MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any
                                                                 Mar 14 2017, 9:07 am
court except for the purpose of establishing
the defense of res judicata, collateral                               CLERK
                                                                  Indiana Supreme Court
estoppel, or the law of the case.                                    Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan J. Schueler                                        Curtis T. Hill, Jr.
Ferguson Law                                             Attorney General of Indiana
Bloomington, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Randy Tapp,                                              March 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         60A04-1610-CR-2268
        v.                                               Appeal from the Owen Circuit
                                                         Court
State of Indiana,                                        The Honorable Lori Thatcher
Appellee-Plaintiff                                       Quillen, Judge
                                                         Trial Court Cause No.
                                                         60C01-1603-CM-86



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 60A04-1610-CR-2268 | March 14, 2017     Page 1 of 9
[1]   Randy Tapp appeals his convictions for Class A Misdemeanor Resisting Law

      Enforcement1 and Class B Misdemeanor Disorderly Conduct. 2 He raises a

      number of arguments on appeal, but we find one dispositive—whether he

      knowingly and voluntarily waived his right to be represented by an attorney.

      Finding that he did not, we reverse and remand for further proceedings.


                                                    Facts
[2]   On March 8, 2016, Gosport Town Marshal James Harrington and Gosport

      Police Officer Kemper Freeman went to Tapp’s residence to talk to his son,

      Cody, regarding alleged ordinance violations for trash in the yard and a vehicle

      parked on the town’s right of way. The officers spoke with Cody first, and he

      was angry and repeatedly refused to identify himself. Tapp came out of the

      house with a dog, which attacked Marshal Harrington. Tapp secured the dog

      and commented that when the police returned, he and Cody “would have guns

      on our side.” Tr. p. 29, 58. Tapp and Cody were combative and told the

      officers they did not want them on the property.


[3]   The next day, Marshal Harrington learned that a civil writ of attachment had

      been issued for Tapp, so the marshal went back to Tapp’s residence to serve the

      body attachment. When Marshal Harrington and Officer Robbie Bean arrived

      at the residence, they again encountered Cody. Cody stated that his father was




      1
          Ind. Code § 35-44.1-3-1 (2014).
      2
          Ind. Code § 35-45-1-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 60A04-1610-CR-2268 | March 14, 2017   Page 2 of 9
      not home, and Marshal Harrington responded that he did not believe Cody

      because the marshal had heard conversation inside the house and had identified

      one of the voices as Tapp.


[4]   Cody went inside the house and Tapp came to the door. Marshal Harrington

      began the process of arresting Tapp, asking him to turn around and place his

      hands behind his back. Tapp initially complied, but as the marshal gripped

      Tapp’s right hand, Tapp placed his left hand on the storm door and tried to pull

      away. Cody reemerged from the house, and Marshal Harrington told him

      repeatedly to move away. When Cody ignored that command, Marshal

      Harrington pushed him away; a struggle then ensued between Marshal

      Harrington and Tapp. It was raining and Marshal Harrington’s shoes were wet,

      and as he struggled to gain control of Tapp, he lost his footing and both fell to

      the ground. Tapp continued to resist being handcuffed and Cody continued to

      interfere, threatening Marshal Harrington. Marshal Harrington instructed

      Officer Bean to place Cody in custody; after that occurred, the marshal was

      finally able to place Tapp in handcuffs. Tapp was combative throughout the

      whole encounter.


[5]   On March 10, 2016, the State charged Tapp with Class A misdemeanor

      resisting law enforcement and Class B misdemeanor disorderly conduct. At the

      initial hearing, Tapp indicated that he would hire his own attorney. He failed

      to do so, and on May 5, 2016, the trial court appointed a public defender for

      Tapp. That attorney filed a motion to withdraw five days later, which the trial

      court granted; on the same day, the trial court appointed a second public

      Court of Appeals of Indiana | Memorandum Decision 60A04-1610-CR-2268 | March 14, 2017   Page 3 of 9
      defender to represent Tapp. On May 17, 2016, Tapp declined the second public

      defender and again indicated a desire to hire his own attorney. The second

      public defender withdrew two days later.


[6]   On August 25, 2016, the trial court reconvened, and Tapp appeared without

      counsel. The trial court ultimately granted Tapp’s request to proceed pro se.

      On September 6, 2016, a bench trial took place, after which the trial court found

      Tapp guilty as charged. The trial court sentenced Tapp to 365 days, suspended

      to probation, for resisting law enforcement, and to 180 days, suspended to

      probation, for disorderly conduct. Tapp now appeals.


                                   Discussion and Decision
[7]   Tapp raises a number of arguments on appeal, but we find one dispositive. He

      argues that he did not knowingly and voluntarily waive his right to counsel. A

      defendant who wishes to waive the constitutional right to counsel must do so

      knowingly, intelligently, and voluntarily. Hopper v. State, 957 N.E.2d 613, 617

      (Ind. 2011). Therefore, a defendant who wishes to proceed pro se should be

      made aware of the dangers and disadvantages of self-representation such that

      the record will show that he “knows what he is doing and his choice is made

      with eyes open.” Id. Our Supreme Court has held that courts considering

      whether a waiver of counsel was knowing and intelligent must evaluate (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


      Court of Appeals of Indiana | Memorandum Decision 60A04-1610-CR-2268 | March 14, 2017   Page 4 of 9
      defendant, and (4) the context of the defendant’s decision to proceed pro se. Id.

      The trial court is in the best position to assess whether the defendant has made

      a knowing and intelligent waiver, and we will affirm if the trial court “has made

      the proper inquiries and conveyed the proper information, and reaches a

      reasoned conclusion.” Drake v. State, 895 N.E.2d 389, 393 (Ind. Ct. App. 2008).


[8]   At a May 17, 2016, hearing, Tapp indicated that he wanted his second public

      defender to withdraw. He stated that he intended to hire his own attorney and

      the trial court agreed, cautioning that it would not appoint further public

      defenders for Tapp and stating that if Tapp did not have an attorney by

      subsequent hearing dates, “you will be proceeding on your own and I would

      caution you against that because obviously an attorney needs to do some

      depositions in this case and a [sic] discovery in this case. You know, and get

      some witnesses on board for—for all parties involved.” Tr. p. 6-7.


[9]   At an August 25, 2016, pretrial hearing, Tapp appeared pro se. At that hearing,

      the following discussion occurred:

              Court:. . . Mr. Tapp, are you still wanting to proceed on your
                    own for representation purposes?


              Tapp: I can’t afford not to and I won’t take that public defender
                    that wants me to plead guilty . . . .


                                                      ***


              Court:I—I’m willing to appoint you a public defender so that’s
                    where we’ve always been at.

      Court of Appeals of Indiana | Memorandum Decision 60A04-1610-CR-2268 | March 14, 2017   Page 5 of 9
        Tapp: No, ma’am.


        Court:So, if you want to hire your own attorney, . . .


                                                ***


        Tapp: I can’t afford to and I—I can’t afford to and I won’t take a
              State representative that wants me to plead guilty to this.


                                                ***


        Court:. . . I would think if your attorney tells you to plead and
              you don’t, you have every right to go to trial and they still
              have to take it to trial. So, if you want me to appoint
              somebody that’s going to—


                                                ***


        Tapp: I’m just going to relax and go upon the Lord’s word.


        Court:Okay.


        Tapp: He proceeds me. And, I—


        Court:I—I agree. I’m a big—


        Tapp: —I’m pretty sure he’ll represent me just well.


        Court:I—I follow Jesus Christ as well. . . .


                                                ***


Court of Appeals of Indiana | Memorandum Decision 60A04-1610-CR-2268 | March 14, 2017   Page 6 of 9
        Court:If you want me to appoint somebody that will take it to the
              trial regardless, I’m willing to do that. . . .


                                                ***


        Tapp: No, Ma’am.


                                                ***


        Tapp: So, my God says he is my counselor in the Courtroom, so
              I’m going to—I’m going to trust him upon his word.


                                                ***


        Court:Well – well, Mr. Tapp, if you change your mind at any
              time you want me to appoint someone, I will and certainly
              I – I want a trial on this. I want you to be able to come
              before me. So, I – and, if you don’t – if you don’t want to
              plead, I don’t want you to plead. And, I want to hear the
              evidence on it and an attorney has ethics and standards
              that they must follow, they may think that it’s a better,
              wise decision based upon what they view for you to plead.
              I don’t know. But, the reality is [] they still have a duty
              and obligation to present the evidence, object when certain
              evidence comes in. If you give them evidence to present,
              provided it’s truthful evidence and it doesn’t violate any of
              their ethical[] rules, they still have the obligation to present
              that. So, if you change your mind, you put something in
              writing and I will appoint someone for you. If you hire
              your own attorney, you’re entitled to do that. But, you’re
              also entitled to represent yourself. And, we – we’ve done
              this three or four times. So, I’m proceeding with you
              representing yourself at this point in time unless you put
              something in writing telling me differently. Okay?

Court of Appeals of Indiana | Memorandum Decision 60A04-1610-CR-2268 | March 14, 2017   Page 7 of 9
               Tapp: Yes, Ma’am. We’re good. Thank you.


       Tr. p. 16-19.3


[10]   Aside from the trial court’s brief statement at the May 17 hearing—when a

       request to proceed pro se was not even on the table—the trial court never once

       advised Tapp about the dangers and disadvantages of self-representation.

       Similarly, the trial court did not inquire into Tapp’s background and education,

       so we have no way of evaluating this factor. And as for the context of the

       decision to proceed pro se, Tapp did not want to be represented by any attorney

       who advised him to plead guilty and he believed that he would be sufficiently

       represented by God during his trial. We do not find this context helpful to a

       ruling granting his request to represent himself.


[11]   We are mindful of the frustration that the trial court must have felt as Tapp

       refused representation by two public defenders and repeatedly voiced an

       intention to retain private counsel but failed to do so. We are likewise mindful

       that the trial court could not permit Tapp to postpone the trial indefinitely with

       promises of private counsel on the horizon. But the right to representation by

       an attorney is so sacrosanct, and so crucial to the administration of justice, that

       certain procedures—including, most importantly, a pointed advisement

       regarding the dangers and disadvantages of self-representation—simply must be




       3
        At that hearing, Tapp later requested to take a polygraph examination and stipulated to its admission into
       evidence at trial regardless of the results.

       Court of Appeals of Indiana | Memorandum Decision 60A04-1610-CR-2268 | March 14, 2017             Page 8 of 9
       followed before a defendant is permitted to proceed pro se. In this case, those

       procedures were not followed. As a result, the trial court erred by concluding

       that Tapp had knowingly and voluntarily waived his right to counsel. We

       reverse and remand for a new trial.


[12]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Barnes, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 60A04-1610-CR-2268 | March 14, 2017   Page 9 of 9
