MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                      Oct 26 2016, 9:31 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kay A. Beehler                                           Gregory F. Zoeller
Terre Haute, Indiana                                     Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Antonio L. Ware,                                         October 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         68A01-1604-CR-754
        v.                                               Appeal from the Randolph Circuit
                                                         Court
State of Indiana,                                        The Honorable Jay L. Toney,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         68C01-1410-F5-564



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016         Page 1 of 15
[1]   Antonio Ware appeals his conviction for Theft,1 a Level 5 felony. Ware argues

      that the trial court erred by granting Ware’s request to represent himself at his

      trial. Ware also contends that the trial court abused its discretion by ordering

      Ware to make restitution to his victim’s insurer. Finding no error, we affirm.


                                                     Facts
[2]   During the relevant period of time, Ware was employed by D & H Logistics as

      a driver doing pick-up and delivery of certain packages. On October 13, 2014, a

      package belonging to a business called Silvertowne went missing. The package

      contained gold coins worth $69,245. Video security footage led law

      enforcement to suspect Ware of the theft, and on October 24, 2014, the State

      charged Ware with one count of Level 5 felony theft.


[3]   Initially, Ware retained private attorneys, but on January 26, 2015, those

      attorneys withdrew. On January 27, 2015, Ware requested that a public

      defender be appointed to represent him, and the trial court granted the request,

      appointing Attorney Ronald Moore. On April 9, 2015, about two weeks before

      Ware’s jury trial was scheduled to begin, Attorney Moore moved to withdraw.

      At the hearing on the motion, Ware complained that he did not like Attorney

      Moore’s attitude, that counsel was being accusatory, and that Attorney Moore

      was disrespectful of Ware. The trial court granted the motion to withdraw.




      1
          Ind. Code § 35-43-4-2(a)(2).


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[4]   The same day, April 9, 2015, the trial court appointed Attorney James Fry to

      represent Ware. Attorney Fry requested a continuance of the trial given that he

      was new to the case, which the trial court granted, resetting the trial for July 20,

      2015. On June 24, 2015, Attorney Fry moved to withdraw, stating that there

      were “increasing personal and communication difficulties between Defendant

      and counsel” and that Ware had indicated he no longer wished to be

      represented by Fry. Appellant’s App. Vol. II p. 73. At the hearing on Fry’s

      motion, Fry and Ware initially stated that they had resolved their differences,

      but Ware later asked to have Attorney Fry replaced. Ware complained that

      Attorney Fry had only begun practicing law in 2013 and his inexperience was

      causing problems. Ware stated, “If the courts can’t assign me another lawyer I

      will represent myself.” Id. at 82. Attorney Fry stated that there was a conflict

      of interest between his duty to Ware and his duty to refrain from conduct that

      would be criminal or fraudulent, given the lines of argument that Ware was

      insisting his attorney pursue.


[5]   The trial court did not rule on Attorney Fry’s motion at that time. At another

      hearing on July 8, 2015, the trial court explained that it had not heard anything

      warranting Attorney Fry’s removal. The trial court addressed Ware’s statement

      that he would represent himself: “Now I will warn you that if you represent

      yourself you are held to the same standards as an attorney would be held with

      regard to objections, any presentation of evidence, and essentially any matters

      related to the trial itself.” Tr. Vol. II p. 49. Ware replied that he understood.

      The trial court stated that if Ware wished to proceed pro se, Attorney Fry


      Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016   Page 3 of 15
      would remain as stand-by counsel to offer advice and answer questions. Ware

      replied that he wanted to represent himself “so that you won’t have to keep on

      assigning me lawyers, me not agreeing with them or keep on having lawyers

      withdraw.” Id. at 49-50. Ware stated that he did not want Attorney Fry to be

      his stand-by counsel “because I really don’t feel comfortable with Mr. Fry

      having anything to do with my case,” and indicated he might seek to hire his

      own stand-by counsel. Id. at 53. Ware further stated, “I don’t really feel

      comfortable representing myself, but I feel like I have no choice.” Id. The trial

      court granted Ware’s request to represent himself, appointed Attorney Fry as

      stand-by counsel, and confirmed the July 20, 2015, trial date.


[6]   On July 8, 2015, Ware filed a pro se motion to continue the trial, alleging that

      the change to self-representation had deprived him of time to prepare. The trial

      court granted the motion, rescheduling the trial to September 21, 2015.


[7]   Approximately one week later, Ware asked for Attorney Fry’s appearance to be

      withdrawn altogether because Ware had lodged a disciplinary complaint

      against him. The trial court granted the request and removed Attorney Fry

      entirely from Ware’s case.


[8]   On July 28, 2015, Ware requested to have a new public defender appointed to

      represent him because “[i]f I represent myself in this case at trial I can not

      present my case with the same standards as a lawyer . . . .” Appellant’s App.

      Vol. II p. 90. The trial court granted the motion and appointed Attorney Mark

      Cox to represent Ware. Attorney Cox moved to continue the trial date so that


      Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016   Page 4 of 15
       he would have sufficient time to prepare. The trial court granted the motion

       and rescheduled the trial to January 11, 2016.


[9]    On December 14, 2015, Ware filed a motion to remove Attorney Cox from his

       case, alleging that Cox was “too busy to prepare evidence” and that “I am

       better off preparing my own case.” Id. at 104. Ware noted that he was willing

       to accept Attorney Cox as stand-by counsel. Ware also asked that the trial be

       continued again so that he would have time to prepare his own defense.

       Attorney Cox filed a motion to withdraw on the same day, alleging that Ware’s

       communication was “overbearing with requests and demands” and that their

       relationship had deteriorated to a point that Cox was no longer able to function

       as counsel. Id. at 109. At the hearing on the motions, Attorney Cox stated that

       Ware had sent him over 100 emails and “it seems like every time I look at my

       phone I am getting something from Mr. Ware . . . .” Tr. Vol. II p. 70-71. The

       trial court denied the motions to remove Attorney Cox but reset the jury trial to

       February 29, 2016.


[10]   On February 2, 2016, Attorney Cox again moved to withdraw from Ware’s

       case, stating that his relationship with Ware had not improved and that Ware

       continued to ask that Cox withdraw. At the hearing on the motion to

       withdraw, Attorney Cox told the trial court that Ware insisted that he wished to

       represent himself. The trial court then addressed Ware as follows:

               Mr. Ware you do have, as Mr. Cox stated, the constitutional
               right to represent yourself. However, if you are representing
               yourself in Court you will be held to the same standards as an

       Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016   Page 5 of 15
               attorney. In other words if there are objections for example, that
               need to be made at trial the Court can not make those for you.
               The Court can not advise you as to what objections or other
               actions to take during a trial. You will be responsible for calling
               witnesses, questioning any witnesses, cross examining
               witnesses . . . [b]y the State just to give you a few examples of
               what your obligations would be in representing yourself.


       Tr. Vol. II p. 81. The trial court asked if Ware still wanted to proceed pro se,

       and Ware responded that he did. The trial court granted the motion and

       designated Attorney Cox as Ware’s stand-by counsel, emphasizing again to

       Ware that he would be held to a high standard:


               Again you are going to be held to the same standards that an
               attorney who regularly practices law would be held to. . . . Now
               I have talked with you here this morning Mr. Ware about what
               goes on during the trial, but obviously if you are representing
               yourself then you have the same obligations as an attorney would
               to prepare for the trial. Do you understand that?


       Id. at 82. Ware responded affirmatively. Ware asked for another continuance

       so that he could have more time to prepare. The trial court denied the motion.


[11]   On February 8, 2016, Ware filed a motion alleging that he was incompetent to

       stand trial, and on February 9, 2016, Ware filed a notice of his intent to raise a

       defense of mental disease or defect. The trial court denied both motions. On

       February 10, 2016, Ware filed a motion asking that an attorney be appointed to

       represent him, claiming that mental illness had caused him to discharge his

       previous attorneys. At the hearing on the motion, Ware explained that he did

       not believe he would be able to present his case well to the jury. The trial court

       Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016   Page 6 of 15
agreed, reminding Ware that he had told him more than once that it is very

difficult to proceed pro se: “[t]he Court tried to provide you with the best

representation possible through the attorneys that were appointed and that

simply didn’t work out. You didn’t seem to be able to get along with any of

them.” Tr. Vol. II p. 108-10. Subsequently, the following discussion occurred:


        COURT:           . . . Mr. Ware what is it you want me to do? I have
                         done everything that you have asked since this case
                         started. I have appointed you three different
                         attorneys and you could not get along with any of
                         them.


                                                ***


        WARE:            I can’t represent myself.


        COURT:           Are you asking for Mr. Cox to be put back on your
                         case?


        WARE:            If he’s the only choice that I have, yes . . . .


        COURT:           Well there is no way any other attorney could
                         prepare for the case that would not be possible.


        WARE:            Well he would have to do. I would just have to roll
                         the dice with him . . . . But yeah I would like Mr.
                         Cox. I would have to speak with him and we have
                         to come to an understanding, I guess, cause I can’t
                         go representing myself.


                                                ***

Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016   Page 7 of 15
        COURT:           Alright. The idea Mr. Ware is to give you the best
                         representation possible. I agree with you having
                         Mr. Cox on your case as an attorney with trial
                         experience puts you in a better position than if you
                         do not have an attorney. . . .


                                                ***


        COURT:           Alright. Well although I think it is somewhat unfair
                         to Mr. Cox what this is really about is what I can do
                         to be most fair to you. Based upon your request . . .


                                                ***


        COURT:           . . . Well again its [sic] not something I am sure Mr.
                         Cox is going to be in favor of, but I am going to
                         have court staff advise him that he is to act as your
                         counsel in this case just as though he had not been
                         placed to be merely stand-by counsel and he will be
                         advised of that as soon as we can reach him. . . .


Id. at 111-14. The trial court then told Ware to wait while the court tried to

locate Attorney Cox, who was likely elsewhere in the building in a different

courtroom. Subsequently, the trial court went back on the record, noting that

while court staff was speaking with Attorney Cox on the phone, Ware had

approached the trial court and stated that he had changed his mind again and

wanted to represent himself:

        COURT:           In fact the Court Reporter was on the phone with
                         Mr. Cox and I got word Mr. Ware that you do wish
                         to represent yourself correct?


Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016   Page 8 of 15
               WARE:            [Inaudible]


               COURT:           Alright. That will be the ruling of the Court. Its
                                [sic] thirteen days before trial. There will not be any
                                reversal of that. You have made your decision on
                                two different days to represent yourself. That will
                                be the ruling of the Court. Your request to
                                represent yourself will be granted. Mr. Cox will still
                                be required to be here [as] stand-by counsel.


       Id. at 120.


[12]   Ware’s jury trial began on February 29, 2016. At the close of the trial, the jury

       found him guilty as charged. Ware’s sentencing hearing took place on March

       28, 2016. The trial court sentenced him to four years, with two years suspended

       to probation. At the sentencing hearing, evidence was presented establishing

       that the value of the coins Ware had stolen totaled $69,245; an insurance

       company had paid Silvertowne $68,245 to cover the loss; and a carrier had paid

       the policy’s $1,000 deductible directly to Silvertowne. The trial court entered a

       restitution order requiring Ware to pay $68,245 to the insurance company.

       Ware now appeals.


                                    Discussion and Decision
                                       I. Proceeding Pro Se
[13]   First, Ware contends that the trial court committed fundamental error by

       permitting him to represent himself at and before trial. Our Supreme Court has




       Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016   Page 9 of 15
explained the contours of a defendant’s rights to be represented by counsel and

to represent himself as follows:


        The Sixth Amendment, applicable to the states through the
        Fourteenth Amendment, guarantees a criminal defendant the
        right to counsel before he may be tried, convicted, and punished.
        Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d
        562 (1975). This protection also encompasses an affirmative
        right for a defendant to represent himself in a criminal case. Id.
        However, “[i]t is undeniable that in most criminal prosecutions
        defendants could better defend with counsel’s guidance than by
        their own unskilled efforts.” Id. at 834, 95 S.Ct. 2525. Because
        the defendant who waives his right to counsel and proceeds to
        trial unrepresented is forgoing “many of the traditional benefits
        associated with the right to counsel . . . the accused must
        ‘knowingly and intelligently’ forgo those relinquished benefits.”
        Id. “[H]e should be made aware of the dangers and
        disadvantages of self-representation, so that that the record will
        establish that ‘he knows what he is doing and his choice is made
        with eyes open.’” Id. at 835, 95 S.Ct. 2525 (quoting Adams v.
        United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87
        L.Ed. 268 (1942)).


        There is no particular formula or script that must be read to the
        defendant. The information that must be given “will depend on
        a range of case-specific factors, including the defendant’s
        education or sophistication, the complex or easily grasped nature
        of the charge, and the stage of the proceeding.” Iowa v. Tovar,
        541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).


Hopper v. State, 957 N.E.2d 613, 617-18 (Ind. 2011). To determine whether a

waiver of counsel was made voluntarily and intelligently, courts must consider

four factors: (1) the extent of the trial court’s inquiry into the defendant’s


Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016   Page 10 of 15
       decision; (2) other evidence in the record establishing whether the defendant

       understood the dangers and disadvantages of self-representation; (3) the

       background and experience of the defendant; and (4) the context of the

       defendant’s decision to proceed without an attorney. Id. at 618.


[14]   Initially, Ware claims that he did not demand to exercise his right to self-

       representation pursuant to the above authority. Reply Br. p. 5. Instead, he

       contends that he acted as his own attorney because he had no other choice.

       The record belies this contention. The trial court, acting with significant

       patience and understanding, afforded Ware the opportunity to be represented

       by three different public defenders, repeatedly delaying his jury trial as a result.

       The trial court did not deny Ware the right to representation; it bent over

       backwards to try to help him find an attorney with whom he could work. That

       Ware was unable or unwilling to accept the services of three different court-

       appointed attorneys does not mean that he had no choice but to represent

       himself. Therefore, we will analyze this case under the rubric established for

       defendants who demand the right to represent themselves at trial, as that is

       precisely what Ware did in this case.2


[15]   First, we consider the extent of the trial court’s inquiry into Ware’s decision to

       represent himself. The trial court engaged in conversation with Ware about this




       2
        Although Ware purports to make an argument under the Indiana Constitution as well as the United States
       Constitution, he provides no separate authority, argument, or analysis under the Indiana Constitution.
       Consequently, we decline to address his argument with respect to our state Constitution.

       Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016     Page 11 of 15
       issue in no less than five hearings over the course of nearly one year. Each

       occasion featured significant, lengthy conversations with Ware about the

       reasons for his decision as well as the challenges and disadvantages of self-

       representation. Indeed, the trial court repeatedly and forcefully counseled Ware

       that proceeding pro se would be extremely difficult. But Ware was not

       persuaded. In each conversation, he expressed dissatisfaction with his attorney

       at the time based on, in the State’s words, his “desire for what he thought was a

       perfect attorney who showed proper deference; attended to and answered every

       communication and demand; prepared the case Ware wanted; and would obey

       Ware’s instructions even if they meant presenting irrelevant matters or engaging

       in criminal or fraudulent conduct.” Appellee’s Br. p. 23. In the end, we find

       that the trial court conducted a sufficient inquiry into Ware’s decision to

       proceed pro se.


[16]   Second, as to whether Ware understood the dangers and disadvantages of self-

       representation, we again note that the trial court repeatedly, over the course of

       multiple hearings and nearly one year, cautioned Ware that proceeding pro se

       was not a wise course of action. Indeed, after Ware had been representing

       himself for some time during the pretrial proceedings, Ware returned to the trial

       court and asked for an attorney, explaining that he understood he would not be

       able to present his case to a jury as well as an attorney would. The trial court

       agreed, but while court staff was on the phone with Attorney Cox explaining

       that he had been re-appointed to Ware’s case, Ware changed his mind yet again

       and stated that he wanted to proceed pro se after all. So Ware was well aware


       Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016   Page 12 of 15
       of the disadvantages of representing himself but chose to proceed without

       counsel anyway.


[17]   Third, as to Ware’s background and experience, the record reveals he was

       thirty-three years old, had graduated from high school and attended college,

       and had earned a Paralegal Associates Degree in 2008. He was the subject of

       criminal prosecutions for theft in 2001; felony assault with a deadly weapon in

       2002; weapons possession and possession of criminal tools in 2005; possession

       of marijuana in 2006; disorderly conduct in 2007; and strangulation, domestic

       battery, and battery resulting in bodily injury in 2010. He had discussed the

       instant case with three experienced attorneys. We find that this record does not

       suggest that Ware was unfamiliar with legal proceedings or that he lacked the

       education and experience to understand his options and the effect of his

       decisions.


[18]   Finally, as to the context of Ware’s decision to represent himself, we note again

       that he had three different court-appointed public defenders at different points

       in his case. He was unable or unwilling to get along with any of them, refusing

       to listen to their advice that much of what he wished to argue at trial was

       irrelevant and confusing. The trial court did not give Ware an ultimatum; it did

       not unilaterally decree that he had waived his right to counsel by expressing

       displeasure with appointed counsel. Indeed, the trial court agreed to re-appoint

       Attorney Cox on the eve of trial, and was on the phone with counsel to inform

       him of the change in circumstances, when Ware changed his mind yet again

       and insisted he wished to proceed pro se. It is apparent that Ware carefully

       Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016   Page 13 of 15
       considered, and reconsidered, his option to represent himself; that he was aware

       of the challenges of self-representation; and that he ultimately decided that only

       he could present the case as he wished. Under these circumstances, we find

       that Ware’s waiver of counsel was knowing and intelligent. We decline to

       reverse on this basis.


                                       II. Restitution Order
[19]   Next, Ware contends that the trial court erred in ordering him to pay restitution

       to Silvertowne’s insurer. A trial court may order restitution to a victim as part

       of a defendant’s probation or sentence. Edsall v. State, 983 N.E.2d 200, 208

       (Ind. Ct. App. 2013). The “victim” is one who has “suffered injury, harm or

       loss as a direct and immediate result of the criminal acts of a defendant.” Sickels

       v. State, 982 N.E.2d 1010, 1013 (Ind. 2013); see also Lang v. State, 911 N.E.2d

       131, 136 (Ind. Ct. App. 2009) (noting that “victim” includes insurers who have

       paid money to insureds as a result of harm or injury caused by a crime). We

       will reverse the restitution order only if no evidence or reasonable inferences

       support the decision or if the trial court has misinterpreted or misapplied the

       law. Edsall, 983 N.E.2d at 208.


[20]   At the sentencing hearing, the trial court was provided with an affidavit from

       Silvertowne’s Vice President and General Manager. The affidavit stated that

       the value of the stolen coins was $69,245, that the amount had been covered in

       full by Silvertowne’s insurer, and that a $1,000 deductible had been paid by a

       carrier. Appellant’s App. Vol. IV p. 12. Ware did not object to this affidavit or


       Court of Appeals of Indiana | Memorandum Decision 68A01-1604-CR-754 | October 26, 2016   Page 14 of 15
       dispute its contents. The trial court entered an order requiring Ware to pay

       restitution in the amount of $68,245 to Silvertowne’s insurer. Ware directs our

       attention to other evidence in the record that he claims undercuts the trial

       court’s order, but this amounts to a request that we reweigh evidence—a

       request we decline. The affidavit constitutes sufficient evidence to support the

       trial court’s restitution order, and we find no error on this basis.


[21]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Najam, J., concur.




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