Christopher M. Hubbert, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Christopher M. Hubbert appeals his convictions in Cause Number 03D01-2305-F2-2595 raising several issues for our review, one of which we find dispositive: whether he personally waived his right to a jury trial. Hubbert also appeals the trial court's order that he serve the remainder of his sentence under Cause Number 03D01-2001-F2-381. We reverse in part, affirm in part, and remand for a new trial.

Facts and Procedural History

[2] In 2020, pursuant to a written plea agreement, Hubbert pleaded guilty to Level 2 felony dealing in methamphetamine in Cause Number 03D01-2001-F2-381 (Cause 381). The trial court sentenced Hubbert to eighteen years executed in the Indiana Department of Correction (DOC), which we revised on direct appeal to an aggregate eighteen years with four years executed in the DOC and the remaining years served on probation. Hubbert v. State, 163 N.E.3d 958, 961 (Ind. Ct. App. 2021), trans. denied. On remand, Hubbert was sentenced accordingly, and conditions of his probation included that he not use illegal drugs and obey all laws of the State of Indiana or any other state.

[3] In May 2023, the State filed several new charges against Hubbert under Cause Number 03D01-2305-F2-2595 (Cause 2595) which were later amended to Level 3 felony dealing in methamphetamine, Level 5 felony possession of methamphetamine, and Class C misdemeanor possession of paraphernalia. The State also filed a petition to revoke Hubbert's probation in Cause 381.

[4] At a pretrial conference for Cause 2595, Hubbert's counsel informed the court that Hubbert wanted a bench trial. The court asked Hubbert if he understood he had a right to a jury trial, and Hubbert answered, “Yes, sir.” Tr. Vol. II p. 5. The court directed counsel to file “something in writing” but never obtained Hubbert's personal confirmation that he wanted to waive his right to a jury trial. Id. Counsel subsequently filed a “Waiver of Trial by Jury and Motion to Set for Bench Trial” which suggested that Hubbert “understands his constitutional right to a trial by jury ․ [and] hereby waives his constitutional right to a trial by jury[.]” Appellant's App. Vol. III p. 58. However, Hubbert did not sign this document. At a bench trial on February 25, 2025, the court found Hubbert guilty as charged in Cause 2595.

[5] The court held a joint hearing on the State's petition to revoke Hubbert's probation in Cause 381 and sentencing in Cause 2595 on March 26. As to its probation revocation, the State asked the court to take judicial notice of Hubbert's conviction in Cause 2595. See Tr. Vol. II p. 73. The court responded, “I will take judicial notice of the conviction. And I believe that satisfies the requirements for the․ a finding of violation of probation, which I will find at this time.” Id. The parties then confirmed they were ready to proceed to disposition and sentencing.

[6] The State called Columbus Police Department Detective Sergeant Reid Thayer, who testified he oversaw three controlled purchases of methamphetamine from Hubbert leading to the charges in Cause 2595. The State also admitted into evidence a photo of Hubbert executing one of the controlled sales and the affidavit for probable cause for a search warrant describing the controlled sales. After considering all the evidence, the trial court sentenced Hubbert to fifteen years in the DOC for his convictions under Cause 2595 and ordered him to serve the remaining fourteen years of his previously suspended sentence under Cause 381. Hubbert now appeals.

Discussion and Decision

I. Personal Waiver of Jury Trial

[7] Hubbert contends he did not personally waive his right to a jury trial, so his convictions must be vacated and his case remanded for a new trial. The State concedes as much and agrees that precedent mandates that the matter be remanded for a new trial. We agree. Indiana has rejected the purported waiver of a right to a jury trial where such waiver is communicated solely by a defendant's counsel. Horton v. State, 51 N.E.3d 1154, 1158-59 (Ind. 2016). Accordingly, we reverse Hubbert's convictions under Cause 2595 and remand for a new trial.¹

II. Probation Revocation

[8] Hubbert also argues the trial court abused its discretion in ordering Hubbert to serve the remainder of his sentence under Cause 381. In support of his argument, Hubbert merely “incorporate[s] and reassert[s] here the same facts and argument just discussed in” the section of his brief relating to whether his sentence under Cause 2595 was inappropriate under Indiana Appellate Rule 7(B). Appellant's Br. pp. 18-19. A Rule 7(B) review is not available, however, to evaluate a trial court's sanction revoking probation. Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008). Hubbert's argument is, thus, waived.

[9] In any event, the trial court did not abuse its discretion in revoking the remainder of Hubbert's sentence. Probation is a matter of grace and a conditional liberty that is a favor, not a right. Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999), reh'g denied. An order to execute the remainder of a suspended sentence is one option a trial court may impose when a defendant violates probation. Indiana Code Section 35-38-2-3(h) (2015). Here, the State presented the testimony of a Columbus Police Department detective who was involved in the controlled drug buys that ultimately resulted in Hubbert's arrest and indictment, a probable cause affidavit with sworn testimony regarding the same, and a photograph of Hubbert making one controlled drug sale.² The court was therefore within its discretion to order Hubbert to serve the remaining fourteen years of his previously suspended sentence.

[10] Reversed in part, affirmed in part, and remanded for a new trial.

FOOTNOTES

1.   Hubbert also challenges his sentence under Cause 2595 and requests that we remand to correct several errors in the abstract of judgment. Because a new trial is required, we need not address these issues as they are moot. See Hanna-Womack v. State, 623 N.E.2d 439, 440 (Ind. Ct. App. 1993). indictment amounted to a probation violation. Here, the State provided testimony and other evidence sufficient to prove by a preponderance of the evidence that Hubbert committed the offense in violation of his probation.

2.   We note that the mere filing of a new criminal charge alone is insufficient to support the revocation of probation. Jackson v. State, 6. N.E.3d 1040, 1042 (Ind. Ct. App. 2014). Rather, the State must show by a preponderance of the evidence that the defendant actually committed the new criminal offense. Id. However, Jackson is distinguishable from the instant case. In Jackson, the only evidence submitted at the probation revocation hearing was a copy of the defendant's indictment and the probation officer's testimony that said

Scheele, Judge.

Brown, J., and Felix, J., concur.