                                                                            FILED
                                                                       Nov 13 2019, 11:03 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Caroline B. Briggs                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                        Attorney General of Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Schenke,                                            November 13, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-733
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court
State of Indiana,                                         The Honorable Michael A.
Appellee-Plaintiff                                        Morrissey, Judge
                                                          Trial Court Cause No.
                                                          79D06-1611-CM-4319



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-733 | November 13, 2019                            Page 1 of 9
[1]   James Schenke appeals following his conviction for Class A Misdemeanor

      Invasion of Privacy.1 Schenke argues that the trial court erred by revoking his

      pretrial diversion agreement without a hearing and that he was denied the right

      to legal representation at his trial.2 Finding no error with respect to the pretrial

      diversion agreement but also finding that Schenke was denied the right to legal

      representation, we affirm in part, reverse in part, and remand for a new trial.


                                                        Facts
[2]   On October 28, 2016, Schenke was arrested for battering his wife (“Wife”).

      Upon his release from jail, Schenke signed a ten-day no contact order listing

      Wife as the protected person; among other things, he was prohibited from

      having any direct or indirect contact with her and from being within eyesight of

      her home.


[3]   On October 29, 2016, Schenke and a friend went to Wife’s neighborhood.

      Schenke sent his friend into Wife’s home with a key and a list of items to

      retrieve; Schenke waited on the corner and directed his friend on the phone.

      While this was occurring, Tippecanoe County Sheriff’s Detective Jodi Rohler

      was dispatched to the scene. She talked to Schenke’s friend at Wife’s home and




      1
          Ind. Code § 35-46-1-15.1.
      2
        Schenke also argues that there is insufficient evidence supporting the conviction, but because we are
      remanding for a new trial, we will not address this issue.

      Court of Appeals of Indiana | Opinion 19A-CR-733 | November 13, 2019                                Page 2 of 9
      to Schenke on the corner. Detective Rohler could see Wife’s home from the

      intersection where Schenke was standing.


[4]   On November 30, 2016, the State charged Schenke with two counts of Class A

      misdemeanor invasion of privacy. It later added four more counts of the same

      offense.


[5]   On December 14, 2017, the State agreed to withhold prosecution for one year

      in a pretrial diversion agreement. Among other things, the agreement required

      Schenke to attend, complete, and pay for the Character Restoration Program

      within six months. On December 20, 2018, the State petitioned to revoke the

      pretrial diversion agreement because Schenke had not yet completed the

      Character Restoration Program.


[6]   Thereafter, the State resumed prosecution and asked that a bench trial be

      scheduled; the trial court granted the motion and scheduled the trial. On

      February 21, 2019, Schenke filed a motion for indigent counsel. The trial court

      held a hearing on February 26, 2019, but Schenke failed to appear, so the court

      denied his motion and required that he proceed pro se.


[7]   On March 4, 2019, the State dismissed all but one count of invasion of privacy.

      Following a March 5, 2019, bench trial, the trial court found Schenke guilty and

      sentenced him to one year of probation. Schenke now appeals.




      Court of Appeals of Indiana | Opinion 19A-CR-733 | November 13, 2019    Page 3 of 9
                                     Discussion and Decision
                                        I. Pretrial Diversion
[8]    Schenke first argues that the trial court erred by failing to set a hearing on the

       State’s decision to terminate his participation in the pretrial diversion program.


[9]    Indiana Code section 33-39-1-8 governs pretrial diversion agreements, allowing

       prosecutors to withhold prosecution for a misdemeanor if certain conditions are

       met. The statute is permissive but not prescriptive, as it does not prescribe a

       revocation procedure. Consequently, it neither divests the prosecutor’s “broad

       discretion in the performance of his duties” nor amends the general rule that the

       “determination of whom to prosecute is within the sole discretion of the

       prosecutor.” Deurloo v. State, 690 N.E.2d 1210, 1211 (Ind. Ct. App. 1998).

       Instead, the statute simply “grants the prosecutor discretion to withhold formal

       prosecution in appropriate cases to afford the defendant an opportunity to

       successfully complete an alternative course of action.” Id. In other words, the

       statute does not give a defendant the right to a hearing if the prosecutor decides

       to revoke the pretrial diversion agreement.


[10]   Furthermore, Schenke did not have a right to a hearing under the Due Process

       Clause. A person is only entitled to procedural due process if he is being

       deprived of a property or liberty interest. Id. at 1212. The revocation of a

       pretrial diversion agreement does not mean “that a suspended or deferred

       sentence would be imposed upon [the defendant] by the court, depriving [him]

       of [his] liberty, but only that [he] would be required to re-enter the formal

       Court of Appeals of Indiana | Opinion 19A-CR-733 | November 13, 2019        Page 4 of 9
       criminal process.” Id. at 1212-13. The revocation “in no way impacted the

       subsequent criminal proceedings.” Id. at 1213. Because a defendant’s “liberty

       interest [is] not directly at stake as a result of the prosecutor’s decision to

       terminate [him] from the program,” Schenke “was not entitled to a due process

       hearing prior to [his] termination from the program.” Id.


[11]   Schenke has neither a statutory nor a constitutional right to a hearing on the

       State’s decision to terminate the pretrial diversion agreement. Therefore, the

       trial court here did not err by failing to hold a hearing on the State’s petition to

       revoke that agreement.3


                                      II. Legal Representation
[12]   Next, Schenke argues that he was denied the right to counsel at his bench trial.

       The State concedes this issue and agrees that a new trial should be held.4


[13]   Our Supreme Court has explained the fundamental right to legal representation

       as follows:


                The rights embodied in the Sixth Amendment protect the
                fundamental right to a fair trial. “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,



       3
        Schenke also argues that he was denied the right to legal representation on this issue, but because he was
       not entitled to a hearing at all, he was also not entitled to an attorney at that hearing.
       4
        We applaud the State for conceding this issue, given that the violation of Schenke’s constitutional right to
       counsel in this case was blatant and impossible to defend.

       Court of Appeals of Indiana | Opinion 19A-CR-733 | November 13, 2019                                Page 5 of 9
               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. Johnson v. Zerbst, 304 U.S. 458, 462-64, 58 S.Ct.
               1019, 1022-23, 82 L.Ed. 1461, 1465-66 (1938).


               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. This determination must be
               made with the awareness that the law indulges every reasonable
               presumption against a waiver of this fundamental right.


       Poynter v. State, 749 N.E.2d 1122, 1125-26 (Ind. 2001) (some internal citations

       and an internal footnote omitted).


[14]   Here, there is no evidence that Schenke voluntarily, knowingly, and

       intelligently waived his right to counsel. In fact, there is evidence of precisely

       the opposite. It appears that while Schenke originally had a public defender,

       that attorney withdrew from the case after the State agreed to allow Schenke to

       participate in the pretrial diversion program. On February 7, 2018, Schenke

       filed a pro se motion to reinstate a public defender to his case while the pretrial

       diversion agreement was still in place. Following a hearing, the trial court

       denied the motion.




       Court of Appeals of Indiana | Opinion 19A-CR-733 | November 13, 2019            Page 6 of 9
[15]   After the State revoked the pretrial diversion agreement and moved to set a

       bench trial, Schenke again requested the appointment of counsel on February

       21, 2019. In the motion, he stated that his “financial wherewithal is no [] better

       and actually worse than it was when indigent defense was assigned.”

       Appellant’s Supp. App. Vol. II p. 2. The next day (a Friday), the trial court

       scheduled Schenke’s motion for a hearing on February 26, 2019 (the following

       Tuesday). All orders were mailed to Schenke, and he claims that he did not

       receive this order and was unaware of the hearing. He did not appear at that

       hearing, and the trial court summarily denied his motion and reaffirmed that

       the bench trial would take place on March 5, 2019. Tr. Vol. II p. 4.


[16]   On March 4, 2019, Schenke requested a continuance, informed the trial court

       that he had not known about the hearing, and again requested counsel, advising

       the trial court that he did not have the expertise to summon and prepare

       witnesses. The trial court denied the motion.


[17]   At the March 5, 2019, bench trial, the trial court noted that it had summarily

       denied Schenke’s motion for the appointment of counsel because he failed to

       appear at the hearing. Throughout the trial, Schenke repeatedly noted that he

       did not want to represent himself and requested guidance from the trial court:


               Court:           . . . Mr. Schenke, do you want to make an opening
                                statement?


               Schenke:         I know you’re not necessarily allowed to give legal advice,
                                but I didn’t expect to be representing myself. Is
                                something I say as my pro se counsel—

       Court of Appeals of Indiana | Opinion 19A-CR-733 | November 13, 2019                   Page 7 of 9
        Court:           Uh huh.


        Schenke:         —held in the same regard as—if someone wants to
                         call me to the stand today, there’s a high likelihood
                         based on that—


        Court:           I don’t know.


        Schenke:         —that I would call—I would take the Fifth.


                                                 ***


        Court:           You have the right to take the Fifth if you’re called.
                         I don’t contemplate that you’re going to be called as
                         a witness, but we’ll deal with that if and—


        Schenke:         With me making an opening statement separate
                         than me presenting—being at—being a witness
                         (indiscernible).


        Court:           Well, no. Opening statement is when you’re going
                         to stand up and tell me—kind of map out your
                         evidence that’s going to show that you’re not guilty
                         of invasion of privacy.


        Schenke:         Right.


Tr. Vol. II p. 39-40 (emphasis added); see also id. at 79-81 (lengthy discussion

between trial court and Schenke to help Schenke understand his Fifth

Amendment rights), 84 (after the trial court told Schenke he was seeking

inadmissible testimony and he apologized, trial court said, “That’s okay.


Court of Appeals of Indiana | Opinion 19A-CR-733 | November 13, 2019              Page 8 of 9
       You’re not a lawyer” and Schenke responded “I don’t really know much”),

       102-03 (trial court answers many of Schenke’s questions about the order of

       evidence to which Schenke apologizes, “I’m sorry. I’m just not a lawyer.”), 117

       (after a discussion about closing arguments, Schenke tells the trial court, “I’m

       not saying you’re doing it wrong. I just don’t know what’s going on here.”).


[18]   The trial court never engaged in a discussion with Schenke about the perils of

       self-representation, nor did it conduct an inquiry as to Schenke’s indigency.

       Instead, it repeatedly ignored his requests for counsel and ignored the many red

       flags indicating that Schenke was out of his depth and needed (and wanted) an

       attorney. Under these circumstances, we agree with the State that Schenke did

       not knowingly, voluntarily, and intelligently waive his right to counsel—he did

       not waive his right to counsel at all. Therefore, we reverse and remand for a

       new trial.


[19]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded for a new trial.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-733 | November 13, 2019         Page 9 of 9
