ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Bart M. Betteau                                             Gregory F. Zoeller
New Albany, Indiana                                         Attorney General of Indiana

                                                            Monika Prekopa Talbot
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana
______________________________________________________________________________

                                              In the                           FILED
                             Indiana Supreme Court                          Sep 28 2010, 3:49 pm

                             _________________________________
                                                                                    CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and
                                     No. 13S01-1007-PC-399                               tax court




DAVID HOPPER,
                                                            Appellant (Defendant below),

                                                 v.

STATE OF INDIANA,
                                                       Appellee (Plaintiff below).
                             _________________________________

                Appeal from the Marion Superior Court No. 13C01-0910-PC-002
                             The Honorable K. Lynn Lopp, Judge
                           _________________________________

       On Petition to Transfer from the Indiana Court of Appeals, No. 13A01-1002-PC-41
                            _________________________________

                                       September 28, 2010

Boehm, Justice.

       David Hopper entered a plea of guilty in 2005 to a charge of Operating While
Intoxicated, a Class A Misdemeanor. At the plea hearing, the trial court advised Hopper that he
had a right to an attorney and if he could not afford an attorney one would be appointed for him.
Hopper confirmed, as recited in a written “Waiver of Attorney” form he had signed at the initial
hearing, that he wished to proceed without an attorney. Hopper then admitted to the factual basis
of the charge and the trial court accepted the plea.
       In 2009, Hopper filed a petition for post-conviction relief, alleging that his waiver of
counsel was not knowing and intelligent, and he was therefore denied his right to counsel in


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violation of both the Sixth Amendment to the United States Constitution and Article I, Section
13 of the Indiana Constitution. The basis of Hopper’s claim was that he was not advised of his
right to counsel incident to the plea negotiations that followed his initial hearing. The post-
conviction court denied relief, but the Court of Appeals reversed, pointing out that Hopper was
never advised of the dangers of self-representation, and that plea negotiations and plea hearing
are critical stages of the proceeding to which the right of counsel attaches. Hopper v. State, 925
N.E.2d 499, 504–06 (Ind. Ct. App. 2010). The Court of Appeals expressly rejected the holdings
of a line of cases stemming from the majority opinion in Sedberry v. State, 610 N.E.2d 284 (Ind.
Ct. App. 1993), trans. denied. Other panels of the Court of Appeals had also found no need to
advise a defendant who pleads guilty of the perils of self-representation because a plea would not
result in a trial at which the lawyer’s knowledge of rules of evidence, tactics of cross-
examination, etc., would be required. E.g., Redington v. State, 678 N.E.2d 114, 118 (Ind. Ct.
App. 1997), trans. denied; Greer v. State, 690 N.E.2d 1214, 1217 (Ind. Ct. App. 1998), trans.
denied. The Court of Appeals in Hopper’s case agreed with Judge Miller, who argued in dissent
in Sedberry that there is no more critical stage of a criminal proceeding than the decision to plead
guilty. Hopper, 925 N.E.2d at 503. Moreover, the Court of Appeals noted that the plea hearing
has been identified as a critical stage as early as White v. Maryland, 373 U.S. 59 (1963). Id.
       Advice as to the dangers of self-representation at trial is required before a defendant may
make a knowing and intelligent decision to proceed pro se. Faretta v. California, 422 U.S. 806,
835 (1975). For the most part, the problems inherent in self-representation have focused on the
defendant’s unfamiliarity with the rules of evidence, inexperience in handling witnesses, and
other issues arising from lack of trial skills. But there is no requirement to give detailed
warnings of the danger of self-representation at all stages of a criminal proceeding. As Patterson
v. Illinois, 487 U.S. 285 (1988) made clear, Miranda warnings were sufficient information to
comply with the Sixth Amendment and permit police questioning of the defendant after
indictment. A guilty plea hearing falls between these two poles. In finding a need to advise
Hopper of the desirability of an attorney before pleading guilty, the Court of Appeals pointed to
somewhat different considerations, noting that an attorney’s value to a person accused of a crime
is not limited to courtroom skills. Hopper, 925 N.E.2d at 503–04. Specifically, a defendant’s
plea negotiation can benefit from an attorney’s experience in bargaining for a reduced sentence
or fewer counts, skill in evaluating potential defenses, or ability to point out evidentiary or



                                                 2
procedural problems for the prosecution. Id. The Court of Appeals concluded that a waiver of
counsel entered without advice of both the right to counsel and the dangers of proceeding
without an attorney is not knowing and voluntary, and a conviction based on a guilty plea
therefore violated Hopper’s right to counsel. Id. at 505.
       The briefing and the opinion of the Court of Appeals in this case did not discuss Iowa v.
Tovar, 541 U.S. 77, 81 (2004), which unanimously ruled that the Iowa Supreme Court had erred
in concluding that the Sixth Amendment right to counsel included the right to be advised at a
plea hearing that waiving the right to counsel entails “the risk that a viable defense will be
overlooked” and that waiver of his right to counsel would forego “the opportunity to obtain an
independent opinion on whether, under the facts and applicable law, it is wise to plead guilty.”
The Supreme Court made clear that the information a defendant must possess in order to make
an intelligent election to proceed without counsel depends on “a range of case-specific factors,
including the defendant’s education or sophistication, the complex or easily grasped nature of the
charge, and the stage of the proceeding.” Id. at 88. The Court focused on the specific language
required by the Iowa Supreme Court and noted that the advisements at issue in Tovar could be
taken as implying that the defendant had a viable defense, or that a plea to a lesser charge was
available when it was not. Tovar, like Hopper, was charged with operating a vehicle while
intoxicated. The Court found this “straightforward” case to be a factor in concluding that the
Sixth Amendment did not require the requested advisement. The Court also noted that Tovar
made no claim that any specific information was lacking, and therefore failed to carry his burden
in post-conviction relief to establish that his waiver of counsel was not intelligently made. The
Court made clear that the Sixth Amendment does not require the Iowa advisements in all cases,
but also made explicit that States are free to adopt “by statute, rule, or decision any guides to the
acceptance of an uncounseled plea they deem useful.” Id. at 94.
       The Court of Appeals found somewhat different advisements from those involved in
Tovar to be necessary. Rather than focusing on the attorney’s ability to identify potential
defenses, the Court of Appeals pointed to the value of counsel’s experience in bargaining for a
plea and ability to identify chinks in the State’s armor to fortify a negotiating position. Hopper,
925 N.E.2d at 503–04. The Court of Appeals referred to both the Sixth Amendment and Article
I, Section 13 of the Indiana Constitution, and did not differentiate between the two in this
respect. We agree with the result reached by the Court of Appeals, but do not rest our holding on



                                                 3
either the federal or state constitution. Rather, we exercise our supervisory power to require that
in the future a defendant expressing a desire to proceed without counsel is to be advised of the
dangers of going to trial as required by Faretta, and also be informed that an attorney is usually
more experienced in plea negotiations and better able to identify and evaluate any potential
defenses and evidentiary or procedural problems in the prosecution’s case. Such an advisement
will require minimal additional time or effort at the initial hearing, and may encourage
defendants to accept counsel. The effect of this advice will undoubtedly vary from case to case,
but we do not believe it will impose significant burdens on the judicial process. To the extent
this additional information causes fewer defendants to proceed pro se, participation of counsel in
this process may encourage plea bargains as frequently as it causes delay.
       Because we announce a new requirement as an exercise of supervisory powers, we apply
it prospectively to hearings in which a defendant expresses a desire to proceed pro se, and affirm
the judgment of the trial court.


Sullivan, and Rucker, JJ., concur.
Shepard, C.J., dissents with separate opinion in which Dickson, J., joins.




                                                 4
SHEPARD, Chief Justice, dissenting.


       As counsel was professional enough to acknowledge at oral argument, the primary bene-

ficiaries of today’s decision will be repeat offenders, people whose multiple arrests and prosecu-

tions do not deter them from engaging in behavior that endangers their fellow citizens. Indeed,

appellant David Hopper is here precisely because he has been charged with yet another offense

and it would be helpful to him if he could wipe out his last conviction for drunk driving.



       The U.S. Supreme Court has told us that the warnings mandated today are not required

by the federal Constitution, and the majority explicitly declines to say that they are required by

the Indiana Constitution.



       Rather, the majority says the Court is acting in its supervisory capacity, a legitimate

grounds of authority. But it acts without a word about the balancing of social costs or benefits

imbedded in the new mandate.



       How many innocent people are now pleading guilty without a lawyer because the judge

did not tell them they could consult a lawyer? How many guilty people will decide not to plead

guilty as the result of the “minimal” judicial intervention the majority says it contemplates? If

indeed the advisement is likely to be minimal, does it tell offenders anything they didn’t learn

from television? How many repeat offenders will avoid the penalties they have otherwise earned

because the warning was omitted or was found inadequate with the benefit of hindsight? How

many victims will these repeat offenders create?




                                                 1
       That society, or even offenders, will be better off is far from clear.



Dickson, J., joins.




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