COA rejects due process complaints, affirms probation revocation

A man claiming due process violations in the revocation of his probation will continue to serve his suspended sentence in prison after the Indiana Court of Appeals rejected his appeal.

In Rick Lane Utley v. State of Indiana, 20A-CR-1741, appellant-defendant Rick Utley pleaded guilty in July 2020 in two causes: Level 5 felony carrying a handgun without a license and Level 6 felony operating a vehicle while intoxicated endangering a person in cause F5-256 and Level 6 felony OWI in cause F6-499.

The Posey Circuit Court sentenced Utley in F5-256 to four years, with 10 days executed and the remaining time suspended to probation, and to one year with 10 days executed in F6-499. The time he had already served meant he was released to probation immediately.

But two months later, the state moved to revoke Utley’s probation in both causes because he tested positive for alcohol and was terminated from a treatment program known as ACCEPT. He was arrested that day, Sept. 2, but his Sept. 10 hearing was continued to October when the prosecutor was placed under COVID quarantine.

Utley objected to the continuance, arguing on Sept. 16 that he had a right under Indiana Code § 35-38-2-3(d) to a hearing within 15 days of his arrest. He claimed the 15-day period began to run on Sept. 2 and expired on Sept. 16. The court, however, believed holding a hearing on Sept. 17 would satisfy the statute.

Also on Sept. 17, the state moved to amend its petition, alleging it had just learned that Utley was facing new criminal charges in Kentucky. Utley objected, claiming he was not given sufficient notice, and the trial court agreed.

The court ultimately revoked Utley’s probation based on the allegations in the state’s original petition. During the disposition phase, the court, over Utley’s objection, allowed his probation officer to testify that Utley was facing two new misdemeanors in Kentucky. The court then ordered him to serve the entirety of his suspended sentence in the Department of Correction.

On appeal, Utley argued his due process rights were violated because his revocation hearing was not held within 15 days of his arrest. But in affirming the trial court, Indiana Court of Appeals Judge Nancy Vaidik noted Utley’s due process rights were not implicated, distinguishing the case from Parker v. State, 676 N.E.2d 1083 (Ind. Ct. App. 1997).

“In Parker, this Court noted ‘Indiana has codified the due process requirements’ for probation revocation in 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.’ 676 N.E.2d at 1085. It is true Section 35-38-2-3 does require these procedural due-process safeguards,” Vaidik wrote. “However, Parker does not stand for the proposition that all the requirements in Section 35-38-2-3 are required by due process. Nor does Utley cite any case law suggesting a hearing within fifteen days is a due-process right.

“… To be sure, Utley has a statutory right to a hearing with fifteen days, but he has not convinced us that violating this right amounts to a due-process violation,” she wrote.

Then, citing to Dobeski v. State, 64 N.E.3d 1257 (Ind. Ct. App. 2016), and Indiana Trial Rule 6(A), the COA determined the “triggering event” of Utley’s arrest was not included in the 15-day timeframe. Instead, that period began to run Sept. 3, making Sept. 17, the day of his hearing, the 15^th day.

Utley also claimed his due process rights were violated because he was not given notice of the “claimed violations” until the day of his sentencing. However, Vaidik noted Utley was informed Sept. 2 of the alleged violations: his positive alcohol test and his termination from the ACCEPT program.

As for the Kentucky charges, Vaidik noted the trial court denied the state’s motion to amend its petition. Testimony about the Kentucky charges was admitted at his disposition, but “any error in its admission was harmless because the court did not rely on this evidence in making its decisions.”

Finally, the COA determined the trial court did not err in ordering Utley to serve the entirety of his suspended sentence, noting his extensive criminal history and his “poor attitude and inability to complete the ACCEPT program … .”