Shaun Anthonio Tucker, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] In 2019, upon learning that Shaun Tucker had absconded to Kentucky and been charged with a new crime, the State petitioned to revoke his probation and community corrections placement. More than four years later, Tucker sent a letter to the trial court requesting a remote initial hearing to resolve the outstanding matter. At a subsequent probation revocation hearing at which he was represented by counsel, Tucker appeared remotely from a correctional facility in Kentucky. Finding he violated multiple probation conditions, the court revoked Tucker's suspended sentence. Tucker appeals, arguing that the attorney who represented him for his probation revocation was ineffective, and the court erred when it allowed him to participate in the hearing remotely without finding good cause. We affirm.

Facts and Procedural History

[2] In May 2018, Tucker agreed to plead guilty to Level 5 felony battery in Jefferson County. The trial court accepted his plea and sentenced him to two years of supervised probation which he could serve on community corrections. In February 2019, the State petitioned to revoke Tucker's suspended sentence alleging that, in violation of community corrections’ rules, Tucker had tested positive for buprenorphine twice, committed a robbery in Kentucky, removed his electronic monitoring device and absconded from the program, and failed to pay program fees. A probation violation warrant was then issued for Tucker's arrest.

[3] In July 2023, Tucker wrote a letter to the trial court stating that he was in jail in Kentucky and would not be able to resolve the outstanding warrant “because [he was] about to go to prison for 15 [years][.]” Appellant's Appendix Vol. 2 at 95. Tucker wrote the court again in February 2024 requesting “an Initial Hearing Via Zoom” to resolve his Indiana case. Id. at 96. The court set the State's petition to revoke for an initial hearing on March 7, and Tucker appeared by Zoom. At that hearing, the court appointed counsel for Tucker and set a fact-finding hearing for May 2.

[4] At the fact-finding hearing, Tucker appeared by Zoom from a correctional facility in Kentucky and was represented by counsel. Neither Tucker nor his attorney objected to his remote appearance. Shortly into the State's direct examination of its sole witness, the Jefferson County Court Services supervisor, the court interjected and asked Tucker if he could “hear [ ] all right” because he was “leaning in[.]” Transcript at 13. Tucker responded that he could hear. The Court Services supervisor testified the Tucker had “cut off” his electronic monitor in January 2019, tested positive twice for a drug he was not prescribed, failed to keep in contact with community corrections, and was charged with the new crime of escape. Id. at 15.

[5] Tucker testified that he had been incarcerated in Kentucky since 2021 and was serving a fifteen-year sentence. On cross-examination, he explained that he was charged with robbery but ultimately pled guilty to burglary and being a habitual offender. He admitted that he committed that crime in Kentucky while on probation in the instant case.

[6] During argument, Tucker's attorney stated:

Mr. Tucker is obviously already doing time. I think the fact that he violated his probation -- I don't really think that's subject to debate; however, I would ask that he not be given all of his back up time remaining on the case in view of the fact that he's already doing time and will be continuing to do time on this robbery case. Just asking for something less than full revocation.

Id. at 24-25.

[7] The trial court found that Tucker had “violated the terms and conditions of probation as alleged in the petition” and revoked Tucker's suspended sentence. Appellant's App. Vol. 2 at 100. The court ordered Tucker to serve his two-year sentence in the Department of Correction consecutive to the sentence he was serving in Kentucky, with 225 days of total credit time.

[8] In November 2024, Tucker filed a pro se “Motion for Relief From Judgment Pursuant to Indiana Rules Post-Conviction Relief Rules 1 Through 6.” Id. at 107-10. Tucker quoted Post-Conviction Rule 1 in its entirety ¹ and alleged that his probation revocation attorney had violated his rights by making “a plea of guilt in [his] absence to a term of [two] years probation without [his] acquiense [sic].” Id. at 109. He also stated that “he was not made privy to this cause of action by not being able to attend this alleged hearing.” Id. at 110.

[9] On February 18, 2025, the trial court held a hearing to address Tucker's petition. Tucker indicated he had an issue with not being present in the courtroom when his probation was revoked and sentence was imposed.² He stated that he “wasn't aware of the violation that [he] got and the terms ․ that [he] accepted.” Id. at 35. The State clarified that the revocation and sentence was ordered following a fact-finding hearing. The court denied Tucker's petition for relief and Tucker now appeals.

Discussion and Decision

1. Ineffective Assistance of Counsel

[10] Tucker argues that he received ineffective assistance from his probation revocation attorney when the attorney stated that “the fact that [Tucker] violated his probation” was not “subject to debate[.]” Id. at 24. Because Indiana's probationers are afforded the right to counsel by statute rather than by Sixth Amendment guarantee, ineffective assistance of counsel claims in this context are not reviewed under the standard established in Strickland v. Washington, 466 U.S. 668 (1984). Gibson v. State, 154 N.E.3d 823, 825 (Ind. Ct. App. 2020). We apply a less stringent standard when evaluating counsel's performance in this setting because probation revocation proceedings are civil in nature. Id. “If counsel appeared and represented the petitioner in a procedurally fair setting which resulted in judgment of the court, it is not necessary to judge his performance by rigorous standards.” Id. (quoting Jordan v. State, 60 N.E.3d 1062, 1068 (Ind. Ct App. 2016)).

[11] Tucker argues that “[a]n attorney who concedes criminal responsibility without consulting with the client about the importance of [the] decision ․ and the constitutional rights implicated and obtaining the client's consent has engaged in deficient performance.” Appellant's Brief at 9; see Banks v. State, 884 N.E.2d 362, 367-68 (Ind. Ct. App. 2008) (quoting Christian v. State, 712 N.E.2d 4, 6 (Ind. Ct. App. 1999)) (stating counsel may be deficient by conceding a “particular fact or charge” without consulting his client and obtaining his consent), trans. denied.

[12] Even if we agree that this statement applies to this probation revocation hearing at which there was undisputed testimony of additional violations, this is plainly not what occurred. The sequence of events at the hearing shows that Tucker's attorney did not first admit Tucker violated his probation—Tucker did. Tucker testified at the hearing and specifically admitted that he was incarcerated for a crime he committed while on probation in this case. While he did not use the phrase “violated [my] probation[,]” as counsel did, he admitted to engaging in conduct—i.e., the commission of a new crime—that is a rudimentary violation of suspended sentence terms and conditions. Tr. at 24; see Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015) (noting the commission of a new crime is sufficient to support probation revocation and one violation of a condition of probation supports revocation); see also Appellant's App. Vol. 2 at 84 (stating Tucker was to “obey all federal, state and local laws” as a condition of his suspended sentence). Counsel's statement that whether Tucker had violated probation was not “subject to debate” reflected Tucker's own admission and was a tactical strategy employed by counsel to shift the trial court's focus to the matter of an appropriate sanction. Tr. at 24.

[13] Tucker's argument that the court “accepted [ ] counsel's concession as an admission of guilt” is similarly unpersuasive because the court's order states that it found a probation violation occurred “[a]fter hearing testimony of State's witness and of the defendant[ ] and having heard arguments of the parties[.]” Appellant's Br. at 9; Appellant's App. Vol. 2 at 100. Thus, it is apparent that the court considered Tucker's testimony as an admission that he violated the terms of his probation. And because Tucker made this admission before his attorney presented argument, the attorney was hamstrung by Tucker's testimony. Given these circumstances, Tucker's attorney understandably focused his argument on what the appropriate sanction should be for the violation to which Tucker admitted.

[14] For these reasons, Tucker has failed to establish that he received ineffective assistance of counsel at his probation revocation hearing.

2. Remote Hearing

[15] Tucker also argues his remote participation in the probation revocation hearing violated his rights under Interim Administrative Rule 14(C) and the Sixth Amendment because the trial court made no finding of good cause to proceed by Zoom.

[16] Interim Administrative Rule 14(C) states that “[a] court must conduct all testimonial proceedings in person except that a court may conduct the proceedings remotely for all or some of the case participants for good cause shown or by agreement of the parties.³ Remote proceedings must comply with constitutional and statutory guarantees.” Because live, in-court testimony is accorded the utmost importance in Indiana, findings of good cause “require particularized and specific factual support.” B.N. v. Health and Hosp. Corp., 199 N.E.3d 360, 364 (Ind. 2022); see also G.W. v. Madison State Hosp., 245 N.E.3d 153, 158 (Ind. Ct. App. 2024). There must be “something specific to the moment, the case, the court, the parties, the subject matter, or other relevant considerations.” B.N., 199 N.E.3d at 364-65. “[W]e review a trial court's good-cause determination for an abuse of discretion.” Id. at 363.

[17] At the outset, Tucker forfeited review of his Rule 14(C) argument by waiver or procedural default due to non-compliance with post-conviction procedures. See id. at 363 n.1 (indicating a person may waive a Rule 14(C) challenge by failing to raise the issue before the trial court); see also Bunch v. State, 778 N.E.2d 1285, 1289 (Ind. 2002) (stating that post-conviction proceedings are not a “super-appeal” and do not afford defendants the opportunity to raise issues that were known and available at the time of the underlying proceeding). Tucker failed to object to his remote appearance at the probation revocation hearing, which is unsurprising given he first requested an “Initial Hearing Via Zoom” and his out-of-state incarceration status had not changed at the time the fact-finding hearing was held. Appellant's App. Vol. 2 at 96. Tucker's failure to timely object to his remote appearance results in him forfeiting our review of this issue.

[18] Waiver notwithstanding, although we recognize that the trial court did not make an explicit determination of good cause to permit Tucker to participate in the probation revocation hearing remotely, we note that good cause likely existed given Tucker's initial and unchanged request for remote participation and continued out-of-state incarceration.

[19] Regardless, any error in a trial court's failure to make an adequate good cause finding under Rule 14(C) is subject to review for harmless error. B.N., 199 N.E.3d at 365. A trial court's error is harmless if “its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” Ind. Appellate Rule 66(A). As the State argues, “Tucker does not claim, and the record [does] not support, the idea that Tucker was prejudiced by his remote attendance[.]” Appellee's Br. at 17. Tucker was present throughout the proceeding, the trial court confirmed he could hear, he testified, and his attorney cross-examined the witness against him. Most importantly, Tucker admitted that he violated a term of his suspended sentence and there was undisputed evidence that he committed additional violations by removing his electronic monitoring device, absconding, and testing positive for an unprescribed substance. Thus, even if the trial court erred in permitting Tucker to testify remotely, such error was harmless. See B.N., 199 N.E.3d at 365 (finding any error in a remote commitment hearing was harmless because the person sought to be committed was present and actively participated in the hearing, conferred with counsel who zealously advocated for her, and there were no significant technological issues); see also Johnson v. State, 201 N.E.3d 1198, 1207-09 (Ind. Ct. App. 2023) (finding violations of the defendant's rights under the state and federal confrontation clauses rights were harmless error), clarified on reh'g by 206 N.E.3d 1195 (2023), trans. denied.

Conclusion

[20] For the foregoing reasons, we conclude that Tucker did not receive ineffective assistance of counsel, and the trial court did not abuse its discretion when it conducted the probation revocation hearing with Tucker appearing remotely.

[21] Affirmed.

FOOTNOTES

1.   Post-Conviction Rule 1(1)(a) provides that a “person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims: ․ (5) that ․ his probation, parole or conditional release [was] unlawfully revoked ․ may institute at any time a proceeding under this Rule to secure relief.”

2.   In a confusing argument, Tucker also seemed to suggest that his probation revocation attorney entered into a deal without his agreement and misinformed him about the result of his revocation hearing. See Tr. at 30-31. He does not make this argument on appeal, instead focusing on counsel's alleged unilateral admission that he violated his probation.

3.   In response to emergency conditions created by the COVID-19 pandemic, the Indiana Supreme Court issued an order in May 2020 modifying Administrative Rule 14 “to expand trial courts’ ability to conduct remote proceedings through audiovisual communication[.]” B.N. v. Health and Hosp. Corp., 199 N.E.3d 360, 362 (Ind. 2022). Effective January 1, 2023, the Supreme Court rescinded this order, finding that the “emergency conditions that necessitated the Emergency Order no longer remain[,]” and issued Interim Administrative Rule 14. Interim Administrative Rule for Remote Proceedings, Cause No. 22S-MS-1 (Ind. Sept. 30, 2022).

DeBoer, Judge.

Chief Judge Altice and Judge Pyle concur. Altice, C.J., and Pyle, J., concur.