Kirsch, J.
After the State filed a petition for revocation of Derrian Hampton’s (“Hampton”) suspended sentence, alleging probation violations, Hampton and the State entered into an Agreement on Petition to Revoke Suspended Sentence (“the Agreement”). … At the end of such time a review hearing would be held and, if Hampton had completed all terms and conditions of probation, the petition for revocation of suspended sentence would be dismissed. The trial court accepted the Agreement and entered an order. Following the review hearing, the trial court issued an Order on Violation of Probation, ordering Hampton to serve the previously-suspended sentence. …
We affirm in part, reverse in part, and remand.
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On November 23, 2015, the parties appeared for a hearing on the State’s Petition for Revocation and tendered the Agreement to the trial court. In that Agreement, Hampton stipulated that she had violated the conditions of her probation … The commitment was stayed until a June 13, 2016 review hearing …
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On June 13, 2016, the parties appeared for the Review Hearing. … That same day, the trial court issued an Order on Violation of Probation, determining that the evidence was that Hampton did not comply with the Agreement … Noting that it lacked the authority to change the Agreement, the trial court ordered Hampton to serve 550 days in the DOC, less credit time.
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On appeal, Hampton argues that the trial court abused its discretion when it approved the Agreement because it improperly shifted the burden to her to show future compliance with her probationary terms and conditions, and it improperly removed judicial discretion from the trial court with regard to what sentence to impose for a violation of probation. The State argues, and we agree, that a direct challenge to the trial court’s approval of the Agreement, which occurred in November 2015, is untimely. … (citing State v. Hunter, 904 N.E.2d 371, 373 (Ind. Ct. App. 2009)).
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… The failure to timely file a notice of appeal forfeits the right to appeal except as provided by Indiana Post Conviction Rule 2.4 App. R. 9(A)(5). …
That said, in this case, the trial court’s subsequent actions are reviewable. … On July 20, 2016, the trial court issued its Order Concerning Defendant’s Motion to Correct Error Alternatively Motion to Reconsider (“Order Denying Motion to Reconsider”), and Hampton filed her Notice of Appeal within thirty days. The propriety of the trial court’s Order Denying Motion to Reconsider is, therefore, properly before us. …
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Probation revocation is a two-step process. First, the trial court makes a factual
determination that a violation of a condition of probation actually occurred; second, if a violation is proven, the trial court must determine if the violation warrants a revocation of the probation. Johnson v. State, 62 N.E.3d 1224, 1229 (Ind. Ct. App. 2016); Hardy v. State, 975 N.E.2d 833, 835 (Ind. Ct. App. 2012). … 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. Ripps v. State, 968 N.E.2d 323, 326 (Ind. Ct. App. 2012).
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The trial court had continuing authority to consider Hampton’s violations and her partial compliance, and it was required to determine the appropriate sanction to impose. This outcome is in accordance with our Supreme Court’s direction in Woods v. State, 892 N.E.2d 637 (Ind. 2008) …
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… The Woods Court held that the trial court erred by denying Woods the opportunity to explain why his admitted violation should not result in revocation of his probation.
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Here, unlike in Woods, Hampton was given the opportunity to introduce evidence as to why the trial court should not, even in the face of her violation(s), revoke her probation. … Hampton’s counsel argued that she had “substantially complied” with the Agreement. The State responded that substantial compliance was not sufficient, as “it’s a strict liability agreement.”
… However, in Woods, our Supreme Court rejected the analogy between a probation agreement that requires strict compliance and a plea agreement: “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.” …
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We affirm the trial court’s determination that Hampton violated the terms and conditions of her probation, and we remand the matter to the trial court for it to determine the appropriate sanction to impose for Hampton’s violations.
Affirmed in part, reversed in part, and remanded.
Robb, J., and Barnes, J., concur.