MEMO RANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D), this                      Mar 30 2017, 6:03 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                   CLERK
                                                                 Indiana Supreme Court
purpose of establishing the defense of res judicata,                Court of Appeals
                                                                      and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Clyde D. Lewis, III,                                     March 30, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         31A04-1605-CR-1006
        v.                                               Appeal from the Harrison Superior
                                                         Court.
                                                         The Honorable Joseph J. Claypool,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      The Honorable H.L. Whitis, Senior
                                                         Judge.
                                                         Trial Court Cause No. 31D01-1512-
                                                         F5-795



Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017    Page 1 of 15
                                                                                              1
[1]   Clyde D. Lewis, III, appeals his conviction of battery, a Level 5 felony. We

      reverse and remand for a new trial.


[2]   The State alleged that Lewis battered his five-year-old stepson X.R. by striking

      him repeatedly with a belt, leaving marks on his back and thighs. At the initial

      hearing, Lewis stated he wanted to represent himself and signed a form waiving

      his right to counsel. The trial court did not discuss the form with him. Lewis

      subsequently represented himself at several pretrial hearings. At the final

      pretrial hearing, the trial court on its own motion appointed counsel to advise

      him, stating that counsel could answer Lewis’s questions but Lewis would

      otherwise represent himself. The court described counsel’s role as “stand-by

      counsel.” Tr. Vol. V., p. 4.


[3]   On the day of trial, Lewis asked to be represented by counsel, telling the court,

      “I’m in over my head.” Tr. Vol. VI, p. 6. The State objected to Lewis’s

      request. The trial court denied Lewis’s request and directed him to proceed pro

      se, with counsel available to provide advice. A jury determined Lewis was

      guilty as charged, and the court imposed a sentence. At sentencing, Lewis

      requested an attorney for an appeal. The court granted his request and this

      appeal followed.




      1
          Ind. Code § 35-42-2-1 (2014).


      Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 2 of 15
[4]   Lewis raises three issues, which we restate as: (1) whether the trial court erred

      in determining Lewis validly waived his right to counsel; (2) whether the trial

      court abused its discretion in denying Lewis’s request for counsel on the day of

      trial; and (3) whether the prosecutor engaged in fundamentally erroneous

      misconduct during trial. We need not address Lewis’s third claim because his

      first and second claims are dispositive.

[5]   We start with the waiver of counsel. Lewis argues his waiver of his right to

      counsel was invalid and his conviction must be reversed. The State responds

      that the record establishes the trial court properly allowed Lewis to represent

      himself. We agree with Lewis.

[6]   The Sixth Amendment, applicable to the states through the Fourteenth

      Amendment, guarantees a criminal defendant the right to counsel before he or

      she may be tried, convicted and punished. Parish v. State, 989 N.E.2d 831 (Ind.

      Ct. App. 2013). This protection also encompasses an affirmative right for a

      defendant to represent himself or herself in a criminal case. Id.


[7]   When a defendant asserts the right to self-representation, the court should tell

      the defendant of the “‘dangers and disadvantages of self-representation.’”

      Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001) (quoting Faretta v. California,

      422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975)). There is no

      set formula or script the court must follow in advising the defendant, but the

      court must come to a “considered determination” that the defendant is making

      a voluntary, knowing, and intelligent waiver. Id. Specifically, the court must


      Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 3 of 15
       determine the defendant’s competency to represent himself or herself and

       establish a record of the waiver. Bumbalough v. State, 873 N.E.2d 1099 (Ind. Ct.

       App. 2007). Courts will indulge every reasonable presumption against waiver

       of the right to counsel. Hawkins v. State, 982 N.E.2d 997 (Ind. 2013).


[8]    We review de novo a trial court’s determination that the defendant validly

       waived the right to counsel. Silvers v. State, 945 N.E.2d 1274 (Ind. Ct. App.

       2011). An appellate court reviewing the adequacy of a waiver must consider:

       (1) the extent of the trial court’s inquiry into the defendant’s decision, (2) other

       evidence in the record establishing 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 decision to proceed pro

       se. Parish, 989 N.E.2d 831.


[9]    In this case, Lewis appeared at an initial hearing on December 23, 2015. Senior

       Judge H.L. Whitis presided. The judge informed Lewis he had a right to an

       attorney at no expense if he could not afford one, read the criminal charge to

       Lewis, and informed Lewis of the possible penalties he was facing. Lewis told

       the court he intended to represent himself, and the court responded, “You are?

       Which is normally not a good idea unless you’ve got a law degree or been a

       paralegal or something.” Tr. Vol. II., p. 7.


[10]   Next, the court presented Lewis with a waiver of attorney form and paused the

       proceedings to allow Lewis to review it. When the proceedings resumed, Lewis

       told the court he had read, understood, and signed the form. Lewis noted on


       Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 4 of 15
the form that he had completed school through the twelfth grade plus two years

of college. He also indicated he had no prior criminal prosecutions. The form

included the following advisements:

        6. I understand that I have a right to be defended in this case by
        an attorney. I have the right to employ an attorney of my own
        choice to defend me. I know the judge would give me a
        continuance to save my money and hire an attorney. I also
        understand that if I cannot afford to hire an attorney, the Court
        will provide an attorney for me in this case at no expense to me.
        I further understand that I have a right to have an attorney
        provided by the Court even if I am found guilty of the offense
        charged.
        7. I declare that no person has made any promise or suggestion
        of any kind to me or to anyone else that I would receive any
        favors, special treatment or any other form of leniency if I would
        decide not to have an attorney defend me in this case. I declare
        that this Waiver is made and signed by me freely and voluntarily.
        8. I am aware of the following pitfalls, dangers, and
        disadvantages of representing myself:
        (a) A person untrained and uneducated and without any skill or
        experience in constitutional and criminal law and the procedural
        and evidentiary rules may not be able to adequately represent
        himself or herself;
        (b) A person untrained in and unfamiliar with the art of
        persuasion, negotiation, and the plea bargaining process in
        criminal cases may not be able to adequately represent himself or
        herself;
        (c) A person not possessing the skills of a lawyer may not be able
        to accurately assess the strengths and weaknesses of the case, the
        likelihood of the State succeeding at trial, or the legal validity of
        the charges against them;
        (d) An untrained person may lack the skill to adequately prepare
        a defense;
Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 5 of 15
               (e) An untrained person may lack the skill to accurately assess
               actual guilt of charges filed; and
               (f) A person representing himself or herself will be held to the
               same standard as an attorney and will be responsible for making
               objections and arguments, following procedural and evidentiary
               rules, preparing his or her defense, and representing themselves
               at every step in the proceedings without any assistance.

       Appellant’s App. p. 13.


[11]   The form provided space for Lewis to explain his reasons for representing

       himself:

               9. I am aware of the pitfalls, dangers, and disadvantages of
               representing myself and I want to represent myself for some of
               the following reasons (initial or check all that apply):
                                                     ****
               __√__ (c) I want to get my case over with sooner to have the
               case finalized and eliminate the uncertainty and anxiety of a
               pending case.
                                                     ****
               __√__ (f) I do not want to come back to court because I will
               have to miss work.
               I believe and feel that I fully understand the proceedings in this
               case against me and I understand my right to be represented by
               an attorney.
               I DECLARE THAT I DO NOT WANT TO BE DEFENDED
               BY AN ATTORNEY IN THIS CASE.

       Id. at 14.


[12]   The court did not discuss the form with Lewis or any other issues related to

       waiver of the right to counsel. Instead, the parties and the court moved on to


       Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 6 of 15
       other preliminary matters. Lewis declined to post bond, asserting he would

       remain in jail pending trial, contradicting his indication on the waiver form that

       he did not want to miss work.


[13]   Next, Judge Joseph L. Claypool presided at a pretrial hearing on February 12,

       2016. Judge Claypool presided over all subsequent pretrial hearings and the

       trial. At the February 12 hearing, Lewis stated he wanted to subpoena X.R. to

       testify at trial. The following exchange occurred during this discussion:

               THE COURT: And you’re representing yourself as counsel so
               therefore, you’re required to – to – Here’s what – Here’s what
               you’re required. This is what is usually read to you when you go
               through these things. And Judge – Judge Whitis intimated these
               things to you when we went through. Okay? That you have to
               follow the rules of evidence and trial procedure. Okay. Do you
               understand that?
               MR. LEWIS: Yes, sir.
               THE COURT: Okay. Do you know what the rules of trial
               procedure are?
               MR. LEWIS: Vaguely.
               THE COURT: Vaguely. Okay. Well, the next thing is that you
               can’t later claim that you had inadequate representation.
               MR. LEWIS: I’m not.
               THE COURT: Okay. And that – do you understand that the
               questions might open up any sorts of things otherwise that
               wouldn’t come into the trial? And you understand that attorneys
               have certain skills that you don’t have?
               MR. LEWIS: Yes, sir.

       Tr. Vol. III, pp. 23-24.



       Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 7 of 15
[14]   At a February 22, 2016, pretrial conference, Lewis told Judge Claypool he was

       prepared for trial and still wanted to represent himself. The court and the

       parties discussed discovery issues. During the discussion, the court stated:

               Sir, sir, the Court is trying to give you as much leeway as possible
               since you’re representing yourself, okay. Now we went through
               this several times about you’re under the same obligations as an
               attorney would be if you’re asking for document [sic] and so
               forth, and subpoenas or to get witnesses to come here and
               everything else.

       Tr. Vol. IV, pp. 9-10.


[15]   Later in the hearing, the trial court again asked Lewis if he wanted to represent

       himself. Lewis responded “I have no choice. I have no choice in the matter.”

       Id. at 11. He also said, “I’m already this far into it. I mean, what’s the worst

       that could happen?” Id. The following discussion occurred:

               THE COURT: The worst that can happen to you – I’m gonna
               read this to you again. A Level 5 Felony, the penalty is 1 to 6
               years in prison and up to a $10,000 fine. That’s what can happen
               to you. Okay? That’s a pretty stiff penalty. It’s a non – You
               know, this isn’t a – this isn’t a Correct Misdemeanor where
               you’re gonna spend 30 days in the Harrison County Jail. So, you
               know, the deal is is [sic] that, again, the Prosecutor and the Court
               here has been trying to do as much as we possibly can to make
               sure that you get – You know, that you understand what
               representing yourself means. Okay? That you want to represent
               yourself. You have an absolute constitutional right to do so.
               You know, your – your mental competency is something that
               was coming up to me. I mean, do you feel like you can
               understand what’s going on here?
               [LEWIS]: Yes, sir.



       Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 8 of 15
       Id. at 12-13. The court asked Lewis if he had ever been confined to a mental

       hospital or been diagnosed with a mental illness or emotional disability, and

       Lewis responded in the negative. The court further asked Lewis if he wanted

       the court to schedule a competency hearing, and Lewis said no.

[16]   Next, during the final pretrial conference, which was held on February 24,

       2016, the court stated it had contacted an attorney to serve as “stand-by

       counsel” if Lewis was agreeable. Tr. Vol. V, p. 4. The court asked Mr. Lewis,

       “You’re still representing yourself; do you understand that?” Id. at 5. Lewis

       indicated that he understood.

[17]   We must now consider the factors set forth in Parish v. State in the context of

       this record. First, as to the extent of the trial court’s inquiry into the

       defendant’s decision, neither of the judges talked with Lewis about his request

       to waive representation by counsel. At the preliminary hearing, Lewis merely

       signed a form, with no further discussion. At the next hearing, Judge Claypool

       indicated that certain advisements should have been read to Lewis, but no such

       reading occurred. Although a waiver form may eliminate the need for the trial

       court to question the defendant at length, caselaw requires some investigation

       into a defendant’s motivation for waiving counsel. See Castel v. State, 876

       N.E.2d 768 (Ind. Ct. App. 2007) (reversing conviction of defendant who

       represented herself at trial where the trial court made no inquiries into

       defendant’s decision to proceed pro se). At subsequent pretrial hearings, the

       court indicated it would allow Lewis to proceed pro se but did not inquire into

       the circumstances of his decision, other than questioning him about his mental

       Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 9 of 15
       state. Most troublingly, neither of the judges explicitly determined that Lewis

       had knowingly, voluntarily, and intelligently waived his right to counsel.

[18]   Second, we consider whether there was other evidence in the record

       establishing whether Lewis understood the dangers and disadvantages of self-

       representation. At the initial hearing, Lewis signed a form that contained

       several detailed advisements about proceeding pro se. The form also indicated

       Lewis was aware of the dangers of self-representation and understood the

       proceedings, but no attempt was made to follow up on those general

       statements. Lewis was told at several pretrial hearings that he would be held to

       the same standard as an attorney, who may have skills that he did not possess.

[19]   The third factor is the background and experience of the defendant. During the

       initial hearing, Lewis wrote on the form that he was a high school graduate

       who took some college classes, but he had no prior encounters with the justice

       system. At a later pretrial hearing, Lewis conceded he was only “vaguely”

       familiar with the rules of procedure. Tr. Vol. III, pp. 23-24. Further, during the

       February 22, 2016 pretrial conference, the trial court on its own initiative asked

       Lewis about his mental health in detail, asking several times whether he had

       ever been confined because he was a danger to himself or others.


[20]   Finally, we look at the context of the decision to proceed pro se. If a

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

       factor weighs in favor of finding a knowing and intelligent waiver. Drake v.

       State, 895 N.E.2d 389 (Ind. Ct. App. 2008). At the initial hearing, Lewis


       Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 10 of 15
       indicated on the form that he wanted to represent himself because he wanted to

       get the case “over with” and did not want to miss work. Appellant’s App. p.

       14. Intending to resolve the case as quickly as possible and return to normal life

       could be viewed as a logical consideration, but during the same hearing, Lewis

       undercut his own reasoning by refusing to pay a bond and choosing to remain

       incarcerated for the duration of the case. In addition, during the February 26,

       2016 hearing, when asked if he wanted to continue to represent himself, Lewis

       said, “I have no choice. I have no choice in the matter.” Tr. Vol. IV, p. 11.

       The trial court questioned Lewis about his mental state and mental health

       history shortly after that statement. These facts indicate that Lewis’s decision

       to proceed pro se may not have been tactical.


[21]   Weighing these factors as applied to the facts, we conclude Lewis’s waiver of

       counsel was not knowing, voluntary, and intelligent. The written advisements

       of the dangers of proceeding pro se and the trial court’s reminders that Lewis

       would be held to the same standard as an attorney are outweighed by the

       court’s lack of an inquiry into Lewis’s decision, Lewis’s utter lack of experience

       in trial matters, and the context of his decision to proceed pro se. See Parish,

       989 N.E.2d 831 (waiver of right to counsel was invalid considering the facts and

       circumstances, including a failure by the court to inquire into defendant’s

       decision to proceed pro se).




       Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 11 of 15
[22]   In the alternative, we also conclude the trial court erred in denying Lewis’s
                                                        2
       request for counsel on the day of trial. The decision of whether to allow a

       defendant to reassert a right of counsel during trial is left to the discretion of the

       trial court, and we reverse only for abuse of discretion. Koehler v. State, 499

       N.E.2d 196 (Ind. 1986). Relevant factors to consider include:

               (1) defendant’s prior history in the substitution of counsel and in
               the desire to change from self-representation to counsel-
               representation; (2) the reasons set forth for the request; (3) the
               length and stage of the trial proceedings; (4) disruption or delay
               which reasonably might be expected to ensue from the granting
               of such motion; and (5) the likelihood of defendant’s
               effectiveness in defending against the charges if required to
               continue to act as his own attorney.

       Id. at 199 (quoting People v. Elliott, 70 Cal. App. 3d 984, 993-94, 139 Cal. Rptr.

       205, 211 (1977)).


[23]   In this case, on the day of trial Lewis asked to be represented by counsel. The

       court denied Lewis’s request for counsel, noting the jury pool had been

       assembled, X.R.’s mother indicated she may be moving out of the county and

       “may not be able to appear at a later date,” and Lewis had been given prior

       opportunities to request representation by counsel. Tr. Vol. VI, pp. 16-17.

[24]   Turning to the factors noted in Kohler, Lewis did not have a history of

       substituting counsel or vacillating between representing himself or being



       2
         The State claims Lewis’s request for counsel was ambiguous or was, in substance, a request for
       inappropriate hybrid representation. Based on our review of the record, we conclude Lewis unambiguously
       asked to be represented by counsel on the day of trial.

       Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017      Page 12 of 15
       represented by counsel. He instead represented himself from the initial hearing

       until the day of trial, at which point, upon being finally confronted with the

       difficulties he faced, he requested counsel.


[25]   Lewis’s reason for requesting counsel - that he was not capable of adequately

       defending himself because he did not understand court procedures - appears to

       be legitimate. See Kohler, 499 N.E.2d 196 (inability to understand habitual

       offender proceedings was legitimate reason for requesting counsel during trial).

       Lewis told the court, “I’m in over my head” and “It’s not a good idea for me [to

       represent myself.]” Tr. Vol. VI, p. 6. The trial had not yet begun, although the

       jury pool had been assembled.


[26]   As for disruption and delay, the prosecutor and the trial court told Lewis that

       the attorney that the court had arranged to advise Lewis could not represent

       him at trial that day because she was not one of the county’s public defenders.

       Instead, a different attorney would have to be appointed to represent him.

       Thus, granting Lewis’s request for counsel would have resulted in delay, but

       two counterpoints are clear from the record. First, it appears the trial court did

       not tell Lewis until the day of trial that his attorney was not a true standby

       counsel; that is, she would not be able to represent him at trial if needed. It is

       unclear why the trial court did not ask one of the public defenders to serve as

       standby counsel, who could, in theory, have proceeded on the day of trial.

       Second, Lewis informed the court that if it was necessary to appoint a different

       attorney, he would waive his right to a speedy trial and agree to delay the trial.



       Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 13 of 15
[27]   The final factor discussed in Kohler is the likelihood of the defendant’s

       effectiveness at trial if required to continue to represent himself. The record

       reflects that when Lewis made his request for counsel, he demonstrated an utter

       lack of knowledge of procedural rules. Although he had previously asked for

       information on subpoenaing witnesses, he did not understand that he would

       have to seek evidence from third parties such as the Department of Child

       Services and X.R.’s doctors on his own. Further, when the trial court moved

       up the trial date to preserve Lewis’s right to a speedy trial, Lewis appeared not

       to understand that the trial would be held within the speedy trial period and

       indicated he might file a motion to dismiss. He conceded he was “vaguely”

       familiar with the rules of trial procedure. Tr. Vol. III, pp. 23-24. It was clear

       that he would have had difficulty presenting an effective defense at trial.


[28]   Based on these factors, the trial court abused its discretion in denying Lewis’s

       request for counsel on the day of trial. See Dowell v. State, 557 N.E.2d 1063,

       1067-68 (Ind. Ct. App. 1990) (trial court abused discretion in summarily

       denying defendant’s request for standby counsel to take over during trial;

       defendant had done a poor job representing himself and standby counsel “may”

       have been ready to step in), trans. denied.


[29]   For the reasons stated above, we reverse the judgment of the trial court and

       remand for a new trial.

[30]   Judgment reversed and remanded.


       Vaidik, C.J., concurs in result without opinion.

       Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 14 of 15
Kirsch, J., concurs.




Court of Appeals of Indiana | Memorandum Decision 31A04-1605-CR-1006 | March 30, 2017   Page 15 of 15
