       MEMORANDUM DECISION
                                                                    Nov 19 2015, 8:38 am
      Pursuant to Ind. Appellate Rule 65(D), 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.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Michael R. Fisher                                        Gregory F. Zoeller
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana
                                                               Michael Gene Worden
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Michael Taylor,                                          November 19, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A05-1504-CR-142
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Lisa F. Borges,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 49G04-1402-FB-7470




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Michael Taylor appeals his convictions of unlawful possession of a firearm by a

      serious violent felon, a Class B felony, Indiana Code section 35-47-4-5 (2012);

      battery, a Class C felony, Indiana Code section 35-42-2-1 (2012); and his

      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-142 | November 19, 2015   Page 1 of 15
      adjudication as an habitual offender, Indiana Code section 35-50-2-8 (2005).

      Taylor also appeals his sentence of forty-five years. We affirm.


                                                   Issues
[2]   Taylor presents two issues for our review, which we restate as:

              I.      Whether his waiver of counsel was knowing, voluntary,
                      and intelligent.
              II.     Whether his sentence is inappropriate.

                               Facts and Procedural History
[3]   On February 14, 2014, Taylor’s on-again-off-again girlfriend, H.B., with whom

      he was living at the time, got up for work and was getting her two children

      ready for school. Taylor woke up and questioned H.B. about why she had to

      go into work so early and why she had to work on Valentine’s Day. He also

      told her about some dreams he had had and accused her of cheating on him.

      H.B. told Taylor she had to get to work and reached into the closet for a

      sweater. As she did so, Taylor shot her in the leg while her two young children,

      ages six and five, were present in the home. Based upon this incident, Taylor

      was charged with unlawful possession of a firearm by a serious violent felon,

      battery, and being an habitual offender.


[4]   At a pre-trial conference on October 10, 2014, Taylor asked the judge for new

      counsel. The judge declined to give Taylor a new public defender and advised

      him that if he fired his current public defender, his options were to either hire

      private counsel or to represent himself. Taylor chose to fire his public defender


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      and represent himself. Following a conversation with the judge about self-

      representation and its requirements and pitfalls, and being read a detailed

      advisement, Taylor maintained his desire to represent himself. The judge

      retained the public defender in stand-by capacity and postponed the trial date to

      give Taylor time to prepare. In January 2015, Taylor was tried by a jury on the

      charges in three different phases beginning with the battery charge. In the

      second phase, he was tried on the charge of unlawful possession of a firearm by

      a serious violent felon, and the third phase dealt with the habitual offender

      charge. The jury found Taylor guilty of battery and unlawful possession of a

      firearm by a serious violent felon and adjudicated him to be an habitual

      offender. The trial court sentenced him to eighteen years executed for his

      conviction of unlawful possession of a firearm by a serious violent felon,

      enhanced by twenty years for the habitual offender adjudication. As to the

      battery, the court sentenced Taylor to seven years, to be served consecutive to

      the enhanced sentence for his conviction of unlawful possession of a firearm by

      a serious violent felon. Taylor now appeals.


                                   Discussion and Decision
                                       I. Waiver of Counsel
[5]   Taylor first contends that his waiver of counsel was not knowing, voluntary,

      and intelligent. The Sixth Amendment to the United States Constitution

      guarantees a criminal defendant the right to counsel. McBride v. State, 992

      N.E.2d 912, 917 (Ind. Ct. App. 2013), trans. denied. This right encompasses a

      defendant’s right to self-representation. Id. Nevertheless, before a defendant
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      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.

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

      review de novo the trial court’s determination that a defendant waived his right

      to counsel. McBride, 992 N.E.2d at 917.


[6]   It is indisputable that in most criminal actions the defendant could better defend

      with guidance from counsel than by his own unskilled efforts. Hopper v. State,

      957 N.E.2d 613, 617-18 (Ind. 2011). Therefore, the defendant who waives his

      right to counsel and asserts his right to self-representation should be informed of

      the dangers and disadvantages of doing so. Parish v. State, 989 N.E.2d 831, 838

      (Ind. Ct. App. 2013). Our Supreme Court has stated that there are no

      prescribed “talking points” a trial court is required to include in its advisement

      to defendants. Poynter v. State, 749 N.E.2d.2d 1122, 1126 (Ind. 2001). Rather,

      the information that must be conveyed to defendants will depend upon 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, 957 N.E.2d at 618. The Court directed trial courts to come to a

      “considered determination” that a defendant is making a voluntary, knowing,

      and intelligent waiver. Poynter, 749 N.E.2d at 1126. In making this

      determination, the Court has considered four factors: “(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


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

      Id. at 1127-28. The Court noted that when applying these factors, the trial court

      is in the best position to assess whether a defendant has knowingly,

      intelligently, and voluntarily waived counsel, and the trial court’s decision will

      most likely be upheld where it has made the proper inquiries, conveyed the

      proper information, and reached a reasoned conclusion. Id. at 1128.


[7]   Here, at a pre-trial conference on October 10, 2014, Taylor expressed his desire

      for new counsel because he did not believe he was being “properly represented”

      and because he and his counsel were not seeing “eye to eye” and were

      “bumping heads.” Tr. p. 307. The trial court responded that he would not be

      permitted to “pick and choose” his counsel from available public defenders and

      indicated that his options were to either keep his current public defender, hire

      his own counsel, or represent himself, which would involve significant risks. Id.

      at 308. The trial court inquired as to Taylor’s education, and he responded that

      he went to high school but didn’t graduate and that he can read and write

      English. The trial court then explained that if Taylor proceeded pro se, he

      would have to do all the legal work himself. Specifically, Taylor was advised

      that he would have to select a jury, including challenging jurors according to

      the law; make opening and closing statements while possibly creating risk for

      himself through his statements; and make objections and appropriate motions

      to protect himself. In addition, the trial court informed Taylor that if he was

      not familiar with the rules of evidence, he would be at a real disadvantage and

      “in a world of hurt” because he has no legal training and the State’s two


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      lawyers were familiar with the rules of evidence and had a great deal of

      experience in trying cases. Id. at 312.


[8]   To the trial court’s advisements, Taylor responded, “I mean, it seems like I am

      not getting nowhere with my attorney so what am I going to do about it? I am

      not going to take the risk.” Id. The trial court explained that his current

      counsel had a lot of experience, knew the evidence and how to object to it, was

      in charge of how the case was prepared, and would not file something with the

      court that would hurt his case or be looked upon with disfavor; however, if

      Taylor did not like his advice, he did not have to take it. Taylor responded to

      this information by stating, “I would rather represent myself if I can’t get

      appointed another court attorney.” Id. at 313.


[9]   Beyond the colloquy just discussed, the court read the following advisement to

      Taylor:

              The defendant would be solely responsible for subpoenaing
              witnesses. The defendant must comply with the Indiana Rules of
              Evidence. The defendant is solely responsible for preserving
              issues for appeal at any trial or sentencing phase and the
              defendant further understands that the defendant is waiving any
              appeal based on ineffective representation of counsel. An
              attorney would be better at investigation and interrogation and
              would generally have greater skills than does the defendant. The
              defendant’s incarceration is a disadvantage in preparing a
              defense. The defendant is at a disadvantage with the State being
              represented by an attorney and may actually conduct a defense to
              the defendant’s own detriment. The defendant is at a
              disadvantage when trying to elicit testimony from himself at trial.
              The defendant will lose his ability to proceed pro se if his

      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-142 | November 19, 2015   Page 6 of 15
               behavior is abusive, disruptive, and/or threatening during any
               part of the trial. The Court will appoint stand-by counsel in an
               advisory capacity to answer questions but who cannot actively
               participate in the trial unless the Court so orders. The defendant
               understands the charges against him, the possibility there may be
               lesser included offenses, and the possibility there may be defenses
               or mitigating circumstances the defendant may not be aware of.
       Id. at 317-18. The trial court then inquired as to whether Taylor had been

       threatened or promised anything to waive counsel, to which Taylor replied,

       “Not at all.” Id. at 319. In addition, the trial court asked Taylor if he

       understood that he would receive no special treatment from the court due to his

       lack of legal expertise, if he believed proceeding pro se was in his best interest

       despite all of the court’s advisements, and if he still wanted to waive his right to

       counsel and proceed pro se. Taylor responded affirmatively and signed a form

       requesting to proceed pro se that listed these advisements. See Appellant’s App.

       pp. 64-65.


[10]   With regard to the Poynter factors, the transcript shows that the trial court’s

       inquiry was not merely cursory. The trial court questioned Taylor about his

       education level, which revealed he had attended some high school. The court

       engaged in a lengthy dialogue with Taylor regarding the dangers of representing

       oneself. The trial court also inquired into Taylor’s legal knowledge such as

       whether he had read the rules of evidence or knew how to go about picking a

       jury, indicated that the State’s two attorneys were well-versed in the rules of

       evidence and jury trials, and read him a lengthy advisement reiterating the

       disadvantages of self-representation.


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[11]   At the pre-trial conference, the trial court read the habitual offender count to

       Taylor, indicating that Taylor had previously been convicted of auto theft as a

       Class D felony, resisting law enforcement as a Class D felony, and criminal

       confinement as a Class D felony. This information demonstrates that Taylor is

       not a newcomer to the criminal justice system and its proceedings. Specifically,

       Taylor obviously knew he had the right to counsel because he was being

       represented by court-appointed counsel at the time he indicated his desire to

       represent himself.


[12]   At the pre-trial conference Taylor first expressed his desire to sever his

       relationship with his current public defender and be assigned a new public

       defender. When the trial court responded that he would not be permitted to

       cherry-pick his counsel from available public defenders, Taylor informed the

       court of his desire to represent himself. Here, we pause to note that a

       defendant’s right to counsel is not an absolute right to be represented by counsel

       of his choosing. McBride, 992 N.E.2d at 917. Therefore, a trial court may, in its

       discretion, deny a defendant’s request for a new court-appointed attorney. Id.

       Taylor does not argue, and we find no indication, that the court abused its

       discretion by denying his request for a new public defender.


[13]   Further, the final pre-trial conference was held on a Friday. Taylor’s trial on

       these charges was set for the following Tuesday. Once the trial court approved

       his request to proceed pro se, Taylor asked the court about obtaining evidence

       and documents, and the court continued the trial on his behalf with his public

       defender appointed as stand-by counsel.

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[14]   In his brief, Taylor claims that his statements during his dialogue with the trial

       court relating to him not having knowledge of how to choose a jury, obtain a

       suppression hearing, or subpoena witnesses, as well as his statement that he was

       “not quite really comprehending what is going on” demonstrates that he was

       not knowingly waiving his right to counsel. Tr. p. 311. However, reviewing

       Taylor’s statement in context reveals that his failure to comprehend was not

       with regard to his waiver of counsel and decision to represent himself. Rather,

       he was expressing confusion about the trial process, particularly about how to

       obtain a suppression hearing, hold a deposition, or obtain the information that

       he believed his court-appointed attorney had refused to obtain for him. A

       defendant’s technical legal knowledge is not relevant to an assessment of his

       knowing exercise of the right to defend himself. See Faretta v. California, 422

       U.S. 806, 835-36, 95 S. Ct. 2525, 2541, 45 L. Ed. 2d 562 (1975).


[15]   Taylor also alleges that, under the Poynter factors, the trial court’s inquiry fell

       short because “the judge made no effort to investigate the cause of Mr. Taylor’s

       inability to comprehend what was going on” and that “perhaps [further] inquiry

       would have elicited the information that was later revealed regarding his

       schizophrenia.” Appellant’s Br. p. 10. As we explained in the previous

       paragraph, Taylor’s lack of understanding was as to the legal procedures

       involved in a jury trial, which are not relevant to the evaluation of whether he

       knowingly waived his right to counsel. See Faretta, 422 U.S. at 835-36.


[16]   Further, the information about Taylor’s alleged schizophrenia to which he cites

       is the testimony of his mother at his sentencing hearing that she was told by

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       someone that Taylor was hearing voices before this incident. Tr. p. 266. He

       also points to his own statements in his pre-sentence investigation report that he

       experienced symptoms of schizophrenia around the age of nine or ten and that

       he was diagnosed with schizophrenia as a teen. He stated that he experiences

       auditory hallucinations that command him to do things and that he had not

       taken his medication for approximately two years. PSI p. 13. In her testimony,

       his mother denied that he had symptoms at a young age and indicated an onset

       possibly when he was twenty. Tr. pp. 268-69. Taylor did not inform the trial

       court of his alleged illness at the pre-trial conference or any other time prior to

       sentencing. Now on appeal, he makes no argument that his alleged illness had

       any impact on his understanding of the right he was waiving and the pitfalls of

       self-representation.


[17]   The facts and circumstances of this case demonstrate that the trial court fully

       and properly inquired into Taylor’s decision to proceed pro se and thoroughly

       warned him of the dangers and disadvantages of doing so. Thus, we conclude

       that Taylor voluntarily, knowingly and intelligently exercised his right of self-

       representation.


                                                II. Sentence
[18]   As his second allegation of error, Taylor asserts that his forty-five year sentence

       is inappropriate. Although a trial court may have acted within its lawful

       discretion in imposing a sentence, Article 7, Sections 4 and 6 of the Indiana

       Constitution authorize independent appellate review and revision of sentences

       through Indiana Appellate Rule 7(B), which provides that we may revise a
       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-142 | November 19, 2015   Page 10 of 15
       sentence authorized by statute if, after due consideration of the trial court’s

       decision, we determine that the sentence is inappropriate in light of the nature

       of the offense and the character of the offender. Thompson v. State, 5 N.E.3d

       383, 391 (Ind. Ct. App. 2014). However, “we must and should exercise

       deference to a trial court’s sentencing decision, both because Rule 7(B) requires

       us to give ‘due consideration’ to that decision and because we understand and

       recognize the unique perspective a trial court brings to its sentencing decisions.”

       Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The principal role of

       appellate review under Rule 7(B) is to attempt to leaven the outliers, not to

       achieve a perceived “correct” result in each case. Garner v. State, 7 N.E.3d

       1012, 1015 (Ind. Ct. App. 2014). A defendant bears the burden of persuading

       the appellate court that his or her sentence has met the inappropriateness

       standard of review. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified

       on reh’g, 875 N.E.2d 218 (2007).


[19]   To assess whether the sentence is inappropriate, we look first to the statutory

       range established for the class of the offense at the time the offense occurred.

       The offense of unlawful possession of a firearm by a serious violent felon is a

       Class B felony, for which the advisory sentence was ten years, with a minimum

       sentence of six years and a maximum sentence of twenty years. Ind. Code § 35-

       50-2-5 (2005). Taylor was also convicted of battery, a Class C felony, for which

       the advisory sentence was four years, with a minimum sentence of two years

       and a maximum sentence of eight years. Ind. Code § 35-50-2-6 (2005). In

       addition, Taylor was adjudicated an habitual offender, for which the court


       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-142 | November 19, 2015   Page 11 of 15
       enhanced his serious violent felon conviction by twenty years. The minimum

       sentence enhancement for this adjudication was ten years, and the maximum

       was thirty years. Ind. Code § 35-50-2-8(h). Thus, Taylor did not receive a

       maximum sentence for any of his convictions or his habitual offender

       adjudication.


[20]   The trial court also ordered consecutive sentences for Taylor’s convictions of

       unlawful possession of a firearm by a serious violent felon and battery. Taylor

       complains that the imposition of consecutive sentences renders his sentence

       inappropriate. With few exceptions, it is within the trial court's discretion to

       order sentences be served concurrently or consecutively, and the court can

       consider aggravating circumstances in making such a determination. See Ind.

       Code § 35-50-1-2 (2013). Further, a single aggravating circumstance may be

       sufficient to support the imposition of consecutive sentences, Gross v. State, 22

       N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied, and, here, the trial court

       found several. Ultimately though, the length of the aggregate sentence and how

       it is to be served are the issues that matter. As our Supreme Court explained, in

       the majority of the cases “whether [the sentences] are derived from multiple or

       single counts, involve maximum or minimum sentences, and are concurrent or

       consecutive is of far less significance than the aggregate term of years.”

       Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Here, we cannot say that

       the decision to impose consecutive sentences in and of itself renders Taylor’s

       sentence inappropriate. Instead, we review the aggregate forty-five year

       sentence in light of the nature of the offenses and the character of the offender.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-142 | November 19, 2015   Page 12 of 15
[21]   As to the nature of the current offenses, Taylor shot H.B. in the presence of

       H.B.’s two young children. Moreover, Taylor, who was forbidden by law from

       possessing a firearm, nonetheless possessed a firearm and used it to shoot H.B.

       apparently because he was upset that she had to work on Valentine’s Day

       and/or for some dreams he had. H.B.’s statement that was read at Taylor’s

       sentencing indicated that she and her young children have had a difficult time

       dealing with this incident and that her children were still in counseling.


[22]   With regard to the character of the offender, we note that Taylor has

       accumulated an extensive criminal history. He began his criminal career in

       1993 as a juvenile, and his conduct resulted in fifteen arrests and eight

       adjudications. At least one of his arrests as a juvenile involved felony charges

       which were later waived into adult court. As an adult, Taylor has amassed ten

       felony convictions, excluding the instant offenses, for crimes such as auto theft,

       carrying a handgun without a license, resisting law enforcement, dealing in

       cocaine or narcotic, possession of a controlled substance, criminal confinement,

       and possession of marijuana, as well as two misdemeanor convictions. At the

       time the pre-sentence investigation report was prepared, he had two additional

       B felony charges pending.


[23]   Further, as discussed previously, Taylor claims to have been diagnosed with

       schizophrenia, and, on appeal, places the blame for this offense and the

       “development of his character” squarely on the shoulders of his alleged mental

       illness. Appellant’s Br. p. 16. Taylor testified that his schizophrenia began at

       the age of nine or ten with a diagnosis in his teen years; however, his mother

       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-142 | November 19, 2015   Page 13 of 15
       testified that she did not believe he had symptoms at a young age and indicated

       a diagnosis possibly at the age of twenty. Even in the face of this uncertainty,

       the trial court identified Taylor’s schizophrenia as a mitigator but noted that he

       had admitted to failing to take his medicine for several years.


[24]   Additionally, Taylor stated, and the trial court noted, that he has a long history

       of substance abuse involving alcohol and numerous illegal drugs. Although he

       previously attended substance abuse treatment, Taylor admitted to smoking a

       cigarette laced with embalming fluid on the night prior to this incident.


[25]   At the end of the day, whether we regard a sentence as appropriate turns on our

       sense of the culpability of the defendant, the severity of the crime, the damage

       done to others, and myriad other factors that come to light in a given case.

       Cardwell, 895 N.E.2d at 1224. Here, Taylor was illegally in possession of a

       firearm and shot his girlfriend while her two young children were in the home.

       Given the copious arrests and convictions amassed by Taylor, it is clear that his

       pattern of illegal activity appears to be escalating and that he has no intention of

       changing his lifestyle from one of crime and substance abuse to one of clean

       living. Consequently, we do not find his aggregate sentence of forty-five years

       to be inappropriate in this case.


                                                Conclusion
[26]   For the reasons stated, we conclude that Taylor knowingly, voluntarily, and

       intelligently waived his right to counsel and proceeded to trial pro se. In



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       addition, we conclude that his sentence was not inappropriate in light of his

       offenses and his character.


[27]   Affirmed.


[28]   Kirsch, J., and Mathias, J., concur.




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