                                                                         FILED
                                                                     Jan 30 2018, 9:11 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Stephen T. Owens                                           Curtis T. Hill, Jr.
Public Defender                                            Attorney General of Indiana
Richard Denning                                            Angela N. Sanchez
Deputy Public Defender                                     Deputy Attorney General
Indianapolis, Indiana                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Major Wilson,                                              January 30, 2018
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           45A03-1707-PC-1466
        v.                                                 Appeal from the Lake Superior
                                                           Court
State of Indiana,                                          The Honorable Diane R. Boswell,
Appellee-Respondent                                        Judge
                                                           Trial Court Cause No.
                                                           45G03-1608-PC-6



Baker, Judge.




Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018                  Page 1 of 25
[1]   Major Wilson appeals the denial of his petition for post-conviction relief,

      arguing that the post-conviction court erroneously determined that he did not

      receive the ineffective assistance of appellate counsel. Finding that the post-

      conviction court erred in its determination and that Wilson did receive the

      ineffective assistance of appellate counsel, we reverse and remand for further

      proceedings.


                                                      Facts
[2]   On March 6, 2014, the State charged Wilson with ten counts of various crimes.

      On March 12, 2014, a public defender entered an appearance on Wilson’s

      behalf. On July 10, 2014, Wilson filed a pro se motion asking the trial court to

      dismiss his public defender. A pre-trial hearing took place on July 30, 2014,

      during which the following exchange took place:


              Public Defender: . . . Judge, first thing, Mr. Wilson has asked
              and has actually filed with the Court, to strike the appearance of
              the Lake County Public Defender’s Office altogether from this
              case.


              His friends have retained a firm down in Indianapolis that will
              not enter their appearance until our appearance is struck, so I’m
              asking—


              The Court: That’s denied. He’s set for trial.


              Public Defender: I—


              The Defendant: I’m ready for trial.

      Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 2 of 25
        The Court: Pardon?


        The Defendant: I’m ready for trial, ma’am.


        The Court: Okay. Then we’ll go to trial. If I—if I let you have
        substitute counsel at this point—


        The Defendant: Well, can I file for pro se then. I’ll do it myself.
        I’ll represent myself.


        The Court: No, no, you can’t do that.


        The Defendant: It’s my right; right?


        The Court: It’s my decision. No, you don’t have a right to
        represent yourself.


        The Defendant: Well, I will not have him represent me then.


        The Court: You don’t have a right to represent yourself.


        The Defendant: I won’t have him represent me. I’m ready for
        trial.


        The Court: You don’t—you don’t want [the public defender] to
        represent you?


        The Defendant: No, I’m ready for trial.


        The Court: Why is that?




Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 3 of 25
        The Defendant: I just don’t feel that he can give me reasonable
        representation during the trial. . . .


                                                  ***


        The Court: Okay. All right. I can not require you to go forward
        with [the public defender], but I can require you to go forward on
        August 18th.


        The Defendant: I’m ready.


        The Court: So if you’re—well, you may be ready, but you need
        to advise your people in Indianapolis that they got a trial set on
        August 18th.


        The Defendant: And if they’re not here, I’ll represent myself.


        The Court: No, I’ve already decided you can’t represent
        yourself.


        The Defendant: I’m sorry, ma’am. That’s why I’m—I’m going
        for it. I’m sorry, I mean, I have that right. I know I have that
        right.


        The Court: No, you don’t have that right to represent yourself.


        The Defendant: Yes, I do, ma’am.


        The Court: You do not. Where did somebody tell you that?
        What right did you read? Where did you read that?


        The Defendant: I have a right to represent myself; I know this.

Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 4 of 25
              The Court: You don’t have that—see, that’s why you can’t
              represent yourself, because you don’t know what rights you have.


              Okay. [Public defender], we’ll strike your appearance. . . .


      Appellant’s Ex. p. 18-22.


[3]   A second pre-trial hearing took place on August 6, 2014, during which the

      following exchange took place:


              The Defendant: My friend has not been able to come to an
              agreement on the lawyer fees.


              The Court: Okay.


              The Defendant: And they’re still working on it, but as of right
              now, no—no agreement on my counsel, but I am still ready to go
              to trial.


              The Court: Okay. You’re ready to go to trial.


              The Defendant: Yes, ma’am.


              The Court: And I remember we had the discussion about your
              ability to represent yourself at that trial.


              The Defendant: Yeah, Judge.


              The Court: I think my ruling was that I didn’t find you—that
              that was in your best interest.


                                                        ***
      Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 5 of 25
        The Court: . . . [Public defender]?


        Public Defender: Yes, Judge.


        The Court: Standby counsel?


        Public Defender: I will assist the Court in any way, shape, or
        form.


                                                  ***


        Public Defender: If Mr. Wilson needs standby counsel, I’d be
        more than happy to stand in with him.


Id. at 4-6. The following exchange then took place at the bench:


        Public Defender: Would you like me to be standby counsel for
        the trial, Judge? . . .


        The Court: He doesn’t need you.


        Public Defender: I know that. I know that.


        The State: But he doesn’t want anyone, Judge, other than this
        alleged Indianapolis attorney . . . . He’s made that very clear that
        he wants to go forward on the 18th.


        The Court: What is—


        The State: I think it’s very—I think it’s very—it would be very
        difficult for him to not have anybody.


Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 6 of 25
        The Court: I think so too.


        The State: But he doesn’t want the—my understanding of Mr.
        Wilson’s point of view is he absolutely doesn’t want [the public
        defender] but he also doesn’t want anyone from the public
        defender’s office . . . .


                                                  ***


        The State: So, I mean, I believe he needs to be made aware that
        he will be held to the same standards that every lawyer is held to.


        The Court: This man can’t present a cogent argument to me
        about [an unavailable witness]. . . .


        The State: I understand.


        Public Defender: Judge, I just want to suggest to the Court is for
        simply to inquire whether or not he would like to have standby
        counsel appointed, give him the choice on the record and—


        The Court: If he says “No,” then—


        Public Defender: —and what will happen—


        The Court: —are you suggesting that I let this man go to—


        Public Defender: Judge.


        The Court: —trial without—


        Public Defender: The last—

Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 7 of 25
        The Court: —lawyer?


                                                  ***


        Public Defender: . . . I’d be more than happy to be standby
        counsel. I think he’s got a right to represent himself. Clearly—


        The Court: Where does that say that?


        The State: Can I—if I can get my—I had a case.


        The Court: Oh, you looked it up, right?


        Public Defender: He does. . . . I’ll be here. I’ll standby counsel.


        The Court: Okay. Give me the cite.


        Public Defender: Stroud.


        The State: Stroud v. State of Indiana. . . . It’s from the Supreme
        Court of Indiana, 2004, and in relevant part it says that the right
        of self representation is implicit in the Sixth Amendment of the
        constitution and in Article 1, Section 13 of the Indiana
        constitution. However, a request to proceed pro se is a waiver of
        your right to counsel, and there are several requirements to
        invoke that right. The defendant’s request must be clear,
        unequivocal, and must be made within a reasonable time before
        the first day of trial.


                                                  ***




Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 8 of 25
              The State: Also his choice must be made on the record knowing,
              intelligent, and voluntary.


      Id. at 7-11. Following this discussion, the trial court told Wilson, “You may

      represent yourself.” Id. at 11. The trial court then asked Wilson whether he

      would like to have standby counsel. Wilson agreed, stating, “I’ll go by the

      Court’s decision, go ahead let him [act] as standby.” Id. at 13.


[4]   A jury trial took place on August 20, 2014; the jury found Wilson guilty as

      charged. Wilson admitted to being an habitual offender. The trial court

      entered judgment only for Wilson’s convictions of Class A felony criminal

      deviate conduct and Class B felony burglary while armed with a deadly weapon

      and found him to be an habitual offender. On November 5, 2014, the trial

      court imposed an aggregate sentence of 100 years.


[5]   On direct appeal, Wilson’s appellate counsel argued only that the State

      presented insufficient evidence to support Wilson’s conviction for Class B

      felony burglary. We affirmed in a memorandum decision. Wilson v. State, No.

      45A03-1412-CR-425, 2015 WL 4740412, at *1 (Ind. Ct. App. Aug. 11, 2015).


[6]   On August 18, 2016, Wilson filed a pro se petition for post-conviction relief.

      On January 9, 2017, he filed, by counsel, an amended petition for post-

      conviction relief. An evidentiary hearing took place on March 9, 2017.

      Appellate counsel testified that she did not request transcripts from Wilson’s

      pre-trial hearings in which his waiver of his right to counsel was discussed; she




      Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 9 of 25
also testified that she thought she should have requested them. During the

hearing, the following exchange took place:


        The Court: One moment, please. [Appellate counsel], you did
        indicate that you had some correspondence with the petitioner,
        with Mr. Wilson; is that correct?


        Appellate Counsel: Yes.


        The Court: Do you recall what the basic substance or nature of
        the correspondence was?


        Appellate Counsel: Well, I don’t want to—I’m concerned about
        the attorney/client privilege.


        The Court: It’s waived by virtue of you having been alleged
        ineffective, and the case law is clear on that. So if you’d answer
        the question, please.


        Appellate Counsel: We discussed—he discussed problems that
        he had with his appointed counsel. And he addressed some
        issues that he considered for appeal, things that he wanted
        discussed.


        The Court: So problems with his appointed counsel, obviously
        prior to representing himself; is that correct?


        Appellate Counsel: Yes.


        The Court: And then I’m sorry, what was the other?




Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 10 of 25
        Appellate Counsel: Just that—things that he thought might be
        pertinent for appeal.


        The Court: All right. . . .


PCR Tr. p. 10-11. On June 15, 2017, the post-conviction court denied Wilson’s

petition, making the following conclusions of law:


        10. There is no constitutional requirement for appellate counsel
        to look beyond the trial record for issues on appeal, and it is
        incumbent upon the trial counsel to inform appellate counsel of
        any issues not preserved in the record. Stephenson v. State, 864
        N.E.2d 1022 (Ind. 2007). In this case neither the Petitioner, who
        acted as his own counsel, nor his standby counsel . . . informed
        appellate counsel that there may be some question as to
        Petitioner’s waiver of the right to counsel. Appellate counsel in
        this case, after reviewing the trial record and after consulting with
        the Petitioner chose to base her appeal on the insufficiency of the
        State’s evidence with regard to the breaking element of the charge
        of Burglary. This was a strategic decision made with full
        knowledge that the Petitioner had proceeded pro se.


        11. Appellate counsel’s reliance on the trial record and her
        communications with the Petitioner in deciding to base her
        appeal on a claim of insufficiency of evidence was reasonable.
        There was nothing on the face of the record, nor any
        communication from [standby counsel] or Wilson, to alert
        appellate counsel to any potential issue concerning Wilson’s self-
        representation. This court concludes that appellate counsel’s
        performance did not fall below prevailing professional norms.
        Her performance under these circumstances does not constitute
        ineffective assistance of appellate counsel.




Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 11 of 25
        12. . . . [I]t bears note that Wilson has failed to sustain his burden
        of proof under post-conviction jurisprudence for other reasons as
        well. This is not a direct appeal. Wilson collaterally appeals his
        conviction. “The post-conviction process is open to prisoners to
        correct injustice in convictions.” Lingler v. State, 644 N.E.2d 131,
        133 (Ind. 1994). It seems to this court therefore, that in order to
        show prejudice Wilson must prove that he was, in fact, unaware
        of the risks and dangers of self-representation; that his waiver of
        the right to counsel was actually not knowing, intelligent and
        voluntary. . . . Wilson fails in this burden for the following
        reasons. First, Wilson fails to articulate of what risks and
        dangers he was ignorant. For example, if Wilson had claimed
        that he did not know he could open the door to admission of his
        prior criminal convictions by the way he posed questions at trial,
        this court could review whether the record or transcript of the
        jury trial supports his claim of ignorance and proves his
        ignorance prejudiced him. This court would be in a position to
        find that no prejudice resulted due to stand by counsel’s
        assistance. . . . This leads us to the second reason Wilson fails to
        prove prejudice. Wilson does not stand in the position of other
        self-represented individuals because Wilson had the assistance of
        counsel throughout his pre-trial and trial proceedings. Although
        the trial court labeled [the public defender] “stand-by counsel” it
        bears consideration that “a rose by any other name would smell
        as sweet.” As discussed previously, [standby counsel] made
        objections, argued motions, successfully, and provided
        consultation and instruction to Wilson throughout the
        proceedings. Therefore, Wilson had the assistance of an
        attorney. What dangers or risks of self-representation did Wilson
        actually suffer? Wilson does not tell us and the record does not
        reveal it. In short, Wilson comes before this court claiming that
        if his appellate attorney had raised a claim that the court failed to
        advise him of the risks and dangers of self-representation, he
        would have won the appeal. This is precisely the sort of framing
        of a claim our supreme court rebuked in Lingler. Lingler v. State,
        644 N.E.2d at 133. Wilson fails to prove that there is anything
        unjust or invalid in his conviction.
Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 12 of 25
              13. Wilson has failed to prove that appellate counsel performed
              deficiently in failing to request transcription of the hearings at
              which the court granted him permission to represent himself.
              Even if counsel’s performance had been found to be deficient,
              Wilson fails to prove that he was actually prejudiced—that his
              waiver of counsel was not knowing, intelligent and voluntary and
              that he suffered harm thereby.


      Appellant’s App. Vol. II p. 72-75 (footnote omitted). Wilson now appeals.


                                    Discussion and Decision
[7]   Wilson argues that he received the ineffective assistance of appellate counsel

      when his appellate counsel failed to review the complete record of his trial

      proceedings and, as a result, failed to argue that Wilson’s waiver of counsel was

      not knowing, voluntary, and intelligent.


                                      I. Standard of Review
[8]   The petitioner in a post-conviction proceeding bears the burden of establishing

      grounds for relief by a preponderance of the evidence. Ind. Post-Conviction

      Rule 1(5). When appealing from the denial of post-conviction relief, the

      petitioner stands in the position of one appealing from a negative judgment.

      Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006). On review, we

      will not reverse the judgment unless the evidence as a whole unerringly and

      unmistakably leads to a conclusion opposite that reached by the post-conviction

      court. Id.




      Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 13 of 25
[9]    A claim of ineffective assistance of appellate counsel requires a showing that:

       (1) counsel’s performance was deficient by falling below an objective standard

       of reasonableness based on prevailing professional norms; and (2) counsel’s

       performance prejudiced the defendant such that “‘there is a reasonable

       probability that, but for counsel’s unprofessional errors, the result of the

       proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

       (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

       reasonable probability arises when there is a ‘probability sufficient to undermine

       confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

       2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

       prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

       Ct. App. 2012).


[10]   We give great deference to appellate counsel’s decisions regarding which

       arguments to raise on appeal, which is “one of the most important strategic

       decisions of appellate counsel.” Hampton v. State, 961 N.E.2d 480, 491 (Ind.

       2012) (citing Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997)). Appellate

       counsel’s performance, as to the selection and presentation of issues, will thus

       be presumed adequate unless found unquestionably unreasonable considering

       the information available in the trial record or otherwise known to the appellate

       counsel. Id. at 491-92. To succeed on this claim, the petitioner must show that

       the unraised issue was significant, obvious, and clearly stronger than the issue

       that was raised. Bieghler, 690 N.E.2d at 194.




       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 14 of 25
                   II. Defendant’s Right to Self-Representation
[11]   Before reaching the substance of this appeal, we are compelled to address the

       trial court’s lack of knowledge of basic constitutional law. During Wilson’s pre-

       trial hearings, the trial court repeatedly told Wilson that he did not have a right

       to represent himself; stated that the trial court had decided that he could not

       represent himself; and asked Wilson where he heard or read about the right to

       represent himself. Appellant’s Ex. p. 18-22. During a discussion at the bench,

       the trial court required a citation and case discussion from the State about a

       defendant’s right to self-representation and how a defendant’s request to waive

       his right to counsel must be made. In short, during Wilson’s pre-trial hearings,

       the trial court appeared altogether uninformed about an individual’s right to

       represent himself in court; about a trial court’s duty to ensure that a defendant’s

       waiver of right to counsel is made knowingly, voluntarily, and intelligently; and

       about a trial court’s duty to advise a defendant about the dangers and

       disadvantages of self-representation. This egregious lack of knowledge presents

       a serious risk to the rights of defendants and demands that we direct the trial

       court to case law regarding a criminal defendant’s fundamental rights. We

       advise the trial court to review this case law in depth and without delay.


[12]   The Sixth Amendment to the United States Constitution guarantees a criminal

       defendant the right to counsel. E.g., Jones v. State, 783 N.E.2d 1132, 1138 (Ind.

       2003). Implicit in the right to counsel is the right to self-representation. E.g.,

       Drake v. State, 895 N.E.2d 389, 392 (Ind. Ct. App. 2008). Before a defendant

       waives his right to counsel and proceeds pro se, the trial court must determine

       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 15 of 25
       that the defendant’s waiver of counsel is knowing, voluntary, and intelligent.

       E.g., Jones, 783 N.E.2d at 1138. “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.


[13]   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

       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.




       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 16 of 25
                III. Ineffective Assistance of Appellate Counsel
                                   A. Counsel’s Performance
[14]   In reviewing Wilson’s claim of ineffective assistance of appellate counsel, we

       must first determine whether his appellate counsel’s performance was deficient

       by not raising the issue of whether Wilson knowingly, voluntarily, and

       intelligently waived his right to counsel.


[15]   The post-conviction court stated that appellate counsel need not “look beyond

       the trial record for issues on appeal, and it is incumbent upon the trial counsel

       to inform appellate counsel of any issues not preserved in the record.”

       Appellant’s App. Vol. II p. 72-73 (discussing Stephenson v. State, 864 N.E.2d

       1022, 1041 (Ind. 2007)). More precisely, our Supreme Court has stated that it is

       “incumbent upon trial counsel to communicate to appellate counsel any matters

       outside the record that are appropriate for direct appeal.” Stephenson, 864 N.E.2d

       at 1041 (emphasis added). The post-conviction court concluded that because

       neither Wilson nor his standby counsel informed appellate counsel of a possible

       issue with Wilson’s waiver of his right to counsel, appellate counsel’s review of

       the trial record—which did not include a review of Wilson’s pre-trial hearings—

       and decision to appeal a sufficiency issue was based on strategy.


[16]   The inherent problem with the post-conviction court’s analysis is that it

       assumes that the record from the actual trial is the only record an appellate

       attorney need review, and a transcript from another hearing would be outside

       the record. But a record on appeal includes “all proceedings before the trial

       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 17 of 25
       court.” Ind. Appellate Rule 2(L) (emphasis added). Therefore, transcripts from

       pre-trial hearings are part of the record on appeal. And because the pre-trial

       hearings are part of the record, rather than outside the record, neither Wilson nor

       his standby counsel was required to inform appellate counsel of the possible

       issue of Wilson’s waiver of his right to counsel because it was preserved in the

       record of the pre-trial hearings. Appellate counsel had a duty to thoroughly

       review the entire record of Wilson’s proceedings, including the transcripts from

       Wilson’s pre-trial hearings.1 See, e.g., Woods v. State, 701 N.E.2d 1208, 1221-22

       (Ind. 1998).


[17]   Accordingly, and contrary to the post-conviction court’s conclusion, appellate

       counsel’s decision to raise a sufficiency issue and not raise the issue of Wilson’s

       waiver of his right to counsel was not a strategic one. The transcripts from the

       pre-trial hearings contained the only evidence to support a claim that Wilson

       did not knowingly, voluntarily, and intelligently waive his right to counsel. She

       did not raise the issue because she was not aware of it. See Harris v. State, 861

       N.E.2d 1182, 1187 (Ind. 2007) (finding that, after appellate counsel testified

       that he did not read the record of trial proceedings that preceded the defendant’s

       pleading guilty, appellate counsel did not employ a strategy and performed

       deficiently).




       1
           To appellate counsel’s credit, she conceded that she should have done so. We commend her for her candor.


       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018                    Page 18 of 25
[18]   To prove deficient performance, the unraised issue must be significant. The

       issue of Wilson’s waiver of his right to counsel is not just significant but of

       critical importance. “‘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.’” Poynter, 749 N.E.2d at 1125-26 (quoting

       United States v. Cronic, 466 U.S. 648, 654 (1984)).


[19]   The unraised issue must also be obvious. The post-conviction court concluded

       and the State argued that appellate counsel’s performance was not deficient

       because she consulted with Wilson—a pro se defendant whose knowledge of

       and experience with the law is entirely unknown—and his standby counsel

       about his case. The post-conviction court stated that there “was nothing on the

       face of the record, nor any communication from [standby counsel] or Wilson,

       to alert appellate counsel to any potential issue concerning Wilson’s self-

       representation.” Appellant’s App. Vol. II. p. 73. We reject this conclusion.


[20]   The trial court’s failure to ensure that Wilson’s waiver of his right to counsel

       was knowing, voluntary, and intelligent was evident from a plain reading of the

       transcripts from the pre-trial hearings. Indeed, not only did the trial court fail to

       ask a single question to determine whether Wilson’s waiver of counsel was

       knowing, voluntary, and intelligent,2 and not only did the trial court fail to offer




       2
         We acknowledge that the trial court briefly asked Wilson why he did not want his public defender to
       represent him. However, considering the context in which this question was asked and the lack of follow-up
       to Wilson’s answer, we can hardly say that the trial court asked it with the intent to determine whether
       Wilson’s waiver of his right to counsel was knowing, voluntary, and intelligent.

       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018                   Page 19 of 25
       any advisement about the dangers and disadvantages of self-representation, but

       the trial court seemed wholly unaware of either Wilson’s rights or its own

       duties. See Reed v. State, 856 N.E.2d 1189, 1197 (Ind. 2006) (finding that the

       failure to raise an issue where a plain reading of a statute demonstrated that the

       defendant was entitled to relief was sufficient to demonstrate that the unraised

       issue was significant and obvious from the face of the record).


[21]   Moreover, although the State contends that “the record does not indicate that

       [appellate counsel] had reason to” request and review the transcripts from the

       pre-trial hearings, appellee’s br. p. 12, considering that Wilson proceeded pro se

       and that the right to counsel is of critical importance to criminal defendants,

       appellate counsel had every reason to request and review the transcripts from

       the pre-trial hearings for this very issue.


[22]   Further, the unraised issue was clearly stronger than the issue actually argued

       on appeal. On direct appeal, appellate counsel raised one issue: that the State

       did not present sufficient evidence to support Wilson’s conviction for Class B

       felony burglary because the State failed to prove that Wilson “broke into [the

       victim’s] apartment because no evidence was presented to establish how he

       might have entered the apartment.” Wilson, slip op. at 2 (internal quotation

       marks and citation omitted). Appellate counsel did not challenge the

       sufficiency for Wilson’s conviction of criminal deviate conduct, thereby

       conceding that Wilson was present in the apartment. The record showed that

       the apartment was on the second floor, that the apartment door had been shut

       and locked before Wilson entered the apartment, and that Wilson could not

       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 20 of 25
       have entered through a window. Based on these facts, the jury could have

       reasonably inferred that Wilson broke and entered the apartment. Burglary

       occurs when a person breaks and enters the dwelling of another person. Ind.

       Code § 35-43-2-1 (2014). Using even the slightest force to gain unauthorized

       entry, which can include opening an unlocked door or pushing a door that is

       slightly ajar, satisfies the breaking element of the crime. Davis v. State, 770

       N.E.2d 319, 322 (Ind. 2002). Circumstantial evidence alone can prove the

       occurrence of a breaking. Payne v. State, 777 N.E.2d 63, 66 (Ind. Ct. App.

       2002). The governing statute did not require the State to prove how Wilson

       broke and entered the apartment. There was, therefore, little to no chance of

       prevailing on this claim.


[23]   It is readily apparent to us that a claim based on whether a defendant’s waiver

       of his right to counsel was knowing, voluntary, and intelligent, in light of the

       trial court’s failure to make a single inquiry of the defendant and failure to

       advise him as to the dangers and disadvantages of self-representation, is clearly

       stronger than the issue appellate counsel raised on appeal. Failure to review the

       transcripts and raise this issue on appeal falls below prevailing professional

       norms and therefore satisfies the first prong of Strickland.


                                                B. Prejudice
[24]   Next, we must determine whether appellate counsel’s performance prejudiced

       Wilson such that there is a reasonable probability that the result of his appeal

       would have been different but for appellate counsel’s unprofessional error.


       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 21 of 25
[25]   Wilson argues that had appellate counsel raised the issue that his waiver of his

       right to counsel was not knowing, voluntary, and intelligent, his conviction

       likely would have been reversed. We agree. Time after time, our State’s

       appellate courts have reversed judgments against defendants when the facts and

       circumstances did not establish that the defendants knowingly, voluntarily, and

       intelligently waived their rights to counsel. E.g., Poynter, 749 N.E.2d at 1128-29

       (reversing judgment against the defendant when nothing in the record indicated

       that the trial court had advised him of the dangers and disadvantages of self-

       representation or that he might have independently understood those dangers

       and disadvantages); Hart v. State, 79 N.E.3d 936, 941 (Ind. Ct. App. 2017)

       (reversing judgment against the defendant after finding that the defendant could

       not have knowingly and intelligently waived his right to counsel absent an

       advisement regarding the dangers and disadvantages of self-representation).


[26]   Here, the transcript is clear on its face: the trial court did not advise Wilson of

       the risks of self-representation, let alone ask even one question to ascertain

       whether his waiver of his right to counsel was knowing, voluntary, and

       intelligent. Had appellate counsel raised this issue on appeal, it is highly likely

       that this Court would have reversed the judgment against Wilson and

       remanded for a new trial.


[27]   Although the post-conviction court noted that Wilson “was granted permission

       to represent himself,” appellant’s app. vol. II p. 67, and “acted as his own

       counsel,” id. at 72, the post-conviction court also wrote that



       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 22 of 25
               Wilson does not stand in the position of other self-represented
               individuals because Wilson had the assistance of counsel
               throughout his pre-trial and trial proceedings. Although the trial
               court labeled [the public defender] “stand-by counsel” it bears
               consideration that “a rose by any other name would smell as
               sweet.” As discussed previously, [standby counsel] made
               objections, argued motions, successfully, and provided
               consultation and instruction to Wilson throughout the
               proceedings. Therefore, Wilson had the assistance of an
               attorney. What dangers or risks of self-representation did Wilson
               actually suffer? Wilson does not tell us and the record does not
               reveal it.


       Id. at 74. The post-conviction court seems to imply that, even though Wilson

       represented himself (as the post-conviction court noted earlier in its order), he

       could not have been prejudiced by the trial court’s failure to fulfill its duty to

       ensure that he knowingly, voluntarily, and intelligently waived his right to

       counsel because he had able, active standby counsel.


[28]   But the presence of standby counsel does not mean that Wilson gave up his

       right to represent himself or to control his case. Nor does the presence of

       standby counsel mean that Wilson was represented by an attorney. Standby

       counsel is not the same as, and does not confer the advantages of, full counsel

       because, even with standby counsel, a pro se defendant retains control over his

       case. See Hill v. State, 773 N.E.2d 336, 343 (Ind. Ct. App. 2002) (noting that a

       pro se defendant’s right to control his case is eroded when standby counsel

       interferes with his right to present his case in his own way); Jackson v. State, 441

       N.E.2d 29, 33 (Ind. Ct. App. 1982) (“Appointment of stand-by counsel is an

       appropriate prophylactic device when a defendant assumes the burden of
       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 23 of 25
       conducting his own defense.”). In short, therefore, the presence of standby

       counsel for a pro se defendant does not remove—or in any way affect—the trial

       court’s affirmative duty to ensure that a defendant who waives his right to

       counsel does so knowingly, voluntarily, and intelligently, and to ensure that the

       defendant is advised of the dangers and disadvantages of self-representation.3


[29]   In sum, there was a reasonable probability that, but for appellate counsel’s

       error, the result of Wilson’s appeal would have been different. Wilson satisfied

       the second prong of Strickland.


[30]   Appellate counsel’s failure to review the pre-trial hearing transcripts and present

       an argument about Wilson’s waiver of his right to counsel on direct appeal

       amounted to ineffective assistance. The post-conviction court’s finding to the




       3
         The post-conviction court further states that “Wilson comes before this court claiming that if his appellate
       attorney had raised a claim that the trial court failed to advise him of the risks and dangers of self-
       representation, he would have won the appeal. This is precisely the sort of framing of a claim our supreme
       court rebuked in” Lingler v. State, 644 N.E.2d 131 (Ind. 1994). Appellant’s App. Vol. II p. 74-75. In Lingler,
       Lingler claimed that the prior convictions on which his habitual offender status was based were out of
       sequence. The Court of Appeals had found that Lingler was entitled to relief from his status as an habitual
       offender after he had presented his claim in terms of ineffective assistance of counsel. Our Supreme Court
       reversed, finding that Lingler had offered no evidence to support his claim or show that there was “anything
       unjust or untrue about the verdict” of his habitual offender status. Lingler, 644 N.E.2d at 133.
       Lingler is simply irrelevant to determining whether Wilson suffered prejudice from his appellate counsel’s
       deficient performance. Our Supreme Court stated that “the purpose of post-conviction relief is not simply to
       relitigate claims that might have been litigated on direct appeal. . . . Th[e] redesigning of the claim will not
       wash. The post-conviction process is open to prisoners to correct injustice in convictions.” Id. at 132-33.
       Wilson’s claim in his petition for post-conviction relief of ineffective assistance of appellate counsel could not
       have been brought on direct appeal; he did not “frame” or “redesign” his claim so that he could have another
       bite at the apple. Rather, through his petition, he sought to correct an injustice in his conviction, which is the
       very purpose of a petition for post-conviction relief.

       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018                         Page 24 of 25
       contrary leaves us with a definite and firm conviction that a mistake has been

       made.


[31]   The judgment of the post-conviction court is reversed and remanded for further

       proceedings.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018   Page 25 of 25
