attorney, I can 

appoint one for you. All you have to do is ask. At 

that hearing the State has to prove by a 

preponderance of the evidence that you violated 

probation. They have to—you have the right to 

confront and cross-examine witnesses against you 

and to subpoena witnesses to testify on your behalf. 

You have the right to appeal any decision I make 

and be represented by an attorney on the appeal. 

Do you understand all your rights?

[Dean]: Yes, sir.

* * *

The Court: All right. I’m gonna ask you, except for the new 

charges, I’ll show a denial on that. But I’m gonna 

ask you if you admit or deny the other allegations. 

If you admit I’m presuming you’re waiving all of 

those rights, including the right to be represented by 

an attorney, and I’ll proceed to sentencing. If you 

deny I’ll set this matter for a fact finding hearing 

and give you a chance to hire or request an attorney. 

Do you understand your choices?
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[Dean]: Yes.

The Court: Do you admit or deny you failed to report to 

probation as ordered?

[Dean]: I failed to report, sir.

Transcript at 4-5. The trial court accepted Dean’s admission and set the matter 

for a dispositional hearing the following day.

[5] At the dispositional hearing, the trial court ordered Dean to serve in the DOC

the entire 363 days previously suspended for his offense. When Dean heard the 

trial court’s sentence, he immediately responded, “I’d ask for a lawyer for an 

appeal, sir.” Tr. at 15.

Discussion and Decision

[6] Dean argues he did not knowingly, intelligently, and voluntarily waive his right 

to counsel at the probation revocation hearing because the trial court did not 

advise him of the potential consequences of admitting a violation of probation. 

Therefore, Dean alleges the revocation of his probation must be set aside.

[7] First, we note the State asserts on cross-appeal that Dean’s challenge to the 

validity of the revocation of probation following an admission of a violation

must be brought by a petition for post-conviction relief rather than on direct 

appeal. See Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996) (holding that a 

petition for post-conviction relief, and not a direct appeal, is the proper vehicle 

for challenging a conviction that is the result of a guilty plea). Moreover, in 
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Huffman v. State, 822 N.E.2d 656, 659-60 (Ind. Ct. App. 2005), a panel of this 

court applied the holding in Tumulty to probation revocations.

[8] Notwithstanding our supreme court’s decision in Tumulty that guilty pleas must 

be challenged through a petition for post-conviction relief and our decision in 

Huffman extending that rule to cases in which the defendant admits to a 

probation violation, the issue remains unsettled and more recent cases have 

addressed on direct appeal the issue of whether a defendant knowingly, 

intelligently, and voluntarily waived the right to counsel in a probation 

revocation hearing. See Butler v. State, 951 N.E.2d 255, 259-62 (Ind. Ct. App.

2011); Cooper v. State, 900 N.E.2d 64, 66-71 (Ind. Ct. App. 2009); Eaton v. State, 

894 N.E.2d 213, 216-18 (Ind. Ct. App. 2008), trans. denied; see also Sparks v. 

State, 983 N.E.2d 221, 224 n.1 (Ind. Ct. App. 2013). Therefore, we choose to

address the merits of Dean’s argument.

[9] The sole issue raised by Dean is whether his decision to proceed without 

counsel at his probation revocation hearing was knowing, intelligent, and 

voluntary. We review de novo a trial court’s finding that a defendant waived 

his right to counsel. Cooper, 900 N.E.2d at 67.

[10] The right to representation by counsel is statutorily guaranteed to those who 

face revocation of their probation. Ind. Code § 35-38-2-3(f). And when a 

defendant proceeds without counsel, the record must reflect the defendant

knowingly, intelligently, and voluntarily waived his right to counsel. Eaton, 894 

N.E.2d at 216-17. “The record must show that the defendant was made aware 
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of the nature, extent and importance of the right to counsel and to the necessary 

consequences of waiving such a right.” Bumbalough v. State, 873 N.E.2d 1099,

1102 (Ind. Ct. App. 2007) (internal quotation marks and citation omitted). 

[11] However, a trial court is not required to recite any specific words or phrases to 

ensure a defendant appreciates the nature of the situation, Butler, 951 N.E.2d at 

259, and both our supreme court and the United States Supreme Court “have 

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) (citing Iowa v. Tovar, 541 U.S. 77, 88 (2004)). “Rather, 

determining if a defendant’s waiver was knowing and intelligent depends on the 

particular facts and circumstances surrounding the case, including the 

background, experience, and conduct of the accused.” Butler, 951 N.E.2d at 

259 (citation omitted). As a reviewing court, we must “conduct a thoughtful 

examination of the record as a whole to determine whether a particular 

defendant, in a particular stage of a particular case, voluntarily and intelligently 

waived his right to counsel.” Hopper, 957 N.E.2d at 619.

[12] Here, an examination of the record establishes Dean was properly advised of 

his right to counsel and the panoply of other rights afforded to a person facing 

revocation of probation. However, the record does not demonstrate the trial 

court advised Dean of the potential consequences if he opted to admit the 

State’s allegations without the benefit of counsel. Dean’s act of immediately 

requesting an attorney for an appeal once the trial court imposed its sanction 

demonstrates Dean did not appreciate or understand the nature of the 
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proceedings.

1

 Further, other than this case and an alleged new crime 

committed in Madison County, the record does not demonstrate Dean had any 

prior experience with the criminal justice system such that he would have 

known of this serious potential consequence. Therefore, under the particular 

facts and circumstances of this case, we cannot say Dean’s waiver of counsel 

was knowing, intelligent, and voluntary.

2

Conclusion

[13] We conclude Dean’s waiver of counsel was not knowing, intelligent, and

voluntary. Accordingly, we reverse and remand for a new probation revocation 

hearing.

[14] Reversed and remanded.

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

 

1 The State argues the trial court’s statement that it would “proceed to sentencing” upon an admission of a 

violation of probation adequately informed Dean of the potential consequences. Tr. at 5. However, a trial 

court has multiple sentencing options available when it finds a defendant has violated probation, and some 

options are more severe than others. See Ind. Code § 35-38-2-3(h). Thus, the trial court’s statement is 

insufficient to adequately inform Dean of the serious potential consequence that he could be ordered to serve

the entirety of his previously suspended sentence.

2 The State urges us to apply a harmless error analysis. See Hammerlund v. State, 967 N.E.2d 525, 529 (Ind. 

Ct. App. 2012). However, as this court has previously noted, “the United States Supreme Court has held that 

invalid waivers of counsel are not subject to a harmless error analysis.” Bumbalough, 695 N.E.2d at 999 

(citing Penson v. Ohio, 488 U.S. 75 (1988)).