                                                                  Aug 28 2015, 9:49 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Glen E. Koch                                              Gregory F. Zoeller
Boren Oliver & Coffey, LLP                                Attorney General of Indiana
Martinsville, Indiana
                                                          Monika Prekopa Talbot
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jared Allen Mynatt,                                       August 28, 2015

Appellant-Defendant,                                      Court of Appeals Cause No.
                                                          55A05-1501-CR-41
        v.                                                Appeal from the Morgan Superior
                                                          Court
State of Indiana,                                         The Honorable Christopher L.
                                                          Burnham, Judge
Appellee-Plaintiff.
                                                          Cause No. 55D02-1408-FB-1224




Riley, Judge.




Court of Appeals of Indiana | Opinion 55A05-1501-CR-41 | August 28, 2015                 Page 1 of 10
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Jared Mynatt (Mynatt), appeals his conviction for aiding

      inducing or causing armed robbery, a Class B felony, Ind. Code §§ 35-41-2-4; -

      42-5-1 (2013).


[2]   We affirm.


                                                      ISSUE

[3]   Mynatt raises one issue on appeal, which we restate as: Whether the trial court

      abused its discretion in denying Mynatt’s request for counsel during trial.


                            FACTS AND PROCEDURAL HISTORY

[4]   On January 28, 2014, Mynatt, Jamie Hicks (Hicks)—who was Mynatt’s

      girlfriend—and Justin Cherry (Cherry) all drove in Hicks’ car from Indianapolis

      to Mooresville, Indiana. In Mooresville, they stopped at some apartments

      located behind a Marathon gas station. At some point, Hicks exited the vehicle

      to use the Marathon’s restroom. Mynatt accompanied her. Toni Wilson

      (Wilson) was the clerk that day. Because the restroom was for employees only,

      Hicks stated that she was pregnant and she needed to use it. At first, Wilson

      informed Hicks that she could not use the restroom but she then changed her

      mind. While Hicks was in the restroom, Mynatt waited by the door. When

      both returned to the vehicle, Cherry exited the vehicle and entered the gas

      station. Cherry obtained a two-litter drink from the back of the store and then

      approached Wilson for two packs of cigarettes. When Wilson asked Cherry for

      his identification, Cherry stated that he “was not going to need it today.”

      Court of Appeals of Indiana | Opinion 55A05-1501-CR-41 | August 28, 2015   Page 2 of 10
      (Transcript p. 128). Cherry then pulled out a gun and ordered Wilson to open

      the register and give him all the money. A nervous Wilson complied, and

      Cherry ran out of the store. When Cherry returned to the car, he jumped into

      the backseat and Mynatt sped off. After Cherry left, Wilson locked the door

      and called her employer, who in turn called the police. Cherry was arrested in

      connection with an Indianapolis robbery in February 2014 and he was later

      identified as a suspect in the instant case. The police later learned of Hicks’ and

      Mynatt’s involvement and identified them from Marathon’s security footage.

      In August of 2014, the police arrested Mynatt.


[5]   On August 14, 2014, the State filed an Information, charging Mynatt with a

      Class B felony aiding, inducing or causing armed robbery. During Mynatt’s

      initial hearing on September 2, 2014, he indicated that he would be proceeding

      pro se. Three days later, Mynatt filed a motion for a speedy trial. On November

      3, 2014, Mynatt filed a written objection to a trial setting that was outside the

      seventy-day period. The trial court issued an entry citing court congestion and

      set the trial date for December 16, 2014. Shortly before Mynatt’s trial, at the

      pretrial hearing scheduled on December 1, 2014, the trial court advised Mynatt

      that he had been charged with a Class B felony and that, if found guilty, he

      would face anywhere from six to twenty years in prison. Mynatt still indicated

      that he wanted to proceed pro se and that he understood the penalty. Mynatt

      added that on a prior occasion, he had been “involved in some B felony

      robberies in Marion County” and that he successfully defended all Counts

      which led to a dismissal. (Tr. p. 8). Mynatt also informed the trial court that he


      Court of Appeals of Indiana | Opinion 55A05-1501-CR-41 | August 28, 2015   Page 3 of 10
      was not worried about picking a jury for his trial, and in any event, “the most

      they can give me is twenty. They didn’t even file a habitual on me. I’m happy

      with that. I go to the joint, I get maxed out, [and] that’s ten. I go to the joint, I

      get a time cut, [and] I’ll be out in six. I can live with that.” (Tr. p. 8). The trial

      court then informed Mynatt that it was important for him to understand the

      rules of evidence prior to trial. The trial court further explained to Mynatt the

      contents of the pretrial order and the jury selection process. In addition, the

      trial court went through the names of the State’s witnesses and asked Mynatt if

      he wanted to add his own witnesses. Mynatt indicated that he would only

      question the State’s witnesses. Mynatt again confirmed that he wanted to

      represent himself.


[6]   Mynatt’s jury trial was held on December 16-17, 2014. At the start of trial, the

      trial court asked Mynatt if he had any questions regarding jury selection.

      Mynatt stated that he did not. The trial court, however, proceeded to explain

      the jury selection process, and after the jury was empaneled, Mynatt made an

      opening statement. During Hicks’ cross-examination, Mynatt asked her

      whether she had sexual relations with Cherry, to which the State objected.

      However, the trial court allowed the question, and Hicks answered in the

      negative. Mynatt then asked more questions, such as whether they stopped at

      Hicks’ parents’ home on the way to Mooresville and whether Hicks asked the

      men where they were going. On all questions, Hicks answered in the negative.

      Frustrated by her answers, Mynatt blurted out, “Your honor, I am lost. I don’t

      know how to do this. I know she is lying.” (Tr. p. 7). The trial court explained


      Court of Appeals of Indiana | Opinion 55A05-1501-CR-41 | August 28, 2015     Page 4 of 10
to Mynatt that if he had something to present that would contradict Hicks’

testimony, he would have to wait for his time to present it under oath. After

Hicks was excused from the witness stand, Myatt stated, “Your honor, I want

to stop this. I need counsel.” (Tr. p. 165). The trial court then excused the jury

from the court room and the following dialogue ensued:

        Mynatt: I guess I need counsel. I mean I can’t ask what I want
        to ask . . .
        Court: [] Mynatt, if you recall, we had this discussion about you
        representing yourself many times. And I told you what the
        danger was of doing so . . .

        Mynatt: Yeah, Well I . . .

        Court: Listen to me. All right, you listen to me now, okay? You
        adamantly told me that you didn’t want counsel. You wanted to
        represent yourself. You know how to do it. You had no
        problems doing it. Fine. That is your right. You choose that
        right and go forward to a trial and you cannot stop the trial
        midstream and say I want counsel now. Yes, you are not very
        good at asking questions because you don’t understand the rules
        of evidence. I told you that. But, you made your conscious
        decision to proceed without an attorney, and I am not going to
        stop this trial.

        Mynatt: Can I get co-counsel?

        Court: I’m not going to ask some attorney to walk in the middle
        of a trial and try and help you.

        (Tr. pp. 166-67).




Court of Appeals of Indiana | Opinion 55A05-1501-CR-41 | August 28, 2015   Page 5 of 10
[7]    After the jury returned to the court room, the trial resumed. At the close of the

       evidence, the jury found Mynatt guilty as charged. On January 21, 2015, the

       trial court sentenced Mynatt to twenty years in the Department of Correction.


[8]    Mynatt now appeals. Additional information will be provided as necessary.


                                    DISCUSSION AND DECISION

[9]    “The Sixth Amendment right to counsel applies to the states via the Due

       Process Clause of the Fourteenth Amendment . . . and guarantees the assistance

       of counsel at critical stages of prosecution up through trial, sentencing, and

       various post-trial matters.” Mosley v. State, 908 N.E.2d 599, 604 (Ind. 2009).

       “Correlative to the constitutional right to counsel is the right of a defendant in a

       criminal proceeding to appear pro se.” Koehler v. State, 499 N.E.2d 196, 198

       (Ind. 1986). The defendant “must be free personally to decide whether in his

       particular case counsel is to his advantage.” Id. (citing Faretta v. California, 422

       U.S. 806, 835 (1975)).


[10]   In Koehler, our supreme court held that where a defendant seeks to abandon a

       pro se defense and reassert the right to counsel, “[r]elevant factors must be

       considered by the trial court in order for it to exercise a meaningful discretion in

       ruling on defendant’s request to change from self-representation to counsel-

       representation.” Id. at 199.


               Relevant factors should include, among others, the following: (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

       Court of Appeals of Indiana | Opinion 55A05-1501-CR-41 | August 28, 2015    Page 6 of 10
               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.

       Henley v. State, 881 N.E.2d 639, 645 (Ind. 2008) (citing Koehler, 499 N.E.2d at

       199). Mynatt argues that an analysis of the Koehler factors reveals that the trial

       court should have granted his request for appointment of counsel. We will

       review each of the Koehler factors in turn.


[11]   Turning to the first factor, Mynatt’s prior history in the substitution of counsel

       and in the desire to change from self-representation to counsel-representation,

       the facts speak for themselves. Mynatt made the decision to proceed pro se at

       the beginning of his case and did not change his mind until mid-trial. During

       his initial pretrial hearing, the trial court informed Mynatt that if found guilty of

       the charged offense, he would face six to twenty years in prison and a fine up to

       $10,000. Mynatt informed the trial court that he understood the penalty

       involved. Mynatt also indicated that he had successfully defended himself

       against ten felony robbery charges which were dismissed for lack of evidence.

       He also indicated that he was not worried about picking out a jury.

       Furthermore, Mynatt stated that the worst sentence he could receive was

       twenty years, which meant that he would serve a maximum of ten years, and

       with good behavior, he would be out in six years. When asked whether he

       understood the rules of evidence, Mynatt stated “I can comprehend the




       Court of Appeals of Indiana | Opinion 55A05-1501-CR-41 | August 28, 2015     Page 7 of 10
       paperwork I’m getting sent [].” (Tr. p. 9). From the foregoing facts, we find

       that this first Koehler factor weighs against the appointment of counsel.


[12]   With regards to the second factor, the reasons set forth for the request, we note

       that Mynatt’s reason for requesting counsel representation mid-trial happened

       during Hicks’ cross examination where Mynatt believed that Hicks was lying

       and he did not know how to impeach her. At that point, Mynatt informed the

       trial court that he needed a lawyer. This was the first time he had indicated that

       he wanted to change from self-representation to counsel-representation, and

       Mynatt had not previously made requests for substitution of counsel. Hicks

       was the second State witness and the record shows that his performance prior to

       this stage of the trial had been effective. Moreover, Mynatt had expressed

       confidence that he would effectively represent himself without the assistance of

       counsel. In light of the foregoing, we find that this second Koehler factor weighs

       against the trial court appointing counsel.


[13]   On the third factor, the length and stage of the trial proceedings, the trial was

       midstream. The trial court stated that it did not want to appoint a counsel

       halfway through trial. A jury had been picked, opening statements had been

       made, and Mynatt was in the process of cross-examining the State’s second

       witness—Hicks. Similarly, we find that this factor weighs against appointment

       of counsel.


[14]   As with the fourth factor, disruption or delay which reasonably might be

       expected to ensue from the granting of such motion, we agree with the State


       Court of Appeals of Indiana | Opinion 55A05-1501-CR-41 | August 28, 2015    Page 8 of 10
       that allowing counsel to intervene mid-trial would have caused a delay. A

       continuance would have been necessary for counsel to become familiar with the

       case. (Compare with Koehler, 499 N.E.2d at 199, where defendant had standby

       counsel and no continuance would have been necessary because standby

       counsel was familiar with the case). In this regard, we find that this factor

       weighs against appointment of counsel.


[15]   Finally, with regards to the fifth Koehler factor, the likelihood of defendant’s

       effectiveness in defending against the charges if required to continue to act as

       his own attorney, Mynatt claims to have previously represented himself

       successfully against ten felony Counts. Also, Mynatt had indicated that he had

       a college education and was familiar with the legal system. Mynatt also knew

       the penalty of his charged offense and how many years he would serve if

       convicted.


[16]   Applying the Koehler factors to the case at bar, and weighing them against each

       other, we conclude that the trial court did not abuse its discretion in denying

       Mynatt’s request for counsel. When a defendant elects self-representation, the

       trial court must elicit a knowing, intelligent, and voluntary waiver of the right to

       counsel. McKeown v. State, 556 N.E.2d 3, 6 (Ind. Ct. App. 1990), reh’g denied,

       trans. denied. The trial court must also establish a record demonstrating that the

       defendant was made aware of the nature, extent, and importance of the right to

       counsel and the dangers and disadvantages of waiving it. Id.




       Court of Appeals of Indiana | Opinion 55A05-1501-CR-41 | August 28, 2015   Page 9 of 10
[17]   Here, Mynatt was advised at his pretrial hearing about the dangers of

       proceeding pro se. Even in light of these warnings, Mynatt was confident that

       he would successfully defend himself without the assistance of counsel. Mynatt

       stated that he had managed to have ten felony Counts dismissed for lack of

       evidence. Mynatt was also not concerned about picking out a jury or serving

       prison time if found guilty. Moreover, a continuance would have been

       imminent to enable the newly appointed counsel to become familiar with the

       case. As such, our analysis of the Koehler factors, in conjunction with Mynatt’s

       expression that he would adequately represent himself, leads us to conclude

       that the trial court did not violate Mynatt’s Sixth Amendment right to counsel.


                                                CONCLUSION

[18]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion by failing to appoint counsel for Mynatt.


[19]   Affirmed.


[20]   Friedlander, J. and Brown, J. concur




       Court of Appeals of Indiana | Opinion 55A05-1501-CR-41 | August 28, 2015   Page 10 of 10
