Molter, J.
Lamenski Ewing appeals his probation revocation. He argues the community corrections case manager’s petition to revoke his work release did not notify him that the prosecutor was also seeking to revoke his subsequent probation too. We agree, so we grant transfer and reverse his probation revocation.
…
We grant transfer to answer this question: Does a petition to revoke work release provide adequate notice that the State also seeks to revoke probation for the subsequent suspended portion of the sentence when the petition mentions neither probation nor the suspended portion of the sentence? Ewing argues the answer is no, and the State argues the answer is yes. We agree with Ewing, and our analysis proceeds in two steps. First, we explain that a prosecutor cannot seek a sanction for violating the rules of work release or probation that is different than the sanction sought in the revocation petition(s) that is (are) the subject of a final revocation hearing. And second, we explain that the probation revocation here went beyond the work release revocation identified in the petition.
…
Ewing argues his due process right to notice was violated because the State sought a different sanction (probation revocation) than the one the community corrections case manager identified in the revocation petition (work release revocation). There was never any petition to revoke Ewing’s probation, the State concedes, but it argues that doesn’t matter. What matters from the State’s perspective is that the law and Ewing’s plea agreement were enough to alert him that probation revocation was a legally authorized sanction for breaking the work release rules.
…
Before a court revokes work release or probation, though, it must provide due process…Still, due process imposes procedural and substantive limits for revocation proceedings. Id. Those limits require:
- written notice of the claimed violations of [work release or] probation;
- (b) disclosure to the [program participant or] probationer of the evidence against him or her;
- (c) opportunity to be heard in person and to present witnesses and documentary evidence;
- (d) the right to confront and cross examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation);
- (e) a neutral and detached hearing body; and
- (f) a written statement by the factfinder as to the evidence relied on and reasons for revoking [work release or] probation.
Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011).
This case turns on the notice requirement.
Notice must be sufficiently detailed and timely to provide a reasonable opportunity to prepare a defense.
…
A related question arises here. Although the State can’t deviate from the petition’s factual allegations, can the State seek a sanction (probation revocation) that deviates from the one the petition identifies (work release revocation)? We conclude due process doesn’t permit either deviation for the same reason: both thwart the ability to prepare a defense.
…
The petition to revoke Ewing’s work release was straightforward. Titled “Petition and Affidavit of Probable Cause for Revocation of Vanderburgh County Therapeutic Work Release Program,” it alleged that Ewing violated the work release rules by failing to return to the facility. App. Vol. 2 at 74. And it asked the court to revoke Ewing’s work release as a result. The petition never mentioned probation, never mentioned the portion of Ewing’s sentence suspended to probation, and never sought any relief related to probation.
What we imagined in Braxton is precisely what happened here. Ewing had notice that his community corrections case manager was seeking to revoke his work release, but he had no notice, until after he admitted the violation, that the prosecutor was also seeking to revoke his probation. Because the case manager and prosecutor had identified only work release revocation as the requested sanction, Ewing could reasonably infer they were not seeking any other sanction.
The State disagrees, arguing Ewing had ample notice that it was seeking to revoke his probation. But each of the State’s arguments fails.
First, the State says Ewing had notice that the Indiana Code authorized the judge to revoke both work release and probation because Ewing violated the work release terms.
…
The State’s argument, echoed in the dissenting opinion, conflates notice of what the law permits with notice of what the State requests. As we explained in the previous section, due process requires more than just the defendant’s actual or constructive knowledge of what the law or a prior agreement permits; the defendant must be informed what sanctions the State actually seeks, or at least what sanctions the court is considering if they may be different than what is sought in the petition. That is the lesson of Braxton, McCauley, Wright, and Patterson. In each of those cases, either the State mentioned in its petition that it was seeking probation revocation, or the trial court warned the probationer at the initial hearing that the court was contemplating revocation as a sanction. Neither happened here.
…
Next, the State argues the trial court warned Ewing that because the State alleged he violated work release conditions, he also faced the possibility of probation revocation. For this warning, the State points to Ewing’s initial hearing on his new criminal charge for failure to return.
There the judge told Ewing that if the judge granted the case manager’s petition, the judge “could order that [his] sentence . . . be revoked and [he] serve that sentence in the county jail or the department of correction.” Tr. at 5. But when the judge asked whether Ewing understood, he responded that he did not hear what the judge said. Id. at 5–6. The judge tried again, warning that “Work Release filed a petition to revoke your sentence there and if the Court revokes that sentence, you could serve that sentence in jail or prison.” Id. at 6. But when Ewing asked—“What sentence?”—the judge responded by simply appointing counsel to represent Ewing, never answering his question. Id. That did not put Ewing on notice that he faced the revocation of his probation in addition to the revocation of work release.
…
Lastly, the State points out that the trial court rejected a plea agreement to resolve Ewing’s new charges because that agreement called for suspending a portion of his sentence to probation, and Ewing had just failed to comply with the conditions for the more restrictive work release program. That further proves Ewing’s point. Even though he broke the rules of work release, the State still wanted to put him on probation for one of his new criminal charges. Seeking probation for a new charge suggested the State was not necessarily seeking to revoke his probation for the previous conviction.
Avoiding this sort of notice problem is not difficult. For example, if a prosecutor wishes to seek sanctions beyond those that community corrections requests in its petition, the prosecutor can file a second petition identifying the additional sanctions the prosecutor seeks, and the trial court can hear both petitions together at a final hearing. But because here the only revocation petition sought to revoke only work release, we hold that the trial court erred by revoking Ewing’s probation too.
For these reasons, we reverse the revocation of Ewing’s probation.
Rush, C.J., and Goff, J., concur.
Slaughter, J., dissents with separate opinion in which Massa, J., joins.
Slaughter, J., dissenting.
The Court reinstates probation for defendant, Lamenski Ewing, who violated the terms of his probation when he absconded from his work-release program for seven months before he was eventually re-arrested. The Court holds that the trial court should not have revoked Ewing’s probation because he did not know the State was seeking that sanction against him. In fact, Ewing had actual knowledge—and his plea agreement said in writing—that “any violation” of his probation “will result in revocation” of probation and “execution of” his sentence. And that is exactly what the trial court did here: It revoked Ewing’s probation and ordered him to serve the rest of his sentence with the department of correction. Yet the Court holds this disposition was illegal because the State’s petition sought only to revoke his placement in the work-release program and not his probation. I respectfully dissent.
…
The Court also tries to justify its decision by noting that Ewing’s plea agreement—specifying that “any violation” of probation “will result in [its] revocation”—is insufficient because the agreement is not, in the Court’s words, “self-enforcing”. Ante, at 11. True, the agreement is not self-enforcing. But that just means the consequences of violating probation do not occur automatically. They require the State to take the additional, affirmative step of filing a petition advising Ewing of the charges giving rise to his probation violation. The State, through the community-corrections case manager, did just that. Its petition notified him of how he violated probation. And his plea agreement, along with the governing statute, notified him of the implications. Together, these things fulfilled all that due process requires.
To be sure, the better practice would have been for the State’s petition to specify the entirety of relief it was seeking against Ewing, including probation. Alternatively, as the Court notes, the State could have filed a second petition alongside the case manager’s petition. Ante, at 13. But due process, as the Court’s own authorities show, does not require the State to integrate all notice into one or more petitions to revoke. Until today, neither did our precedent.
I respectfully dissent.