Robert H. Stone, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] While on probation for drug offenses in Montgomery County, Robert Stone, Jr. was arrested on new drug charges in Marion County. As a result, the State petitioned to revoke Stone's probation. After an evidentiary hearing, the trial court found that Stone violated the terms of his probation. It revoked Stone's probation and ordered him to serve the remainder of his sentence in prison. On appeal, Stone contends the trial court denied him the opportunity to present evidence and to be heard. As Stone has waived these appellate claims in several ways, we affirm.

Facts

[2] In the Montgomery Circuit Court in January 2018, Stone pleaded guilty to Level 3 felony possession of methamphetamine and Level 4 felony possession of a narcotic drug. He also admitted that he was a habitual offender. The trial court sentenced Stone to 18 years imprisonment, with eight years in the Indiana Department of Correction (DOC), two years in community corrections, and eight years suspended to probation. The terms of Stone's probation included the following:

1. You shall not violate any law. You shall notify Probation of any arrest within 72 hours.

***

7. You shall allow Probation access to your residence at all times. You shall sign a Fourth Amendment Waiver for Probation, Law Enforcement or Community Corrections to search your person or property. You are advised that Probation, Law Enforcement or Community Corrections may search your person or property without reasonable suspicion or probable cause at any time.

8. You shall not consume or possess any controlled substances except as prescribed for you by a physician, and any synthetic cannabinoids or “designer drugs[.]” You shall submit to and pay for alcohol and drug tests of any kind when ordered by Probation, Law Enforcement or Community Corrections.

App. Vol. II, p. 60.

[3] After Stone completed his prison and community corrections sentences, his probation was transferred to Marion County in April 2024. Three months later, Indianapolis police conducted a probation compliance search of the home where Stone was living. Stone's mother, who owned the home, informed the officers that Stone was using the basement as his bedroom. In the basement, officers found methamphetamine and suspected marijuana on the dresser next to the bed. They also seized cocaine hidden inside a faux book whose interior consisted of a storage compartment rather than pages.

[4] The State charged Stone in Marion County with Level 6 felony possession of methamphetamine, Level 6 felony possession of cocaine, and Class B misdemeanor possession of marijuana. That prompted the Montgomery County probation department to file a petition to revoke Stone's probation based on Stone's alleged commission of these new crimes.

[5] Stone was released on bond early in the probation revocation proceedings. Shortly after his appointment, Stone's first public defender withdrew due to a conflict of interest. And Stone's second appointed counsel withdrew after a week, asserting the attorney-client relationship had already broken down. As the Montgomery County public defender office had no one else available to represent Stone, the trial court enlisted help from the Public Defender of Indiana, which recruited a third appointed counsel for Stone.

[6] During the gaps in his representation caused by the withdrawals, however, Stone filed many pro se motions, including numerous motions to recuse the judges who presided over the probation revocation matter.¹ The first judge recused, prompting appointment of a special judge. The special judge, who had presided over a post-conviction matter that Stone had filed, declined to recuse. In his many motions to recuse the second judge, Stone alleged, among other things, that the special judge committed official misconduct by allowing a couple and their young children to enter the courthouse through an entrance inaccessible to the public. The judge repeatedly denied that she had breached any courthouse security, but that did not deter Stone from continuing to repeat this accusation in his pro se motions to recuse, all of which the court denied. Stone then filed an original action with our Supreme Court, which dismissed it.

[7] After appointment of Stone's third counsel, the probation revocation matter proceeded to a fact-finding hearing. At the beginning of the hearing, Stone stated that he “would like to address my counsel, if possible.” Tr. Vol. II, p. 5. The trial court allowed Stone to explain, and this exchange followed:

THE DEFENDANT: So for weeks he—we spoke on the phone a few times. He was refusing to meet with me for whatever reason. I tried to meet with him in person multiple times. He wouldn't do it. He recommended virtual. So, finally, I said, all right, let's do virtual, and then he went to something else, and he—right after that he blocked my phone, he blocked my number. So, now, I've recorded all of this. I call, my number is blocked, and so I called from multiple other phones, every phone rings. I call from my phone, again, it's blocked. So shortly after that he calls back, he laughs, he says, well, I didn't block you. I was in the—I was in a jail. I didn't have service. Then I don't hear from him for two weeks or so.

He calls to inform me that he spoke with the Court off the record and the Court asked him to file an appearance weeks into the case. So he files an appearance, but then he lies and says that he didn't speak with the Court, he spoke with someone at the Marion County Clerk's Office—or Indiana Public Defender's Office is what it was ․ And then he ignores me for a couple of weeks after that ․

He then answers the phone and says, well, I'm going on vacation, I'll see you in court. Proceeds to tell me that he will not argue anything that I want to argue, that he is intending on coming to court today and hoping that the witnesses don't show up, and that is the only defense that we have, even though the witnesses have been here at every other hearing, they were expected to be here. He has essentially refused to talk to me about the case, tries to talk to me now about it, and, I mean, I'm not comfortable with the situation. I have the recordings on a flash drive and I brought them with me. What has taken place since he has come on to this case is absolutely absurd, and I—I don't feel prepared in any way, shape, or form based on how he has handled this.

THE COURT: Okay. Well, your attorney advises that he is prepared to proceed today with the hearing. How your attorney addresses the arguments in the case is really up to him. You have certain rights on how to advise him, but ultimately, those are matters for him to determine because he's the one who holds a law degree, and so he has the ability to argue the case as he sees appropriate, and so he will do that, and the Court has zero reason to believe that he will not do that to the best of his ability.

THE DEFENDANT: He has blocked my phone number. I could not communicate with him at all ․

THE COURT: [Defense Counsel], do you want to respond to any of his statements?

[Defense Counsel]: All I would say to the Court is I've never blocked his phone and we've had extensive conversation about possible defenses and all the different procedural things that he has been seeking including PCR and other things which I'm not appointed for, so we've had thorough discussions about all of the cases including the one he is charged with in Marion County.

THE COURT: Okay. All right. The Court will proceed then with the hearing today.

Id. at 5-7.

[8] Later in the hearing, after the State rested, the trial court asked defense counsel if he wished to present any evidence on Stone's behalf as follows:

THE COURT: [Defense Counsel], any evidence from you?

[Defense Counsel]: No, Judge.

THE DEFENDANT: Your Honor, can I put the audio files I have into evidence?

THE COURT: Do they pertain to this incident in July?

THE DEFENDANT: I mean, I guess so if they're the conversations that I previously discussed with my counsel that I never had of my number being blocked and so forth ․ It's a flash drive. I was not prepared for this. I was never even given an opportunity to figure out if I want to testify.

THE COURT: I'm giving you that opportunity now, sir.

THE DEFENDANT: Well, I don't—I don't know. I never got to speak with counsel about if I should or the consequences or the benefits of it. I don't know.

THE COURT: Well, Mr. Stone, your attorney advises that you had multiple conversations with him, so --

THE DEFENDANT: Again, I would like to put the audio into evidence and let the Court determine –

THE COURT: This Court is not in a position to determine whether or not you've been adequately represented. Your attorney has made a statement that counters your statement. If you believe that you have a claim for ineffective assistance of counsel or some other argument to make, there's a method by which you do that, but today's proceedings are not an appropriate place for you to do that.

THE DEFENDANT: It's not ineffective. I'm trying to address the counsel situation before going in and being put in a –

THE COURT: Well, I'm not sure –

THE DEFENDANT: -- negative situation.

THE COURT: -- what you would call it if it's not an ineffective assistance claim, sir.

Tr. Vol. II, pp. 33-34.

[9] The trial court then found that the State had proven by a preponderance of the evidence that Stone violated the terms of his probation by committing two new offenses in Marion County: possession of methamphetamine and possession of cocaine. The court determined that the evidence was insufficient to prove Stone had possessed marijuana, however.

[10] When the court asked Stone's counsel whether he wished to proceed to disposition, Stone's counsel sought a recess to confer with him. After the court granted the recess and Stone and his counsel conferred, Stone's counsel told the court that they were ready to proceed and that he was calling Stone as witness. Stone testified that he had completed drug treatment while on probation, had undergone regular drug testing, and had complied with the terms of his probation. Stone's probation officer testified that Stone had one positive drug test after his probation was transferred to Marion County in April 2024. Stone acknowledged he had been notified of one positive drug test, but he testified that he was never contacted to schedule retesting aimed at confirming the reliability of the initial positive result.

[11] The trial court revoked Stone's probation and ordered him to serve the eight-year suspended sentence in DOC. Stone appeals.

Discussion and Decision

[12] Stone contends that the trial court, before entering its finding that Stone violated the terms of his probation, was obligated to sua sponte order a recess to allow him to confer with his counsel and to allow Stone to introduce the purported audio recordings. By Stone's own assessment, his “argument focuses on his constitutional rights of an opportunity to be heard in person and to present witnesses, specifically the question of whether Stone would testify in his own defense.” Appellant's Br., p. 8. We conclude that Stone has waived his due process claims and affirm.

[13] Because a probation revocation is civil in nature, “probationers are not entitled to the full array of constitutional rights afforded defendants at trial.” Knecht v. State, 85 N.E.3d 829, 833 (Ind. Ct. App. 2017). Indeed, we have held that due process rights applicable in a probation revocation are “more flexible than in a criminal prosecution.” McCauley v. State, 22 N.E.3d 743, 748 (Ind. Ct. App. 2014).

[14] But the Due Process Clause of the Fourteenth Amendment imposes “procedural and substantive limits on the revocation of the conditional liberty created by probation.” Debro v. State, 821 N.E.2d 367, 374 (Ind. 2005) (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)). “The minimum requirements of due process that inure to a probationer at a revocation hearing include: (a) written notice of the claimed violations of probation; (b) disclosure of the evidence against him; (c) an opportunity to be heard and to present evidence; (d) the right to confront and cross-examine adverse witnesses ․” Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Indiana Code § 35-38-2-3(f) also grants probationers facing revocation the right to “confrontation, cross-examination, and representation by counsel.” Whether a probationer was denied due process in a revocation proceeding is a question of law that we review de novo. Hilligoss v. State, 45 N.E.3d 1228, 1230 (Ind. Ct. App. 2015).

[15] Stone claims he was denied an opportunity to be heard and to present evidence because the trial court entered judgment without first permitting him to: (1) introduce the recordings he purportedly had stored on a flash drive in his possession; and (2) confer with his counsel about whether to testify.² Stone has waived both claims in several ways.

I. Recordings

[16] First, the trial court asked Stone's counsel whether he had any evidence to present, and Stone's counsel replied, “No, Judge.” Tr. Vol. II, p. 33. Although Stone then sought to introduce the recordings himself, he was not entitled to independently represent himself while he also was represented by counsel. Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000) (“To require a trial court to respond to both Defendant and counsel would effectively create hybrid representation to which Defendant is not entitled.”). At the hearing, Stone never sought counsel's withdrawal or appointment of new counsel.

[17] Regardless, Stone has waived any error arising from the trial court's failure to admit the recordings in several ways. First, he failed to make an offer of proof. “A party may claim error in a ruling to ․ exclude evidence only if the error affects a substantial right of the party and ․ [the] party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.” Ind. Evidence Rule 103(a). “An offer of proof should show the facts sought to be proved, the relevance of that evidence, and the answer to any objection to exclusion of the evidence.” State v. Wilson, 836 N.E.2d 407, 410 (Ind. 2005).

[18] Stone acknowledges he made no offer of proof. Appellant's Br., p. 10. He claims, however, that the trial court prevented him from doing so by entering judgment almost immediately. But Stone cites no authority to support his claim that he was deprived of any opportunity to make a valid offer of proof. “The failure to make an offer to prove results in a waiver of the asserted evidentiary error.” Carter v. State, 932 N.E.2d 1284, 1287 (Ind. Ct. App. 2010).

[19] In any case, the offer of proof need not always be contemporaneous with the evidentiary challenge, as it is a requirement designed in part to aid appellate review. Baker v. State, 750 N.E.2d 781, 785-86 (Ind. 2001) (after observing that “there is such a thing as being too rigid about format,” ruling that the non-contemporaneous offer of proof “was good enough” to preserve the defendant's challenge to the exclusion of evidence ); see also Tyson v. State, 619 N.E.2d 276, 282 (Ind. 1993) (finding that a written offer of proof tendered in connection with a motion to reconsider adequately preserved the issue for appeal, although the party's contemporaneous oral offer of proof was inadequate) (abrogated on other grounds by Konkle v. State, 253 N.E.3d 1068, 1080-82 (Ind. 2025)).

[20] Stone therefore has waived his claim relating to the recordings by conceding his failure to make an offer to prove and providing no cogent argument as to why he could not meet that requirement. Carter, 932 N.E.2d at 1287 (failure to make offer to prove waives asserted evidentiary error); Ind. Appellate Rule 46(A)(8)(a) (requiring that “cogent reasoning” support the contentions in the appellant's brief).

[21] Finally, Stone has waived this issue by failing to provide the recordings, or a transcript thereof, to this Court. “ ‘[T]he party who alleges error has the duty to provide a proper record on appeal so that an intelligent review of the issues may be made,’ and where no evidence is in the record, ‘appellate review is foreclosed.’ ” Myers v. State, 27 N.E.3d 1069, 1080 (Ind. 2015) (quoting Fleenor v. State, 514 N.E.2d 80, 87 (Ind. 1987)). Without the recordings or an offer of proof, we cannot engage in “meaningful appellate review” of Stone's claims regarding those recordings. Cobb v. State, 222 N.E.3d 373, 388 (Ind. Ct. App. 2023) (given that the appellant has the burden to provide a record adequate “to permit meaningful appellate review,” the appellant waived an appellate issue by failing to either ensure transmission of the exhibit at issue or to supplement the record with that exhibit) (quoting Martinez v. State, 82 N.E.3d 261, 263 (Ind. Ct. App. 2017)).

II. Recess to Confer

[22] We also reject Stone's claim that the trial court, by not ordering a recess to allow Stone to confer with his counsel, violated Stone's right to present evidence and be heard. The trial court specifically noted that it was providing Stone the opportunity to testify, and Stone responded that he was not sure whether he wanted to because he had not conferred with counsel. Tr. Vol. II, p. 33. The trial court then noted that “your attorney advises that you had multiple conversations with him.” Id. Stone remained indecisive. As defense counsel already had rested and Stone was not stating that he was going to testify, the trial court proceeded to judgment.

[23] Stone never requested, either independently or through counsel, the prejudgment recess that he now claims the trial court should have ordered. And Stone does not argue that the trial court committed fundamental error by failing to sua sponte order the recess. Absent a claim of fundamental error, a party generally waives an issue if, as here, it was raised for the first time on appeal. Hilligoss, 45 N.E.3d at 1231.

Conclusion

[24] As Stone has waived all his appellate claims by either failing to preserve them in the trial court or by providing an inadequate appellate record or through lack of cogent argument, we affirm the trial court's judgment.

FOOTNOTES

1.   Stone's pro se filings were so numerous that they comprise a large part of his 584-page, three-volume appendix.

2.   Stone claims his “right to counsel is also related to the question presented” on appeal. Appellant's Br., p. 8. But Stone does not specifically allege that he was denied his right to counsel. Nor does he offer any analysis or citations to authority supporting such a claim. Accordingly, to the extent Stone intended to raise a deprivation of his right to counsel, he has waived it. See Ind. Appellate Rule 46(A)(8)(a) (requiring contentions in the appellant's brief to be supported by cogent argument and citations to authority).

Weissmann, Judge.

Judges Bailey and Brown concur. Bailey, J., and Brown, J., concur.