Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be

                                                                 FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                     Apr 18 2012, 9:32 am
collateral estoppel, or the law of the
case.
                                                                      CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

ANDREW M. EADS                                   GREGORY F. ZOELLER
Lux & Lux, P.A.                                  Attorney General of Indiana
Shelbyville, Indiana
                                                 RYAN D. JOHANNINGSMEIER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA


CHAD JEREMY ORME,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 73A01-1105-CR-233
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE SHELBY SUPERIOR COURT
                         The Honorable David N. Riggins, Judge
                            Cause No. 73D02-0807-CM-900


                                       April 18, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Chad Orme appeals the revocation of his probation and the sentence imposed

pursuant to the revocation. We reverse.

                                            Issue

       Orme raises two issues. We address the dispositive issue, which is whether Orme

knowingly, intelligently, and voluntarily waived his right to counsel.

                                            Facts

       On February 19, 2010, Orme was convicted of Class A misdemeanor domestic

battery and sentenced to 365 days. The trial court ordered Orme to serve ninety days,

with the remainder of the sentence suspended to probation. On February 14, 2011, a

petition to revoke Orme’s probation was filed. The petition alleged that Orme failed to

report to probation as ordered by the court, failed to attend with the non-violent

alternatives course, and failed to pay fees associated with the case.

       Orme appeared at the March 14, 2011 initial hearing without counsel, and the trial

court informed him, “You have the right to be represented by an attorney. If you can’t

afford an attorney the court will appoint one for you.” Tr. p. 6. The trial court also

informed him of his right to confront and cross-examine witnesses, his right to testify on

his own behalf, and the State’s burden of proof. When asked if Orme understood his

rights, he responded, “Yes, Your Honor.” Id. Orme denied the allegations, and the trial

court set the matter for a fact-finding hearing.

       On April 11, 2011, a fact-finding hearing was held. Orme was not represented by

counsel, and the trial court informed him, “if you’d want a lawyer you could have one

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here with you. You don’t have one today and this was explained to you before. It’s the

day of the hearing, you know, and we’re gonna go ahead and proceed with it.” Id. at 17.

When asked if he understood all of his rights, Orme stated, “Yeah, I didn’t understand

exactly the dates on the trial date though. I had talked to Mr. Good and he had asked me

to see if I could possibly get some of my bond money so I could take care of some fees

and get him in here to represent me.” Id. The trial court explained that at the March 14,

2011 hearing, the fact-finding hearing was set for April 11, 2011, and that “[t]o the extent

that’s a motion to continue I’m gonna deny it.” Id. at 18.

       At the fact-finding hearing, Orme’s probation officer testified that Orme had not

reported to probation since June 18, 2010, and that he had failed to complete a non-

violent alternatives course. At the conclusion of the hearing, the trial court revoked

Orme’s probation and ordered him to serve the remainder of his suspended sentence.

Orme now appeals.

                                         Analysis

       Orme argues that the trial court failed to properly advise him of his right to

counsel and to establish that he knowingly, voluntarily, and intelligently waived his right

to counsel.   A defendant is entitled to certain due process protections before the

revocation of his or her probation. Butler v. State, 951 N.E.2d 255, 259 (Ind. Ct. App.

2011); see also Ind. Code §35-38-2-3(e) (explaining that a probationer is entitled to

confrontation, cross-examination, and representation by counsel). When a defendant

proceeds without the benefit of counsel, the record must reflect that he or she knowingly,

intelligently, and voluntarily waived the right to counsel. Butler, 951 N.E.2d at 259.

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“That is, the trial court must determine the defendant’s competency to represent himself

and establish a record of the waiver.” Id. There are no magic words a judge must utter to

ensure a defendant adequately appreciates the nature of the situation. Id. Determining if

a defendant’s waiver was knowing and intelligent depends on the particular facts and

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

of the accused. Id. We review de novo a trial court’s finding regarding the waiver of the

right to counsel. Id. at 260.

          Here, although the trial court advised Orme of his right to counsel at the initial

hearing, the record does not demonstrate that he knowingly, intelligently, and voluntarily

waived that right. There was no questioning by the trial court judge regarding whether

Orme would be hiring counsel or whether he wanted a court-appointed attorney. Further,

there is no indication in the record that Orme, notwithstanding his right to counsel,

wanted to proceed pro se. In fact, at the fact-finding hearing, after the trial court re-

advised him of his right to counsel, Orme indicated that he had discussed representation

with someone we presume is an attorney but had not finalized any arrangements because

of confusion over the date of the hearing and Orme’s financial circumstances.              If

anything, this shows that Orme did not intend to waive his right to counsel and proceed

pro se.

          Although the record indicates Orme appeared without counsel in the domestic

battery proceeding and has at least five other convictions, we are not convinced that

Orme’s familiarity with the criminal justice system alone is sufficient to establish that the

waiver of his right to counsel was knowing, intelligent, and voluntary. We are aware that

                                              4
an experienced defendant like Orme may very well have “played” the criminal justice

system; nevertheless, the record here is bereft of any indication that he wished to proceed

pro se in this matter. Under these circumstances, the record does not show that Orme

knowingly, intelligently, and voluntarily waived his right to counsel.

                                       Conclusion

       The record does not establish that Orme knowingly, intelligently, and voluntarily

waived his right to counsel. We reverse.

       Reversed.

KIRSCH, J., and BRADFORD, J., concur.




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