….
Hilligoss … maintains that, prior to admitting he had violated the terms of his probation, he was not advised that, by making such an admission, he would be giving up his right to confront and cross-examine witnesses at an evidentiary hearing where the State would have had the burden to prove the alleged violation by a preponderance of the evidence. …
… A probationer’s due process rights are codified in Indiana Code Section 35-38-2-3, which provides in relevant part as follows:
(e) A person may admit to a violation of probation and waive the right to a probation violation hearing after being offered the opportunity to consult with an attorney. If the person admits to a violation and requests to waive the probation violation hearing, the probation officer shall advise the person that by waiving the right to a probation violation hearing the person forfeits the rights provided in subsection (f). . . .
(f) Except as provided in subsection (e), the state must prove the violation by a preponderance of the evidence. The evidence shall be presented in open court. The person is entitled to confrontation, cross-examination, and representation by counsel.
(Emphasis added).
… The State admits that the “trial court does not appear to have given [Hilligoss the statutory] advisement.”2 [Record citations omitted throughout.] However, the State asserts that Hilligoss “would have admitted the violation even if the court had advised him of the rights he was giving up by admitting the violation”….
[Footnote 2:] The State does not suggest that the statutory requirement that the “probation officer shall advise” the probationer of his rights alleviated the trial court of its burden to ensure that Hilligoss was aware of his rights.
….
The State concedes that “[t]he court was required to inform [Hilligoss] that he was giving up” his due process rights set out in Indiana Code Section 35-38-2- 3(f). As with the required Boykin rights at a guilty plea hearing, [footnote omitted] the statutory advisements applicable here insure that a probationer’s admission “is given with full knowledge of the consequences of such admission.” [Citation omitted.] Because the record is silent with respect to whether Hilligoss was advised of his rights pursuant to Indiana Code Section 35-38-2-3(e) and (f), we must conclude that Hilligoss was not properly advised and, therefore, that he was deprived of his fundamental right to due process. [Citation omitted.]
Thus, we hold that a trial court’s failure to ensure that a probationer who admits to a probation violation has received the advisements as required under Indiana Code Section 35-38-2-3(e) constitutes a fundamental violation of the probationer’s due process rights. Accordingly, we reverse the trial court’s revocation of Hilligoss’ probation. On remand, the trial court shall hold an evidentiary hearing on Hilligoss’ alleged probation violation or, if Hilligoss admits to the violation, the trial court shall make a record to reflect that Hilligoss has been properly advised of his rights in accordance with Indiana Code Section 35-38-2-3(e). [Footnote omitted.]
….
Finally, we address Hilligoss’ contention that the trial court erred when it extended the term of his probation by more than one year beyond the original term of probation in violation of Indiana Code Section 35-38-2-3(h)(2), which provides as follows:
If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may . . . [e]xtend the person’s probationary period for not more than one (1) year beyond the original probationary period.
Again, on October 24, 2012, the trial court extended Hilligoss’ original probationary period by an additional six months [after he admitted to a previous violation]. And on February 12, 2014, the trial court extended his probationary period by an additional 365 days [after another admission to another violation]. Because those two extensions, taken together, extend Hilligoss’ probationary period by more than one year beyond the original probationary period, they violate Indiana Code Section 35-38-2-3(h)(2). On remand, we instruct the trial court to reduce Hilligoss’ period of probation by six months to bring it in compliance with the statute.
Reversed and remanded with instructions.
Kirsch, J., and Barnes, J., concur.