MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Feb 15 2016, 8:44 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Gregory F. Zoeller
Matthew D. Anglemeyer                                    Attorney General of Indiana
Marion County Public Defender Agency
                                                         Eric P. Babbs
Appellate Division                                       Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Eugene Dullen,                                           February 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1506-CR-505
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Stanley E. Kroh, Judge Pro
                                                         Tempore
                                                         Trial Court Cause No.
                                                         49G03-1211-FB-74483



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016   Page 1 of 12
[1]   Eugene Dullen (“Dullen”) appeals the trial court’s revocation of his placement

      in Marion County Community Corrections (“Community Corrections”),

      raising the following restated issue: whether, in connection with his

      Community Corrections violation, Dullen’s waiver of counsel was knowing,

      voluntary, and intelligent in light of the trial court’s advisements about the

      dangers and pitfalls of representing himself.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On March 1, 2013, Dullen pleaded guilty pursuant to a plea agreement and was

      convicted of Class C felony1 criminal confinement resulting in bodily injury. As

      part of the plea agreement, Dullen admitted to being a habitual offender.

      Appellant’s App. at 25, 78-80. The trial court sentenced him to an aggregate

      executed sentence of seven years, five years in the Indiana Department of

      Correction (“the DOC”) and two years in work release through Community

      Corrections. During and after his incarceration, Dullen filed several pro se

      pleadings, including two motions to correct erroneous sentence, a petition for

      an order clarifying concurrent sentencing, and a petition for waiver of

      Community Corrections fees. Id. at 99, 112, 128, 146.




      1
        We note that Dullen committed his crimes before the Indiana General Assembly changed felony offenses
      from classes of felonies to levels of felonies.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016      Page 2 of 12
[4]   On October 29, 2014, having completed his sentence in the DOC, Dullen began

      serving his two-year term in Community Corrections and was housed at the

      Duvall Residential Center (“the Center”). Most weeks, the Center provided

      Dullen with a pass that allowed him to leave the Center and go to the law

      library. On March 6, 2015, Dullen left the Center after his case manager (“the

      Case Manager”) issued him a pass. Tr. at 76. Dullen was told to return to the

      Center no later than 5:30 p.m.; however, four hours after that deadline, Dullen

      had not returned. Id.; Appellant’s App. at 149. Corrections officers and the Case

      Manager contacted local hospitals and called Dullen’s emergency contacts

      without success. Dullen did not contact the Center and remained

      “unmonitored for a period of ten days.” Tr. at 77-78, 81, 89. Community

      Corrections filed a notice of violation, alleging that Dullen’s failure to return to

      the Center violated the terms of Community Corrections. Appellant’s App. at

      149.


[5]   On March 17, 2015, the trial court held a hearing on the Community

      Corrections violation.2 During that hearing, the trial court advised Dullen of

      his rights, including, that if Dullen could not afford an attorney, an attorney

      would be appointed at no cost to him. Tr. at 24. The trial court asked Dullen if

      he intended to hire an attorney, to which Dullen replied, “No, I do not.” Id. at

      25. The trial court also asked Dullen if he was “asking the court to appoint an




      2
        At that time, Dullen also had a pending petition for post-conviction relief, which the trial court addressed at
      the March hearing. The substance of that petition, however, is not relevant to this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016             Page 3 of 12
      attorney to represent [him].” Id. Again, Dullen replied, “No, I am not.” Id.

      When asked whether he wanted to represent himself, Dullen said, “Yes.” Id. at

      25-26. The trial court responded:

              Okay. Well, I would recommend you consider talking with an
              attorney before you make these decisions, but that’s your call.
              You have the constitutional right to represent yourself if you
              choose to. My concern is if you don’t have legal experience or
              training, you might miss an issue or some mitigating factor that
              an attorney might be able to spot on your behalf.

              I would also tell you, if I was in your situation, I would want to
              talk with an attorney before making any decisions. But, again,
              that’s your decision. If you choose to represent yourself, you
              have the absolute constitutional right to do that. And is that
              what you want to do? You want to represent yourself?


      Id. at 26. Dullen noted, “I can talk to the attorney, but I don’t feel that the

      attorney is going to represent me as I need to be represented.” Id. Thereafter,

      the trial court appointed counsel for Dullen “for the time being,” and informed

      him that his attorney would meet him for his next hearing. Id. at 27.


[6]   On March 18, 2015, Dullen signed an advisement of rights form in connection

      with the Community Corrections violation, which again informed Dullen,

      “You also have the right to have an attorney represent you in this proceeding.

      You may hire an attorney of your choosing or, if you cannot afford to hire your

      own attorney, the court can appoint an attorney to represent you at no cost to

      you.” Appellant’s App. at 150. By signing this form, Dullen confirmed that he

      had read and understood his rights. Id.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016   Page 4 of 12
[7]   An evidentiary hearing was held on May 19, 2015, to again address both

      Dullen’s petition for post-conviction relief and his Community Corrections

      violation. At the start of the hearing, the trial court once more stated, “I want

      to make sure you don’t want to talk with an attorney about the Community

      Corrections violation.” Tr. at 36. Dullen responded, “No, I don’t.” Id. As

      Dullen began to testify, the trial court immediately said,

              And you do understand that you have the right—on the
              Community Corrections violation, you have the right to be
              represented by an attorney. And if you can’t afford to hire an
              attorney, the Court will appoint an attorney to represent you at
              no cost to you. Do you understand that?”


      Id. Dullen said that he understood, explaining: “At . . . this time in my life,

      and in view of the misrepresentation that I have experienced through the Public

      Defender’s Office, there is no way that I would have a public defender represent

      me in anything.” Id. at 37. The trial court opined, “I suspect it’s more of a

      miscommunication or a misunderstanding rather than not being represented

      properly . . . but the court will have to look at that in the [petition for post-

      conviction relief].” Id. The trial court continued:


              [THE COURT:] [I]f I was in your shoes, I would want to talk
              with a lawyer before I made any decisions regarding the
              Community Corrections violation. . . . The thing is you’re
              looking at, if they prove the violation, the Court would likely
              order that you be returned to the Department of Correction to
              finish out the sentence.

              THE PETITIONER: I would object.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016   Page 5 of 12
              THE COURT: Well – and I am just explaining that I – in the
              Court’s view, you’d be better off talking with an attorney rather
              than representing yourself if you don’t have training and
              experience [with] these matters. But again, that’s your choice. If
              you choose to represent yourself, you have the right to do that.


      Id. at 37-38.


[8]   As the hearing continued, Dullen complained that he was being restricted in the

      presentation of his evidence. The trial court offered, “[Y]ou’ve got the right to

      your opinion. But the thing is, you are held to the same standard as any other

      attorney would be in representing yourself.” Id. at 47. Just prior to hearing

      evidence on the Community Corrections violation, the trial court asked Dullen

      one final time if he wanted to consult with an attorney, to which Dullen

      responded that he wanted to get the proceeding out of the way. Id. at 64-65. As

      to the violation, the State offered the testimony of the Case Manager, who

      testified that Dullen, in violation of his terms of Community Corrections, had

      failed to return to the Center after a visit to the library. Id. at 76-81. Although,

      Dullen testified as to the extenuating circumstances he believed excused his

      failure to return, the trial court found Dullen had committed a Community

      Corrections violation and ordered him to serve the remainder of his sentence in

      the DOC. Dullen now appeals.


                                     Discussion and Decision
[9]   We begin by noting that in its appellee’s brief, filed with this court on

      November 2, 2015, the State maintained that Dullen’s impending release from


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016   Page 6 of 12
       the DOC—projected as November 7, 2015—caused his case to be moot, and

       therefore should be dismissed. Appellee’s Br. at 8. Citing to Breedlove v. State, 20

       N.E.3d 172, 174 (Ind. Ct. App. 2014), trans. denied, the State argued, “When

       this court is unable to provide effective relief upon an issue, it is deemed moot,

       and this Court will not reverse the trial court’s determination when no change

       in the status quo will result.” Id. On December 22, 2015, this court issued an

       order to show cause, asking Dullen to declare whether he had been released

       from the DOC, and, if so, why his appeal should not be dismissed as moot.


[10]   In his timely filed Verified Response,3 Dullen concedes that he was released

       from the DOC following the completion of his sentence but cites to two reasons

       why his case should not be dismissed as moot: (1) the collateral consequences

       of allowing the Community Corrections violation to remain on his record; and

       (2) whether his waiver of counsel was knowingly, voluntarily, and intelligently

       made is a question of great public interest.


[11]   As to the first reason, Dullen offers, “Rendering the appeal moot overlooks the

       collateral consequences of a community corrections revocation, such as the fact

       that such revocation will thereafter be included in Dullen’s criminal history and

       that it could be used as a statutory aggravator in the future.” Verified Response at

       4. It is true that a single aggravating factor may support the imposition of an

       enhanced sentence. Field v. State, 843 N.E.2d 1008, 1011-12 (Ind. Ct. App.



       3
        Dullen filed Appellants Verified Response to this Court’s Order to Show Cause with this court on January 6, 2016.
       For ease of reference, we will refer to this document, and cite to it, as “Verified Response.”

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016               Page 7 of 12
       2006), trans. denied. Further, “history of criminal or delinquent behavior” is

       considered by the courts as an aggravating factor. Ind. Code § 35-38-1-7.1.

       That being said, Dullen’s criminal history began in 1968 with convictions for

       operating a vehicle with no license and while under the influence. From 1982

       through 1990, Dullen was convicted of attempted burglary, battery, and

       possession of cocaine. In 1995, Dullen was convicted of eight counts of

       criminal confinement and was found to be a habitual offender. In light of his

       extensive criminal history, the inclusion of the revocation of Dullen’s placement

       in Community Corrections as part of his criminal history will have little, if any,

       collateral consequences.


[12]   As to the second consideration, Dullen argues that moot questions may still be

       addressed on their merits.

               [A]lthough moot cases are usually dismissed, Indiana courts have
               long recognized that a case may be decided on its merits under
               an exception to the general rule when the case involves questions
               of great public interest. Cases in this category typically raise
               important policy concerns and present issues that are likely to
               recur.


       Verified Response at 2 (citing Breedlove, 20 N.E.3d at 17 (citations omitted)

       (internal quotation marks omitted). Dullen asserts that the issue before this

       court is not, as the State asserts, whether Dullen was properly committed to the

       DOC for his Community Corrections violation. Instead, the issue is whether

       Dullen knowingly, voluntarily, and intelligently waived his right to counsel,

       which he asserts is a question of great public interest that may be addressed as

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016   Page 8 of 12
       an exception to the general rule that a moot issue must be dismissed. Because

       this court has previously recognized waiver of counsel as a claim that “reflects a

       question of great public importance and involves issues likely to recur,” we will

       address Dullen’s waiver claim. See A.S. v. State, 929 N.E.2d 881, 887 (Ind. Ct.

       App. 2010) (court addressed waiver of counsel claim, notwithstanding issue

       was moot since child was no longer in detention, under mootness exception

       that claim was “question of great public importance and involve[d] issues likely

       to recur”)


[13]   Dullen alleges that his Sixth Amendment right to counsel was violated because

       he did not make a knowing, voluntary, and intelligent waiver of his right to

       counsel during the evidentiary hearings addressing his Community Corrections

       violation. Dullen argues that his waiver cannot be knowing, voluntary, and

       intelligent when “[t]he primary reason [he] wished to represent himself is

       because he felt he had received poor representation from Public Defenders in

       the past.” Appellant’s Br. at 4.


[14]   We review de novo a trial court’s finding that a defendant waived his right to

       counsel. Jackson v. State, 992 N.E.2d 926, 932 (Ind. Ct. App. 2013), trans.

       denied. “A criminal defendant’s Sixth Amendment right to counsel is essential

       to the fairness of a criminal proceeding.” Id. “Implicit in the right to counsel is

       the right to self-representation.” Id. However, before a defendant waives his

       right to counsel and proceeds pro se, the trial court must determine that the

       defendant’s waiver of counsel is knowing, voluntary, and intelligent. Id. (citing

       Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003)). “Waiver of assistance of

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016   Page 9 of 12
       counsel may be established based upon the particular facts and circumstances

       surrounding the case, including the background, experience, and conduct of the

       accused.” Jones, 783 N.E.2d at 1138.


[15]   When a defendant asserts his right to proceed pro se, the trial court must

       “acquaint the defendant with the advantages to attorney representation and the

       disadvantages and the dangers of self-representation.” Jackson, 992 N.E.2d at

       932. There are no specific “talking points” a trial court must follow when

       advising a defendant of the dangers and disadvantages of proceeding without

       counsel. Kowalskey v. State, 42 N.E.3d 97, 104 (Ind. Ct. App. 2015) (quoting

       Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001)). Instead, a trial court needs

       only to come to a “‘considered determination’ that the defendant is making a

       knowing, voluntary, and intelligent waiver of his or her right to counsel.” Drake

       v. State, 895 N.E.2d 389, 392 (Ind. Ct. App. 2008) (citing Poynter, 749 N.E.2d at

       1126).


[16]   Our Supreme Court has adopted four factors to consider when determining

       whether a knowing, voluntary, and intelligent waiver occurred:

                (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
                defendant, and (4) the context of the defendant’s decision to
                proceed pro se.


       Poynter, 749 N.E.2d at 1127-28 (quoting United States v. Hoskins, 243 F.3d 407,

       410 (7th Cir. 2001) (finding defendant’s conduct to be sufficient to imply
       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016   Page 10 of 12
       waiver, and that trial court’s inquiry was sufficient and provided explicit

       warning of consequences of continued conduct)).


[17]   Regarding the first factor, the trial court, here, inquired repeatedly and

       extensively into Dullen’s decision to represent himself. The trial court asked

       Dullen no less than three times, over two hearings, whether he was sure he

       wanted to waive his right to counsel and, instead, represent himself. Tr. at 24-

       26, 36-38, 64-65. Dullen clearly stated that he knew he had the right to

       appointed counsel at no charge, but on each occasion refused counsel. Id. at

       25-26, 36-37, 64-65. Dullen also signed an advisement of rights form in

       connection with the Community Corrections violation, which again informed

       him that he had the right to counsel. Appellant’s App. at 150. At one point the

       trial court did, in fact, appoint “counsel for the time being.” Tr. at 27.

       Nevertheless, Dullen served as his own counsel at the evidentiary hearings for

       the Community Corrections violation.


[18]   As to the second factor, the trial court explained to Dullen the dangers and

       disadvantages of self-representation, saying, “My concern is if you don’t have

       legal experience or training, you might miss an issue or some mitigating factor

       that an attorney might be able to spot on your behalf,” and “I would also tell

       you, if I was in your situation, I would want to talk with an attorney before

       making any decisions.” Id. at 26. The trial court also cautioned, “[I]f I was in

       your shoes, I would want to talk with a lawyer before I made any decisions

       regarding the Community Corrections violation. . . . The thing is you’re

       looking at, if they prove the violation, the Court would likely order that you be

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016   Page 11 of 12
       returned to the Department of Correction to finish out the sentence.” Id. at 37.

       The trial court also advised Dullen, that he would be “held to the same

       standard as any other attorney would be in representing yourself.” Id. at 47.


[19]   In connection with the third factor, Dullen had extensive background and

       experience with the legal system. Dullen had been charged with crimes on

       more than twenty separate occasions, and he was convicted of more than ten

       crimes, many of which were felonies. Dullen was familiar enough with the

       legal system that, while in jail and acting pro se, he filed several pleadings,

       including two motions to correct erroneous sentence, a petition for an order

       clarifying concurrent sentencing, and a petition for waiver of Community

       Corrections fees. Appellant’s App. at 99, 112, 128, 146.


[20]   Concerning the fourth factor, Dullen alleged that his decision to proceed pro se

       was a result of his concern that he did not believe that he was being well served

       by Public Defenders. Whether true or not, Dullen had the right to have

       appointed counsel, and he opted to act as his own counsel.


[21]   We, therefore, conclude that Dullen was not denied his Sixth Amendment right

       to counsel and that the trial court properly determined that his waiver of his

       right to counsel was knowing, voluntary, and intelligent. Accordingly, we

       decline to disturb the trial court’s finding that Dullen committed a violation of

       his terms of Community Corrections. Affirmed.


[22]   Mathias, J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016   Page 12 of 12
