MEMORANDUM DECISION                                                             FILED
                                                                           May 03 2017, 9:33 am

Pursuant to Ind. Appellate Rule 65(D), this                                     CLERK
Memorandum Decision shall not be regarded as                                Indiana Supreme Court
                                                                               Court of Appeals
precedent or cited before any court except for the                               and Tax Court

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



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Jacob P. Wahl                                          Curtis T. Hill, Jr.
Ripstra Law Office                                     Attorney General of Indiana
Jasper, Indiana
                                                       Michael Gene Worden
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Corey A. Wharton,                                          May 3, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           82A05-1609-CR-2244

        v.                                                 Appeal from the Vanderburgh
                                                           Circuit Court
State of Indiana,                                          The Hon. David D. Kiely, Judge
                                                           The Hon. Michael J. Cox,
Appellee-Plaintiff.
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           82C01-1606-F6-3598




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A05-1609-CR-2244 | May 3, 2017                  Page 1 of 10
                                          Case Summary
[1]   Appellant-Defendant Corey Wharton appeals from his convictions for theft and

      resisting law enforcement, which arose from an incident where he was observed

      shoplifting merchandise in an Evansville department store. After being advised

      of the perils of self-representation, Wharton chose to proceed pro se. Wharton

      consistently advanced the argument that the trial court did not have jurisdiction

      over him due to his alleged “Moorish” nationality. Wharton represented

      himself at trial, after which a jury found Wharton guilty of theft and resisting

      law enforcement, both as Class A misdemeanors. Wharton then pled guilty to

      the enhanced charge of Level 6 felony theft, and the trial court sentenced him to

      two years of incarceration for theft and one year for resisting law enforcement,

      both sentences to be served concurrently in therapeutic work release. Wharton

      contends that the record establishes that his waiver of counsel was not made

      voluntarily and intelligently. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On the evening of June 17, 2016, Felicia Johnson, a security camera operator at

      Dillard’s department store in Evansville, observed Wharton shoplifting clothing

      inside the store. Johnson recognized Wharton because he is her first cousin.

      Johnson notified Evansville Police Officer Stephen Kleeman, then working

      security part-time for Dillard’s, who confronted Wharton. Because Wharton

      did not cooperate with Officer Kleeman, he called for additional officers.



      Court of Appeals of Indiana | Memorandum Decision 82A05-1609-CR-2244 | May 3, 2017   Page 2 of 10
      Wharton remained belligerent when officers attempted to pat him down before

      placing him in a police cruiser.


[3]   On June 21, 2016, the State charged Wharton with Level 6 felony theft and

      Class A misdemeanor resisting law enforcement. At a hearing on June 30,

      2016, Wharton informed the trial court that he intended to represent himself,

      and the trial court advised him as follows:


              THE COURT: Let me, I have to advise you of the perils of
              representing yourself, I know we’ve been through this before, but
              I want to make a record on this. First of all sir I am advising you
              that I think it’s best if you had an attorney because they have
              experience that you don’t have and the education that you don’t
              have, do you understand that?
              THE DEFENDANT: Yes, I do.
              THE COURT: And also I’m going to have to hold you at the
              same standard that I would an attorney when it comes to trial
              procedure and the trial rules and the evidence rules, do you
              understand that?
              THE DEFENDANT: Yes.
              THE COURT: Do you understand you’ll be responsible for
              making arguments, questioning the witnesses, and selecting
              jurors?
              THE DEFENDANT: Yes.
              THE COURT: Do you understand that an attorney has
              experience and trial strategies and (inaudible) that you may not
              have as far as (inaudible) questions so as not to open the door?
              THE DEFENDANT: Yes.
              THE COURT: The possible penalties in this case, it’s a level 6, 2
              ½ years, minimum 6 months, you could be fined up to $10,000
              and the Court could enter judgment as an A misdemeanor. On

      Court of Appeals of Indiana | Memorandum Decision 82A05-1609-CR-2244 | May 3, 2017   Page 3 of 10
              an A misdemeanor, maximum term 1 year, minimum no time,
              do you understand the range of penalties that could be imposed?
              THE DEFENDANT: Yes.
      Tr. Vol. I pp. 4-5.


[4]   Wharton then asked permission to address the court:

              THE DEFENDANT: Judge, my Honor, with all due respect to
              this Court and the men and women of the association, bar
              association of the United States of America, I concede in the
              name of law justice that I myself cannot be tried in this union
              states courtroom by said union states, law of land, and I have my
              legal proof right here sitting before me. The present union states
              municipal and civil law codes of demand is an incorporated
              political unit, a self-government established by the political
              powers of the general assembly of the union based on the running
              (inaudible) and the city of Philadelphia PA 1854 which governs
              all the Caucasian people, Christians and Jews of 1863 union
              states right republic (inaudible) to ever become citizens of this
              union state republic. I have my national card right here, I’m a
              Salvadoran citizen.
      Tr. Vol. I pp. 5-6. The trial court took Wharton’s address to be a motion to

      dismiss, which it denied. Wharton told the trial court that his name was

      Majestic Shavazz El. The trial court also appointed standby counsel for

      Wharton.


[5]   At a hearing on July 26, 2016, Wharton rejected a plea offer from the State.

      When the trial court informed Wharton that he could not have hybrid

      representation and Wharton’s standby counsel said that he would be unable to

      make Wharton’s argument based on his alleged “Moorish Nationality,”

      Wharton chose to continue representing himself with standby counsel. Tr. Vol.

      Court of Appeals of Indiana | Memorandum Decision 82A05-1609-CR-2244 | May 3, 2017   Page 4 of 10
      I p. 14. On August 1, 2016, the trial court held a hearing on Wharton’s motion

      to suppress, and Wharton reiterated his Moorish-Nationality argument and

      once again rejected the State’s plea offer. The trial court denied Wharton’s

      jurisdictional claim and his motion to suppress.


[6]   On August 5, 2016, jury trial was held, at which Wharton immediately renewed

      his jurisdictional claim. When the trial court asked, Wharton refused to give

      his birthdate or social security number, and he repeatedly insisted on being

      addressed as Majestic Shavazz El. Wharton also made an objection (which the

      trial court overruled) to the deputy prosecutor on alleged conflict-of-interest

      grounds because he had represented Wharton in 2013 in a previous criminal

      matter.


[7]   Wharton made the following opening statement to the jury:


              THE DEFENDANT: Yes. In this case, I don’t know if many of
              you know about the law, there’s a difference between legal and
              the law, policies and people’s rights. Today I’m defending
              myself, I’m not a lawyer, to prove my innocence in this case.
              You will see in this case, just like any of you, anybody can be
              wrongfully accused, anybody can be stereotyped, anybody can be
              targeted in any case if we allow this case to go on, but
              constitutionally you will see where my rights were violated. I
              was stereotyped, number one, then off a play of words I was
              sought out, I was, had a gun drawn on me, a taser gun, in front
              of my son, drawn on me in this case. I was thrown to the
              ground. I was dragged out of the Mall and I was just out
              shopping with my family and I wear a brace on my leg and they
              dragged me through the store and my shoe came off because my
              brace, it won’t stay on very well, but they drug me through the
              store and helped me put that brace and shoe back on and they

      Court of Appeals of Indiana | Memorandum Decision 82A05-1609-CR-2244 | May 3, 2017   Page 5 of 10
        said that was resisting arrest. Also, I said I wish not for you to
        search me. So first you will see that I was accused and
        stereotyped off of hearsay, no personal knowledge of anybody
        shoplifting. You will see the video. I was followed through the
        store. I never pick up anything that I don’t pay for that I didn’t
        want and put back. I also will bring in Dillard’s receipts and
        they’re going to say, well we couldn’t find the pair of jeans, that
        doesn’t mean I committed a crime because it’s not against the
        law if I left something in the dressing room or someone picked it
        up, I don’t know, but it’s not a crime if I leave something in the
        dressing room. It’s not a crime and like ladies and gentlemen as
        you will see in this case, this is not just about me, this is about
        my constitutional rights. They still are in the play. They still
        have to follow policies. They still have to follow legal policies,
        Dillard’s shoplifting policies, security policies, he was working
        off duty in uniform as a Dillard’s security officer. He never
        approached me as a security officer, but yes, he had on his
        uniform so I know he’s a cop so I’m not going to go against that,
        I’m going to do what he ask me to do, but I have the right to
        know what is going on when I have no prior knowledge of why
        this man is wanting me to lay on the floor of Finish Line, in an
        Affidavit they said it was Foot Locker, I was never in Foot
        Locker, I was in Finish Line, and why do I need to lay on the
        ground and I have a right to say, hey, what’s going on, why am I
        being arrested officer, am I being detained. He says nothing, he
        just pull, he speaks to me with his taser and a beam at my head in
        front of my son. My son was crying, and you’re going to see this
        because I’m very passionate about this because you guys got kids
        and nobody needs to go through this and I rest my case right
        there.
Tr. Vol. II pp. 26-28. Wharton’s closing argument largely mirrored his opening

statement, with him specifically alleging that he was targeted without probable

cause and that the State failed to prove he intended to steal anything from

Dillard’s.


Court of Appeals of Indiana | Memorandum Decision 82A05-1609-CR-2244 | May 3, 2017   Page 6 of 10
[8]   The jury found Wharton guilty of theft and resisting law enforcement, both as

      Class A misdemeanors. Wharton then pled guilty to the enhanced charge of

      Level 6 felony theft. On August 31, 2016, the trial court sentenced Wharton to

      two years of incarceration for theft and one year for resisting law enforcement,

      both sentences to be served concurrently in therapeutic work release.


                                Discussion and Decision
                                        Waiver of Counsel
[9]   Wharton contends that his waiver of counsel was not made voluntarily and

      intelligently.

              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)).


      Court of Appeals of Indiana | Memorandum Decision 82A05-1609-CR-2244 | May 3, 2017   Page 7 of 10
               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).
               Courts determining whether a waiver of counsel for trial was
               made voluntarily and intelligently must consider (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. We have
               drawn these factors from case law in the Seventh Circuit, see
               United States v. Hoskins, 243 F.3d 407 (7th Cir. 2001), and applied
               them in situations as diverse as trial for battery, Poynter v. State,
               749 N.E.2d 1122 (Ind. 2001), and for capital murder, Kubsch v.
               State, 866 N.E.2d 726 (Ind. 2007).
       Hopper v. State, 957 N.E.2d 613, 617-18 (Ind. 2011).


[10]   On June 30, 2016, the trial court advised Wharton of the perils of self-

       representation, advice that Wharton does not claim was deficient in any

       respect. There are also other indications in the record that Wharton understood

       the perils of self-representation. On July 26, 2016, the trial court further

       discussed Wharton’s representation, with Wharton wanting to represent himself

       in part and have his standby counsel represent him in part, apparently so that

       Wharton could make the Moorish-Nationality argument that his standby

       counsel refused to make but still have representation during trial. When the

       trial court told Wharton that he could not have hybrid representation, he again

       stated that he would represent himself. The above indicates that while


       Court of Appeals of Indiana | Memorandum Decision 82A05-1609-CR-2244 | May 3, 2017   Page 8 of 10
       Wharton understood that he might be better served by having counsel during

       trial, he made the conscious choice to advance his Moorish-Nationality

       argument instead.


[11]   As a whole, the record indicates that Wharton’s background has provided him

       with a fairly thorough understanding of the criminal justice system. Although

       Wharton’s formal education is limited (he has earned a GED), he has a lengthy

       criminal history, including six prior felony convictions, several misdemeanor

       convictions, and two juvenile adjudications, dating back to 1993. Wharton’s

       actions while defending himself indicate that his lengthy association with the

       criminal justice system has taught him much. Prior to trial, Wharton filed

       several pro se motions. Before and during trial, Wharton advanced his Moorish-

       Nationality argument, raised an alleged conflict-of-interest claim against the

       deputy prosecutor, cross-examined the State’s witnesses, objected to questions

       by the State, presented his own evidence, chose not to testify, and made a

       cogent opening statement and final argument to the jury. Wharton’s education

       and background indicate that his waiver of counsel was voluntary and

       intelligent.


[12]   Wharton’s main argument is that his waiver of counsel occurred in a context of

       incompetence, pointing, of course, to his Moorish-Nationality argument as

       evidence of that alleged incompetence. Wharton argues that he relied heavily

       upon his belief system, which he describes as based on “‘radical political

       ideals’” or “detached from reality” to support his defense. Appellant’s Br. p. 9.

       While Wharton’s argument regarding his alleged Moorish nationality is wholly

       Court of Appeals of Indiana | Memorandum Decision 82A05-1609-CR-2244 | May 3, 2017   Page 9 of 10
       without merit and could be described as peculiar, his decision to pursue it does

       not indicate incompetence. Indeed, a fair reading of the record indicates that

       the argument was likely intended to disrupt and frustrate the process, perhaps in

       an attempt to make such a nuisance of himself that the State would be willing to

       offer a better plea agreement.1 Be that as it may, the record clearly indicates

       that Wharton was able to present lucid, reasonable arguments based on actual

       legal concepts when it suited him, as he did during his opening statement and

       closing argument. The record in this case does not support a conclusion that

       Wharton was incompetent. As such, Wharton has failed to establish that his

       waiver of counsel was not voluntary and intelligent.


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


       Najam, J., and Riley, J., concur.




       1
          It is worth noting that Wharton is the latest in a line of criminal defendants advancing variations of the
       argument that the courts of Indiana do not have jurisdiction over them due to their “Moorish” status. See,
       e.g., Brown v. State, 64 N.E.3d 1219, 1229 (Ind. Ct. App. 2016) (“Here, Ankh-El [a/k/a Brown] asserts that
       the trial court denied his request to retain ‘Consuls from the Moorish American Nation’ because they did not
       have licenses to practice law in Indiana.”) (bracketed material added); Taylor-Bey v. State, 53 N.E.3d 1230,
       1231 (Ind. Ct. App. 2016) (“Tyreese Taylor-Bey was convicted of murder. He now appeals, arguing that the
       trial court lacked jurisdiction based on his status as a ‘Moorish American National Sovereign’ and ‘Secured
       Party Creditor.’”).

       Court of Appeals of Indiana | Memorandum Decision 82A05-1609-CR-2244 | May 3, 2017              Page 10 of 10
