MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Jun 19 2018, 8:32 am
this Memorandum Decision shall not be                                     CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court


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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana                                    Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Riggle,                                          June 19, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1710-CR-2425
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G03-1605-F1-20345



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018          Page 1 of 17
[1]   Michael Riggle appeals his convictions for multiple offenses including child

      molesting, sexual misconduct with a minor, child seduction, and activity related

      to an obscene performance. Riggle raises one issue which we revise and restate

      as whether he made a knowing, voluntary, and intelligent waiver of his right to

      counsel. We affirm.


                                      Facts and Procedural History

[2]   On May 27, 2016, the State charged Riggle with: Count I, child molesting as a

      class A felony; Count II, child molesting as a class A felony; Count III, sexual

      misconduct with a minor as a class B felony; Count IV, child molesting as a

      class C felony; Count V, child seduction as a level 5 felony; Count VI, child

      seduction as a level 5 felony; Count VII, child seduction as a level 5 felony;

      Count VIII, child molesting as a level 1 felony; and Count IX, activity related to

      obscene performance.


[3]   At the beginning of the trial, on August 28, 2017, Riggle fired his attorney and

      requested to move forward pro se. Specifically, the following exchange

      occurred:


              [Riggle]: You’re fired. I – I’ll be going pro se.

              THE COURT: Well, sir, you’re represented by counsel this
              morning. We’ve - -

              [Riggle]: Yeah, I just fired him.

              THE COURT: Okay. Don’t – don’t interrupt me. Okay?

              [Riggle]: F--- it. Do what you’re going to do. Let’s go, man.
              We’re trying to get – this s--- on the road.
      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 2 of 17
      Transcript Volume 2 at 15.


[4]   The trial court informed Riggle that he had not been given permission by the

      court to proceed pro se. Riggle expressed concern about how his attorney had

      not come to visit him, stated he was not aware of what his attorney had done to

      prepare, and indicated that he was “more comfortable doing it on [his] own.”

      Id. at 17. The court then questioned him and his attorney, Kevin McShane,

      about Riggle’s decision to proceed pro se. When questioned, Attorney McShane

      stated Riggle had an absolute right to represent himself and that he had no

      reason to believe Riggle was not competent. The court took a recess to allow

      Riggle and his attorney to discuss the situation. After the recess, Attorney

      McShane stated he thought Riggle’s desire to proceed pro se was sincere and

      asked the court for permission to withdraw as counsel.


[5]   The court placed Riggle under oath and began questioning him about his

      decision to proceed pro se. The court questioned Riggle regarding his education,

      and he testified that he received a GED with honors, completed one year of

      college, and completed trade school for plumbing.


[6]   The court asked Riggle if he was currently under the influence of any alcohol or

      prescription medication, and he answered “no.” The following exchange took

      place:


               THE COURT: . . . Have you ever been treated for any mental
               illness of any kind?

               [Riggle]: Manic depression and bipolar disorder.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 3 of 17
              THE COURT: And how long ago was that?

              [Riggle]: That I was treated?

              THE COURT: Yes.

              [Riggle]: It’s been years. I don’t -- over a decade.

              THE COURT: [A]ny treatment for any mental health issues
              since you’ve been charged with this case?

              [Riggle]: Yeah . . . I was prescribed Depakote, but I - - I quit
              taking Depakote months ago.

              THE COURT: And was that for depression or - -

              [Riggle]: Yes.

              THE COURT: Okay.

              [Riggle]: It was for bipolar depression.

              THE COURT: Okay. And you’re not taking that anymore?

              [Riggle]: No.

              THE COURT: Does that affect your ability to understand
              anything going on around you?

              [Riggle]: No, ma’am.


      Id. at 25-26.


[7]   The court informed Riggle that it recommends everyone be represented by

      counsel and again stated the serious nature of the case. Riggle indicated that

      the charges were very serious and that he understood them. He agreed to

      follow the rules of court if he were to proceed pro se. With respect to Count IX,

      the court explained that the State did not specifically name an alleged victim
      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 4 of 17
      and that the State’s proof at trial had to be that the victim was an individual

      who was or who appeared to be under sixteen years of age. Riggle stated:

      “That part I didn’t understand very well.” Id. at 31. The following exchange

      occurred:


              THE COURT: That’s okay. And by your questions, that causes
              the Court some concern that you don’t understand the
              allegations or the discovery that’s been filed in this case.

               [Riggle]: I haven’t seen the discovery.

              THE COURT: Okay. How are you going to proceed to trial if
              you haven’t reviewed all your discovery?

              [Riggle]: I’m going to wing it.

              THE COURT: You’re going to wing it.

              [Riggle]: Yes, ma’am.


      Id.


[8]   Upon the court’s questioning, Riggle confirmed that he had earned a GED with

      honors and completed his freshman year of college. Riggle indicated that he

      had no legal training and that he understood that his attorney was licensed to

      practice law in Indiana, had been doing so for many years, and had skill and

      expertise. He also indicated that he understood representing himself could be

      hurtful to his defense and that he might lose. Under further questioning by the

      court, Riggle indicated that he fully understood he would be on his own, he was

      expected to abide by the same standards as a licensed attorney, the State would

      be represented by licensed attorneys, his attorney knew how to review and

      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 5 of 17
       examine documents or testimony, prepare any pre-trial motions, make

       objections, review the court’s instructions, and make favorable opening and

       closing statements on his behalf, and that he would be unable to later claim

       ineffective assistance of trial counsel.


[9]    The following exchange then occurred:


               THE COURT: Now, with respect to the way a trial works, I
               know, because we were here together, you have been to trial on
               one other case where you were represented by counsel. So I
               know from the defendant’s chair you observed all that happened
               in that trial; correct?

               [Riggle]: Yes, Your Honor.

               THE COURT: Okay. But—

               [Riggle]: I think I could do a better job on my own.


       Id. at 36.


[10]   Upon further questioning by the court, Riggle indicated that he understood he

       was expected to follow all the rules of court and the Rules of Evidence, a

       closing argument could not be based on items not in the record, it was his

       responsibility to preserve issues for appeal, the State would have the right to

       cross-examine him if he chose to testify, and he understood the charges against

       him and the possibility that there could be lesser included offenses. The court

       advised him that when defendants proceed pro se, it tries to provide standby

       counsel to sit in the back of the courtroom to discuss rules of evidence. The

       following exchange occurred:

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 6 of 17
        [Riggle]: Yeah, I – I understand I am – I am completely out of
        my league here, Your Honor.

        THE COURT: Okay. And is there – this acknowledgement by
        you of that kind of screams to the Court that you should be
        represented by counsel. Is there – is it – is it that you want more
        time to talk to your counsel?

        [Riggle]: I don’t – I don’t understand the question, ma’am.

        THE COURT: Well, your answers to the Court, I mean, is - -
        are making a clear record that you’re not qualified legally. We
        know that. As your lawyer said, the law does state that
        individuals, even though they’re not qualified in the law, they
        can represent themselves if they want to. But you’re
        acknowledging in all of my questions really that you’re not that
        well versed on any of these legal issues. Your attorney is very
        well versed

        [Riggle]: I know.

        THE COURT: - - on these issues.

        [Riggle]: I don’t even watch Law & Order, Your Honor, so I – I –

        THE COURT: You what?

        [Riggle]: I said I don’t even watch Law & Order, so I am - -

                                             *****

        [Riggle] - - I am completely out of my depth. But at the same
        time, I feel like nobody cares about my life as much as I do. So
        I’m going to give it my best shot, and - - and that’s going to be
        that.

                                             *****

        THE COURT: Is it - - and you’re ready to go to trial today?



Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 7 of 17
         [Riggle]: I really would like a continuance, but I’m going to - - I
         mean, just time to get all of the discovery and everything. But
         you know, I’m - - I’m not - - I’m not going to press that issue if
         the State’s ready to go and the witnesses are here and - - and - -
         you know, I - - I realize this case has been dragging on for over a
         year now.

         And just - - I’m just ready to get it over with. I’m already - - like
         I said, Your Honor, I’m - - I’m already doing the rest of my life in
         prison.[1]

                                                  *****

         THE COURT: Okay. All right. So what are you saying, Mr.
         Riggle? That - -

         [Riggle]: I’m ready to go to trial.

         THE COURT: Okay. You understand that you’re going to do
         so at your own detriment.

         [Riggle]: I understand I’m probably going to lose, Your Honor.

                                                  *****

         [Riggle]: I’m - - I’m- - I’m oh and one at trial with an attorney. I
         don’t know what I would be by myself. That’s - - that’s where I
         sit.

         And I don’t feel as though if I get a continuance, it - - I don’t feel
         it would help me to be one and oh any more than going today
         would. There’s just nothing to learn from - - from time at this
         point . . . .




1
  Riggle had previously received a total sentence of sixty years for three counts of child molesting as level 1
felonies under a separate cause number. See Riggle v. State, No. 49A02-1704-CR-787, slip op. at 3 (Ind. Ct.
App. December 29, 2017).

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018                 Page 8 of 17
        THE COURT: No. But, I mean, with respect to your preparing
        of your defense, whatever that might be - -

        [Riggle]: I’m- - I’m

        THE COURT: - - or reviewing the discovery and so forth - -

        [Riggle]: Right.

                                             *****

        [Riggle]: I’m just going to wing it today, Your Honor, if - - if you
        allow that.

        THE COURT: I really - - I mean, I was - - I was right there, as
        far as your right to represent yourself and you giving you pro se
        status. But winging it today is a little concerning to the Court.

        [Riggle]: Your Honor, if I may, if you put it out for two weeks, a
        month, two months, however long, on that day I’ll just be
        winging it, more or less, you know. There’s - - there’s no way for
        me to adequately become an attorney overnight.

        THE COURT: I understand and - - but the Court has, over - -
        over the years - - and we currently still have some defendants on
        our dockets that are representing themselves. And quite frankly,
        it’s the Court’s experience that they usually try and get as many
        continuances as they can because they’re, you know, really trying
        to get up to speed on those issues that they think are important to
        their case.

        I mean, your - - you’re saying you’re ready to wing it, and you’re
        always going to wing it. I mean, why wing it when you have an
        attorney?

        [Riggle]: I’m going to give it my very best effort. And I’m not
        sure that anybody else would try as hard as I would.

        THE COURT: Well, I understand the sentiment that no one
        cares about your case as much as you do. I think probably every

Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 9 of 17
        defendant should feel like that in some sense, that you know, it’s
        most important to them.

        But my guess is that in most of our cases, the - - the person right
        next to the defendant who cares the most about the case is the
        defendant’s attorney. So - - and again, we’re going back to that
        person is an individual who’s trained in the law and ready to
        represent you.

        But at this point, I don’t - - I don’t think I can make more of a
        record than I’ve already done that the Court has cautioned you
        about doing this, that the Court recommends that you be
        represented by counsel. But you know, my job is also to - - to
        follow the law and the Constitution. And I take an oath to do
        that.

        And if you, knowing all of these dangers, still wish - - wish to
        represent yourself, I have to give you the right to do that. So I
        will show that at this time, the Court is granting the defendant’s
        right to proceed pro se in this matter.

        Now, I have a document that I used when I went through all the
        questions with you. I’d like to send it out to you so that you can
        review it and - - and then fill out your certification part as the
        defendant.

        [Riggle]: (Complying.)

        THE COURT: Do you want a copy of that?

        [Riggle]: No.

        THE COURT: All right. And are you - - so you want me to - -
        then at this point I will grant Mr. McShane’s motion to withdraw
        as well? That’s what you want is that right?

        [Riggle]: Yes.




Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 10 of 17
               THE COURT: Okay. We’ll show that’s granted. And so now
               let’s turn to our trial. Are you ready to proceed to trial at this
               time?

               [Riggle]: I am, Your Honor.


       Id. at 44-55.


[11]   The document referenced by the court and signed by Riggle states:


               COURT ORDER REGARDING DEFENDANT’S REQUEST
                            TO PROCEED PRO SE

               The Court hereby grants the defendant’s request to proceed pro se
               and certifies that it has advised the defendant:

                                                    *****

                        14. The defendant understands the charges against him,
                        the possibility that there may be lesser included offenses,
                        and the possibility that there may be defenses or mitigating
                        circumstances that the defendant may not be aware of.

               The court further notes the defendant has assured this court:

                        1. The defendant has sufficient educational background
                           and mental capacity to conduct his defense.

                        2. That no one has made any promises or threats to get
                           the defendant to waive his right to counsel and the
                           waiver is made freely, knowingly, voluntarily, and
                           understandingly.

                        3. The defendant understands he will receive no special
                           treatment from the court due to his lack of legal
                           expertise.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 11 of 17
                        4. The defendant believes it is in his best interest to defend
                           himself despite the advisement of rights listed above.

                        5. The defendant still elects to waive his right to counsel
                           and proceed pro se.

                                 DEFENDANT’S CERTIFICATION

               As the defendant in this cause, I certify that the court has advised
               me of the rights listed above, has answered any questions I have
               about those rights, and has given me the opportunity to consult
               with counsel about these rights. With full knowledge of these
               rights and advisements, I still wish to proceed by representing
               myself without benefit of counsel.


       Appellant’s Appendix Volume 2 at 150-151. Riggle refused standby counsel.

       During the trial, he cross-examined the State’s witnesses, recalled one of the

       State’s witnesses in his case-in-chief, gave a closing argument, and objected

       during the State’s closing argument. The jury found him guilty, and the court

       sentenced him to an aggregate term of seventy-five years.


                                                   Discussion

[12]   The issue is whether Riggle made a knowing, voluntary, and intelligent waiver

       of his right to counsel. 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. Hopper v. State, 957

       N.E.2d 613, 617 (Ind. 2011) (citing Faretta v. California, 422 U.S. 806, 807, 95 S.

       Ct. 2525 (1975)). “This protection also encompasses an affirmative right for a

       defendant to represent himself in a criminal case.” Id. (citing Faretta, 422 U.S.

       at 807). “[W]hen a criminal defendant waives his right to counsel and elects to

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 12 of 17
       proceed pro se, we must decide whether the trial court properly determined that

       the defendant’s waiver was knowing, intelligent, and voluntary.” Jones v. State,

       783 N.E.2d 1132, 1138 (Ind. 2003). Waiver of assistance of counsel may be

       established based upon the particular facts and circumstances surrounding the

       case, including the background, experience, and conduct of the accused. Id.

       “There are no prescribed ‘talking points’ the court is required to include in its

       advisement to the defendant; it need only come to a considered determination

       that the defendant is making a voluntary, knowing, and intelligent waiver.”

       Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001) (quoting Leonard v. State, 579

       N.E.2d 1294, 1296 (Ind. 1991)). The Indiana Supreme Court has held that it is

       sufficient that the trial court make the defendant “aware of the dangers and

       disadvantages of self-representation, so that the record will establish that he

       knows what he is doing and his choice is made with eyes open.” Leonard, 579

       N.E.2d at 1295 (internal citation omitted).


[13]   In reviewing the adequacy of a waiver, we consider four factors: “(1) the extent

       of the court’s inquiry into the defendant’s decision, (2) other evidence in the

       record that establishes 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 pro se.”

       Kubsch v. State, 866 N.E.2d 726, 736 (Ind. 2007) (quoting Poynter, 749 N.E.2d at

       1127-1128 (quoting United States v. Hoskins, 243 F.3d 407, 410 (7th Cir. 2001))),

       reh’g denied, cert. denied, 553 U.S. 1067, 128 S. Ct. 2501 (2008). It is the trial

       court that is in the best position to assess whether a defendant has knowingly

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 13 of 17
       and intelligently waived counsel. Poynter, 749 N.E.2d at 1128. Under the

       fourth factor, “the court considers whether the defendant’s decision appears

       tactical or strategic in nature or seems manipulative and intending delay,

       inferring knowledge of the system and understanding of the risk and

       complexities of trial from more deliberative conduct.” Id. at 1128 n.6. We will

       “most likely uphold the trial judge’s decision to honor or deny the defendant’s

       request to represent himself where the judge has made the proper inquiries and

       conveyed the proper information, and reaches a reasoned conclusion about the

       defendant’s understanding of his rights and voluntariness of his decision.” Id.

       (quoting Hoskins, 243 F.3d at 410).


[14]   Riggle concedes that “the trial court engaged in what was, overall, an extensive

       inquiry into his decision to proceed pro se” and that the first and second Poynter

       factors “weigh in favor of finding that [he] made a knowing, voluntary, and

       intelligent waiver of his right to counsel.” Appellant’s Brief at 14-15. However,

       he argues that “when the trial court, for all practical purposes, ignored [his]

       assertion that he suffers from a serious, untreated mental illness, the trial court’s

       colloquy was for naught.” Id. at 18. He contends the court did not adequately

       address the context and circumstances in which he made his request. He asserts

       that the record is unclear on whether his decision to proceed pro se was tactical

       because the court did not sufficiently inquire into his mental illness and cites

       Drake v. State, 895 N.E.2d 389 (Ind. Ct. App. 2008).


[15]   The State asserts that the trial court was correct in allowing Riggle to proceed

       pro se. It maintains that the court questioned Riggle extensively regarding his

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 14 of 17
       decision to proceed without counsel and gave him every opportunity to change

       his mind and that he repeatedly asserted his desire to represent himself pro se.

       It maintains that Riggle understood he was waiving his right to counsel and that

       he understood the consequences of that waiver. It also asserts that the record

       sufficiently establishes that Riggle was not suffering from a mental health

       condition that affected his ability to understand his charges, his duties as a pro se

       defendant, or the adverse consequences of self-representation that the court

       warned him against.


[16]   To the extent Riggle cites Drake, we find that case distinguishable. In Drake, we

       held that the first and second Poynter factors weighed in favor of finding that

       Drake did not make a knowing, intelligent, and voluntary waiver of his right to

       counsel because Drake was not adequately advised about or aware of the

       dangers and disadvantages of proceeding without counsel. 895 N.E.2d at 394.

       Further, there was no specific inquiry into Drake’s background, education, or

       abilities. Id. at 395. Drake’s standby counsel filed a motion for a competency

       evaluation, which placed Drake’s competency into question. Id. Drake’s father

       stated that he believed that Drake had manic depression and was a

       “conspiracist in his thought process,” and several witnesses testified that Drake

       had told them that his life was in danger and that there was a potential

       conspiracy to murder him. Id. We held that “the sparse record regarding

       Drake’s background, education, and abilities, coupled with Drake’s uncertain

       mental state, leads us to weigh this factor in favor of not finding a voluntary,

       knowing, and intelligent waiver of the right to counsel.” Id. We concluded that


       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 15 of 17
       Drake did not make a voluntary, knowing, and intelligent waiver of his right to

       counsel. Id. at 396.


[17]   Unlike in Drake, Riggle concedes that “the trial court engaged in what was,

       overall, an extensive inquiry into his decision to proceed pro se” and that the

       first and second Poynter factors “weigh in favor of finding that [he] made a

       knowing, voluntary, and intelligent waiver of his right to counsel.” Appellant’s

       Brief at 14-15. Indeed, the record reveals that the court engaged in an extensive

       colloquy with Riggle regarding the dangers and disadvantages of self-

       representation and that he insisted on proceeding pro se and rejected standby

       counsel. The record establishes that the court asked if Riggle had ever been

       treated for any mental illness, how long ago he received treatment, if he

       received any treatment for any mental health issues since he was charged in this

       case, whether he was continuing to take his medication, and whether his not

       taking medication affected his ability to understand anything going on around

       him. Riggle testified that he had been treated for manic depression and bipolar

       disorder over a decade earlier, that he stopped taking a medication months

       earlier, and asserted that not taking medication did not affect his ability to

       understand anything going on around him. He engaged in responsive and

       coherent exchanges with the trial court. Further, the record reveals that his

       decision to proceed pro se was tactical in nature as he testified that he believed

       he could do a better job on his own, he had concerns about how often his

       attorney had seen him, and that no one cared about his life as much as he did.

       We conclude that the trial court’s inquiry and Riggle’s responses were sufficient


       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 16 of 17
       to establish that Riggle made his decision to represent himself knowingly,

       voluntarily, and intelligently.


                                                   Conclusion

[18]   For the foregoing reasons, we affirm Riggle’s convictions.


[19]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-CR-2425 | June 19, 2018   Page 17 of 17
