TOKARSKI v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Elliott Corey Tokarski appeals the revocation of his probation, claiming that the trial court committed fundamental error. Specifically, Tokarski maintains that the revocation must be set aside because he was not properly advised of his due process rights and the trial court failed to either conduct an evidentiary hearing or obtain his admission to the alleged violation.

[2] We reverse and remand.

Facts and Procedural History

[3] On August 29, 2019, Tokarski pled guilty to several drug-related offenses in Vanderburgh County and was subsequently sentenced to an aggregate 16-year term of incarceration. In March 2022, the trial court modified the sentence and permitted Tokarski to serve the remainder of his sentence on work release.

[4] On June 24, 2024, the probation department filed a petition to revoke Tokarski's work release placement because he possessed contraband nicotine pouches in the work release facility. That same day, the trial court conducted an initial hearing that was preceded by an en masse advisement to everyone in the court room about their rights regarding alleged community corrections violations. More particularly, the trial court advised them that: (1) there was a right to a hearing; (2) the State would have to prove the violation; (3) they could object to evidence and present their own evidence and testify, although they could not be required to testify; (4) the court could order witnesses to appear for them; and (5) they had the right to be represented by counsel.¹ The trial court subsequently asked Tokarski whether he understood those rights, to which he replied, “Yes, your Honor.” Transcript Vol. II at 5. Tokarski initially declined representation by counsel, and the matter was set for further hearing the next day.

[5] At that hearing, the trial court asked Tokarski whether he had already admitted to the alleged violation, and he responded that he was not sure. The trial court again read the allegations to Tokarski and asked him whether he understood, to which he responded, “yes, sir” Id. at 9-10. The trial court then appointed counsel for Tokarski and set the matter for a future hearing.

[6] At a July 1, 2024 hearing, the trial court and the parties first turned to the issue of disposition. Defense counsel indicated, however, that he did not see where the record reflected that Tokarski had admitted the violation. When Tokarski indicated he was willing to admit the violation that day, the trial court declined his request and reset the matter for another hearing on August 2, 2024.

[7] At that hearing, the trial court heard argument about the sanction that should be imposed for Tokarski's violation. The trial court then revoked Tokarski's work release placement and ordered him to serve the remaining 12 years in the DOC.

[8] Tokarski now appeals.

Discussion and Decision

[9] Tokarski claims—and the State concedes—that fundamental error occurred in this instance. Pursuant to Ind. Code § 35-38-2-3(d), “the court shall conduct a hearing concerning the alleged violation” when a petition to revoke probation ² is filed. Before the trial court may impose a sanction for a violation, evidence must be presented in open court establishing the violation or the defendant can choose to admit to a violation in lieu of an evidentiary hearing. See Saucerman v. State, 193 N.E.3d 1028, 1031 (Ind. Ct. App. 2022).

[10] In this case, where no evidentiary hearing was held, the record is devoid of evidence that the trial court obtained Tokarski's admission to the violation. At the August 2, 2024 hearing, the parties and the trial court immediately began discussing an appropriate sanction on the incorrect assumption that Tokarski had previously admitted to the violation. Thus, fundamental error occurred. See, e.g., Hilligoss v. State, 45 N.E.3d 1228, 1231 (Ind. Ct. App. 2015) (fundamental error resulted when the trial court failed to hold an evidentiary hearing on the defendant's alleged probation violation); see also Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011) (holding that the only way a trial court can avoid an evidentiary hearing is when the probationer admits the alleged violation), trans. denied. We therefore reverse the trial court's revocation of Tokarski's placement in work release and remand this case to the trial court with instructions that it conduct a new revocation proceeding at which the court should fully advise Tokarski of his due process rights and proceed to either conduct an evidentiary hearing or obtain Tokarski's admission to the alleged violation. See Saucerman, 193 N.E.3d at 1031.

[11] Reversed and remanded.

FOOTNOTES

1.   There was no advisement about the right to confrontation and/or cross-examination.

2.   For purposes of appellate review, we treat a hearing on a petition to revoke a placement in a community corrections program, i.e., work release, the same as we do a hearing on a petition to revoke probation. Cox v. State, 706 N.E.2d 547, 549-50 (Ind. 1999).

Altice, Chief Judge.

Brown, J. and Tavitas, J., concur.