MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 Aug 07 2015, 7:44 am

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
Ellen M. O’Connor                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Delvante Jones,                                          August 7, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1412-CR-872
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marc T.
Appellee-Plaintiff                                       Rothenberg, Judge
                                                         Trial Court Cause No.
                                                         49G02-1209-MR-61054




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-872 | August 7, 2015         Page 1 of 4
                                              Case Summary
[1]   Delvante Jones appeals his conviction for murder following a jury trial. During

      the second day of his trial, Jones, who was represented by counsel, requested

      that he be permitted to proceed pro se. The trial court denied his request. On

      appeal, Jones asserts that he was improperly denied his constitutional right to

      self-representation. Concluding that his request to represent himself was per se

      untimely, we affirm his conviction.


                                  Facts and Procedural History
[2]   The facts relevant to the issue presented on appeal indicate that, on September

      4, 2012, the State charged Jones with the murder of Glenn Storey. 1 Shortly

      thereafter, counsel entered an appearance on Jones’s behalf. A jury trial began

      on September 29, 2014. On the morning of trial, Jones’s trial counsel moved to

      withdraw her appearance referencing a “breakdown in the attorney client

      relationship.” Tr. at 7. The trial court then asked Jones, “[A]re you satisfied

      with your attorney?” Id. Jones replied, “Yes.” Id. The trial court denied the

      motion to withdraw. The State presented the testimony of four witnesses and,

      after a full day of trial, court recessed. On September 30, 2014, court

      reconvened for the second day of trial, and the State presented its fifth witness.

      During his counsel’s cross-examination of that witness, Jones attempted to

      interrupt and ask questions that he believed his attorney was “not asking,” Id.



      1
       The State also charged Jones with the use of a firearm sentence enhancement. See Ind. Code § 35-50-2-11.
      That charge was dismissed upon motion by the State at the conclusion of trial.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-872 | August 7, 2015            Page 2 of 4
      at 163. The trial court dismissed the jury in order to speak to the parties outside

      the jury’s presence. Noting that this was not the first time during trial that

      Jones had interrupted the proceedings, the trial court reprimanded Jones. Jones

      then requested, “I would like to uh, proceed without the assistance of counsel if

      that’s fine with you?” Id. at 165. The trial court denied Jones’s request as

      untimely. The jury returned to the courtroom, and the parties presented the

      remainder of the testimony and evidence. At the conclusion of the trial, the

      jury found Jones guilty of murder. This appeal ensued.


                                     Discussion and Decision
[3]   Jones appeals his murder conviction claiming that he was improperly denied his

      constitutional right to represent himself. “[T]he right to self-representation is

      implicit in the Sixth Amendment to the United States Constitution, and Article

      1, § 13, of the Indiana Constitution also guarantees this right.” Stroud v. State,

      809 N.E.2d 274, 279 (Ind. 2004) (relying in part on Faretta v. California, 422

      U.S. 806, 821 (1975)). Because a request to proceed pro se is waiver of the right

      to counsel, there are several requirements to invoking the right to self-

      representation successfully. Id. “A defendant’s request to proceed pro se must

      be clear and unequivocal, and it must be made within a reasonable time prior to

      the first day of trial.” Taylor v. State, 944 N.E.2d 84, 89 (Ind. Ct. App. 2011).


[4]   In the context of a request to proceed pro se, our supreme court has held that

      “morning-of-trial requests are per se untimely” and thus are properly denied.

      Moore v. State, 557 N.E.2d 665, 669 (Ind. 1990); see also Campbell v. State, 732


      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-872 | August 7, 2015   Page 3 of 4
      N.E.2d 197, 204 (Ind. Ct. App. 2000) (concluding that even if defendant had

      clearly and unequivocally asserted his right to self-representation during the

      course of the trial, “such request was per se untimely and its denial would have

      been proper.”). Jones concedes that he did not make a clear and unequivocal

      request to represent himself at any time prior to the first day of trial. Indeed, on

      the first day of trial, Jones indicated satisfaction with the representation

      provided by counsel. Jones’s request to proceed pro se was not made until the

      second day of trial after the State had presented the majority of its evidence.

      Under the circumstances, Jones’s request was per se untimely and properly

      denied by the trial court. We affirm his murder conviction.


[5]   Affirmed.


      May, J., and Bradford, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1412-CR-872 | August 7, 2015   Page 4 of 4
