MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Mar 23 2018, 9:33 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Patricia Claywell,                                       March 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1703-CR-567
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Jones, Judge
Appellee-Plaintiff.                                      The Honorable David Hooper,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1606-CM-24914



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018             Page 1 of 21
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Patricia Claywell (Claywell), appeals her conviction for

      operating a vehicle while intoxicated in a manner that endangers a person, a

      Class A misdemeanor, Ind. Code § 9-30-5-2(b).


[2]   We reverse and remand.


                                                    ISSUE
[3]   Claywell raises one issue on appeal, which we restate as: Whether the trial

      court denied her right to self-representation in violation of the Sixth

      Amendment to the United States Constitution.


                      FACTS AND PROCEDURAL HISTORY
[4]   At approximately 3:00 p.m. on June 27, 2016, Ronald Brown (Brown) was

      standing on the corner of Dr. Martin Luther King Jr. Street and 25th Street in

      Indianapolis, Marion County, Indiana, when he observed a black SUV turn

      from Dr. Martin Luther King Jr. Street onto 25th Street and come to a complete

      stop in the middle of the road. The vehicle idled in the middle of the street for

      some time, and then a woman, later identified as Claywell, emerged from the

      vehicle and walked over to the sidewalk. Brown observed that she seemed

      “disoriented”; he questioned her as to whether anything was wrong but was

      unable “to understand” her response. (Tr. Vol. II, pp. 42-43). Claywell

      returned to the vehicle, “drove off about another five hundred or eight hundred

      feet and came to a complete stop.” (Tr. Vol. II, p. 45). As Claywell sat


      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 2 of 21
      motionless in her vehicle in the middle of the street, Brown called for police

      assistance.


[5]   Within minutes of Brown’s report to 9-1-1, Indianapolis Metropolitan Police

      Department Officer Brian Meeks (Officer Meeks) arrived to check on the

      welfare of Claywell. Officer Meeks parked behind Claywell’s SUV, which was

      “several feet from the curb.” (Tr. Vol. II, p. 52). Officer Meeks remained in his

      vehicle for “[m]aybe five or six minutes” and noted that Claywell’s vehicle was

      still running and, given that the brake lights were illuminated, still in gear. (Tr.

      Vol. II, p. 53). Officer Keith Shelton (Officer Shelton) arrived a short time later

      to provide assistance.


[6]   Officer Meeks approached the driver-side window, and when he knocked,

      Claywell was “[s]urprised” to see him standing there. (Tr. Vol. II, p. 53).

      Claywell attempted to exit her vehicle but had failed to first shift it into park.

      Officer Meeks “had to walk her through the process of putting the car in park

      while turning the key back on so that she could manually move it into park and

      then shut the car off.” (Tr. Vol. II, pp. 55-56). “It was like speaking to a small

      child.” (Tr. Vol. II, p. 56). Claywell rolled down her window, and when

      Officer Meeks inquired as to her well-being, Claywell’s response “was unclear.

      She would begin a sentence and then stop and look at [the officer] as if she had

      finished her sentence, but [the officer] wasn’t sure what she was trying to tell

      [him].” (Tr. Vol. II, p. 54). This happened “at least three or four” times. (Tr.

      Vol. II, p. 54). Claywell’s speech was “slow and disorganized.” (Tr. Vol. II, p.

      56). When Officer Meeks asked for identification, Claywell provided “some

      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 3 of 21
      sort of pamphlet of paperwork that was no[t] identification.” (Tr. Vol. II, p.

      85).


[7]   At the officers’ request to exit the vehicle, Claywell was “[v]ery unsteady

      coming out of the vehicle. Using both hands on both sides, one hand on the car

      door and one hand on the car frame. Very slow. When she was on her own

      two feet, [the officers] were concerned that she may fall down.” (Tr. Vol. II, p.

      86). At that time, Officer Meeks called for medical assistance. However, before

      the ambulance arrived, Officer Meeks administered a vertical gaze nystagmus

      test—which is one field sobriety test “designed to indicate the presence of a

      narcotic o[r] other drug.” (Tr. Vol. II, p. 64). Officer Meeks and Officer

      Shelton both observed involuntary jerking of Claywell’s eyes. Once emergency

      medical personnel arrived, the officers helped escort Claywell to the ambulance.

      The paramedic noted that Claywell had “a very high heart rate.” (Tr. Vol. II, p.

      62).


[8]   The officers followed the ambulance to Eskenazi Hospital. Based on Claywell’s

      “slow and disoriented speech and her unsteady balance, poor manual dexterity

      and the fact that she was operating a vehicle,” Officer Meeks believed that he

      had probable cause that Claywell was operating a motor vehicle while

      intoxicated. (Tr. Vol. II, p. 68). Accordingly, he advised Claywell of Indiana’s

      implied consent law, informing her that she was required to submit to a

      chemical test, the refusal of which would result in the suspension of her driving

      privileges. At first, Claywell indicated that she would consent, but when a

      nurse arrived to complete the test, Claywell declined. As a result, Officer

      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 4 of 21
       Meeks obtained a warrant to retrieve a sample of Claywell’s blood. The lab

       results indicated a presence of phencyclidine in Claywell’s blood.

       Phencyclidine—more commonly known as PCP—is “a central nervous system

       depressant as well as a stimulant and it also has hallucinogenic properties.”

       (Tr. Vol. II, p. 113). PCP is known to “cause an increased heartrate as well as

       disorientation. A lot of confusion and stupor and it can also have people

       hallucinate and see things that aren’t really there.” (Tr. Vol. II, pp. 113-14).


[9]    On June 28, 2016, the State filed an Information, charging Claywell with Count

       I, operating a vehicle while intoxicated in a manner that endangers a person, a

       Class A misdemeanor. On December 2, 2016, the State amended the

       Information by adding Count II, operating a vehicle while intoxicated with a

       controlled substance, a Class C misdemeanor. On February 10, 2017, the State

       filed to add a habitual vehicular substance offender sentencing enhancement to

       the Information. At Claywell’s initial hearing on June 28, 2016, the trial court

       appointed an attorney from the Marion County Public Defender Agency to

       represent her.


[10]   On June 29, 2016, the trial court ordered the immediate suspension of

       Claywell’s driver’s license for one year based on Claywell’s refusal to submit to

       a chemical test when offered. On July 28, 2016, Claywell filed a verified

       petition for a hearing on her refusal to submit to a chemical test. Claywell

       claimed that she “did not refuse to take a chemical test and/or was not properly

       advised of the Indiana Implied Consent Law.” (Appellant’s Conf. App. Vol. II,

       p. 33). On August 16, 2016, Claywell, via her public defender, requested that

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 5 of 21
       the refusal hearing scheduled for August 17, 2016, be converted to a pre-trial

       conference based on counsel’s belief that “a refusal hearing is [not] in . . .

       Claywell’s best interests.” (Appellant’s App. Vol. II, p. 38). The trial court

       granted Claywell’s motion and converted the hearing to a pre-trial conference.


[11]   On August 17, 2016, the trial court held the pre-trial conference as requested.

       At that time, Claywell voiced her displeasure over her attorney’s actions in

       cancelling the refusal hearing and alleged that there had been an attempt to

       coerce her into accepting a plea bargain. Claywell’s public defender explained

       that he was endeavoring to act in Claywell’s best interests, but he had advised

       her that “[i]f you would like to represent yourself or hire an attorney, you may

       do that.” (Supp. Tr. p. 7). Claywell then responded, “Right. So I came to

       represent myself. So I’m here for my Refusal hearing to represent myself.”

       (Supp. Tr. p. 7). From there, the following colloquy ensued:


               THE COURT: Well, here’s the procedural trick now is that first,
               we have to sort out the issue that you have an attorney, because
               you can’t have both.

               [CLAYWELL]: I know. So, he can withdraw[] and I can file an
               appearance to move forward pro se.

               THE COURT: Are you moving with withdrawal?

               [PUBLIC DEFENDER]: I don’t know that the Public Defender
               Agency can legally withdraw[]. She can file to represent herself
               Pro Se.

               THE COURT: Ok.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 6 of 21
               [PUBLIC DEFENDER]: Since we’ve been to [c]ourt, I can’t
               actually withdraw[].

               THE COURT: Alright. So, there’s not much I can accomplish
               for you today and I’m sorry for that. I can’t make a Refusal
               hearing happen for you today. The best I can do for you is we’ll
               set this for Pre-Trial. If your intention is to represent yourself--

               [CLAYWELL]: --Ok, and I will INAUDIBLE. I’m going to
               INAUDIBLE South Meridian. So I’ll represent myself. I’m
               going to INAUDIBLE South Meridian.


       (Supp. Tr. pp. 7-8).


[12]   Following the pre-trial hearing, Claywell continued to be represented by the

       Public Defender Agency, although it appears that a new public defender was

       assigned. On October 12, 2016, the trial court conducted a hearing on the issue

       of Claywell’s refusal to submit to a chemical test pursuant to Indiana’s implied

       consent law. Claywell contended that she did not knowingly refuse to submit

       to a chemical test when requested because she was too incoherent at the time.

       However, the trial court found that evidence of Claywell’s moments of clarity

       while refusing to submit to a chemical test—such as her repeated demands for

       the officers’ names and badge numbers to report what she perceived as

       mistreatment—established that she was more “difficult or agitated versus being

       totally confused and out of it in this situation.” (Tr. Vol. II, p. 18).

       Accordingly, the trial court denied Claywell’s request to terminate the license

       suspension.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 7 of 21
[13]   Near the end of the refusal hearing, Claywell’s public defender informed the

       trial court that, despite an earlier conversation with Claywell about not

       testifying regarding the refusal, Claywell was adamant that she did want to

       speak. However, the trial court advised Claywell that she “might want to listen

       to [her attorney’s advice] because he’s looking out for your best interest whether

       you think so or not and he’s, he did a fine job arguing the facts that you had.”

       (Tr. Vol. II, p. 20). The following conversation then occurred:


               [PUBLIC DEFENDER]: Just to make the record clear. On and
               off through the past couple of weeks, my client has
               communicated that she wants to represent herself and I’ve told
               her that she’s free to do that. In [c]ourt earlier today, she said
               that she’s ok with me moving forward. At this point, I have to let
               her address the [c]ourt. She’s communicating now that she
               wants to represent herself.

               THE COURT: Is that your desire?

               [CLAYWELL]: That’s been my desire since the last hearing.

               THE COURT: Why is that?

               [CLAYWELL]: I told them out there that I wanted to represent
               myself in the hallway before I went to [c]ourt and he said
               something else, because nothing that I’ve sat here and given to
               him has been presented in [c]ourt today.

               THE COURT: Well, let me explain something to you, because I
               know you’ve got a lot of stuff that you want to tell me. I know
               you’ve been in our [c]ourt office several times and you like to talk
               loud enough where I can hear you and I don’t listen to what
               you’re saying, because I can only listen to what is in front of me
               in [c]ourt. Now, there is one specific reason you were to be here

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 8 of 21
        today. Can you tell me what that was?

        [CLAYWELL]: A refusal hearing.

        THE COURT: Can you explain to me why we having [sic] that
        and what your burden was today?

        [CLAYWELL]: First off, because I was supposed to have one--

        THE COURT: --You were not supposed to have one last time
        you were here. Let me make that very clear to you.

        [CLAYWELL]: I have the minutes right here and you approved
        it.

        THE COURT: You were not to have one last time. What I told
        you was this. Is that the officer had to be subpoenaed to be here.

        [CLAYWELL]: You weren’t here last time.

        THE COURT: I have my file. Ok. So I can already see right
        now that you representing yourself is probably not going to be in
        your best interest, but we’re going to go through this. You’ve
        had Pre-Trial Conferences.

        [CLAYWELL]: On the minutes it says, I mean, it was approved
        and then I got a phone call at home and was told if I didn’t take a
        plea bargain that they were going to, I got called on a Monday
        night and told that if I did not take a plea bargain, that they were
        going to withdraw[] the refusal hearing. I think that’s like against
        my amendments.

        THE COURT: Wow. You need a lawyer and you need one
        bad--

        [CLAYWELL]: --I’m not INAUDIBLE--


Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 9 of 21
        THE COURT: --Because, what you just said right there makes
        zero sense at all.

        [CLAYWELL]: Zero sense to get a phone call and get--

        THE COURT: --That doesn’t make any sense--

        [CLAYWELL]: --Threatened--

        THE COURT: --And that you’re going to have to take a plea or
        your refusal hearing is going away and that it’s against your
        amendments. You are going to be held to the same standard as a
        practicing attorney. Alright.

        [CLAYWELL]: That’s fine. I’m going to go to 50 South
        Alabama. That’s fine.

        THE COURT: No. It doesn’t just happen like that. You don’t
        get to act disrespectful to the [c]ourt and then just walk out.

        [CLAYWELL]: I’m sorry.

        THE COURT: I’m just going to go to 50 South Alabama and do
        whatever you’re going to do. I don’t know what you’re going to
        do there. I have no idea or Meridian, I have no idea what you’re
        doing. Ok.

        [PUBLIC DEFENDER]: INAUDIBLE I think there are some
        INAUDIBLE for [t]rial if she lets me represent her.

        THE COURT: There might be. There very well could be issues,
        but if she’s not going to listen to what they are, then that’s on her.
        We set it for refusal hearing. You got your refusal hearing. This
        has been moving fairly, along fairly quickly. You’ve gotten
        everything, but you don’t have your lab results is what the State
        has not yet provided and what they are going to have to provide
        that before [t]rial. . . .

Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 10 of 21
(Tr. Vol. II, pp. 21-24). The trial court and attorneys then briefly discussed trial

dates before circling back to Claywell’s desire to proceed pro se.


        THE COURT: . . . As far as you wanting to represent yourself,
        how far did you go in school?

        [CLAYWELL]: I’m INAUDIBLE college. I’ve been a paralegal
        for fourteen years. I know the implied consent law. I’ve been
        working in criminal justice for longer than fourteen years.

        THE COURT: You’ve been a paralegal for a criminal attorney?
        Who’s that?

        [CLAYWELL]: I’ve worked for Steven Gellar and for Marla
        Thomas officer [sic].

        THE COURT: Ok. Have you ever appeared in [c]ourt with
        either of them or sat through any [t]rials with any of those
        people?

        [CLAYWELL]: Some, I mean, I’m not concerned with that. I
        know what I need to do.

        THE COURT: I don’t think you do. Maybe you should call one
        of those.

        [CLAYWELL]: I am. I have. So, I will.

        THE COURT: They’re not going to take your case or what’s the
        situation?

        [CLAYWELL]: I’ll deal with that.

        THE COURT: No. I’m going to deal with this right now,
        because I’m not going to have you drag this on[] forever. [The
        public defender] has been--

Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 11 of 21
               [CLAYWELL]: --He’s been awesome.

               THE COURT: He has been and he also has a lot of other clients
               that he could devote a lot of time and effort to if you’re going to
               hire someone, I’m going to let you get on with that. I’m going to
               set [t]rial dates and they’re going to be ready and if they’re not
               ready, that’s on them.


       (Tr. Vol. II, pp. 25-26).


[14]   On December 8, 2016, the parties convened for a pre-trial conference, during

       which the issue of self-representation was again raised.


               [PUBLIC DEFENDER]: Judge, just to cover my bases. At
               some point during representation, at points in representation,
               [Claywell] has indicated that she would rather represent herself.
               It keeps coming up. So, my, to cover my file.

               THE COURT: He’s an attorney. Would you like to speak with
               him? Go [a]head. You can hire an attorney at any point in time.
               You’re free to do that. [The public defender] has been working
               with you. [The public defender] is familiar with your case. He’s
               the one that’s setting depositions, that’s doing research and
               investigating on your behalf. I will tell you this. If you want to
               hire someone and you bring them in a week before your [t]rial
               date, they better be up to speed after all the months of prep that
               this attorney has done on your behalf. I will not give a
               continuance. It will go and that’s how it is. Got it?

               [CLAYWELL]: INAUDIBLE.

               THE COURT: Wow. I tell you. You have not learned much
               since day one when you have come in here about how to address
               the [c]ourt, how to talk in a professional manner to your attorney

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 12 of 21
               who is working his ta[il] off on your behalf. You cannot see that?
               That concerns me greatly. I mean, that really concerns me.
               Your inability to recognize the amount of work that he has done
               so far for you and if you’re inability [sic] to recognize that, you
               are really clouded in your judgment. His job is not to sit here
               and blow sunshine every day. His job is to represent you, make
               sure your rights are protective [sic] and to make sure that you
               understand [the] proceedings and you understand all of your
               options. You may not like some of the options, but if he doesn’t
               tell you each option that is available to you, he’s not doing his
               job and he’s being ineffective. He’s being very [e]ffective. He’s
               going quite frankly, he’s going, from what I’m hearing about
               some of these discovery issues that he is tackling, he’s doing the
               things he’s supposed to be doing. Now, the delay is no cause of
               his. The delay is because there was a witness that was
               unavailable. That is why there was a delay.

               [CLAYWELL]: I’m not questioning the delay.

               THE COURT: Ok, and I’m going to reset it and when we reset
               it, unless there’s some sort of issue with a witness that might be
               unavailable or maybe you need more time to gather more
               information, I will gladly give it, but what I’m telling you is I’m
               not going to play games with lawyers coming in here. If you
               want to hire an attorney, you need to go hire a lawyer and you
               need to do it very quickly, because we are not bumping this out
               because you want to bring someone in here at the last minute. I
               want you to be aware of that. You need to have realistic
               expectations that this is how the process will move. So we’re
               going to set it February 17th.


       (Tr. Vol. II, pp. 31-33).


[15]   On February 17, 2017, the trial court conducted a bench trial, during which

       Claywell was represented by her public defender. Pursuant to an agreement

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 13 of 21
       with Claywell, the State, at the beginning of the trial, moved to dismiss the

       habitual vehicular substance offender enhancement. At the close of the

       evidence, the trial court found Claywell guilty of both Counts of operating

       while intoxicated—one as a Class A misdemeanor and the other as a Class C

       misdemeanor. However, the trial court entered a judgment of conviction only

       as to Count I, the Class A misdemeanor—vacating Count II under double

       jeopardy principles. Proceeding directly to sentencing, the trial court imposed a

       sentence of one year, with ten days executed and the remainder suspended to

       probation. In addition, the trial court ordered Claywell to complete a substance

       evaluation and treatment as a condition of probation.


[16]   Claywell now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Standard of Review

[17]   Claywell claims that the trial court denied her Sixth Amendment right to self-

       representation. The Sixth Amendment to the United States Constitution

       stipulates that, in all criminal prosecutions, a defendant “shall enjoy the right . .

       . to have the Assistance of Counsel for his defen[s]e.” U.S. CONST. amend. VI.

       The United States Supreme Court has held that, implicit in this Sixth

       Amendment right, is a corollary right of self-representation. Faretta v. California,




       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 14 of 21
       422 U.S. 806, 821 (1975). 1 “A request to proceed pro se is a waiver of the right

       to counsel, and consequently, there are several requirements to invoking the

       right of self-representation successfully.” Stroud v. State, 809 N.E.2d 274, 279

       (Ind. 2004). Specifically, a defendant’s “request must be clear and unequivocal,

       and it must be [made] within a reasonable time prior to the first day of trial.”

       Id. (alteration in original).


[18]   Once a defendant asserts a desire to proceed without the assistance of counsel,

       the trial court must ensure that any Sixth Amendment waiver is “‘knowing,

       intelligent, and voluntary.’” Id. “Waiver of the right to assistance of counsel

       may be established based upon the particular facts and circumstances

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

       accused.” Taylor v. State, 944 N.E.2d 84, 89 (Ind. Ct. App. 2011). Factors to

       consider when determining whether a defendant has knowingly, intelligently,

       and voluntarily waived her right to counsel include: “(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.”

       Id. at 90 (quoting Poynter v. State, 749 N.E.2d 1122, 1127-28 (Ind. 2001)). A

       trial court “is in the best position to assess whether a defendant has knowingly




       1
         Article 1, Section 13 of the Indiana Constitution also guarantees a criminal defendant’s right to self-
       representation; however, in the present case, Claywell has raised only a claim under the federal Constitution.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018             Page 15 of 21
       and intelligently waived counsel.” Id. On appeal, this court “will most likely

       uphold the trial judge’s decision to honor or deny the defendant’s request to

       represent [herself] where the [trial court] has made the proper inquiries and

       conveyed the proper information, and reaches a reasoned conclusion about the

       defendant’s understanding of his rights and voluntariness of his decision.” Id.


                                        II. Claywell’s Pro Se Requests

[19]   In this case, Claywell indicated that she desired to proceed pro se on three

       occasions: at the August 17, 2016 pre-trial hearing (which had previously been

       scheduled as a refusal hearing); at the October 12, 2016 refusal hearing; and at

       the December 8, 2016 pre-trial conference. In each instance, the trial court

       briefly discussed the issue with Claywell but never formally ruled on her

       requests. Claywell now requests that we reverse her conviction and remand for

       a new trial.


[20]   The State, however, claims that Claywell waived her right to self-representation

       because she failed to clearly, unequivocally, and timely request it. A request to

       proceed pro se


               must be “sufficiently clear that if it is granted, the defendant
               should not be able to turn about and urge that he was improperly
               denied counsel.” If the rule were otherwise, trial courts would be
               in a position to be manipulated by defendants “clever enough to
               record an equivocal request to proceed without counsel in the
               expectation of a guaranteed error no matter which way the trial
               court rules.”




       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 16 of 21
       Dobbins v. State, 721 N.E.2d 867, 871 (Ind. 1999) (internal citations omitted).

       As to timeliness, defendants must assert requests for self-representation “within

       a reasonable time prior to the first day of trial”—more specifically, “morning-

       of-trial requests are per se untimely.” Moore v. State, 557 N.E.2d 665, 669 (Ind.

       1990).


[21]   Claywell points out that her first request was made eight months prior to trial;

       her second request was made four months before trial; and her final request was

       lodged eight weeks before trial. We agree with Claywell that her requests were

       made within a reasonable time prior to trial. See Russell v. State, 383 N.E.2d

       309, 314 (Ind. 1978) (indicating that the Faretta Court found a request made

       “weeks before trial” to be timely and adding that “we do not think that the right

       must be asserted at that early a time to be realized”). Nevertheless, the State

       suggests that Claywell’s first request, i.e., on August 17, 2016, was untimely

       because it was made after the refusal hearing had been rescheduled to a pre-trial

       conference. Assuming arguendo that there is any merit to the State’s assertion

       that Claywell’s “request to represent herself at her refusal hearing did not also

       convey to the court that she wanted to represent herself at her trial,” Claywell’s

       third request, i.e., on December 8, 2016, clearly related to her representation at

       trial and was made within a reasonable time beforehand. (State’s Br. p. 13).


[22]   The State also contends that Claywell’s last two requests to proceed pro se were

       unclear and equivocal. Our courts have previously held that a defendant’s

       general questions about the right to proceed pro se, “half-hearted expressions of

       dissatisfaction with counsel,” and “offer[s]” to proceed pro se (i.e., offering to

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 17 of 21
proceed pro se to obtain a speedy trial) fail to constitute “a clear assertion of a

right.” Dobbins, 721 N.E.2d at 872. In this case, however, Claywell explicitly

and repeatedly stated that she wanted to represent herself. During the first

instance, at the August 17, 2016 pre-trial conference, Claywell stated, “I came

to represent myself” and asked that her public defender be permitted to

withdraw. (Supp. Tr. p. 7). When the trial court and her public defender

indicated that there were procedural hurdles to withdrawal, she stated that she

was “going to [50] South Meridian” and she concluded, “I’ll represent myself.”

(Supp. Tr. p. 8). On the next occasion, at the conclusion of the refusal hearing

of October 12, 2016, Claywell stated to the trial court that it had “been my

desire since the last hearing” to proceed pro se. (Tr. Vol. II, p. 22). The trial

court questioned Claywell’s motive and dissatisfaction with her attorney, but

when Claywell’s response lacked clarity and proper legalese, the trial court

stated, “Wow. You need a lawyer and you need one bad.” (Tr. Vol. II, p. 23).

Nevertheless, Claywell’s request was unequivocal enough for the trial court to

briefly question whether Claywell understood the dangers of self-representation.

Claywell described that she had worked as a paralegal and “kn[e]w what [she]

need[ed] to do.” (Tr. Vol. II, p. 26). Yet, instead of making a determination as

to Claywell’s ability to proceed pro se, the trial court pursued a discussion as to

why Claywell had not asked one of her prior employers (criminal defense

attorneys) to represent her and then simply proceeded with scheduling the next

hearing without any further discussion of Claywell’s waiver. Finally, two

months before the trial on December 8, 2016, Claywell’s public defender

conveyed that Claywell had requested to proceed pro se. From there, the trial
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 18 of 21
       court did not allow Claywell an opportunity to speak but rather chastised her

       (albeit in response to a perceived display of disrespect to the court) for failing to

       appreciate the work done by her public defender and discussed her hiring of

       private counsel.


[23]   We find that Claywell’s statements were sufficiently clear, unequivocal, and

       timely so as to trigger the trial court’s duty “to hold a hearing to determine the

       defendant’s competency to represent [herself] and to establish a record of [her]

       waiver of [her] right to counsel.” Dowell v. State, 557 N.E.2d 1063, 1066 (Ind.

       Ct. App. 1990), trans. denied; cert. denied, 502 U.S. 861 (1991). Each time

       Claywell asserted her wish to proceed pro se, the trial court, instead of directly

       addressing the request, either challenged Claywell’s reasoning and capacity to

       represent herself, scolded her for failing to appreciate the services of her public

       defender, advised her to retain private counsel, or changed the subject entirely.


[24]   The State maintains that Claywell vacillated between proceeding pro se and

       utilizing her public defender, but the State relies on statements made by the

       public defender to the court about Claywell’s inconsistent desire to represent

       herself—i.e., the public defender informed the court that Claywell had discussed

       representing herself “[o]n and off through the past couple of weeks.” (State’s

       Br. p. 13; Tr. Vol. II, p. 21). Claywell herself never wavered when given the

       opportunity to speak. 2 The State also argues that Claywell acquiesced to her



       2
         Contrary to the State’s assertion, we do not find that Claywell’s acknowledgement that her public defender
       had been “awesome” negated her desire, or her right, to present her own defense. (Tr. Vol. II, p. 26).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018           Page 19 of 21
public defender’s presence at trial. Our court has previously stated that a clear

and unequivocal request “is made when a defendant objects to a court’s order

appointing counsel and does not acquiesce in the court-appointed counsel’s

presentation of the defense.” Jenkins v. State, 809 N.E.2d 362, 367 (Ind. Ct.

App. 2004), trans. denied. Here, Claywell expressly asserted her desire to

proceed pro se at multiple hearings. However, her public defender specifically

indicated that he could not withdraw until Claywell actually filed to appear pro

se, and the trial court ignored Claywell’s attempts for permission to do so. The

record demonstrates that the various interjections by the trial court during each

of the three hearings effectively stifled Claywell, but she should have received

the opportunity to make a knowing, intelligent, and voluntary waiver of her

right to counsel. See Stroud, 809 N.E.2d at 282 (despite ultimately finding that

the defendant vacillated between representation and proceeding pro se, noting

that a trial court should not “be dismissive of a defendant’s requests to proceed

without a lawyer. It would be much easier to evaluate these claims on appeal if

trial courts would err on the side of being cautious and hold a hearing to

determine whether a defendant is waiving the right to counsel, even if such a

hearing may not strictly be required because a defendant’s request is not clear

and unequivocal”). Because the violation of a defendant’s right to self-

representation is not subject to harmless error analysis, “a new trial is

warranted.” Osborne v. State, 754 N.E.2d 916, 921 (Ind. 2001).




Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 20 of 21
                                             CONCLUSION
[25]   Based on the foregoing, we conclude that Claywell was denied her Sixth

       Amendment right of self-representation and is entitled to a new trial.


[26]   Reversed and remanded.


[27]   Robb, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018   Page 21 of 21
