                                                                                FILED
                                                                            Apr 11 2018, 8:59 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Stacy R. Uliana                                            Curtis T. Hill, Jr.
Bargersville, Indiana                                      Attorney General of Indiana
                                                           Ellen H. Meilaender
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Stephen Wirthlin,                                          April 11, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           24A01-1711-CR-2662
        v.                                                 Appeal from the Franklin Circuit
                                                           Court
State of Indiana,                                          The Honorable Clay M.
Appellee-Plaintiff                                         Kellerman, Judge
                                                           Trial Court Cause No.
                                                           24C02-1702-F6-174



Baker, Judge.




Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018                           Page 1 of 15
[1]   Stephen Wirthlin appeals the trial court’s order denying his motion to withdraw

      his guilty plea. Wirthlin argues that he did not knowingly, intelligently, and

      voluntarily waive his right to counsel at the initial or guilty plea hearings and

      that, as a result, he is entitled to withdraw his plea. We agree. Therefore, we

      reverse and remand for further proceedings.


                                                       Facts
[2]   On February 28, 2017, the State charged Wirthlin with Level 6 felony

      possession of methamphetamine and two counts of Level 6 felony dealing in a

      synthetic drug or synthetic drug lookalike substance. Wirthlin’s initial hearing

      took place on March 7, 2017; before the hearing, he signed a form advising him

      of his rights. The trial court first showed Wirthlin the document he had signed

      regarding his rights and asked if he read and signed it; Wirthlin replied, “yes, I

      did sir, I tried I could the best I could without glasses yet,” and when the trial

      court asked if Wirthlin had any questions about what it meant, Wirthlin said,

      “[u]m, no I do understand somewhat [sic] of what it means.” Appellant’s App.

      Vol. II p. 65. The trial court asked if Wirthlin had read the charges and

      Wirthlin replied, “yes, as best I could.” Id. Wirthlin pleaded not guilty to the

      charges and the following discussion then occurred regarding legal

      representation:


              Wirthlin:         Um, would I be able to request a fast and speedy
                                trial?


              Court:            You can, what are you going to do about an
                                attorney?
      Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018    Page 2 of 15
        Wirthlin:         I’m not sure sir, um I’m being [sic] at this point to
                          being indigent, um I have no employment, I was
                          taking care of my father . . . .


        Court:            Well let me stop you, are you asking for a court
                          appointed attorney, or are you going to hire your
                          own? Or are you going to represent yourself?


        Wirthlin:         Um, I’m not sure at this point sir, I just know that
                          um I can’t sit out that long; um this gotta be over
                          with. I’m the caretaker of my old man . . . .


        Court:            . . . I’m going to schedule your Jury Trial, May 10th
                          at 8:30 a.m. Um, and I do want to advise you that
                          if you show up May 10th without an attorney, um,
                          you’re going to be held at the same standards as the
                          state of Indiana. . . . [The prosecutor] has been
                          trained of the rules and procedure of the rules and
                          (indiscernible) the rules of substance of law [sic] all
                          of those same things will apply to you. Um, if you
                          have any motions (indiscernible) or oppose jury
                          instructions, uh, despondent [sic] motions, all of
                          that will need to be filed by the Pre-Trial conference
                          date to be considered uh, by the Court. Do you
                          have any other questions?


        Wirthlin:         (indiscernible) [J]ust curious of how to take care of
                          this just a[s] fast as I can sir I have a father that was
                          supposed to be care taken and he has to have his left
                          leg removed.


        Court:            Well do you have any questions about the case?


        Wirthlin:         Um, sigh . . . uh . . . .

Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018         Page 3 of 15
        State:            If he’s representing himself judge, um he, he can
                          discuss negotiate [sic] with me, if that’s what he is
                          getting at. But right at, at during the term that he’s
                          representing himself that’s fine I’ll talk to him after
                          [the] court hearing.


        Court:            He has the right; again he is representing his [sic]
                          self.


        Wirthlin:         I’m just trying to figure out the best way to handle
                          this Your Honor.


        Court:            Well I . . . .


        Wirthlin:         I can’t afford an attorney.


        Court:            You said you didn’t want one though.


        Wirthlin:         No, I didn’t say I didn’t want one, I said I couldn’t
                          afford one.


        Court:            But you told me you weren’t asking for one.


        Wirthlin:         Um, well no, no I’m not, I [sic] just I [sic] not sure
                          how to approach this.


        Court:            Well it’s um; you have your court dates.


        Wirthlin:         Yes sir.


        Court:            You know what you’re charged with.



Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018           Page 4 of 15
              Wirthlin:         Yes sir.


              Court:            You know what your rights are.


              Wirthlin:         Yes sir.


              Court:            You know you have the right to be represented by
                                an attorney [sic] you indicated to the court that
                                you’re not asking for one. You’ve been advised of
                                your, of the perils and [sic] representing yourself
                                um, you have . . . your trial date.


              Wirthlin:         Yes sir.


              Court:            If you have, questions or legal advice the court can’t
                                give you that that [sic] you can represent yourself or
                                you can um, talk to an attorney. Do you have any
                                other questions about today?


              Wirthlin:         No sir.


      Id. at 66-68.


[3]   That same day, following the hearing, Wirthlin and the prosecutor engaged in

      plea negotiations. Without having talked to an attorney, Wirthlin agreed to

      plead guilty to two of the three charges, with the third to be dismissed. The

      sentence was left to the trial court’s discretion. Wirthlin signed a general

      document regarding his rights in the guilty plea stage and the impact of a guilty

      plea; included on the document was a general advisement regarding the right to

      counsel.

      Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018       Page 5 of 15
[4]   Wirthlin’s guilty plea hearing took place that same day—March 7, 2017. At

      that hearing, the trial court reminded Wirthlin that “[y]ou do have the right to

      [be] represented by an attorney. Do you understand that by pleading guilty,

      you’re giving that right up?” Id. at 71. Wirthlin responded affirmatively. He

      ultimately pleaded guilty to Level 6 felony possession of methamphetamine and

      Level 6 felony dealing in a synthetic drug or a synthetic drug lookalike.

      Following Wirthlin’s April 4, 2017, sentencing hearing, the trial court

      sentenced him to concurrent terms of twenty-four months incarceration with

      sixteen months suspended to probation.


[5]   On September 1, 2017, Wirthlin, by counsel, filed a motion to withdraw his

      guilty plea.1 He argued that he did not knowingly and voluntarily plead guilty

      because the plea was a product of an invalid waiver of counsel, which was

      premised on his misunderstanding that a waiver of counsel was necessary to

      quickly resolve the case. Following a hearing, the trial court denied Wirthlin’s

      motion on November 3, 2017. The trial court noted that Wirthlin signed a

      document regarding his rights, including the right to legal representation, and

      that it orally advised him of his rights, which Wirthlin indicated he understood.

      Additionally,




      1
       Wirthlin had already initiated a direct appeal but voluntarily withdrew that appeal so that he could move to
      withdraw the guilty plea.

      Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018                        Page 6 of 15
        3.       . . . [Wirthlin] indicated he was not sure [what he planned
                 to do about an attorney] but never requested the Court to
                 appoint counsel.


        4.       . . . Again, [Wirthlin] never requested counsel. As the
                 hearing proceeded the Court again inquired if [Wirthlin]
                 was representing himself. Again, specifically, [Wirthlin]
                 indicated he was not asking for counsel . . . .


        5.       Therefore, at the Initial Hearing, [Wirthlin] was advised in
                 writing, and several times orally, that he has the right to be
                 represented by an attorney and that the Court can appoint
                 one to him. At no time did [Wirthlin] ever ask for Court
                 appointed counsel.


        6.       Later in the morning on March 7, 2017, the State of
                 Indiana indicated that [Wirthlin] wished to plead guilty.
                 [Wirthlin] was given another written advisement of rights
                 form which also included specific language on the right to
                 counsel and the waiver of counsel. [Wirthlin] signed said
                 document . . . .


                                                  ***


        9.       During the plea hearing, [Wirthlin] was advised of his
                 rights, the nature of the charges, that by pleading guilty he
                 was waiving certain rights, the possible penalties he could
                 receive if found guilty and was questioned to ensure that
                 his plea was not the product of coercion. . . . Again,
                 [Wirthlin] never asked for the appointment of counsel.


                                                  ***




Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018      Page 7 of 15
              11.      . . . At no time during the plea hearing did [Wirthlin]
                       express any doubts about his rights, his waiver of rights,
                       the nature of the charges against him or the possible
                       penalties he could receive. At no time during any of the
                       three hearings in this matter did [Wirthlin] ever request
                       counsel.


      Id. at 87-89 (internal citation omitted). Wirthlin now appeals.


                                    Discussion and Decision
[6]   Wirthlin argues that the trial court should have granted his motion to withdraw

      his guilty plea. Motions to withdraw guilty pleas are governed by statute,

      which states as follows, in relevant part:


              (c)      After being sentenced following a plea of guilty . . . , the
                       convicted person may not as a matter of right withdraw
                       the plea. However, upon motion of the convicted person,
                       the court shall vacate the judgment and allow the
                       withdrawal whenever the convicted person proves that
                       withdrawal is necessary to correct a manifest injustice. A
                       motion to vacate judgment and withdraw the plea made
                       under this subsection shall be treated by the court as a
                       petition for postconviction relief under the Indiana Rules
                       of Procedure for Postconviction Remedies. For purposes
                       of this section, withdrawal of the plea is necessary to
                       correct a manifest injustice whenever:


                       (1)      the convicted person was denied the effective
                                assistance of counsel . . . .


                                                        ***



      Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018       Page 8 of 15
               (e)     Upon any motion made under this section, the moving
                       party has the burden of establishing his grounds for relief
                       by a preponderance of the evidence. . . .


      I.C. § 35-35-1-4 (emphasis added). Additionally, Indiana Code section 35-35-1-

      1 states plainly that a guilty plea “shall not be accepted from a defendant

      unrepresented by counsel who has not freely and knowingly waived his right to

      counsel.” See also Laffler v. Cooper, 566 U.S. 156, 162 (2012) (holding that plea

      negotiations are a critical stage to which the constitutional right to counsel

      applies); Iowa v. Tovar, 541 U.S. 77, 81, 87 (2004) (same with respect to entry of

      guilty plea).


[7]   In this case, to determine whether Wirthlin should have been permitted to

      withdraw his guilty plea, we must first determine whether he knowingly,

      voluntarily, and intelligently waived his right to counsel. As an initial matter,

      we note our marked skepticism that he waived his right to counsel at all. At no

      point during the initial hearing did he indicate a wish to represent himself.

      More than once, he expressed confusion about the proceedings; more than

      once, he indicated that he was unable to afford an attorney; and more than

      once, he indicated a desire that the proceedings move as quickly as possible so

      that he could get home to care for his ailing father. With respect to legal

      representation, Wirthlin said “I’m not sure,” “I’m not sure at this point,” “I’m

      just trying to figure out the best way to handle this,” “I didn’t say I didn’t want

      [an attorney], I said I couldn’t afford one,” and “I[’m] just not sure how to

      approach this.” Appellant’s App. Vol. II p. 67-68.


      Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018      Page 9 of 15
[8]   The trial court improperly placed the burden on Wirthlin by finding that he did

      not invoke his right to counsel by requesting a public defender. It is well

      established that there is a strong presumption against the waiver of the right to

      counsel, and it is the trial court that bears the “‘serious and weighty

      responsibility . . . to determine whether there was an intelligent and competent

      waiver. . . . To discharge the duty imposed, a judge must investigate as long

      and as thoroughly as the circumstances of the case before him demand.’” Eaton

      v. State, 894 N.E.2d 213, 217 (Ind. Ct. App. 2008) (quoting Mitchell v. State, 417

      N.E.2d 364, 369 (Ind. Ct. App. 1981) (internal citations omitted)). The fact

      that Wirthlin did not explicitly request appointment of a public defender is of

      no moment, and the trial court erred by burdening him with the obligation to

      do so.2


[9]   Although we are inclined to find that Wirthlin did not waive his right to

      counsel at all, the State insists that he did so by virtue of the written forms he

      signed before the initial and guilty plea hearings; therefore, we will consider

      whether those documents, in addition to the oral advisements, amount to a

      knowing and voluntary waiver.3 We observe, first, that neither of these




      2
        Moreover, the fact that the prosecutor later represented to the trial court that he, too, had told Wirthlin of
      the right to counsel and that Wirthlin had waived it does not serve to satisfy the duty of the trial court.
      3
        The State also argues that Wirthlin’s arguments fail because he “does not claim that he was actually
      innocent or that he would not have pled guilty had he been advised differently.” Appellee’s Br. p. 25. But
      Indiana Code section 35-35-1-4(c) states that the motion to withdraw a guilty plea “need not allege, and it
      need not be proved, that the convicted person is innocent of the crime charged or that he has a valid defense”
      to be entitled to withdrawal. Moreover, there is no prejudice element to a claim that a waiver of legal
      representation was not knowing, intelligent, and voluntary. Therefore, this argument is unavailing.

      Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018                           Page 10 of 15
       documents constitutes an explicit and thorough waiver of his right to counsel.

       See Hopper v. State, 957 N.E.2d 613, 615 (Ind. 2011) (defendant waived right to

       counsel where he signed a waiver of attorney provision stating “I do not wish to

       be represented by an attorney in this case,” “I understand that I have the right

       to an attorney,” “I know that if I am without funds . . . the Judge will appoint a

       Public Defender to represent me,” and “I freely and voluntarily give up my

       right to be represented by an attorney”). Instead, the documents signed by

       Wirthlin were merely the boilerplate advisements of rights forms provided to

       every criminal defendant at the initial hearing and, when relevant, at the guilty

       plea hearing. See Appellant’s App. Vol. II p. 44 (guilty plea form informing

       defendant of the right to an attorney and the right to an appointed attorney

       when needed), 46 (initial hearing form informing defendant of the same).


[10]   “When a defendant asserts the right to self-representation, the court should tell

       the defendant of the ‘dangers and disadvantages of self-representation.’”

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

       422 U.S. 806, 835 (1975)). Although a trial court need not follow specific

       “talking points” when advising a defendant of the dangers and disadvantages of

       proceeding without counsel, a trial court must come to a “considered

       determination” that the defendant is making a knowing, voluntary, and

       intelligent waiver of his right to counsel. Id.


[11]   To determine whether a knowing, voluntary, and intelligent waiver has

       occurred, an appellate court considers these four factors: (1) the extent of the

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

       Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018   Page 11 of 15
       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.

       E.g., id. at 1127-28. A lack of any advisement regarding the dangers and

       disadvantages of self-representation “weighs heavily against finding a knowing

       and intelligent waiver.” Id. at 1128. The “importance of the right to counsel

       cautions that trial courts should at a minimum reasonably inform such

       defendants of the dangers and disadvantages of proceeding without counsel.”

       Id.


[12]   First, as to the extent of the trial court’s inquiry, it did confirm that Wirthlin

       had signed the requisite forms before both hearings, which contained

       advisements regarding his right to counsel, and that he understood them. 4 It

       made no inquiry whatsoever, however, into Wirthlin’s purported “decision” to

       waive his right to representation. And indeed, as noted above, at the initial

       hearing, Wirthlin never once unequivocally stated that he wished to represent

       himself. It is far from apparent that any such “decision” had been made, and

       the lack of inquiry into Wirthlin’s thought process only exacerbates the

       uncertainty.




       4
         Moreover, we note that it was not wholly clear that Wirthlin did, in fact, read and understand the
       advisement of rights form before the initial hearing. He stated, “I tried the best I could without glasses” and
       said, “I do understand somewhat [sic] of what it means.” Appellant’s App. Vol. II p. 65.

       Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018                         Page 12 of 15
[13]   Second, as to whether Wirthlin understood the dangers and disadvantages of

       self-representation, the trial court did provide a somewhat muddled advisement

       that if he went to trial, he would be held to the same standard as the prosecutor,

       expected to comply with the law and legal procedure, and expected to engage in

       motion practice and discovery. This advisement meets the bare minimum

       expected of a trial court.


[14]   Third, as to Wirthlin’s background and experience, while he has a limited

       criminal history, the instant offenses are his first felony charges. He has ten

       prior misdemeanor convictions, eight of which occurred twenty-four years ago

       and are for passing bad checks. He has been on probation twice. Wirthlin’s

       limited background and experience with the criminal justice system does not

       lead us to conclude that his purported waiver of his right to counsel was

       knowing, intelligent, and voluntary.


[15]   Fourth, as to the context of the purported waiver, it is apparent from the

       transcript that Wirthlin’s primary concern was the speed at which he could get

       these matters resolved. He was worried about his ailing father, for whom he is

       the primary caregiver, and appears to have mistakenly concluded that the only

       way to get the charges resolved quickly was to proceed pro se. 5 Several times

       during the initial hearing, Wirthlin expressed confusion and uncertainty, and




       5
         The prosecutor also stated that he could negotiate with Wirthlin that day if he proceeded pro se, perhaps
       adding to Wirthlin’s sense of urgency. No one advised Wirthlin that an attorney could quickly seek a bond
       reduction.

       Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018                       Page 13 of 15
       rather than take the time to probe his thought process and guide him, the trial

       court was all too quick to interpret confusion and uncertainty as an unequivocal

       decision to proceed pro se. Then, immediately after that hearing concluded,

       while still in court, pro se Wirthlin and the prosecutor engaged in plea

       negotiations. The guilty plea hearing took place that same morning.


[16]   We acknowledge that Wirthlin signed the documents pointed to by the State,

       but those documents do not, and cannot, suffice to fulfill the trial court’s

       responsibility to ensure a knowing, intelligent, and voluntary waiver of counsel.

       If these documents were enough, trial courts would not need to engage in any

       discussion of these matters with defendants, but courts of this State have quite

       clearly held that there is, indeed, such an obligation.


[17]   Under these circumstances, we find that Wirthlin did not knowingly,

       intelligently, and voluntarily waive his right to counsel. Consequently, the

       guilty plea should not have been accepted by the trial court. I.C. § 35-35-1-1.

       But as the plea was accepted and Wirthlin was sentenced thereafter, we find

       that it was necessary to grant Wirthlin’s motion to withdraw the plea to correct

       a manifest injustice, namely, that Wirthlin was denied the effective assistance of

       counsel. I.C. § 35-35-1-4(c). Therefore, we reverse and remand for further

       proceedings.




       Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018   Page 14 of 15
[18]   The judgment of the trial court is reversed and remanded with instructions to

       withdraw Wirthlin’s guilty plea, vacate the convictions and sentences, and for

       further proceedings.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 24A01-1711-CR-2662 | April 11, 2018   Page 15 of 15
