Kelly Browning Ramsay, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Kelly Browning Ramsay admitted to violating her probation by consuming alcohol and being charged with a driving while intoxicated offense. As a result, the trial court revoked Ramsay's probation and executed a portion of her previously suspended sentence. Ramsay now appeals and raises two issues for our review:

1. Whether the trial court denied Ramsay her right to fundamental due process; and

2. Whether the trial court abused its discretion by executing a portion of Ramsay's previously suspended sentence.

[2] We affirm.

Facts and Procedural History

[3] On October 2, 2025, Ramsay pled guilty to domestic battery as a Class A misdemeanor. Pursuant to Ramsay's plea agreement, the trial court sentenced her to 363 days executed but all suspended to probation. As part of her probation, Ramsay agreed to “[f]ollow all laws” and not consume alcohol. Appellant's App. Vol. II at 98.

[4] On December 17, the State filed a petition to revoke Ramsay's probation, alleging that on December 13, she was arrested and charged with operating a vehicle with a blood alcohol concentration of at least 0.15 as a Class A misdemeanor. At the revocation hearing, Ramsay admitted to the probation violations as alleged in the petition and requested the trial court place her on home detention. In support, Ramsay presented evidence that she had participated in and was willing to re-engage in therapeutic and treatment services; she also wanted to remain at home to care for her elderly father. Ramsay confirmed that she had prior operating while intoxicated convictions. Ramsay described her choice to drink alcohol in December 2025 as “a very poor decision.” Tr. Vol. II at 15. The trial court ordered Ramsay to serve 180 days of her sentence at the Indiana Department of Correction (“DOC”) and terminated her probation as unsuccessful. This appeal ensued.

Discussion and Decision

1. The Trial Court Did Not Deny Ramsay Her Right to Fundamental Due Process

[5] Ramsay contends she was denied fundamental due process at the probation revocation hearing.¹ Ramsay acknowledges that she did not raise this issue to the trial court and asks us to review under the fundamental error standard. “Fundamental error is an exception to the general rule that a party's failure to object at trial results in a waiver of the issue on appeal.” Strack v. State, 186 N.E.3d 99, 103 (Ind. 2022) (citing Kelly v. State, 122 N.E.3d 803, 805 (Ind. 2019)). “An error is fundamental error when the error ‘made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.’ ” Carr v. State, 274 N.E.3d 444, 460 (Ind. 2026) (quoting Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018)).

[6] “[B]ecause a probation revocation can result in a loss of liberty, the probationer is entitled to certain due process protections” before probation may be revoked. Saucerman v. State, 193 N.E.3d 1028 (Ind. Ct. App. 2022) (citing Hilligoss v. State, 45 N.E.3d 1228, 1230 (Ind. Ct. App. 2015)). A probationer's due process rights are codified in Indiana Code section 35-38-2-3, which provides in relevant part as follows:

(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). ․

(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.

(Emphases added). “[A] trial court's failure to ensure that a probationer who admits to a probation violation has received the advisements as required under Indiana Code Section 35-38-2-3(e) constitutes a fundamental violation of the probationer's due process rights.” Hilligoss, 45 N.E.3d at 1232.

[7] Ramsay specifically contends that “she was not advised of her rights to confrontation and cross-examination” before admitting to the violation. Appellant's Br. at 8 (citing Knecht v. State, 85 N.E.3d 829 (Ind. Ct. App. 2017)). The State counters that because Ramsay was represented by counsel at the revocation proceedings and had consulted with counsel prior to the hearing, “it is reasonable to conclude that [she] would have made her admissions with or without being advised of her due process rights.”² Appellee's Br. at 13. This is not the standard. Our court has determined that it is fundamental error for a trial court to not ensure a probationer has been advised of her due process rights under Indiana Code Section 35-38-2-3(e). Hilligoss, 45 N.E.3d at 1232. We will not reverse course here.

[8] In resolving the issue raised by Ramsay, we reviewed the record. There is nothing in the transcript indicating that the trial court ensured that Ramsay was advised of her rights to confrontation and cross-examination. However, the trial court's “Order on Probation Revocation” states, “The Court, being duly advised in the premises and having heard evidence ․, now FINDS and ORDERS ․ [t]hat [Ramsay] is advised of rights and entitlements.” Appellant's App. Vol. II at 112 (emphasis in original). Ramsay does not argu the trial court made this statement in error, so we must accept it is as true. Se R.M. v. Ind. Dep't Child Servs., 203 N.E.3d 559, 564 (Ind. Ct. App. 2023) (citin Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)), trans. not sought. Accordingly, there is evidence in the record that Ramsay was “advised of [he rights and entitlements,” Appellant's App. Vol. II at 112, so we cannot say th trial court failed to ensure Ramsay received the advisements as required unde Indiana Code Section 35-38-2-3(e). The trial court thus did not deny Ramsay her right to fundamental due process.

2. The Trial Court Did Not Abuse Its Discretion by Executing 180 Days of Ramsay's Sentence

[9] Ramsay argues the trial court abused its discretion by executing 180 days of her 363-day sentence. As an “alternative[ ] to incarceration through the Department of Correction,” probation “is a ‘matter of grace,’ a ‘conditional liberty that is a favor, not a right.’ ” Ewing v. State, 273 N.E.3d 1107, 1111 (Ind. 2026) (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)). We review a trial court's sentencing decision on a probation violation for an abuse of discretion. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citing Sanders v. State, 825 N.E.2d 952, 956 (Ind. Ct. App 2005)). “An abuse of discretion occurs ‘where the decision is clearly against the logic and effect of the facts and circumstances,’ ” Smith v. State, 963 N.E.2d 1110, 1112 (Ind. 2012) (quoting Prewitt, 878 N.E.2d at 188), or where the trial court “misinterpret[s] the law,” Ewing, 273 N.E.3d at 1110 (citing Mitchell v. 10th & The Bypass, LLC, 3 N.E.3d 967, 970 (Ind. 2014)). “We will consider all the evidence most favorable to supporting the judgment of the trial court without reweighing that evidence or judging the credibility of witnesses.” Smith, 963 N.E.2d at 1112 (citing Cox, 706 N.E.2d at 551).

[10] Ramsay asserts that “the trial court should have granted [her] request for a sentence on home detention,” Appellant's Br. at 11, based on the evidence she presented at the revocation hearing. This argument is merely a request for this court to reweigh the evidence and reassess witness credibility, which we cannot do. See Smith, 963 N.E.2d at 1112 (citing Cox, 706 N.E.2d at 551). The trial court was free to discount Ramsay's substance abuse and rehabilitation efforts as well as her desire to care for her father in light of her admission to the violations and history of operating while intoxicated. We therefore cannot say the trial court abused its discretion when it ordered Ramsay to serve 180 days of her 363-day sentence at the DOC due to her probation violations.

Conclusion

[11] In sum, the trial court did not deny Ramsay her right to fundamental due process, nor did it abuse its discretion by executing 180 days of her sentence. We therefore affirm the trial court on all issues raised.

[12] Affirmed.

FOOTNOTES

1.   The State argues that Ramsay is “precluded from challenging the validity of her probation revocation on direct appeal because she admitted violating her probation.” Appellee's Br. at 10. In support, the State asserts “that a direct appeal is not the proper avenue for challenging the validity of a defendant's admission to a probation violation.” Id. (citing Kirkland v. State, 176 N.E.3d 986, 989 (Ind. Ct. App. 2021); Hoskins v. State, 143 N.E.3d 358, 361 (Ind. Ct. App. 2020); Huffman v. State, 822 N.E.2d 656, 660 (Ind. Ct. App. 2005)). The cases the State cites in support of this assertion dealt with claims that probationers’ violation admissions were not made knowingly, intelligently, and voluntarily. Kirkland, 176 N.E.3d at 988 (“Kirkland contends that the trial court's Order revoking his probation must be reversed because he did not knowingly, intelligently, and voluntarily waive his right to revocation counsel.”); Hoskins, 143 N.E.3d at 360 (“Hoskins claims that he did not knowingly or intelligently waive his right to counsel.”); Huffman, 822 N.E.2d at 659 (dismissing appeal in which probationer challenged voluntariness of admission to probation violation). The State's caselaw does not address claims regarding the process a probationer is due in a revocation proceeding. There is a distinction between claims regarding the validity of a probation violation admission and claims regarding an alleged failure to advise a probationer of the due process rights codified in Indiana Code section 35-38-2-3.

2.   The State also argues that Ramsay waived her due process claim by failing to raise it below. As this court has previously explained, “The premise of giving an advisement is that the person to be advised is unaware of certain information; the premise of the State's argument for forfeiture is that the person who should have been advised should have known enough to put the trial court on notice of its failure to advise him.” Hilligoss v. State, 45 N.E.3d 1228, 1232 n.4 (Ind. Ct. App. 2015).

Felix, Judge.

May, J., and Mathias, J., concur.