MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jan 30 2019, 8:22 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer A. Joas                                         Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Rita White,                                              January 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-343
        v.                                               Appeal from the Switzerland
                                                         Circuit Court
State of Indiana,                                        The Honorable W. Gregory Coy,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         78C01-0908-FA-1116



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019                  Page 1 of 17
[1]   Following a jury trial, Rita White was found guilty of child molesting as a Class

      A felony and incest as a Class B felony. At sentencing, the trial court merged

      the offenses and then sentenced White to the maximum term of fifty years for

      the Class A felony child molesting conviction. White presents three issues for

      our review:


              1. Did White knowingly, intelligently, and voluntarily waive her
              right to counsel?


              2. Did the trial court rely upon improper aggravating factors in
              determining White’s sentence?


              3. Is White’s sentence inappropriate in light of the nature of the
              offense and White’s character?


[2]   We affirm.


                                       Facts & Procedural History


[3]   J.W. was born in 1989 and lived with his mother, White, and his slightly-older

      brother, R.W., until 1999. The three lived in a two-bedroom apartment where

      J.W. shared a room with White, and R.W. had his own room. J.W. recalled

      that beginning when he was about five or six, White “made [him] take [his]

      penis and put it in her vagina” and “made [him] play with her breast,”

      including putting his mouth on her breast. Exhibit Vol. III at 73. White would

      also “take [J.W.’s] penis and put it in her hands.” Id. at 75. The molestations

      continued until J.W. was ten years old.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 2 of 17
[4]   R.W. remembered living in the apartment and that J.W. shared a room with

      White. According to R.W., White and J.W. slept with “minimum clothes,”

      “always kept the door closed and locked,” and “always took showers and stuff

      together.” Transcript Vol. II at 35. On more than one occasion, R.W. walked

      into the bedroom and saw J.W. “laying on top of [White]” and White yelled at

      him to “get out.” Id.


[5]   In September 2003, R.W. told his foster mother that “he hated his brother for

      what his brother had done with” White. Id. R.W. then told his foster mother

      about how J.W. and White would take showers together and have sex. R.W.’s

      foster mother reported this information to Morris Alford, a case worker with

      the Switzerland County Division of Family and Children. Alford spoke with

      R.W., who repeated what he had told his foster mother. Alford also spoke with

      J.W., who acknowledged having had a sexual relationship with White. Alford

      reported what he had learned to the state police.


[6]   On November 12, 2003, the State charged White with Count I, child molesting

      as a Class A felony; Count II, incest as a Class B felony; and Count III,

      criminal deviate conduct as a Class B felony. White was arrested and released

      on bond the same day. On February 24, 2004, White’s counsel filed a motion

      for psychiatric examination to determine competence to stand trial, which the

      trial court ordered. In May 2006, the trial court issued a warrant for White’s

      arrest because she “refused to be examined by [court-appointed] psychiatrists

      when required to do so and has further refused to co-operate with three (3)

      court appointed attorneys.” Appellant’s Appendix Vol. II at 87.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 3 of 17
[7]   White was arrested again in February 2013 and appointed counsel. White

      posted bond on June 13, 2013. In February 2014, White’s trial counsel filed a

      motion for a hearing to determine White’s competency to stand trial. The trial

      court ordered that White be evaluated by two court-appointed psychiatrists.

      White cooperated with the evaluations by mental health service providers, and

      the service providers both submitted reports to the court in which they

      separately determined that White was competent to stand trial.


[8]   At a pretrial conference on September 8, 2014, White appeared before the trial

      court and requested permission to represent herself. The trial court addressed

      White’s request:


              Q.     What are your wishes regarding going forward with trial
              here? Are you wanting to have an attorney, are you wanting to
              represent yourself?


              A.       I’ll represent myself.


              Q.      Explain to me why you think you can do that because this
              is a fairly complicated matter?


              A.       Her and I just don’t get along. We don’t see eye to eye.


              Q.      Miss Stotts is not the only lawyer you’ve had in the course
              of this case if I recall?


              A.       I didn’t get rid of my other lawyer.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 4 of 17
        Q.     Do you intend to try and seek other counsel or do you
        really want to try and do this yourself because you do understand
        you’re looking at 30 to 50 years of your life on an A Felony if
        you’re found guilty, do you understand that? You’re willing to
        make that kind of a gamble here?


        A.       Yes.


        Q.     Do you understand that you have the right to counsel at
        no cost to you and Miss Stotts was appointed to represent you in
        this case and you’re saying you don’t want her to be your lawyer
        any more?


        A.       No.


        Q.    Have you ever represented yourself in a criminal case
        before?


        A.       No, nothing like that.


        Q.       Are you on any medications at this time?


        A.       No.


        Q.     You do understand that you’re entitled to be represented
        by a lawyer and you’re waiving your right to do that, correct?


        A.       Yes.


        Q.     What we’ll do here is remind you again that you do have
        the right to a lawyer. I’m going to show for the record that we’re
        going to relieve Miss Stotts to the extent that she wouldn’t be


Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 5 of 17
        representing you at trial. I am going to ask that she remain as
        what’s called standby counsel.


                                                ***


        If, at any time, while this case is pending, if you wish to request
        counsel, you certainly can do so but bear in mind, you can’t do
        that the day of trial. Once we get to trial date or right before that,
        it will be too late for another lawyer to get ready for trial. So if
        you change your mind, you will have to let us know pretty
        quickly. We’re going to show for the record that you’re waiving
        your right to be represented by an attorney at this time.


Transcript Vol. II at 3-5. White appeared telephonically for a pretrial conference

on April 22, 2015, during which the court confirmed the jury trial setting for

April 28, 2015, and White affirmatively stated that she was able to be there.

The court again confirmed White’s desire to represent herself, engaging in the

following colloquy with White:


        THE COURT: And you do not have a lawyer. We do have a
        lawyer appointed as standby counsel, that’s Miss Stotts, but just
        so the record is clear, you’ve been represented in this case a few
        times by different lawyers but each time you’ve chosen to ask
        that they be discharged, is that correct?


        A RITA WHITE: Yes. Inaudible. . . .


        THE COURT: And you asked that she not be your lawyer? You
        want to represent yourself, correct?


        A RITA WHITE: Right.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 6 of 17
        THE COURT: Now, Miss White, this is not like something you
        see on t.v. This is unbelievably complicated to do. Have you
        ever been involved in a jury trial in your life?


        A RITA WHITE: Inaudible. . . .


        THE COURT: And have you ever attended a trial?


        A RITA WHITE: Yes.


        THE COURT: Alright. Are you presently on any kind of
        medication?


        A RITA WHITE: No.


        THE COURT: You are not on any that you don’t understand
        anything that I’m saying, correct?


        A RITA WHITE: No.


        THE COURT: Are you employed?


        A RITA WHITE: No.


        THE COURT: Do you receive any unemployment or any
        disability or anything?


        A RITA WHITE: I get disability.


        THE COURT: Now, . . . we need to be sure that you understand
        that there is a potential penalty that’s very serious. If you were to
        be convicted of the most serious charge against you, there would

Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 7 of 17
        be a potential sentence of anywhere from 20 to 50 years in jail.
        Do you understand that?


        A RITA WHITE: Yeah.


        THE COURT: And the case would be tried on behalf of the
        State of Indiana and Mrs. Hensley will be the one representing
        the State and she is a professional lawyer and for several years
        she’s been involved in jury trials. She knows what she’s doing.
        Her most recent trial was in a case similar to yours, it was a child
        molesting case. The Defendant was represented by an attorney
        and that person was found guilty. That person was sentenced, I
        believe, to 36 years. You’re understanding the seriousness of a
        trial aren’t you?


        A RITA WHITE: Yeah, . . . . Inaudible. . .


        THE COURT: Just so you understand here that in several cases
        you were appointed a lawyer and they lost contact with you and
        withdrew from your case and Miss Stotts was appointed to
        represent you and you actually asked that she be discharged. She
        is willing to be here to help you. Now you understand that she
        won’t be able to ask any questions of any witnesses for you? Do
        you understand that?


        A RITA WHITE: Yeah I understand.


        THE COURT: She won’t be doing any of the trial for you . . . .


Id. at 7-9. The court then proceeded to explain to White how the trial would

proceed, and White indicated that she understood.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 8 of 17
[9]    Six days later, White failed to appear for her jury trial and was tried in absentia.

       At the conclusion of the trial, the jury found her guilty of Counts I and II. 1 The

       trial court then issued a warrant for her arrest. White was taken into custody

       two and a half years later, on December 13, 2017. The trial court held a

       sentencing hearing on January 12, 2018. The court merged Counts I and II and

       sentenced White to the maximum term of fifty years for child molesting as a

       Class A felony. White now appeals. Additional facts will be provided as

       necessary.


                                                 Discussion & Decision


                                           1. Waiver of Right to Counsel


[10]   White first argues that she did not knowingly, intelligently, and voluntarily

       waive her right to counsel. The rights embodied in the Sixth Amendment

       protect the fundamental right to a fair trial. Strickland v. Washington, 466 U.S.

       668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 691 (1984). “Of all the rights

       that an accused person has, the right to be represented by counsel is by far the

       most pervasive for it affects his ability to assert any other rights he may have.”

       United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657,

       664 (1984). In recognition that the “average defendant does not have the

       professional legal skills to protect himself” at trial, it is required that a

       defendant’s choice to appear without professional counsel be made intelligently.



       1
           Count III was dismissed prior to trial.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 9 of 17
       Johnson v. Zerbst, 304 U.S. 458, 462-64, 58 S.Ct. 1019, 1022-23, 82 L.Ed. 1461,

       1465-66 (1938).


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

       the defendant of the “dangers and disadvantages of self-representation.” Faretta

       v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581-82

       (1975). 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. Leonard v. State, 579 N.E.2d 1294, 1296 (Ind. 1991). This

       determination must be made with the awareness that the law indulges every

       reasonable presumption against a waiver of this fundamental right. Zerbst, 304

       U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466.


[12]   The United States Supreme Court has stated that whether there has been an

       intelligent waiver of the right to counsel depends on the “particular facts and

       circumstances surrounding that case, including the background, experience, and

       conduct of the accused.” Id. The Court went on to find that it is the

       responsibility of the trial judge to determine whether there is an intelligent and

       competent waiver and that it would be “fitting and appropriate for that

       determination to appear on the record.” Id. at 465, 58 S.Ct. at 1023, 82 L.Ed.

       at 1467. The Court elaborated on the determination of a valid waiver stating

       that if a defendant chooses to forego the assistance of counsel and to represent

       herself, “[s]he should be made aware of the dangers and disadvantages of self-

       representation, so that the record will establish that [s]he knows what [s]he is

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 10 of 17
       doing and h[er] choice is made with eyes open.” Faretta, 422 U.S. at 835, 95

       S.Ct. at 2541, 45 L.Ed.2d at 581-82 (internal quotes omitted).


[13]   Our Supreme Court has adopted four factors for a trial court to consider when

       determining whether a knowing, voluntary and intelligent waiver has occurred:


               (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.


       Poynter v. State, 749 N.E.2d 1122, 1127-28 (Ind. 2001) (quoting U.S. v. Hoskins,

       243 F.3d 407, 410 (7th Cir. 2001)). In making this analysis, a trial court is in the

       best position to assess whether the defendant has made a knowing, voluntary,

       and intelligent waiver, and the trial court’s finding will most likely be upheld

       “where the judge has made the proper inquiries and conveyed the proper

       information, and reaches a reasoned conclusion.” Id. at 1128 (quoting U.S. v.

       Hoskins, 243 F.3d at 410). White argues that her waiver of her right to counsel

       was not knowing, voluntary, and intelligent, asserting that that although the

       trial court did inquire as to her experience in representing herself, the court did

       not inquire as to her education level or about her mental health, which she

       asserts was “clearly an issue.” Appellant’s Brief at 14.


[14]   Here, White insisted on representing herself after not seeing eye-to-eye with her

       fourth appointed attorney. White explained that she did not want counsel to

       represent her because “[h]er and I just don’t get along.” Transcript Vol. II at 3.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 11 of 17
       As set out above, the trial court questioned White about her court experience,

       asked whether she was taking any medication, reminded her of her right to an

       appointed attorney, and reviewed with her the sentence she faced. Upon

       deciding to allow White to proceed pro se, the trial court appointed stand-by

       counsel and explained to White that she could ask stand-by counsel questions

       regarding the proceedings.


[15]   In addition to this inquiry, at the final pre-trial conference, the trial court

       revisited at length White’s decision to represent herself, again reviewing her

       familiarity with court proceedings, questioning her about her medications and

       health, and making sure she understood the possible sentence. The court also

       explained that White was facing a prosecutor who was experienced with this

       type of case and reiterated the limited role of stand-by counsel. White

       repeatedly stated that she understood these risks and acknowledged that she

       understood her responsibilities as the trial court described the trial process.


[16]   Having reviewed the record, we conclude that the trial court adequately advised

       White of the dangers and disadvantages of self-representation. While White

       now claims that her mental health “was clearly an issue” that the trial court did

       not address, we note that reports by two court-appointed mental health experts

       found that White was competent to stand trial. Appellant’s Brief at 14. One

       found no evidence of psychosis, but observed that White was “a very cold, self-

       absorbed, self-centered individual who is very capable of lying and distorting

       reality to meet her own needs.” Appellant’s Appendix at 124. The other found

       that White operated within “a normal range of cognitive functioning” and “had

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 12 of 17
       adequate knowledge of Court proceedings.” Id. at 127. This second mental

       health expert concluded that White was capable of collaborating with an

       attorney, but that she was “simply refusing to collaborate.” Id. There is

       nothing in the record that suggests that White was mentally incompetent to

       exercise her right to represent herself at trial. Rather, the record demonstrates

       that White’s decision to represent herself was knowingly and voluntarily made.


                                           2. Aggravating Factors


[17]   White argues that the trial court abused its discretion in sentencing by relying

       upon improper aggravating circumstances. Sentencing decisions are within the

       sound discretion of the trial court and are reviewed on appeal for an abuse of

       discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

       875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision is

       “clearly against the logic and effect of the facts and circumstances before the

       court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” Id. A trial court abuses its discretion by


               (1) failing to enter a sentencing statement, (2) entering a
               sentencing statement that explains reasons for imposing the
               sentence but the record does not support the reasons, (3) the
               sentencing statement omits reasons that are clearly supported by
               the record and advanced for consideration, or (4) the reasons
               given in the sentencing statement are improper as a matter of
               law.


       Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012). “[W]e will remand for

       resentencing if we cannot say with confidence that the trial court would have

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 13 of 17
       imposed the same sentence if it considered the proper aggravating and

       mitigating circumstances.” McCann v. State, 749 N.E.2d 1116, 1121 (Ind. 2001).


[18]   White argues that the trial court improperly considered as aggravating that she

       is a sexually violent predator and a credit restricted felon. With regard to the

       latter, White argues that the laws regarding credit restricted felons did not go

       into effect until 2008, and thus, application of those statutes to her violate the

       constitutional prohibition of ex post facto laws. With regard to the former,

       White asserts that she was not deemed a sexually violent predator until the day

       of sentencing and thus, such should not have been considered as an aggravating

       circumstance.


[19]   Even if we assume that the challenged aggravators were improper, the trial

       court identified numerous other aggravating factors that White does not

       challenge. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002) (holding that even

       when a trial court improperly applies an aggravator, a sentence enhancement

       may be upheld if other valid aggravators exist). Indeed, aside from the

       challenged aggravators, the trial court identified the following aggravating

       circumstances: (1) the harm, injury, loss, or damage suffered by the victim was

       significant and greater than the elements necessary to prove the commission of

       the offenses;2 (2) the young age of the victim; (3) White’s position of trust; (4)

       the crimes were committed in the presence of another minor, (5) White’s lack of



       2
         The trial court noted that White was convicted of one count of child molesting, but that the evidence was
       clear that the molesting “was an ongoing thing that occurred multiple times.” Transcript Vol. II at 60.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019                 Page 14 of 17
       remorse; (6) White absconded for more than two years prior to sentencing; and

       (7) White failed to maintain stable employment. The court also identified

       mitigating circumstances, including that White had no prior criminal history,

       the crime was a result of circumstances unlikely to reoccur, White is not likely

       to commit another crime, and that White suffered from a disability. The court

       expressly found that the aggravating factors outweighed the mitigating factors.

       Given the trial court’s oral remarks at sentencing and the weight of the

       remaining aggravating factors, our confidence in the sentence is not diminished

       by exclusion of the two challenged aggravators.


                                         3. Inappropriate Sentence


[20]   White argues that the maximum sentence of fifty years is inappropriate in light

       of the nature of the offense and her character. Indiana Appellate Rule 7(B)

       provides: “The Court may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” See also Davis v. State, 971 N.E.2d 719, 725 (Ind. Ct. App. 2012).

       “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

       court.” Schaadt v. State, 30 N.E.3d 1, 4 (Ind. Ct. App. 2015). When reviewing a

       sentence, our principal role is to leaven the outliers rather than necessarily

       achieve what is perceived as the correct result. Cardwell v. State, 895 N.E.2d

       1219, 1225 (Ind. 2008). “We do not look to determine if the sentence was

       appropriate; instead we look to make sure the sentence was not inappropriate.”

       Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). White bears the burden of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 15 of 17
       persuading this court that her sentence is inappropriate. See Davis, 971 N.E.2d

       at 725.


[21]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point our legislature has selected as an appropriate sentence for the

       crime committed. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Here,

       White was convicted of child molesting as a Class A felony. The sentencing

       range for a Class A felony is twenty to fifty years with an advisory sentence of

       thirty years. See Ind. Code § 35-50-2-4. White therefore received the maximum

       sentence.


[22]   With regard to the nature of the offense, White argues that “there is nothing

       factual in this case that makes it more objectionable than other cases involving

       sexual molestation with the exception that the crime was committed against her

       son.” Appellant’s Brief at 20. Indeed, White’s position as mother of her victim

       sets her case apart from those cited in her brief. White regularly molested her

       own son for several years, beginning when he was five or six years old. She

       directed him to place his penis in her vagina and put his mouth on her breasts.

       She also fondled his penis. Moreover, White’s older child was aware of what

       White was doing to J.W. and also observed ongoing sexual conduct between

       White and J.W. The nature of White’s offense is reprehensible and deserving

       of a significant sentence.


[23]   With regard to the character of the offender, we observe that although White

       does not have a history of criminal convictions, she does have a history of prior


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 16 of 17
       charges for neglect of a dependent and a pending charge for disorderly conduct.

       White also does not appear to be living a productive life, as she reports having

       no employment and no place to live. While White claims she has been

       diagnosed with bipolar disorder, she has taken no medication for that condition

       since 2000 and showed no signs of the disorder during her mental health

       evaluation. Rather, one of the mental health experts who evaluated White

       found that she is needy, cold, self-absorbed, self-centered, and “very capable of

       lying and distorting reality to meet her own needs.” Appellant’s Appendix at 124.

       White presented no redeeming character evidence. Also, we note that White

       absconded for many years.


[24]   In light of the nature of the offense and White’s character, we cannot say that

       imposition of the maximum fifty-year sentence for Class A felony child

       molesting is inappropriate.


[25]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-343 | January 30, 2019   Page 17 of 17
