MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
                                                                      Apr 25 2019, 6:29 am
regarded as precedent or cited before any
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
Marielena Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Charles D. Grays,                                        April 25, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1994
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20C01-1708-F2-29



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019                Page 1 of 21
                               Case Summary and Issues
[1]   Following a traffic stop, Charles Grays was charged with dealing in cocaine,

      unlawful possession of a firearm, resisting law enforcement, and operating a

      vehicle with a suspended license. At the pre-trial hearing, ten days before trial,

      Grays asked to waive counsel and proceed pro se. After Grays completed a

      waiver of attorney form, the trial court held a hearing on his request, which it

      ultimately denied. The case proceeded to trial and Grays was convicted of all

      charges. Grays now presents two issues for our review which we restate as: (1)

      whether Grays’ request to proceed pro se was timely, and (2) whether the trial

      court deprived Grays of his right to self-representation. Concluding that Grays’

      request was timely and the trial court denied Grays the right to represent

      himself, we reverse the trial court’s judgment and remand for a new trial.



                            Facts and Procedural History
[2]   Around 1:32 a.m. on August 5, 2017, Corporal Travis Hamlin of the Elkhart

      Police Department was patrolling when he observed a white Chevy Impala near

      the intersection of Chester Avenue and Chapman Avenue. As Corporal

      Hamlin approached, the Impala quickly turned on its signal and turned right

      onto Chapman Avenue. Noting that the driver of the Impala failed to signal

      200 feet prior to turning, Corporal Hamlin followed the vehicle, which “quickly

      pulled off to the right side of the road” and the driver, later identified as Grays,

      opened the door and exited the vehicle. Appellant’s Appendix, Volume 2 at 5.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 2 of 21
      Corporal Hamlin activated his overhead lights and advised Grays to stand by

      the rear bumper of the Impala.


[3]   Corporal Hamlin explained to Grays why he stopped him and Grays stated that

      “there was something going on with his engine[.]” Transcript, Volume II at

      197. Grays returned to the driver’s seat of his vehicle and pressed the

      accelerator to demonstrate his car troubles. As Corporal Hamlin was standing

      near the Impala, he observed a “small, white, rock-like substance that [he]

      recognized to be crack cocaine” inside the driver’s door of the Impala. Id. at

      198. Corporal Hamlin asked Grays if he had anything on his person that he

      needed to know about and Grays responded “no.” Id. at 199. Corporal

      Hamlin then asked whether there was anything in Grays’ car he needed to

      know about and Grays “took off running[.]” Id. Grays was later arrested and

      police discovered cocaine and a handgun during an inventory search of Grays’

      vehicle. See id. at 248-49.


[4]   On August 8, 2017, the State charged Grays with the following: Count I,

      dealing in cocaine, a Level 2 felony; Count II, unlawful possession of a firearm

      by a serious violent felon, a Level 4 felony; Count III, resisting law

      enforcement, a Class A misdemeanor; and Count IV, operating while license

      suspended, a Class A misdemeanor. At the initial hearing, the trial court found

      Grays indigent and appointed a public defender. A jury trial commenced on




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 3 of 21
      March 5, 2018, but a mistrial was declared.1 The trial was rescheduled for June

      25, 2018.


[5]   At the final pretrial conference on June 14, 2018, in front of a senior judge,

      Grays requested to proceed pro se:


               [Grays]:          I wish to waive counsel. I wish for him to remove
                                 hisself [sic] from my case. I’ll go pro se. I’ll go pro
                                 se.


               [Court]:          If you want to proceed pro se, that is your right;
                                 however, you should understand that there are a
                                 number of disadvantages to proceeding pro se. First
                                 of all, you can’t evaluate your case objectively since
                                 you’re a party to it. Secondly, you can’t investigate
                                 your case while incarcerated . . . with the same
                                 ability as the public defender is able to investigate
                                 the case. [Number three], if you are – if you
                                 proceed pro se, you will be held to the same
                                 standards and rules that a practicing attorney would
                                 have to abide by. In other words, if you make an
                                 objection, it has to be based upon a proper legal
                                 ground. If you choose a jury and say things that
                                 you shouldn’t say during the voir dire portion of the
                                 trial, you’ll be stopped and admonished. I can tell
                                 you that I have been a practicing lawyer since 1973.
                                 I was a deputy prosecutor for 20 years. . . . I was a
                                 public defender for two years. I was a superior
                                 court judge in this very court for 18 years. I know a
                                 lot about Indiana criminal law, I would venture to



      1
        The jury was selected and sworn and the trial court adjourned for the evening. The next day, the trial court
      became aware of a conflict and the presiding judge was unable to preside in the case. Thus, the case was
      transferred to a special judge pursuant to Local Rules.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019                    Page 4 of 21
                               say a lot more than you do. But if I were charged
                               with a serious crime, I would hire a lawyer to
                               represent me. I would not attempt to represent
                               myself. You say you want to represent yourself;
                               that isn’t going to change the trial date.


              [Grays]:         I’m fine with that.


      Tr., Vol. II at 85-86.


[6]   The senior judge then asked Grays to sign a waiver of attorney form but did not

      rule on the request. Grays initialed next to each paragraph of the waiver and

      signed the form, which was filed with the court on June 20. After learning of

      Grays’ request to proceed pro se, the trial court judge scheduled an additional

      hearing on its own motion for June 21 to “insure that Gray[s] was indeed

      intending on proceeding pro se.” Appellant’s App., Vol. 2 at 79. At the

      hearing, the trial court engaged Grays in the following colloquy:


              [Court]:         Mr. Grays, it’s my understanding you met my
                               predecessor, Judge Biddlecome, when I was not
                               here last week; and from the notes that he left me, it
                               indicated that you wanted to proceed pro se in the
                               jury trial that commences on Monday. Is that
                               correct?


              [Grays]:         Yes.


              ***


              [Court]:         Mr. Grays, I’m not sure what . . . Judge Biddlecome
                               informed you about proceeding pro se, and I have

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 5 of 21
                         my own little spiel that I do that I’m going to give
                         you the benefit of. So even though you have this
                         filed – and I read the letter attached with that signed
                         motion and it seems that we are going over the
                         same things, . . . first of all, your suppression
                         hearing has already taken place. That was ruled on
                         by Judge Christofeno; and your – I’ll give you an
                         opportunity to speak in a moment. So, in addition,
                         Mr. Grays, what legal training have you had, if any?


        [Grays]:         Well, I can read the material and I understand.


        [Court]:         Okay. That’s not what I asked you.


        [Grays]:         I have no legal training.


        [Court]:         Okay. You have no legal training.


        [Grays]:         No.


        [Court]:         Do you understand what a motion in limine is?


        [Grays]:         Yes.


        [Court]:         Okay. Please explain to the court what your version
                         of a motion in limine is.


        [Grays]:         A motion in limine is something when the State files
                         something saying that something cannot be spoken
                         of, whatever the subject is, at trial.


        [Court]:         So it’s your understanding that the State can only
                         file a motion in limine?

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 6 of 21
        [Grays]:         Well, I guess, my attorney can file a motion in
                         limine[.]


        [Court]:         Okay. But if you’re acting on [sic] your own
                         attorney[,] . . . which is what you desire to do –


        [Grays]:         Yes.


        [Court]:         -- correct?


        [Grays]:         Yes.


        [Court]:         So do you . . . think that this case is ripe for a
                         motion in limine? Do you think a motion in limine
                         should be filed? Do you know what the deadlines
                         are to file a motion in limine?


        [Grays]:         Well, if I’m provided the legal material, I can –


        [Court]:         We’re going to trial on Monday, which is, what,
                         four days from now?


        [Grays]:         Yes.


        [Court]:         Four days.


        [Grays]:         Yes. I understand that.


        [Court]:         So you’re asking this court to allow you to proceed
                         pro se on Monday?


        [Grays]:         Yes.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 7 of 21
              ***


              [Court]:         . . . Do you know the Indiana Rules of Evidence?


              [Grays]:         I get the book, yes. . . . I’ll know what it is.


              [Court]:         Okay. I cannot provide you with any
                               documentation. So how do you plan on obtaining
                               that book?


              ***


              [Court]:         . . . So, Mr. Grays, how do you feel that you will be
                               prepared to represent yourself at trial? Do you
                               know anything about jury selection?


              [Grays]:         I’ll know Monday. . . .


              [Court]:         We’re making a decision right now.


              [Grays]:         And I said I’ll know Monday.


              [Court]:         . . . Right now as it stands, I am denying your
                               motion to proceed pro se based on the fact that you
                               are not equipped to represent yourself at a jury
                               trial[.]


      Tr., Vol. II at 90, 92-93, 102, 104.


[7]   After orally denying Grays’ motion, the trial court filed a written order on the

      morning of his jury trial. In its order, the trial court explained that it was clear


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 8 of 21
      that “Grays does not have a clear grasp of the legal ramifications of proceeding

      pro se even after [the court] has attempted to explain them to him and that

      Grays repeatedly interjects his version of the law and misstates legal concepts.”

      Appellant’s App., Vol. 2 at 84. Citing Grays’ lack of legal training and inability

      to “comport himself in a manor [sic] that complies with relevant rules of

      procedure and substantive law[,]” the trial court concluded that Grays did not

      make a knowing, intelligent, voluntary, or timely waiver of counsel. Id. at 86.

      Ultimately, it found that Grays “did not present a clear and unequivocal request

      to proceed pro se, and it was not presented to the [c]ourt within a reasonable

      time prior to jury trial[.]” Id. At trial, Grays objected to the trial court’s denial

      of his motion. The jury found Grays guilty on all counts. Grays now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[8]   Grays asserts that the trial court denied him the right to self-representation and

      he is therefore entitled to a new trial. The Sixth Amendment to the United

      States Constitution and Article 1, Section 13 of the Indiana Constitution

      guarantee a defendant the right to be represented by counsel. Kowalskey v. State,

      42 N.E.3d 97, 102 (Ind. Ct. App. 2015). “The purpose of the constitutional

      guaranty of a right to counsel is to protect an accused from conviction resulting

      from his own ignorance of his legal and constitutional rights[.]” Johnson v.

      Zerbst, 304 U.S. 458, 465 (1938). And a defendant’s right to self-representation

      is implicit in the Sixth Amendment right to counsel. Faretta v. California, 422

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 9 of 21
       U.S. 806, 819-20 (1975) (“[T]he right to self-representation – to make one’s own

       defense personally – is thus necessarily implied by the structure of the [Sixth]

       Amendment. The right to defend is given directly to the accused; for it is he

       who suffers the consequences if the defense fails.”) “[F]orcing a lawyer upon

       an unwilling defendant is contrary to his basic right to defend himself if he truly

       wants to do so.” Id. at 817.


[9]    The right to counsel may be waived by a knowing, voluntary, and intelligent

       waiver. Kowalskey, 42 N.E.3d at 102. We note that although a defendant need

       not have the skill and experience of an attorney, he or she must be competent to

       stand trial. Osborne v. State, 754 N.E.2d 916, 921 (Ind. 2001) (citing Godinez v.

       Moran, 509 U.S. 389, 400 (1993)). Whether the trial court violated a

       defendant’s constitutional right to self-representation is a question of law which

       we review de novo. Hill v. State, 773 N.E.2d 336, 342 (Ind. Ct. App. 2002),

       trans. denied, cert. denied, 540 U.S. 832 (2003). Before claiming that his right to

       self-representation has been denied, a defendant must timely, clearly, and

       unequivocally assert that right. Osborne, 754 N.E.2d at 921. When a defendant

       has been deprived of the right to self-representation, “a new trial is warranted

       because this right is not subject to harmless error analysis.” Id.


                                      II. Waiver of Counsel
[10]   In determining whether a defendant voluntarily and intelligently waived

       counsel, we look to the “particular facts and circumstances surrounding that

       case, including the background, experience, and conduct of the accused.”


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 10 of 21
Poynter v. State, 749 N.E.2d 1122, 1127 (Ind. 2001) (quoting Zerbst, 304 U.S. at

464). There are no “prescribed talking points” that a trial court is required to

include when advising a defendant. Id. at 1126. Instead, a trial court need only

determine that the defendant is making a voluntary, knowing, and intelligent

waiver of counsel. Id. And the law indulges every reasonable presumption

against a waiver of this fundamental right. Id. To determine whether a

defendant’s waiver is knowing and intelligent, we employ a four-factor test:


        (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 1127-28; Hopper v. State, 957 N.E.2d 613, 618 (Ind. 2011). When applying

these factors, we acknowledge that the trial court “is in the best position to

assess whether a defendant has knowingly and intelligently waived counsel[.]”

Poynter, 749 N.E.2d at 1128. In addition,


        we will most likely uphold the trial judge’s decision to honor or
        deny the defendant’s request to represent himself where the judge
        has made the proper inquiries and conveyed the proper
        information, and reached a reasoned conclusion about the
        defendant’s understanding of his rights and voluntariness of his
        decision.


Id. We have provided several guidelines for what a court should advise the

defendant when he considers self-representation, including:


Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 11 of 21
               The defendant should know of the nature of the charges against
               him, the possibility that there may be lesser included offenses
               within these charges, and the possibility of defenses and
               mitigating circumstances surrounding the charges. The
               defendant should be aware that self-representation is almost
               always unwise, that the defendant may conduct a defense which
               is to his own detriment, that the defendant will receive no special
               indulgence from the court and will have to abide by the same
               standards as an attorney as to the law and procedure, and that
               the State will be represented by experienced professional legal
               counsel.


       Dowell v. State, 557 N.E.2d 1063, 1066-67 (Ind. Ct. App. 1990), cert. denied, 502

       U.S. 861 (1991); see also Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003).

       However, these guidelines “do not constitute a rigid mandate setting forth

       specific inquiries that a trial court is required to make before determining

       whether a defendant’s waiver of right to counsel is knowing, intelligent, and

       voluntary.” Jones, 783 N.E.2d at 1138 (internal quotation omitted).


                                     A. Timeliness of Request
[11]   The State focuses its argument on the timing of Grays’ request to proceed pro

       se. The right to self-representation must be asserted within a reasonable time

       prior to the day of trial. Russell v. State, 270 Ind. 55, 62, 383 N.E.2d 309, 314

       (1978). A “reasonable” time before trial depends on the facts of each case. Id.

       at 63-64, 383 N.E.2d at 315.


               Respect must be accorded to the defendant’s constitutional right
               of self-representation in the construction of this requisite. By
               requiring a “reasonable” time before day of trial, we intend only
               to prohibit those assertions of the self-representation right by
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 12 of 21
               which the defendant merely seeks delay for its own sake. This
               can best be judged with reference to the type of trial at hand, and
               the nature and involvement of the pre-trial proceedings. The
               more complicated the case, and the more involved the pre-trial
               proceedings, the earlier a “reasonable” assertion will naturally
               be, and vice-versa.


       Id.


[12]   The trial court found that Grays’ request to proceed pro se was untimely. The

       State argues that the trial court “properly viewed [Grays’] request as a

       spontaneous offer once he realized he would not be appointed replacement

       counsel as he had requested[.]” Brief of Appellee at 24. In Burton v. Collins, the

       Fifth Circuit affirmed the trial court’s denial of a defendant’s request to proceed

       pro se as it was a “spontaneous response offered at a point when [he] realized

       he was not going to get a new lawyer.” 937 F.2d 131, 133 (5th Cir. 1991), cert.

       denied, 502 U.S. 1006 (1991).


[13]   However, Burton is distinguishable from the case at hand because there, the

       defendant’s request came after voir dire. Id. at 132-33. Here, Grays requested

       to proceed pro se ten days before trial after expressing dissatisfaction and

       conflict with his attorney. It does not appear that Grays requested to proceed

       pro se “merely seek[ing] delay for its own sake.” Russell, 270 Ind. at 64, 383

       N.E.2d at 315. Indeed, Grays repeatedly affirmed that he would proceed to

       trial as planned and we view the trial court’s decision to hold a separate hearing

       on his request as support that Grays made a timely request.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 13 of 21
                                           B. Poynter Factors
[14]   Having determined that Grays made his request within a reasonable amount of

       time before trial, we turn to whether Grays knowingly, voluntarily, and

       intelligently waived his right to counsel. In so doing, we apply the four Poynter

       factors:


               (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.


       749 N.E.2d at 1127-28.


[15]   The State argues that the trial court properly denied Grays’ request because he

       did not make a knowing and intelligent waiver of counsel “given that [Grays]

       only made his request when he learned that he would not get replacement

       counsel as he had requested, that he lacked legal expertise, and that he refused

       to listen to warnings given regarding the dangers of self-representation.” Br. of

       Appellee at 14.


[16]   The first two Poynter factors focus on whether the defendant had sufficient

       information about the dangers and disadvantages of self-representation, one

       through the trial court’s inquiry, and the other through any other evidence in

       the record. Drake v. State, 895 N.E.2d 389, 393 (Ind. Ct. App. 2008). In its

       order denying Grays’ request, the trial court analyzed these two factors and


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 14 of 21
       explained that it appeared that Grays’ decision to proceed pro se was based on

       his belief that his counsel would not attempt to relitigate his motion to suppress

       that was previously decided by the trial court. It also concluded that Grays

       “does not have . . . a clear grasp of the legal ramifications of proceeding pro se

       even after [the judge] has attempted to explain them to him and that Grays

       repeatedly interjects his version of the law and misstates legal concepts.”

       Appellant’s App., Vol. 2 at 84.


[17]   At the June 14 hearing, in response to Grays’ request to proceed pro se, the trial

       court warned Grays of a “number of disadvantages” of self-representation,

       including the inability to objectively evaluate the case, difficulty investigating

       the case while incarcerated, and that he would be held to the same standards as

       a licensed attorney. Tr., Vol. II at 85-86. The trial court judge further

       explained to Grays that although he had been a practicing attorney since 1973,

       he would hire a lawyer if charged with a serious crime. Grays was also advised

       that if he proceeded pro se, his trial date would not change.


[18]   Similarly, the waiver of counsel form initialed and signed by Grays cautioned

       that “it is rarely in a defendant’s best interest to represent himself or herself in a

       criminal case . . . [and a defendant] will be held to the same procedural and

       substantive stand[ard]s that apply to licensed attorneys[.]” Appellant’s App.,

       Vol. 2 at 78. At the hearing on Grays’ request to proceed pro se, the trial court

       further advised Grays that if he represented himself, he could not come back on

       a post-conviction relief and claim ineffective assistance of counsel. See Tr., Vol.

       II at 96.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 15 of 21
[19]   Notably, the competency reports filed with the trial court before Grays made

       his request indicated that “Mr. Grays makes it clear that he is at odds with his

       attorney who he feels is not representing him properly.” Appellant’s App., Vol.

       2 at 68. “He appears to have a decent understanding of the charges against

       him, their seriousness, and also has a decent understanding of the judicial

       process[.]” Id. at 69. For these reasons, we conclude that the first two factors

       weigh in favor of a finding that Grays knowingly, intelligently, and voluntarily

       waived his right to counsel.


[20]   We now turn to the remaining Poynter factors. The third factor concerns

       whether the defendant has the background and experience necessary to make a

       voluntary, knowing, and intelligent waiver of his or her right to counsel. Drake,

       895 N.E.2d at 394. The State asserts that Grays “lacked the understanding of

       nearly every legal issue he attempted to argue.” Br. of Appellee at 23. In its

       written order, the trial court addressed this factor and concluded only that

       Grays lacked legal training. Citing excerpts from the hearing on Grays’ request,

       the trial court concluded that Grays “does not have a clear grasp of the legal

       ramifications of proceeding pro se even after [the trial court judge] has

       attempted to explain them to him and that Grays repeatedly interjects his

       version of the law and misstates legal concepts.” Appellant’s App., Vol. 2 at

       84.


[21]   The record reveals that the only specific inquiry by the trial court into Grays’

       background was whether he had any legal training, including the extent of his

       knowledge of a motion in limine and the Indiana Rules of Evidence. However,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 16 of 21
       Grays indicated on his waiver of attorney form that he had an eleventh-grade

       education, he had earned his G.E.D., and acknowledged that he “can read,

       write, and understand English.” Id. at 77. Furthermore, the presentence

       investigation report confirms that Grays completed the eleventh grade and

       earned his G.E.D, and also reveals he attended Brown Mackie College for one

       semester before the school closed. Id. at 148, 155. Grays’ adult criminal

       history is comprised of one misdemeanor conviction and five felony

       convictions. Thus, Grays “was no stranger to the criminal justice system.”

       Taylor v. State, 944 N.E.2d 84, 91 (Ind. Ct. App. 2011). We also note that

       Grays was determined to be competent to stand trial based on two competency

       evaluations filed with the court. See Tr., Vol. II at 80; Appellant’s App., Vol. 2

       at 68-73.


[22]   The evidence in the record illustrates that Grays had the requisite background,

       education, and experience to make a knowing, voluntary, and intelligent waiver

       of counsel. Instead, the trial court focused solely on Grays’ lack of legal

       training. It is improper for a trial court to deny a defendant’s request for self-

       representation due to the defendant’s lack of legal knowledge. See Faretta, 422

       U.S. 806 at 836 (holding that a defendant’s “technical legal knowledge” was

       irrelevant in assessing whether he knowingly exercised the right to defend

       himself). Thus, this factor also weighs in favor of a knowing, voluntary, and

       intelligent waiver of counsel.


[23]   Finally, we evaluate the context of Grays’ decision to represent himself. If a

       defendant’s decision to proceed without counsel appears tactical, then this

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 17 of 21
       factor weighs in favor of finding a knowing and intelligent waiver. Drake, 895

       N.E.2d at 395. It appears that at the June 14 pretrial hearing, the trial court

       found Grays competent to stand trial based on several reports. Grays stated he

       was not ready to proceed to trial because he had not discussed a strategy with

       his attorney, “there’s [been] a lot of conflict going on between” him and his

       attorney, and he tried to file for replacement counsel. Tr., Vol. II at 81. Grays’

       counsel stated that Grays wanted him to file an interlocutory appeal regarding

       the motion to suppress, which would not be necessary and explained that was a

       “[t]actical decision by defense.” Id. at 85. After the State notified the court it

       was prepared for trial, the trial court asked Grays if there was anything else he

       would like to say, to which he responded he would like to waive counsel. It

       appears that Grays was dissatisfied with his attorney and likely believed he

       would be better off representing himself. Thus, this factor also weighs in favor

       of a knowing and voluntary waiver.


[24]   We again acknowledge our standard of review and the presumption against

       waiver of counsel; however, we conclude all four Poynter factors weigh in favor

       of a knowing, intelligent, and voluntary waiver of counsel. Grays was an

       experienced criminal litigant and had been sufficiently informed of the dangers

       and disadvantages of representing himself at the hearings and in the waiver of

       attorney form. He was competent and possessed the requisite education,

       experience, and background to enable him to knowingly, intelligently, and

       voluntarily waive counsel. Although the State and trial court pointed to Grays’

       flawed arguments, misunderstanding of the law, and lack of preparation for


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 18 of 21
       trial, “[i]t is the defendant . . . who must be free personally to decide whether in

       his particular case counsel is to his advantage. And although he may conduct

       his own defense ultimately to his own detriment, his choice must be honored

       out of that respect for the individual which is the lifeblood of the law.” Faretta,

       422 U.S. at 834 (quotation omitted). Based on our evaluation of the Poynter

       factors, we conclude Grays made a knowing, intelligent, and voluntary waiver

       of counsel and the trial court improperly denied his request to proceed pro se.

       And because Grays was denied the fundamental right to self-representation, he

       is entitled to a new trial. See Osborne, 754 N.E.2d at 921.



                                               Conclusion
[25]   For the reasons set forth above, we conclude that Grays’ request to proceed pro

       se was timely and he knowingly, voluntarily, and intelligently waived his right

       to counsel. Because the trial court denied Grays’ fundamental right to represent

       himself, we reverse the judgment of the trial court and remand for a new trial.


[26]   Reversed and remanded.


       Kirsch, J., concurs.


       Riley, J., dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 19 of 21
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Charles D. Grays,                                        Court of Appeals Case No.
                                                                18A-CR-1994
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge dissenting.


[27]   I respectfully dissent from the majority’s conclusion that the trial court deprived

       Grays of his right to self-representation. The trial court concluded that Grays

       had not made a timely, unequivocal request to proceed pro se, Grays did not

       understand the legal consequences of proceeding pro se, and Grays was unable

       to proceed in a manner consistent with the rules of trial procedure and

       substantive law. In light of these circumstances, the trial court concluded that

       Grays had not knowingly, intelligently, and voluntarily waived his right to

       counsel.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019       Page 20 of 21
[28]   As acknowledged by the majority, we review a trial court’s decision on the

       waiver of the fundamental right to counsel with deference, as the trial court is in

       the best position to make those determinations. Poynter, 749 N.E.2d at 1128.

       We also indulge every reasonable presumption against the waiver of the right to

       counsel. Id. at 1126. Given our standard of review, the presumption against

       the waiver of counsel, and the facts and circumstances of this case, I would

       affirm the trial court’s determination. For these reasons, I respectfully dissent.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 21 of 21
