Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                                      Feb 27 2014, 9:32 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

PETER D. TODD                                   GREGORY F. ZOELLER
Elkhart, Indiana                                Attorney General of Indiana

                                                ANDREW FALK
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL L. WILSON,                              )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 20A04-1109-CR-531
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ELKHART SUPERIOR COURT
                         The Honorable Stephen R. Bowers, Judge
                              Cause No. 20D02-1010-FB-26


                                    February 27, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Michael L. Wilson (Wilson), appeals his conviction for

burglary, a Class B felony, Ind. Code § 35-43-2-1, and his adjudication as a habitual

offender, I.C. § 35-50-2-8.

       We affirm.

                                          ISSUE

       Wilson raises one issue on appeal, which we restate as: Whether the trial court

committed fundamental error by appointing Wilson’s former public defender as standby

counsel when he elected to defend himself at trial.

                        FACTS AND PROCEDURAL HISTORY

       On October 13, 2010, the State filed an Information charging Wilson with

burglary, a Class B felony, as well as alleging that he was a habitual offender. At the

initial hearing, the trial court appointed a public defender, Bridgette Greene (Greene), on

behalf of Wilson. Because Greene and Wilson disagreed on litigation strategy, Greene

moved to withdraw as Wilson’s counsel on April 19, 2011. After a hearing two days

later, the trial court granted Greene’s motion and appointed Mark Manchak (Manchak) as

his counsel. Wilson waived his speedy trial request and the trial court vacated the trial

date. During the hearing, the trial court warned Wilson that the court would not “be very

sympathetic to a claim that there’s a problem with the second attorney unless there’s

something very specific [] to suggest that there’s a genuine problem.” (Transcript p. 35).




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       On August 22, 2011, the day prior to Wilson’s trial, the State moved to amend the

Information, which was granted by the trial court. At the hearing, Wilson asked to be

heard and explained to the trial court that attorney Manchak “started off on the wrong

page which is telling me what he’s going to do . . . He [is] a habitual liar. [] He really is.

He tell me he gonna come back and see me, he gonna do this, he gonna file paperwork, . .

. , but then he doesn’t do it.” (Tr. p. 56). Wilson concluded that his attorney was “really

working with the [S]tate.” (Tr. p. 57). Upon hearing Wilson’s complaints, the trial court

cautioned him that: “in terms of general dissatisfaction with your attorney and you’ve

had one opportunity to change lawyers. I’m not giving you another one.” (Tr. p. 60).

Addressing Wilson’s specific allegations, the trial court asked attorney Manchak to

respond. After questioning attorney Manchak about the specific tasks that Wilson had set

him, the trial court concluded:

       [Wilson], I don’t think that any of that will materially [a]ffect the trial, I’m
       not giving you a new lawyer. We’ve been through this before. I cautioned
       you last time about the fact that you weren’t going to run through a
       succession of attorneys until you found one that you particularly liked. We
       are going to trial tomorrow. You’re going to trial tomorrow with
       [Manchak], is that clear?

(Tr. p. 64).

       Because “that’s not cool,” Wilson asked the court “how you gonna force me to go

to trial with this dude when he ain’t even willing to fight for me?” (Tr. p. 64). Wilson

requested the trial court to be allowed to proceed pro se. The trial court addressed the

dangers of proceeding pro se and informed Wilson that he would be held to the same

standards as an attorney. The court inquired about Wilson’s experience with the legal



                                              3
system, explained the proceedings, and verified his understanding of the stakes—that he

could be facing “substantial periods of time at the department of correction.” (Tr. p. 67).

The trial court granted Wilson’s request to conduct his trial pro se after warning Wilson

again and after receiving assurances that Wilson was still determined to proceed. The

trial court continued attorney Manchak’s involvement as standby counsel.

       On August 23 and 24, a jury trial was conducted. At the close of the evidence, the

trial court found Wilson guilty as charged.      At the September 19, 2011 sentencing

hearing, the trial court imposed fifteen years for the burglary conviction, enhanced by

fifteen years for the habitual offender adjudication and with five years of the sentence

suspended to probation.

       Wilson now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

       Wilson contends that the trial court abused its discretion when it appointed

attorney Manchak as his standby counsel despite Wilson’s lack of faith and trust in him.

This appointment “clearly gave the jury the prejudicial impression that Wilson had at his

disposal an attorney to assist him in his defense,” yet he chose not to rely on him.

(Appellant’s Br. p. 5).

       Wilson conceded that he did not object to the trial court’s appointment of attorney

Manchak. Generally, a contemporaneous objection is required to preserve an issue for

appeal. Staley v. State, 896 N.E.2d 1245, 1248 (Ind. Ct. App. 2008), trans. denied.

Seeking to avoid procedural default, Wilson urges us that his claim is not foreclosed

because the trial court’s appointment constituted fundamental error. The fundamental


                                            4
error doctrine is extremely narrow, and applies only when the error constitutes a blatant

violation of basic principles, the harm or potential for harm is substantial, and the

resulting error denies the defendant fundamental due process. Id.

      A defendant charged with having committed a felony is allowed representation by

counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). An

indigent defendant, however, does not have an absolute right to counsel of his own

choosing. State v. Irvin, 291 N.E.2d 70, 74 (Ind. 1973). This is discretionary with the

trial court and can be reviewed only for an abuse of discretion. Id. The services of an

attorney appointed by the court may not be forced upon a pauper defendant, but if the

defendant refuses to be represented by the appointed counsel, he must find some method

to employ his own counsel or proceed in propria persona. Id. A defendant may not

arbitrarily compel a court to discharge competent appointed counsel. Id.

      Thus, a criminal defendant has a Sixth Amendment right to conduct his own

defense if he “knowingly and intelligently forgoes his right to counsel” and he “is able

and willing to abide by rules of procedure and courtroom protocol.”           Faretta v.

California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). When a defendant

demonstrates that he is competent to proceed pro se, he must be allowed to control the

organization and content of his own defense, to make motions, to argue points of law, to

participate in voir dire, to question witnesses, and to address the court and the jury at

appropriate points in the trial. McKaskle v. Wiggings, 465 U.S. 168, 174, 104 S.Ct. 944,

949, 79 L.Ed.2d 122 (1984), reh’g denied. According to the Supreme Court, the policy

underlying the right to appear pro se is to “affirm the dignity and autonomy of the


                                            5
accused and to allow the presentation of what may, at least occasionally, be the accused’s

best defense.” Id. at 176-77.

       To determine whether a defendant’s Sixth Amendment right to represent himself

has been violated, “the primary focus must be on whether the defendant had a fair chance

to present his case in his own way.” Id. In the context of whether standby counsel

interfered with a defendant’s right to present his case in his own way, the Supreme Court

explained:

       the pro se defendant is entitled to preserve actual control over the case he
       chooses to present to the jury. This is the core of the Faretta right. If
       standby counsel’s participation over the defendant’s objection effectively
       allows counsel to make or substantially interfere with any significant
       tactical decisions, or to control the questioning of witnesses, or to speak
       instead of the defendant on any matter of importance, the Faretta right is
       eroded.

Id. at 178.

       Here, the trial court appointed defense counsel to represent Wilson as guaranteed

by the Sixth Amendment. When Wilson became dissatisfied with his first counsel, the

trial court appointed attorney Manchak to represent him. However, the day before his

trial, Wilson expressed his concerns about his appointed counsel working for the State

and moved to proceed pro se. After reviewing the record, it is clear that Wilson’s

complaints about attorney Manchak were vague and lacked specificity. The trial court

afforded Wilson many opportunities to give detailed examples of his dissatisfaction and

upon questioning attorney Manchak, the trial court found no merit in Wilson’s concerns

warranting alternate counsel. Rather, it is clear that Wilson’s desire to change counsel

again derived from his attorney’s refusal to file motions Wilson deemed necessary and to


                                            6
let him dictate litigation strategy. As our supreme court noted in Duncan v. State, 412

N.E.2d 770, 773 (Ind. 1980), “[a] defendant may not through a deliberate process of

discharging retained or appointed counsel whenever his case is called for trial disrupt

sound judicial administration by such delaying tactics.”

       Thus, presenting no evidence entitling him to alternate counsel, Wilson elected to

proceed pro se and the trial court continued attorney Manchak as standby counsel. The

record demonstrates that during trial, Wilson refused to conduct voir dire, examine

witnesses, or present a defense, instead electing to respond to every question with

“Defense rests.” (Tr. p. 211). At no point did standby counsel interrupt, interfere with

Wilson’s chosen tactics, or control the proceedings.

       Because the appointment of standby counsel is “an appropriate prophylactic

device when a defendant assumes the burden of conducting his own defense,” and

attorney Manchak’s conduct during the trial did not interfere with Wilson’s tactical

decisions—as disastrous as they were—we cannot say that the trial court made an error,

let alone a fundamental error prejudicing Wilson’s rights by continuing attorney

Manchak as standby counsel. See Jackson v. State, 441 N.E.2d 29, 33 (Ind. Ct. App.

1982).1



1
  We note that is his appellate brief, Wilson relies on Koehler v. State, 499 N.E.2d 196 (Ind. 1986), as
standing for the proposition that a new standby counsel should be appointed when a defendant is
dissatisfied with his current counsel and decides to proceed pro se. We disagree. Rather, Koehler
propones the situation where
         a defendant with standby counsel already at his side desires to turn over his defense under
         circumstances which do not disadvantage any of the other participants in the trial. A
         different result may be possible when the defendant does not have standby counsel
         prepared to assume representation without an interruption of the proceedings and the


                                                   7
                                           CONCLUSION

        Based on the foregoing, we conclude that the trial court did not commit

fundamental error by appointing Wilson’s former public defender as standby counsel

when he elected to proceed pro se.

        Affirmed.

VAIDIK, C. J. and MAY, J. concur




         defendants’ reassertion of his right to counsel does not occur at a natural break in the
         proceedings.
Id. at 200. In essence, Koehler represents a specific circumstance of hybrid representation.


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