Lawrence Paul Whitfield, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Lawrence Paul Whitfield appeals following the revocation of his probation and order that he serve the remainder of his suspended sentences in the Indiana Department of Correction. Whitfield raises four issues for our review, which we consolidate, revise, and restate as:

1. Whether the trial court properly advised Whitfield of his due process rights prior to revoking his probation;

2. Whether the trial court abused its discretion when it found Whitfield violated his terms of probation; and

3. Whether the trial court erred in its calculation of credit time.

We affirm.

Facts and Procedural History

[2] On July 5, 2020, a Crown Point Police Department officer attempted to initiate a traffic stop of Whitfield's vehicle, but Whitfield refused to stop. After Whitfield damaged the tires on his vehicle, he exited the vehicle and fled on foot until he was apprehended. The State then charged Whitfield with Level 6 felony resisting law enforcement ¹ under cause number 45G04-2007-F6-001439 (“F6-1439”). Pursuant to a plea agreement, Whitfield pled guilty to Level 6 felony resisting law enforcement, and the trial court entered a judgment of conviction on that charge as a Class A misdemeanor. The trial court sentenced Whitfield to a term of one year in the Lake County Jail, and the trial court suspended that sentence to probation. It also ordered Whitfield to serve the sentence consecutive to a sentence he was already serving because of a conviction of Level 5 felony robbery ² under cause number 45G04-1705-F4-00021 (“F4-21”).

[3] Between November 17, 2021, and January 7, 2022, Whitfield stole over $50,000 from his employer by writing fraudulent checks. The State charged Whitfield with Level 5 felony fraud ³ under cause number 45G04-2203-F5-000110 (“F5-110”). On August 17, 2022, Whitfield pled guilty pursuant to a plea agreement, and the trial court imposed a five-year sentence, which the trial court suspended to probation. The trial court ordered Whitfield's sentence in F5-110 to run consecutive to his sentence in F6-1439.

[4] On October 11, 2023, the State charged Whitfield with Level 6 felony fraud,⁴ Level 6 felony theft,⁵ and Level 6 felony identify deception ⁶ under cause number 45G04-2310-F6-002340 (“F6-2340”), and Whitfield's probation officer filed a petition to revoke Whitfield's probation in F6-1439. The petition alleged Whitfield violated the terms of his probation by engaging in additional criminal conduct, consuming THC infused products on September 24, 2023, refusing to submit to a drug screen on September 25, 2023, and failing to pay his probation fees. The trial court in F6-1439 issued a warrant for Whitfield's arrest to answer the petition to revoke his probation.

[5] On November 29, 2023, Whitfield was arrested in Cook County, Illinois, and the State of Illinois charged him with several felonies, including Class 4 felony aggravated unlawful use of a weapon.⁷ After learning of the criminal charges in Illinois, Whitfield's probation officer filed an amended petition to revoke Whitfield's probation in F6-1439. On July 31, 2024, a trial court in Illinois convicted Whitfield of committing aggravated unlawful use of a weapon and sentenced him to a one-year term in the Illinois Department of Corrections. The trial court in Illinois gave Whitfield 246 days of credit toward his Illinois sentence for the time he spent in the Cook County Jail. Whitfield's probation officer in F6-1439 filed another amended petition to revoke Whitfield's probation on August 1, 2024, reflecting Whitfield's Illinois conviction.

[6] Whitfield was extradited to Indiana, and on August 7, 2024, he appeared before the trial court for his initial hearings on F6-2340 and the petition to revoke his probation in F6-1439. Whitfield stated that he wished to represent himself, and the trial court informed him that request would be addressed at his next hearing.

[7] On August 14, 2024, the trial court held a second hearing in both F6-2340 and F6-1439. Whitfield reasserted his desire to proceed pro se. The trial court read Whitfield an admonishment explaining the benefits of counsel and questioned Whitfield regarding his education level and previous experience representing himself. Whitfield explained that he still wanted to represent himself and asked for his probation violation to be addressed first:

THE COURT: Okay. Let me pull that case up. On August 1st of this year probation filed a Petition to Revoke Probation, Third Amended, indicating you violated Rule 4, which would be being charged in short cause F6-2340. You had criminal conduct in the State of Illinois in short cause – or cause number 24-CR-30-801. You were convicted of Count II, criminal confinement. You failed to submit to a drug screening on September 25th of 2023, consumed THC. You didn't pay probation fees. You had a one-year suspended sentence.

Do you admit or deny those allegations? If you admit them, I sentence you. If you deny them, then we have a hearing.

THE DEFENDANT: I understand that. I would like to admit to Rule 4 with just clarification. The Count II charge is not criminal confinement ․ I'm only admitting to the July 31st plea I took, but it's not criminal confinement. It was for aggravated UUW.

(Tr. Vol. 2 at 27-28.) Whitfield also admitted that he consumed THC products, but he claimed it was because “a pop-up shop” mislabeled its product. (Id. at 28.) When the trial court asked Whitfield's probation officer about the amount of jail time credit Whitfield was entitled to receive, the probation officer explained:

I just wanted to say, before I read them off, I know he was being held in Illinois at one point. We were discussing whether that time is going toward the Illinois matter or this. I do have the credit for when he's been in the Lake County Jail. I'm not going to be listing off the credit days for when he was in Illinois though.

(Id. at 28-29.) The trial court then set another hearing for August 21, 2024, to address the issue of Whitfield's jail time credit.

[8] On August 21, 2024, the trial court questioned Whitfield's probation officer regarding the calculation of jail time credit:

THE COURT: We did not have his jail time credit, and that's what we're here for today. Do you have that, Ms. Rhodes?

PROBATION: I do, Your Honor. He was sentenced on July 31st in Cook County to 246 days. The credit days are November 29, ’23 –

THE COURT: Hold on. November 29, ’23. Okay.

PROBATION: --to 7-31 of ’24 for 246 days. So our credit days don't begin until August 1st.

THE COURT: Of this year?

PROBATION: Yes. He just finished his sentence in Cook County.

(Id. at 35-36.) Whitfield argued the time he spent in the Cook County Jail should be credited toward his sentence in F6-1439. Whitfield also asserted that he believed his Illinois conviction was unconstitutional, and he was “in the process” of challenging that conviction. (Id. at 39.)

[9] On August 28, 2024, Whitfield's probation officer filed a petition to revoke his probation in F5-110. The petition alleged Whitfield violated the terms of his probation in F5-110 by engaging in additional criminal conduct and noted the charges filed against Whitfield in F6-2340 and in Illinois. The petition also alleged Whitfield violated the terms of his probation by consuming THC infused products on September 24, 2023, refusing to submit to a drug screen on September 25, 2023, and failing to pay his court costs and probation fees.

[10] On September 4, 2024, the trial court held a combined hearing in F6-1439, F5-110, and F6-2340. The trial court began the hearing by questioning Whitfield regarding his desire to represent himself:

[THE COURT:] Mr. Whitfield, I want to go backwards a little bit and start something over. On your new cause number, you said you wanted to represent yourself pro se; correct?

THE DEFENDANT: Yes, sir.

THE COURT: You did not indicate if you wanted to do that on your probation matters, so I want to start that one like it's from scratch. Probation is in 1439 and F5-110; is that right?

PROBATION: Yes, Your Honor.

THE COURT: So, Mr. Whitfield, I want to read your rights to you. You have the right to be advised of the allegations against you, be represented by counsel. If you can't afford one, the Court will appoint one for you. You have the right to have a hearing at which the State bears the burden of proving the alleged violations by a preponderance of the evidence. To prove a fact by a preponderance of the evidence is to prove that the fact is more likely than not. You have a right to confront and cross-examine all the witnesses called against you, compel witnesses to appear on your behalf, testify or not testify as you choose. You have a right to appeal the Court's final judgment.

In any event, those are your rights for your petition to revoke probation. You want to have the Court appoint an attorney for you or represent yourself?

THE DEFENDANT: I would like to stay self-represented, sir.

THE COURT: Okay. Last time we were here, you indicated you wanted to admit the allegations in the petition to revoke probation. I'm going to do that again too. Is that still your desire?

THE DEFENDANT: Yeah.

THE COURT: Or do you want to have a hearing?

THE DEFENDANT: No, sir. I would like to admit to the allegations.

THE COURT: All right. Hold on for one second. So in F6-1439, on August 1st, the probation department filed a petition to revoke probation, third amended, alleging you violated Rules 4, 5, and 11. Four, you got charged with a new charge, the F6-2340. You got charged and convicted in Chicago under Cause No. 24CR0030801 on July 31st. You got convicted of Count II, criminal confinement, sentenced to one year in the Department of Corrections. Rule 5, you failed to submit to a drug screen as ordered by your Illinois probation officer. You admitted you consumed THC-infused products September of 2023. You didn't pay your probation user fees. Let's do that one first.

Is there any part of that that you wish to admit to?

THE DEFENDANT: I would like to admit to the allegations involving failure to submit to the drug screen and admit to consuming the THC products.

THE COURT: So Rule 5?

THE DEFENDANT: Yes, sir.

(Id. at 54-56.)

[11] The trial court then asked Whitfield if he wished to admit the allegations in the petition to revoke filed in F5-110, and Whitfield requested a hearing on those allegations. During the fact-finding hearing related to the petition to revoke filed in F5-110, the State submitted an order of commitment and sentence from the Circuit Court of Cook County, Illinois, showing Whitfield's July 31, 2024, conviction of aggravated unlawful use of a weapon. The State also asked the trial court to take judicial notice of the charges pending against Whitfield in F6-2340. In addition, the State explained that Whitfield's admissions to consuming THC infused products and refusing a drug screen in F6-1439 also constituted an admission to the same allegations in F5-110. Whitfield argued his probation in F5-110 should not be revoked because he was still on probation in F6-1439 and the trial court had ordered his sentence in F5-110 to be served consecutive to his sentence in F6-1439.

[12] The trial court then revoked Whitfield's probation in both F6-1439 and F5-110:

Okay. Well, the – Kopkey[v. State, 743 N.E.2d 331 (Ind. Ct. App 2001), trans. denied,] allows for the prospective revocation of your probation. When you were sentenced, you were – signed the probation documents. Technically your sentence began. Even though they're ran [sic] consecutive, the sentence begins on both of them. That's what it says in Kopkey. And if you violate these things before you formally start – if you engage in conduct that would cause you to violate your probation before your probation technically starts, you can be revoked. And in F6-1439, you admitted to violating Rule 5.

It's the same allegation, Rule 5, in F5-110. The probation department provided testimony indicating that you were convicted in Illinois, that you failed to submit to your drug test, that you admitted to using THC, then you violated the conditions of your probation. You wanted a hearing. There's no choice but you [sic] find you in violation of your conditions of probation.

(Id. at 75) (italics added). The trial court sanctioned Whitfield by ordering him to serve the entirety of his suspended sentences incarcerated. The trial court calculated Whitfield's jail time credit to be the time he spent incarcerated in the Lake County Jail from August 1, 2024, to September 3, 2024, and the trial court ordered that that time be applied to his sentence in F6-1439. The trial court did not award any jail time credit to be applied toward his sentence in F5-110.

Discussion and Decision

[13] Whitfield raises three issues related to his probation. “Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment.” Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999). “Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled. The trial court determines the conditions of probation and may revoke probation if the conditions are violated.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (internal citation omitted). We review a trial court's decision to revoke probation for an abuse of discretion. Id. “An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances or when the trial court misinterprets the law[.]” Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013) (internal citation omitted).

1. Due Process

[14] Whitfield first argues the trial court denied him the process he was due in a probation revocation proceeding. “Because a probation revocation results in a loss of liberty, the probationer must be given certain due process rights before his probation may be revoked.” Hilligoss v. State, 45 N.E.3d 1228, 1230 (Ind. Ct. App. 2015). Indiana Code section 35-38-2-3 lists the due process requirements for probationers, and it provides in part:

(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). The sanction administered must follow the schedule of progressive probation violation sanctions adopted by the judicial conference of Indiana under IC 11-13-1-8.

(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.

“Whether a party was denied due process is a question of law that we review de novo.” Hilligoss, 45 N.E.3d at 1230.

[15] Whitfield notes that, at the hearing on August 14, 2024, the trial court questioned him to ensure he was competent to represent himself and his waiver of counsel was knowing and voluntary, but the trial court did not advise Whitfield of the procedural protections he was foregoing in the F6-1439 probation matter by admitting the allegations. He contends the trial court's failure to advise him of those procedural protections violated his right to due process. However, at the hearing on September 4, 2024, the trial court advised Whitfield he had a right to be notified of the allegations against him and represented by counsel. The trial court explained that the State was required to prove the alleged violations by a preponderance of the evidence and Whitfield had the rights to confront the witnesses called against him, compel witnesses to appear on his behalf, to testify or not testify, and to appeal the trial court's final judgment. Even after the trial court read him these rights, Whitfield confirmed his desire to represent himself and admitted that he violated Rule 5 of his terms of probation by consuming THC products. The trial court adequately advised Whitfield of his rights before accepting his admission. See, e.g., Cooper v. State, 900 N.E.2d 64, 71 (Ind. Ct. App. 2009) (holding trial court adequately advised probationer of his rights and ensured his waiver of his right to counsel was voluntary, knowing, and intelligent before accepting his admission to violating his terms of probation).

2. Finding of Violations

[16] In addition, Whitfield asserts the State did not present sufficient evidence to support the trial court's finding that he violated the terms of his probation in both F6-1439 and F5-110. “Probation revocation is a two-step process. First the trial court must make a factual determination that a violation of a condition of probation actually occurred. Second, if a violation is found, then the trial court must determine the appropriate sanctions for the violation.” Benitez v. State, 199 N.E.3d 811, 813 (Ind. Ct. App. 2022) (internal citation omitted). A probation hearing is civil in nature, and the State must prove the alleged violation by a preponderance of the evidence. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). We consider only the evidence most favorable to the judgment and will not reweigh the evidence or judge witness credibility. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). We will affirm the trial court if there is substantial evidence of probative value to support the trial court's conclusion that the probationer violated any condition of probation. Id.

[17] Whitfield argues his probationary period in F6-1439 expired before the dates of the violations alleged in the probation revocation petition. A probationer's “probationary period” is the period “beginning immediately after sentencing and ending at the conclusion of the ‘probationary phases’ of the defendant's sentence.” Ashley v. State, 717 N.E.2d 927, 928 (Ind. Ct. App. 1999), reh'g denied. The trial court may revoke probation for behavior that occurs at any time between the date of sentencing and the termination of probation. See, e.g., Hardy v. State, 975 N.E.2d 833, 838 (Ind. Ct. App. 2012) (holding trial court could prospectively revoke probation in two cases even though the probationer had not yet begun to serve probation in those cases). The probationary period is tolled during the period from when a trial court issues a warrant based on a revocation petition until final determination of the allegations in the petition. Ind. Code § 35-38-2-3(b)-(c).

[18] In F6-1439, the trial court sentenced Whitfield on February 18, 2021, to a one-year term that the trial court ordered suspended to probation. Because Whitfield was already on probation in F4-21 at that time, the one-year probationary period in F6-1439 did not begin to run until December 3, 2022, when Whitfield completed his sentence in F4-21. If the State had not filed a petition to revoke Whitfield's probation in F6-1439, it would have terminated on December 3, 2023. Therefore, he was on probation in September 2023 when the State filed the petition alleging that he had violated the terms of his probation by consuming THC and refusing a drug screen. The probationary period was tolled on October 11, 2023, when the trial court issued a warrant for Whitfield's arrest in connection with the probation revocation petition, and it remained tolled until the trial court revoked Whitfield's probation. See Ind. Code § 35-38-2-3 (probationary period tolled from filing of revocation petition to determination on allegations in petition). Thus, just over seven weeks – the days between October 11, 2023, when probation was tolled, and December 3, 2023, when probation was to have ended – remained to be served on Whitfield's probation in F6-1439 when it was revoked.

[19] The trial court found in both F6-1439 and F5-110 that Whitfield violated the term of probation that required him to submit to drug testing and prohibited him from consuming controlled substances. Because Whitfield admitted to violating that condition of probation in F6-1439, the trial court was not required to hold an evidentiary hearing and could “proceed to the second step of the inquiry and determine whether the violation warrants revocation.” Sanders v. State, 825 N.E.2d 952, 955 (Ind. Ct. App. 2005), trans. denied. Whitfield's admission also forfeited his right to directly appeal the trial court's finding that he violated that condition of probation. See, e.g., Dobrowolski v. State, 186 N.E.3d 1168, 1171 (Ind. Ct. App. 2022) (holding probationer forfeited her right to directly appeal finding that she violated her conditions of probation when she admitted the violation).

[20] In addition, the admission supported the trial court's finding that Whitfield violated the same condition of probation in F5-110 because the alleged violation in F5-110 was premised on the same conduct Whitfield admitted in F6-1439. During the evidentiary hearing in F5-110, the State also produced the order of commitment and sentence from Illinois showing Whitfield's conviction of aggravated unlawful use of a weapon. Whitfield notes the petition to revoke his probation misidentified the crime he was convicted of committing as criminal confinement, but regardless of the identity of the offense, Whitfield's terms of probation stated: “I will not engage in conduct prohibited by Federal or State Law or Local Ordinance.” (App. Vol. 3 at 91.) Thus, he violated that condition by breaking Illinois law.⁸ Therefore, the State presented sufficient evidence to support the trial court's finding that he violated his terms of probation by engaging in additional criminal activity. See, e.g., Brabson v. State, 242 N.E.3d 519, 525 (Ind. Ct. App. 2024) (holding trial court properly found defendant violated his conditions of probation based on conviction for criminal conduct that occurred during probationary period).

3. Credit Time

[21] Whitfield contends the trial court erred by failing to award him credit toward his Indiana sentences for the time he spent incarcerated in the Cook County Jail. “Because credit time is a matter of statutory right, trial courts do not have discretion in awarding or denying such credit.” Harding v. State, 27 N.E.3d 330, 331-32 (Ind. Ct. App. 2015). “In reviewing credit time assignments, we review matters of statutory interpretation de novo.” Gaunt v. State, 209 N.E.3d 463, 467 (Ind. Ct. App. 2023), trans. denied.

[22] Whitfield relies on Nutt v. State, 451 N.E.2d 342 (Ind. Ct. App. 1983), to argue that “[e]ven if a defendant is awaiting trials on different crimes during the same period and is convicted and sentenced separately, he should still have full credit applied on each sentence from the day of his arrest until the day of his sentencing.” (Appellant's Br. at 16.) In Nutt, an Indiana trial court issued a warrant for Steven Nutt's arrest on November 19, 1980. 451 N.E.2d at 343. Nutt was arrested on unrelated charges in Texas on February 13, 1981, and Indiana authorities “filed a ‘hold’ with Texas authorities.” Id. Texas dismissed the charges pending against Nutt on June 9, 1981, but Nutt remained incarcerated in Texas on the Indiana hold until January 25, 1982. Id. After Nutt pled guilty in Indiana, the trial court sentenced him to a three-year term of imprisonment. Id. The trial court awarded Nutt credit time only for the time he served between his return to Indiana and the date the Indiana trial court sentenced him. Id. Nutt argued on appeal that the time he spent incarcerated in Texas should count toward his Indiana sentence, and we held that he was “entitled to credit for pre-sentence time served in Texas as a result of the Indiana charge ․ from the time of the ‘hold’ to the time the Texas charges were dismissed.” Id. at 346.

[23] However, in contrast to Nutt, Whitfield's out-of-state charges were not dismissed. Whitfield was convicted in Illinois of aggravated unlawful use of a weapon and sentenced to a one-year term of imprisonment. The Illinois court credited Whitfield with the time he spent in the Cook County Jail toward his Illinois sentence. While the time Nutt spent incarcerated in Texas on the Indiana hold only counted toward Nutt's Indiana sentence, Whitfield is asking us to award him double credit for the time he spent in the Cook County Jail. Such a request runs counter to the principle that a defendant who commits a new crime while on probation must serve the sentence for the new crime consecutive to the sentence for the defendant's initial crime. See Ind. Code § 35-50-1-2(e) (“If, after being arrested for one (1) crime, a person commits another crime ․ before the person is discharged from probation ․ the terms of imprisonment for the crimes shall be served consecutively[.]”). Whitfield was arrested in Illinois before he was discharged from probation on either F6-1439 or F5-110, and therefore, the trial court did not err by refusing to credit the time Whitfield spent serving his Illinois sentence toward his Indiana sentences. See, e.g., Bischoff v. State, 704 N.E.2d 129, 130-31 (Ind. Ct. App. 1998) (holding probationer was not entitled to receive credit for the time he spent incarcerated from the date of his arrest for a probation violation through disposition of the probation violation proceedings when the probationer already received credit for that time toward his sentence on another felony), trans. denied.

Conclusion

[24] Whitfield's due process rights were not violated because the trial court properly advised Whitfield of his rights during the September 4, 2024, hearing, and after being advised of those rights, Whitfield admitted to violating his terms of probation in F6-1439. The State presented sufficient evidence during the fact-finding hearing in F5-110 to support revocation in that case. In addition, Whitfield was not entitled to receive credit toward his Indiana sentences for the time he spent incarcerated in the Cook County Jail because the Illinois court had already applied that credit toward Whitfield's Illinois sentence. Accordingly, we affirm the trial court.[24] Whitfield's due process rights were not violated because the trial court properly advised Whitfield of his rights during the September 4, 2024, hearing, and after being advised of those rights, Whitfield admitted to violating his terms of probation in F6-1439. The State presented sufficient evidence during the fact-finding hearing in F5-110 to support revocation in that case. In addition, Whitfield was not entitled to receive credit toward his Indiana sentences for the time he spent incarcerated in the Cook County Jail because the Illinois court had already applied that credit toward Whitfield's Illinois sentence. Accordingly, we affirm the trial court.

[25] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-44.1-3-1 (2020).

2.   Ind. Code § 35-42-5-1 (2017).

3.   Ind. Code § 35-43-5-4(a)(1) & (c)(1)(3) (2021).

4.   Ind. Code § 35-43-5-4(b)(1) (2021).

5.   Ind. Code 35-43-4-2(a)(1) (2022).

6.   Ind. Code 35-43-5-3.5(a) (2021).

7.   720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (2018).

8.   While Whitfield believes his Illinois conviction was unconstitutional, he presented no evidence that the conviction had been vacated.

May, Judge.

Judges Weissmann and Scheele concur. Weissmann, J., and Scheele, J., concur.