MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                             Jun 07 2018, 8:24 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                              CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daryl Newman,                                            June 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-285
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley Kroh,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1710-F2-39272



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018                Page 1 of 11
                                          Case Summary
[1]   Daryl Newman (“Newman”) appeals his conviction for burglary as a Level 2

      felony.1 He raises one issue on appeal which we restate as whether the trial

      court committed clear error when it allowed him to waive legal counsel and

      represent himself.


[2]   We affirm.



                               Facts and Procedural History
[3]   On October 6, 2017, Jeffrey Cummings (“Cummings”) was at his residence in

      Indianapolis, loading items into his vehicle that was parked in his detached

      garage. The large garage door was closed and Cummings used the service door

      to access the garage. Cummings left the service door of the garage open and

      went into his house to shower. As he was shaving, Cummings heard a signal

      from his home security system, indicating that the back door to his house,

      which faced the garage, had been opened. Cummings went downstairs and,

      when he stepped out of his back door, he saw a man standing inside the

      doorway of his garage. The man, later identified as Newman, had short hair

      and wore khaki pants and a black shirt.




      1
          Ind. Code § 35-43-2-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018   Page 2 of 11
[4]   Newman then walked towards Cummings and Cummings noticed a scar on

      Newman’s face. Newman said, “I don’t want any problems.” Tr. Vol. II at

      150. Newman then walked onto the patio, and, when he was about two feet

      away from Cummings, he pulled out a gun and said, “I don’t want any f---ing

      problems.” Id. Cummings said, “Just go,” and then ran inside the house and

      locked the back door. Id.


[5]   Cummings ran upstairs and called 9-1-1. He then went back downstairs and

      saw that his patio door was opening. Newman, while holding a gun, walked

      into Cummings’s house through the patio door and said, “I came back to take

      care of a f---ing problem.” Id. at 154-55. Cummings ran out the front door and

      to the home of his next-door neighbor, Linda Anderson (“Anderson”).

      Anderson was on the phone with 9-1-1, and she handed Cummings the phone.

      The police arrived a few minutes later. Cummings described Newman to the

      officers as a black male wearing loose fitting khaki pants and a loose fitting

      black shirt, and he said that he had confronted Newman inside Cummings’s

      house. The police went through all three floors of the house but did not see

      Newman.


[6]   While the police were at Cummings’s house, Robert Olson (“Olson”), who

      lived one street away from Cummings, called 9-1-1 about a suspicious person

      who he described as a black male with a black shirt. Olson had seen the man,

      later identified as Newman, jump over a neighbor’s fence, approach the house,

      and try to open the door. Then, while on the phone with the police, Olson



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018   Page 3 of 11
      observed Newman sit down on the curb of the street behind a parked white

      Jeep.


[7]   The two officers drove from Cummings’s house to Olson’s house, and Olson

      directed them to where Newman was sitting on the curb. The police

      handcuffed Newman and then located a gun on top of the rear, passenger-side

      tire of the Jeep next to which Newman had been sitting. The police took

      Cummings to Newman’s location, a block behind Cummings’ house, and

      Cummings identified Newman as the individual he had seen inside his house

      with a gun. Later, Newman’s fingerprints were found on the gun and the

      window frame of the vehicle that was in Cummings’s garage.


[8]   On October 12, 2017, the State charged Newman with burglary as a Level 2

      felony; carrying a handgun without a license, as a Class A misdemeanor; 2 and

      pointing a firearm, as a Level 6 felony.3 On October 12, 2017, the court

      appointed a public defender to represent Newman. Newman requested a

      speedy trial, and the court scheduled a trial for December 14, 2017. Public

      defender, Phillip Riley (“Attorney Riley”), entered an appearance on October

      13, 2017.


[9]   On December 11, 2017, Attorney Riley withdrew, and Attorney Daniel Grove

      (“Attorney Grove”) entered his appearance as conflict counsel. The same day,




      2
          I.C. § 35-47-2-1.
      3
          I.C. § 35-47-4-3.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018   Page 4 of 11
       at a status hearing, Attorney Grove advised the trial court that he had received

       Newman’s file that morning and that he did not have sufficient time to prepare

       for the December 14 trial. Attorney Grove requested a continuance and the

       State joined in that request due to outstanding discovery issues. Newman, who

       was present at the hearing, stated that he objected to a continuance and that he

       wished to represent himself if Attorney Grove could not be prepared for the

       December 14 trial. Newman stated that he waived his right to counsel, that he

       invoked his “Faretta”4 rights, and that he was “more than capable” of

       representing himself. Tr. Vol. II at 6.


[10]   The trial court advised Newman that he had the right to be represented by

       counsel and that if he could not afford one, one would be appointed for him.

       The court also stated that Newman had “a very good and experienced lawyer”

       sitting next to him and that he should reconsider his speedy trial request in light

       of the fact that his attorney was not ready for trial. Id. The trial court stated

       that “[i]f this was a misdemeanor, that might be one thing,” but because this

       was a Level 2 felony, Newman’s “exposure [was] significant.” Id. at 6-7. The

       trial court advised Newman that, although he had the right to represent himself,

       it was in his best interest to have the benefit of a lawyer who had experience

       and training and could protect his legal rights.




       4
         Faretta v. Cal., 422 U.S. 806 (1975) (holding a criminal defendant’s Sixth Amendment right to counsel
       includes a right to waive assistance of counsel and represent oneself).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018                     Page 5 of 11
[11]   The trial court then advised Newman that, if he represented himself, he would

       be solely responsible for jury selection, making opening and closing statements,

       arguments, objections, and motions, and that he would be responsible for

       issuing subpoenas for witnesses. The court further advised Newman that he

       would have to comply with the Indiana Rules of Evidence and that he would be

       responsible for preserving issues for appeal. The court also stated that Newman

       would be at a disadvantage because the State was represented by an attorney

       and that it would be awkward for Newman to elicit testimony from himself.

       The court appointed standby counsel but explained to Newman that standby

       counsel could only participate in the trial actively if the court so ordered and

       that standby counsel might not be prepared to take over the case if Newman

       changed his mind.


[12]   The trial court asked Newman if he was aware of the penalty range, and

       Newman said that he was. The court also advised Newman that there could be

       lesser-included offenses or mitigating circumstances. Finally, the trial judge

       advised Newman that he had never seen self-representation work out well.

       However, Newman stated that he did not want to be in jail until the next trial

       setting, and he expressed frustration with past trial delays in different criminal

       proceedings in the same court. He stated that, based on the pattern of trial

       delays in his past and current criminal cases, he “believe[d] in [his] heart that

       this is some kind of trickery,” involving defense counsel working with the State.

       Tr. Vol. II at 15.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018   Page 6 of 11
[13]   After receiving additional encouragement from the court to accept legal

       counsel, Newman still maintained that he wanted to go to trial on December

       14, and represent himself. Newman stated that he had a GED and some

       college education. He also stated that no one had threatened him or done

       anything to make him go to trial representing himself. Newman added that he

       was not willing to sit in jail on a $100,000 bond for something he had not done.

       He informed the judge that all he needed was the ability to use the law library at

       the jail. After numerous additional warnings from the trial court about the risks

       of self-representation, Newman stated again that he wanted to go to trial on

       December 14. The trial court gave Newman a written advisement regarding

       self-representation, and Newman stated that he understood it.


[14]   On December 14, the trial court again discussed the advisements of the

       document Newman had previously reviewed, styled “The Court Order

       Regarding Defendant’s Request to Proceed Pro Se,” and again advised

       Newman that Attorney Grove was there in a standby counsel capacity only and

       could not participate actively in the trial. Newman testified that he understood

       the advisements of the court. The trial court again went through lengthy

       advisements about the pitfalls of self-representation, told Newman the range of

       penalties he faced, and advised him that the State had an eyewitness who saw

       him inside the house with a firearm. Newman testified that he was not

       currently suffering from any mental disability and that he had never been

       treated for any such disability. Newman also stated that he had not been in

       special education at school. The trial judge stated that he thought Newman


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018   Page 7 of 11
       might be in denial about his case and once again asked Newman if he was sure

       he wished to represent himself. Newman again stated that he still wished to

       represent himself.


[15]   Newman’s case then proceeded to the jury trial, with Newman representing

       himself. The jury found Newman guilty as charged. On January 9, 2018, the

       trial court sentenced Newman to twenty years on the burglary count and

       vacated the other convictions. This appeal ensued.



                                   Discussion and Decision
[16]   Newman contends the trial court violated his rights under the federal and state5

       constitutions when it allowed him to waive counsel and represent himself.6 A

       defendant’s Sixth Amendment right to counsel is essential to the fairness of a

       criminal proceeding. Drake v. State, 895 N.E.2d 389, 392 (Ind. Ct. App. 2008)




       5
         Article 1, section 12 of the Indiana Constitution, cited by Newman, requires the same due process analysis
       as a federal due process claim. Gingerich v. State, 979 N.E.2d 694, 710 (Ind. Ct. App. 2012), trans. denied.
       And Article 1, section 13 of the Indiana Constitution, also cited by Newman, provides “no broader right to
       self-representation of mentally impaired persons” than that guaranteed by the Sixth Amendment. Edwards,
       902 N.E.2d at 828.
       6
         Newman also alleged a violation of Article 1, section 37, of the Indiana Constitution (“Slavery and
       involuntary servitude prohibited”), but developed no corresponding argument; therefore, that claim is
       waived. Ind. Appellate Rule 46(A)(8).
       In addition, Newman contends that the trial court erred by failing to conduct a competency hearing under
       Indiana Code Section 35-36-3-1. However, that statute’s specific procedural requirements relate to
       competency to stand trial, not competency to waive counsel and represent oneself. See Campbell v. State, 732
       N.E.2d 197, 202 (Ind. Ct. App. 2000) (citing Brewer v. State, 646 N.E.2d 1382, 1384 (Ind. 1995)) (holding a
       competency hearing is required under the statute only when the trial court has reasonable grounds to believe
       that the defendant lacks “the ability to consult rationally with counsel and factually comprehend the
       proceedings against him”).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018                      Page 8 of 11
       (citing Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963)). Implicit in the right

       to counsel is the right to self-representation. Faretta, 422 U.S. at 819.


[17]   However, the right of self-representation is not absolute. “[A] trial court may

       deny a defendant’s request to act pro se when the defendant is mentally

       competent to stand trial but suffers from severe mental illness to the point where

       he is not competent to conduct trial proceedings by himself.” Edwards v. State,

       902 N.E.2d 821, 824 (Ind. 2009) (citing Indiana v. Edwards, 554 U.S. 164

       (2008)). The trial court’s determination of competence to act pro se will be

       reviewed under the clearly erroneous standard.7 Id. “Clear error is that which

       leaves us with a definite and firm conviction that a mistake has been made.”

       Austin v. State, 997 N.E.2d 1027, 1040 (Ind. 2013). In reviewing for clear error,

       we neither reweigh the evidence nor determine the credibility of witnesses, but

       consider only the probative evidence and reasonable inferences supporting the

       judgment. Id.


[18]   Mental competency is not a static condition; accordingly, it is to be determined

       at the time of trial. Edwards, 902 N.E.2d at 827. “[I]f a defendant is so impaired

       that a coherent presentation of a defense is unlikely, fairness demands that the

       court insist upon representation.” Id. at 829. Thus, in Edwards v. State, for

       example, the defendant was found to be incompetent to represent himself—

       even though he was competent to stand trial—when several psychiatric



       7
         The parties mistakenly rely on earlier cases which formulated the standard as abuse of discretion. See id. at
       824, n.2.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018                        Page 9 of 11
       evaluations concluded that he suffered from severe and pervasive mental illness,

       and that he was competent to stand trial only if he had the assistance of legal

       counsel. Id. at 826-27.


[19]   Here, the record reveals no indication that Newman suffered from “severe

       mental illness” that made him incompetent to represent himself. Id. at 834.

       There is no evidence8 that Newman was ever evaluated for mental illness, much

       less found to suffer from mental illness, and Newman himself testified that he

       did not have a mental disability and had never been treated for one in the past.

       Moreover, Newman’s behavior during court proceedings did not indicate that

       he suffered from severe mental illness. Newman repeatedly asserted that he

       understood all the court’s advisements9 and that he was capable of, and wished

       to, represent himself. And while he may have “lacked a realistic view of his

       case,” Appellant’s Br. at 15, and made some odd assertions, that is not

       sufficient evidence of a severe mental illness rendering him incompetent to

       represent himself. See Sturdivant v. State, 61 N.E.3d 1219, 1225 (Ind. Ct. App.

       2016) (“While some of Sturdivant’s statements were undeniably strange, and

       she clearly lacked the legal skills of an experienced criminal defense attorney,




       8
         Newman points out that the trial judge said he believed Newman was “in denial” about the strength of the
       State’s case against him, and that the court wondered aloud at one point whether Newman was “of sound
       mental capacity.” Tr. Vol. II at 42-43. However, those statements of the court were not evidence.
       9
         Newman does not challenge the adequacy of the trial court’s advisements regarding the dangers of self-
       representation and the benefits of counsel.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018                    Page 10 of 11
       this is not the stuff of ‘severe mental illness’ under Indiana v. Edwards.”), trans.

       denied.


[20]   The trial court was in the best position to observe Newman’s demeanor and

       behavior in making its ultimate determination that he was competent to

       represent himself, and we will not reweigh the evidence or judge witness

       credibility, as Newman urges us to do. Austin, 997 N.E.2d at 1040. The trial

       court’s decision to allow Newman to waive counsel and represent himself was

       not clearly erroneous.


[21]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018   Page 11 of 11
