Interesting 3-2 Transfer Denial by Indiana Supreme Court in Probation Revocation Case

Every week as part of my professional development, I review the Indiana Supreme Court’s transfer dispositions from the prior week. The list is usually posted on Monday.

This week there was a rare 3-2 denial of transfer. What made the decision even rarer was that it was in a probation revocation appeal where the defendant had admitted to violating the terms of his probation.

Such appeals are especially difficult for the appellate practitioner because you usually have just one issue to raise: whether, despite the admission of the violation, the trial court should not have revoked probation and imposed incarceration as a sanction.

This was generally the issue in Corey Killebrew v. State, although the argument was more nuanced. In Killebrew, the defendant presented substantial mitigating evidence to the court, but the court’s dispositional statement failed to mention any of it. So the defendant appealed, arguing that his due process rights under Morrissey v. Brewer were violated because the trial court was not only required to allow him the opportunity to present evidence in mitigation, but the court also had a duty to consider that evidence in imposing the appropriate sanction for the violation.

After a Court of Appeals judge issued a dissenting opinion in favor of the defendant, Killebrew petitioned for transfer. His request was denied, but Chief Justice Rush and Justice Goff both voted to grant the request.

There were procedural hurdles in Killebrew that suggest the three justices who voted to deny the request might vote differently in another case without any hurdles. Therefore, appellate practitioners should review the Court of Appeals’ published opinion (found here) and consider raising the claim if the facts in a particular case are analogous.