                                                                          FILED
                                                                     Jun 21 2017, 8:19 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Jeffrey K. Branstetter                                     Curtis T. Hill, Jr.
      Blanton, Branstetter & Pierce, LLC                         Attorney General of Indiana
      Jeffersonville, Indiana                                    James B. Martin
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      James A. Hart,                                             June 21, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 59A01-1607-CR-1655
              v.                                                 Appeal from the Orange Superior
                                                                 Court
      State of Indiana,                                          The Honorable R. Michael Cloud,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 59D01-1507-CM-680



      Pyle, Judge.


                                        Statement of the Case
[1]   James Hart (“Hart”) appeals his conviction by jury of Class A misdemeanor

      invasion of privacy. Prior to trial, Hart told the trial court that he did not want

      court-appointed counsel, but then he failed to obtain his own counsel in the


      Court of Appeals of Indiana | Opinion 59A01-1607-CR-1655 | June 21, 2017                 Page 1 of 10
      months that followed. A week prior to trial, Hart filed a motion for a

      continuance, requesting additional time to obtain counsel. The trial court

      denied the motion, and Hart subsequently represented himself at trial. On

      appeal, Hart argues that the trial court erred by trying him without counsel

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

      counsel. The State argues that, even though Hart did not verbally waive his

      right to counsel, he waived his right through his conduct of failing to obtain a

      lawyer in a timely manner. Because we find that the trial court did not properly

      advise Hart of the dangers of representing himself, we agree with Hart that he

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

      verbally or through his conduct. Accordingly, we reverse Hart’s conviction and

      remand to the trial court for a new trial.


[2]   We reverse and remand.


                                                       Issue
              Whether Hart knowingly, intelligently, and voluntarily waived his
              right to counsel.

                                                       Facts
[3]   On July 30, 2015, Hart was charged with Class A misdemeanor invasion of

      privacy for violating a protective order that prohibited him from visiting the

      French Lick Resort, his wife’s place of employment.


[4]   On September 14, 2016, the trial court held an initial hearing on Hart’s charge.

      At the hearing, Hart appeared and executed a document entitled “Waiver of


      Court of Appeals of Indiana | Opinion 59A01-1607-CR-1655 | June 21, 2017   Page 2 of 10
      Appearance and Written Report of Initial Hearing.” (App. 110). The waiver

      provided:

              . . . the Defendant herein is now informed of his/her
              constitutional rights, which rights are as follows:

              1. To retain counsel, and if he intends to do so he must do so
              within . . . [t]en days . . . because there are deadlines for filing
              motions and raising defenses, and if those deadlines are missed
              the legal issues and defenses that could have been raised are
              waived.

              2. To assigned counsel at no expense to him if he is indigent.

      (App. 110). Hart signed another section of the waiver that provided: “I, the

      defendant herein, do hereby certify and state that I have read and understand

      this Appearance and Written Report of Initial Hearing . . . .” (App. 111). The

      trial court acknowledged that Hart had signed the waiver but did not ask

      whether Hart intended to retain an attorney or was indigent.


[5]   At the next pre-trial conference, on January 19, 2016, Hart and the trial court

      engaged in the following exchange:

              [COURT]: Are you going to represent yourself at trial?

              [HART]: Oh, I’ll do what ever (sic) I want. I don’t got to
              answer that today, do I?

              [COURT]: Well, I just didn’t know if you were waiving the right
              to counsel or you, you wanted me to consider appointing a
              lawyer or?

              [HART]: I don’t, I don’t need your monkeys, no thank you. . . .

      (Tr. Vol. 2 at 6-7). The trial court then asked Hart how many days were

      necessary for his jury trial. Hart and the court agreed on the number of days,
      Court of Appeals of Indiana | Opinion 59A01-1607-CR-1655 | June 21, 2017       Page 3 of 10
      and the trial court set the trial for June 8, 2016. The court also asked Hart if he

      wanted a final pre-trial conference, and Hart responded “Oh, heck no. We’re

      not coming to no agreement with this right here. . . . [the Prosecutor]’s too

      chicken to fight real criminals so she comes after us hard working people. . . .

      So let’s rock.” (Tr. Vol. 2 at 12).


[6]   Subsequently, one week before the scheduled jury trial, Hart filed, among other

      motions, a motion to continue the trial. The trial court held a hearing on the

      motions the day before the scheduled trial. At that hearing, Hart requested a

      continuance because two of his witnesses were unable to appear on the

      originally scheduled trial date due to medical complications and because the

      trial conflicted with a work assignment he had received. In addition, Hart said

      “I’ve recently tried to seek out legal counsel, [] and stuff like that and been

      denied because everybody’s too booked up. So, you know they say they need

      more time and financially I haven’t been able to pull it together, you know,

      until recently.” (Tr. Vol. 3 at 12). As a result, Hart requested more time to

      obtain counsel. The trial court denied the motion, noting that it was the day

      before the trial, and the court had already summoned the seventy-five potential

      jurors. The trial court also noted that Hart had received notice of the trial

      almost six months previously and could have requested a continuance at any

      point before May 27 when the court had summoned the jurors.


[7]   Over the next three days, the trial court conducted the jury trial. Hart appeared

      pro se, and the trial court never questioned his lack of representation. At the

      conclusion of the trial, the jury found Hart guilty as charged. The trial court

      Court of Appeals of Indiana | Opinion 59A01-1607-CR-1655 | June 21, 2017   Page 4 of 10
      sentenced Hart to one (1) year with all but sixty (60) days suspended to

      probation. Hart now appeals.


                                                   Decision
[8]   On appeal, Hart argues that he did not voluntarily, knowingly, and intelligently

      waive his constitutional right to counsel and, accordingly, the trial court

      violated that right by conducting his trial before he could obtain counsel. In

      response, the State argues that even if Hart did not verbally waive his right to

      counsel, he implicitly waived that right through his conduct of failing to obtain

      counsel during the six months after he received notice of his charges and his

      trial date.


[9]   A criminal defendant’s right to counsel is a fundamental individual right

      protected by the Sixth Amendment of the United States Constitution. Leonard

      v. State, No. 71S00-1509-LW-539 (Ind. May 2, 2017). “‘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 v. State, 749 N.E.2d 1122, 1125-26 (Ind. 2001) (quoting United States v.

      Cronic, 466 U.S. 668, 684 (1984)). Accordingly, it is well-settled that when a

      defendant proceeds to trial without the benefit of counsel, the record must

      reflect that the right to counsel was voluntarily, knowingly, and intelligently

      waived. Brickert v. State, 673 N.E.2d 493, 495 (Ind. Ct. App. 1996), reh’g denied,

      trans. denied. Whether there has been an intelligent waiver depends on the

      “‘particular facts and circumstances surrounding that case, including the


      Court of Appeals of Indiana | Opinion 59A01-1607-CR-1655 | June 21, 2017   Page 5 of 10
       background, experience, and conduct of the accused.’” Poynter, 749 N.E.2d at

       1127 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). It is the

       responsibility of the trial judge to determine whether there is an intelligent and

       competent waiver, and it is “‘fitting and appropriate for that determination to

       appear on the record.’” Id. (quoting Johnson, 304 U.S. at 465). There are no

       prescribed “talking points” the court is required to use; however, making a

       defendant aware of his constitutional right to counsel is insufficient. See id. at

       1126 (“There are no prescribed talking points the court is required to

       include[.]”); Eaton v. State, 894 N.E.2d 213, 217 (Ind. Ct. App. 2008), trans.

       denied. The trial court must also tell the defendant of the “‘dangers and

       disadvantages of self-representation.’” Poynter, 749 N.E.2d at 1126 (quoting

       Faretta v. California, 422 U.S. 806 (1975)).


[10]   We review the trial court’s conclusion that a defendant knowingly and

       voluntarily waived the right to counsel de novo. R.W. v. State, 901 N.E.2d 539,

       543 (Ind. Ct. App. 2009). We also note that a “strong presumption exists

       against waiver of the constitutional rights to counsel.” Eaton, 894 N.E.2d at

       217 (quoting Mitchell v. State, 417 N.E.2d 364, 369 (Ind. Ct. App. 1981)).


[11]   The complicating factor here is that Hart never asserted his right to self-

       representation, which would have raised the question of whether he intended to

       waive his right to counsel. He denied the trial court’s offer of court-appointed

       counsel when he said “I don’t need your monkeys,” but he never stated that he

       intended to represent himself instead. (Tr. Vol. 2 at 7). To the contrary, at his

       hearing on his motion to continue, Hart told the court that he had tried to

       Court of Appeals of Indiana | Opinion 59A01-1607-CR-1655 | June 21, 2017    Page 6 of 10
       obtain a lawyer and wanted more time to do so because all the lawyers he had

       spoken to had been booked. Then, later at the hearing, he reiterated “I told you

       I needed time to get legal counsel[,] too[.] I was still working on that, so.” (Tr.

       Vol. 3 at 43). Accordingly, Hart never verbally asserted his right to self-

       representation or said that he did not want counsel.


[12]   Nevertheless, the State argues that Hart implicitly waived his right to counsel

       by failing to obtain counsel even though he had received notice of his trial date

       several months prior to trial. In support of this argument, the State cites Brickert

       v. State, 673 N.E.2d 493, 496 (Ind. Ct. App. 1996), reh’g denied, trans. denied, in

       which we held that Brickert had waived his right to counsel by failing to obtain

       counsel after the trial court had granted him a continuance to do so. We do not

       find our holding in Brickert relevant because our supreme court later recognized

       in Poynter that Brickert conflicted with other precedent and clarified the issue of

       waiver of the right to counsel. See Poynter, 749 N.E.2d at 1126-27 (stating that it

       would “take [the] opportunity to clarify” the issue of waiver of the right to

       counsel because Brickert and other cases provided “inconsistent precedent”).


[13]   In Poynter, Poynter had told the trial court that he intended to hire an attorney

       to represent him. Id. at 1124. A month and a half later, the trial court had

       continued one pre-trial conference because Poynter had not yet obtained an

       attorney. Id. Then, at the next pre-trial conference, Poynter had appeared

       without an attorney and had said that he had been working seven days a week,

       twelve hours a day, and had been too tired to talk to an attorney. Id. at 1125.

       The court had set the case for a bench trial and told Poynter that “with or

       Court of Appeals of Indiana | Opinion 59A01-1607-CR-1655 | June 21, 2017   Page 7 of 10
       without an attorney you need to be prepared for a trial on this date.” Id.

       Poynter had agreed but had appeared on the trial date without an attorney. Id.

       Neither Poynter nor the trial court had commented on his lack of attorney, and

       the trial court had conducted the trial with Poynter representing himself. Id.


[14]   On appeal to the supreme court, Poynter argued that he had not waived his

       right to an attorney, and the trial court had therefore erred in trying him

       without counsel. Id. at 1124. In response, the State argued that Poynter had

       waived his right to an attorney through his conduct of telling the court that he

       would hire an attorney and then appearing without an attorney. Id. In its

       opinion, the supreme court recognized that a defendant may waive his right to

       an attorney through his conduct. Id. at 1126. However, the supreme court

       reaffirmed that such a waiver must still be made knowingly, intelligently, and

       voluntarily. See id. To determine whether Poynter’s waiver had been knowing

       and intelligent, the court considered the following four factors established by

       the Seventh Circuit Court of Appeals: “‘(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 (quoting

       U.S. v. Hoskins, 243 F.3d 407, 410 (7th Cir. 2001)).


[15]   Ultimately, the supreme court concluded that Poynter had not knowingly and

       intelligently waived his right to counsel because there was nothing in the record

       to indicate that the trial court had advised Poynter of the dangers and

       Court of Appeals of Indiana | Opinion 59A01-1607-CR-1655 | June 21, 2017   Page 8 of 10
       disadvantages of self-representation or that Poynter might have independently

       understood the dangers and disadvantages of self-representation. Id. at 1128.

       The court commented that the trial court’s “lack of advisement weigh[ed]

       heavily against finding a knowing and intelligent waiver.” Id.


[16]   Since Poynter, Indiana courts have likewise held that in order for a defendant to

       knowingly and intelligently waive his right to counsel through his conduct, the

       trial court must warn the defendant of the dangers and disadvantages of self-

       representation. See Gilmore, 953 N.E.2d at 592 (finding that, even though

       Gilmore had caused five court-appointed attorneys to withdraw, he had not

       waived his right to counsel and noting that a knowing and intelligent waiver of

       the right to counsel “include[d] a warning on the dangers and disadvantages of

       self-representation established in an on-the-record hearing where specific

       findings [were] made”); Kowalskey, 42 N.E.3d at 106 (concluding that

       Kowalskey had not waived his right to counsel through his conduct because

       there were no findings regarding whether the trial court had given Kowalskey

       the required “warnings regarding the dangers and disadvantages of self-

       representation”).


[17]   In light of Poynter, Gilmore, and Kowalskey, we conclude that Hart cannot have

       knowingly and intelligently waived his right to counsel absent an advisement

       regarding the dangers and disadvantages of self-representation. Because Hart

       never received such an advisement, we conclude that the trial court erred in




       Court of Appeals of Indiana | Opinion 59A01-1607-CR-1655 | June 21, 2017   Page 9 of 10
       trying him without counsel. We reverse Hart’s conviction and remand to the

       trial court for a new trial.1


[18]   Reversed and remanded.


[19]   Baker, J., and Mathias, J., concur.




       1
         Notably, a trial court need not advise a defendant of the dangers and disadvantages of representation if the
       trial court concludes that the defendant has “forfeited” his right to counsel through his conduct. See United
       States v. Goldberg, 67 F.3d 1092, 1099-1101 (3rd Cir. 1995) (discussing the differences between “waiver” of the
       right to counsel and “forfeiture” of the right to counsel). However, the State does not allege here that Hart
       forfeited his right to counsel. Moreover, we conclude that his conduct was not the type of abusive or
       “extremely dilatory” conduct to which the doctrine of forfeiture applies. See Gilmore v. State, 953 N.E.2d 583
       (concluding that Gilmore’s conduct, which caused five different court-appointed attorneys to withdraw from
       representing him and delayed his trial for approximately four years “was not of the kind often associated with
       a finding of forfeiture of the right to counsel”); McLeod, 53 F.3d at 326 (“[U]nder certain circumstances, a
       defendant who is abusive toward his attorney may forfeit his right to counsel.”).

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