MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                           FILED
court except for the purpose of establishing                           Aug 18 2017, 6:11 am

the defense of res judicata, collateral                                    CLERK
                                                                       Indiana Supreme Court
estoppel, or the law of the case.                                         Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Maurice Pringle,                                         August 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1612-CR-2680
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff                                       Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1609-CM-34947



Bailey, Judge




Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017         Page 1 of 15
                                                Case Summary
[1]   Following a bench trial, Maurice Pringle (“Pringle”) was convicted of Battery

      Resulting in Bodily Injury, as a Class A Misdemeanor,1 and Criminal Mischief,

      as a Class B Misdemeanor.2 Pringle now appeals, raising the sole issue of

      whether the trial court failed to obtain a valid waiver of his right to counsel.


[2]   We reverse and remand for a new trial.



                                 Facts and Procedural History
[3]   On September 9, 2016, the State charged Pringle with (1) Domestic Battery, as

      a Class A Misdemeanor;3 (2) Battery Resulting in Bodily Injury, as a Class A

      Misdemeanor; and (3) Criminal Mischief, as a Class B Misdemeanor. An

      initial hearing was held on September 22, 2016, at which Pringle confirmed that

      he had reviewed an initial rights form and understood those rights. The trial

      court then entered a plea of not guilty and appointed a public defender.


[4]   A bench trial was scheduled on October 31, 2016. Before a trial commenced,

      Pringle’s counsel requested a continuance because of exculpatory information

      that Pringle had recently communicated to her. This exchange ensued:




      1
          Ind. Code §§ 35-42-2-1(c)(1), -1(d)(1).
      2
          I.C. § 35-43-1-2(a).
      3
          I.C. § 35-42-2-1.3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017   Page 2 of 15
              The Court: So you didn’t tell her at that time that you had
                         pictures and stuff that would help you?


              Mr. Pringle: No. . . . We didn’t really talk. So, today she gave
                           me a couple, some new information. And I don’t
                           feel like she has a wide perspective on the case like I
                           do, so I would like to either represent myself or get
                           another attorney.


              The Court: I’m not giving you another public defender. You’re
                         always welcome to-


              Mr. Pringle: Oh no, no. I understand that. That’s good.


              The Court: You could always go hire an attorney.


              Mr. Pringle: Yeah.


      Tr. Vol. III at 4-5. The bench trial was ultimately continued until November 9,

      2016, and Pringle remained represented by counsel.


[5]   Just before the scheduled trial, Pringle raised the subject of self-representation:

              Mr. Pringle: I want to represent myself, your Honor.


              The Court: Why?


              Mr. Pringle: [Because] I haven’t been represented.


              The Court: Mr. Pringle, did you provide your lawyer with the
                         evidence that you have?


      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017   Page 3 of 15
        Mr. Pringle: Yeah, . . . the evidence is . . . there’s not
                     evidence. . . . it’s he did it against . . . I know I
                     didn’t do it. You know what I mean, I don’t know
                     what I need to give her, so . . .


        The Court: You requested a continuance last week because you
                   specifically had evidence that you said.


        Mr. Pringle: No, the evidence is I’m innocent.


        The Court: Okay.


        Mr. Pringle: So I’m representing myself.


        The Court: So, Mr. Pringle, that’s fine, but you’re having a trial
                   today.


        Mr. Pringle: Okay.


        The Court: Do you understand that?


        Mr. Pringle: That’s fine.


        The Court: Okay. So, I’ll give him the paperwork to fill out,
                   so . . . we’ll set this back. I want you to review the
                   paperwork to acknowledge that you understand that
                   you are basically going to be an attorney for
                   yourself. . . . That means that you . . . have
                   to . . . conduct yourself as if you are an attorney.


        Mr. Pringle: Okay.



Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017   Page 4 of 15
              The Court: You’ll review that information and I’m taking a
                         recess. Just let me know when something is ready.


      Tr. Vol. IV at 5-6.


[6]   After the recess, there was the following exchange:

              The Court: All right Mr. Pringle, have you filled out that
                         paperwork?


              Mr. Pringle: No, ma’am.


              The Court: Why not?


              Mr. Pringle: [Because] I . . . can’t understand, I can’t really
                           comprehend what’s going on.


              The Court: You can’t read or comprehend what’s going on?
                         Can you read and write the English language?


              Mr. Pringle: No, . . . not really, I can’t.


              The Court: Did you ever tell me at any earlier time that you
                         could read and write the English language?


              Mr. Pringle: No, . . . I don’t remember you asking me that.


      Tr. Vol. IV at 6-7. The trial court then had a recording played of the initial

      hearing, after which there was the following colloquy:




      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017   Page 5 of 15
        The Court: Thank you. So, was that you saying that you
                   understand and read and write the English language
                   sufficient enough to understand that document?


        Mr. Pringle: Your Honor, I was saying I can’t understand this.


        The Court: That’s basically--


        Mr. Pringle: I can’t comprehend.


        The Court: --the same document, Mr. Pringle.


        Mr. Pringle: Well, I mean, I understood what--


        The Court: So, let me be clear: you just lied to this Court. Do
                   you understand that?


        Mr. Pringle: No, I don’t understand any of it.


        The Court: You just told this Court that you did not
                   understand . . . you couldn’t read and write, and
                   now I have listened to that and you did tell me a
                   month ago that you could read and write the
                   English language.


        Mr. Pringle: Your Honor, I was--


        The Court: Yes or no.


        Mr. Pringle: No, I stated that I can’t comprehend this.


        The Court: Great.

Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017   Page 6 of 15
      Tr. Vol. IV at 7-8.


[7]   The trial court then stated that Pringle had been disrespectful in the past, and

      the trial court also expressed belief that Pringle was being “squirrely” by saying

      “a bunch of things to try to get out of th[e] [c]ourt hearing.” Tr. Vol. IV at 9.

      The trial court then told Pringle:

              The Court: You’re not getting out of this [c]ourt [t]rial; we are
                         having this [c]ourt [t]rial whether you are
                         represented by Ms. Frick or represented by yourself.
                         Do you understand that?


              Mr. Pringle: Yes, ma’am.


              The Court: Okay. Are you representing yourself in this matter?


              Mr. Pringle: Yes, ma’am.


              The Court: Great.


      Tr. Vol. IV at 9. At this point, the State called the alleged victim, Brianna

      McCart (“McCart”), and the trial court noted Pringle’s failure to sign the

      document concerning his right to counsel:

              The Court: I will show that Mr. Pringle refuses to sign the
                         document stating that he is--


              Mr. Pringle: I can’t--




      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017   Page 7 of 15
              The Court: --representing himself, that he absolutely
                         understands, reads and writes the English language
                         sufficient enough to understand it.


      Tr. Vol. IV at 9.


[8]   After the State had begun questioning McCart, the trial court addressed

      Pringle’s former counsel:

              The Court: I’m sorry, give me just a second. Ms. Frick, I know
                         that you have been removed from the case. I just
                         want to make sure that you’re paying attention in
                         the event that Mr. Pringle has . . . a moment where
                         he understands the gravity of the situation,
                         requesting you represent him.


              Ms. Frick:       Yes, your Honor.


      Tr. Vol. IV at 16.


[9]   The State later sought to show exhibits to McCart, and the trial court asked

      Pringle if he had any objections, which led to this exchange:


              Mr. Pringle: I’m like- I don’t know what’s- I don’t even know
                           what’s- I’m lost here. . . .


              The Court: You had a lawyer. She’s standing there, ready to
                         go. You can have the lawyer back.


      Tr. Vol. IV at 23. Pringle asked counsel to return and he was again represented.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017   Page 8 of 15
[10]   When the State finished its examination of McCart, the trial court gave

       Pringle’s counsel the opportunity to raise objections that she “would have

       lodged had [she] been . . . attorney at the table.” Tr. Vol. IV at 29. The trial

       court stated that Pringle’s counsel was not an “active participant in the first part

       of her testimony” but that she was listening. Tr. Vol. IV at 29. Counsel

       responded that it had been “a little bit hard for [her] to hear . . . from where

       [she] was sitting.” Tr. Vol. IV at 29. Based on what counsel could recall, she

       raised two objections, which the trial court overruled.


[11]   At the conclusion of the bench trial, the trial court determined that Pringle was

       not guilty of Domestic Battery but otherwise guilty as charged, and the trial

       court sentenced Pringle. This appeal ensued.



                                  Discussion and Decision
[12]   Pringle contends that the trial court did not obtain a valid waiver of his right to

       counsel before he began representing himself. “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.


[13]   “A criminal suspect’s right to counsel is a cornerstone of a fair trial, guaranteed

       by both the Sixth Amendment to the United States Constitution and Article 1,

       Section 13 of the Indiana State Constitution.” State v. Taylor, 49 N.E.3d 1019,

       1024 (Ind. 2016); see U.S. Const. amend. VI (“In all criminal prosecutions, the

       accused shall enjoy the right to . . . have the Assistance of Counsel for his


       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017   Page 9 of 15
       defence.”); Ind. Const. art. 1, § 13 (“In all criminal prosecutions, the accused

       shall have the right to . . . be heard by himself and counsel . . . .”). The separate

       constitutional “provisions extend similar protections—the right to counsel at

       any critical stage of a criminal proceeding ‘where counsel’s absence may

       derogate from the accused’s right to a fair trial.’” Taylor, 49 N.E.3d at 1024

       (quoting Caraway v. State, 891 N.E.2d 122, 126 (Ind. Ct. App. 2008)).4


[14]   In addition to conferring the right to counsel, both the Sixth Amendment and

       Article 1, Section 13 confer a conflicting right—the right to self-representation.

       See Faretta v. California, 422 U.S. 806, 832 (1975) (concluding that the language

       of the Sixth Amendment “necessarily implies the right of self-representation”);

       Ind. Const. art. 1, § 13 (providing the right to “be heard by himself”).5 “A

       request to proceed pro se is a waiver of the right to counsel, and consequently,

       there are several requirements to invoking the right of self-representation

       successfully.” Stroud v. State, 809 N.E.2d 274, 279 (Ind. 2004). Indeed,

       “[w]hen an accused manages his own defense, he relinquishes, as a purely

       factual matter, many of the traditional benefits associated with the right to

       counsel. For this reason, in order to represent himself, the accused must




       4
         The Indiana Constitution provides a broader right to counsel than the United States Constitution, but only
       in respects not germane to the instant appeal. See, e.g., Edwards v. State, 902 N.E.2d 821, 828 (Ind. 2009)
       (listing several examples of the expanded right to counsel under the Indiana Constitution); see also Jewell v.
       State, 957 N.E.2d 625, 633-34 (Ind. 2011) (observing that Article 1, Section 13 provides broader protection
       “particularly in the context of invocation of the right and when the right attaches”).
       5
        Indiana precedent concerning Article 1, Section 13 generally “track[s] federal standards.” Edwards, 902
       N.E.2d at 828.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017            Page 10 of 15
       ‘knowingly and intelligently’ forgo those relinquished benefits.” Faretta, 422

       U.S. at 835 (citing Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)). A defendant

       validly waives the right to counsel “when the defendant ‘knows what he is

       doing and his choice is made with eyes open.’” Iowa v. Tovar, 541 U.S. 77, 88

       (2004) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942))).


[15]   There is no “‘rigid mandate setting forth specific inquiries that a trial court is

       required to make before determining whether a defendant’s waiver of right to

       counsel is knowing, intelligent, and voluntary.’” Jones v. State, 783 N.E.2d

       1132, 1138 (Ind. 2003) (quoting Leonard v. State, 579 N.E.2d 1294, 1296 (Ind.

       1991)). However, before a defendant may proceed pro se, “he must be warned

       specifically of the hazards ahead.” Tovar, 541 U.S. at 88-89. “The information

       that must be given ‘will depend 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.’” Hopper v. State, 957 N.E.2d 613,

       618 (Ind. 2011) (quoting Tovar, 541 U.S. at 88).


               Courts determining whether a waiver of counsel for trial was
               made voluntarily and intelligently must consider (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.


       Id. Waiver of the right to counsel “should not be held lightly,” Stroud, 809

       N.E.2d at 281, and “courts will indulge every reasonable presumption against


       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017   Page 11 of 15
       waiver.” Jackson v. State, 868 N.E.2d 494, 502 (Ind. 2007) (citing Johnson, 304

       U.S. at 464); see also Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001).


[16]   Here, the record indicates that Pringle was given a form that included warnings

       about the risks of self-representation, and a recess was taken so that Pringle

       could read and complete the form. Pringle never completed the form and

       repeatedly stated that he did not understand the form. The trial court observed,

       based on Pringle’s earlier representation, that Pringle had a sufficient command

       of the English language to understand the contents of the form. However, there

       is no indication that Pringle fully read the form given to him. Moreover,

       although the trial court characterized the initial rights form as containing

       similar content, the initial rights form only generally advised of the right to

       counsel and of deadlines that applied whether or not a defendant retained

       counsel. The trial court also orally advised Pringle that he would have to be an

       attorney for himself and conduct himself as though he was an attorney, but

       there is no indication that Pringle was acquainted with the dangers and

       disadvantages of self-representation. Moreover, there was limited inquiry into

       Pringle’s background and experience, and his decision to proceed pro se.


[17]   We recognize that the trial court suspected that Pringle was engaged in dilatory

       tactics, and courts must indeed be “wary of defendants asserting the right to

       represent themselves solely to delay proceedings or to create an issue for

       appeal.” Stroud, 809 N.E.2d at 281. Yet, where a defendant fails or refuses to

       sign a written acknowledgment concerning waiver of the right to counsel—or

       even where the defendant signs such an acknowledgment—it is good practice to

       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017   Page 12 of 15
       make a record by orally advising the defendant of the dangers and

       disadvantages of self-representation.6 Here, the record lacks sufficient indicia

       that Pringle knowingly and intelligently waived his right to counsel. Thus, we

       conclude that the trial court erred by permitting Pringle to proceed pro se.


[18]   The State argues that the error is harmless. Not every affront to the right to

       counsel warrants reversal. Indeed, the United States Supreme Court has

       regularly approved of harmless-error analysis for Sixth Amendment violations

       involving the erroneous admission of particular evidence obtained in violation

       of a defendant’s right to counsel. See, e.g., Satterwhite v. Texas, 486 U.S. 249,

       257-58 (1988) (collecting cases and holding that the harmless-error rule “applies

       to the admission of psychiatric testimony [obtained] in violation of the Sixth

       Amendment”). However, “[s]ome constitutional violations . . . by their very

       nature cast so much doubt on the fairness of the trial process that, as a matter of

       law, they can never be considered harmless. Sixth Amendment violations that

       pervade the entire proceeding fall within this category.” Id. at 256. Moreover,

       the presence of counsel—unless validly waived—is a basic requirement of a fair

       trial. See Rose v. Clark, 478 U.S. 570, 579 (1986) (“Harmless-error

       analysis . . . presupposes a trial, at which the defendant, represented by counsel,

       may present evidence and argument before an impartial judge . . . .”); Cf. U.S. v.




       6
         The Indiana Supreme Court has endorsed several guidelines for the advisement of a defendant, which are
       fully contained in the Jones opinion.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017       Page 13 of 15
       Cronic, 466 U.S. 648, 653-64 (1984) (“The presumption that counsel’s assistance

       is essential requires us to conclude that a trial is unfair if the accused is denied

       counsel at a critical stage of his trial.”). Where federal constitutional error is

       reviewable for harmless error, “the court must be able to declare a belief that

       [the error] was harmless beyond a reasonable doubt.” Chapman v. California,

       386 U.S. 18, 24 (1967).


[19]   The State argues that the constitutional violation is reviewable for harmless

       error because Pringle was eventually represented by counsel and the trial court

       undertook a curative measure by inviting counsel to retroactively object to

       portions of McCart’s testimony. We disagree. Pringle was wholly deprived of

       counsel during most of the State’s direct examination of McCart—a critical

       stage of the criminal proceeding. See Bell v. Cone, 535 U.S. 685, 696 (2002)

       (defining a critical stage as a step of a criminal proceeding that holds

       “significant consequences for the accused”); Hernandez v. State, 761 N.E.2d 845,

       850 (Ind. 2002) (observing that a critical stage is any stage where the defendant

       is confronted with the intricacies of the law or the advocacy of the prosecutor).

       The instant deprivation of counsel amounted to structural error, which is not

       subject to harmless-error analysis.7 See Arizona v. Fulminante, 499 U.S. 279, 309-

       10 (1991) (observing that “the total deprivation of the right to counsel at trial”




       7
         Even if the error was reviewable for harmless error, we could not declare the error harmless beyond a
       reasonable doubt because Pringle’s eventual counsel was unable to hear portions of the trial conducted while
       Pringle was representing himself. Thus, the trial court’s attempted curative measure was inadequate, and it
       would be otherwise improper to engage in “unguided speculation,” Holloway v. Arkansas, 435 U.S. 475, 491
       (1978), about the direction the trial might or might not have taken.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017         Page 14 of 15
       constitutes a “structural defect[] in the constitution of the trial mechanism,

       which def[ies] analysis by ‘harmless-error’ standards” because “[t]he entire

       conduct of the trial from beginning to end is obviously affected by the absence

       of counsel”). We accordingly conclude that Pringle is entitled to a new trial.



                                               Conclusion
[20]   Pringle did not validly waive the right to counsel and he was improperly

       deprived of this right during a critical stage of the proceeding.


[21]   Reversed and remanded for a new trial.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1612-CR-2680 | August 18, 2017   Page 15 of 15
