MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            FILED
regarded as precedent or cited before any                    Mar 30 2017, 6:34 am

court except for the purpose of establishing                     CLERK
the defense of res judicata, collateral                      Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Walik L. Whiteside,                                      March 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1607-CR-1659
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D04-1503-FB-3



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 1 of 16
[1]   Walik Whiteside appeals his convictions for Attempted Rape, 1 a class B felony,

      and two counts of Criminal Deviate Conduct, 2 a class B felony, arguing that the

      trial court erred by permitting him to waive his right to counsel and that the

      trial court should have granted his pretrial motion for a continuance. Whiteside

      also appeals the sentence imposed by the trial court, contending that it is

      inappropriate in light of the nature of the offenses and his character. We find

      no error on the first two issues but we agree that the sentence is inappropriate.

      Therefore, we affirm in part, reverse in part, and remand with instructions to

      revise Whiteside’s sentence to three consecutive ten-year terms.


                                                    Facts
[2]   During the morning hours of September 22, 2012, A.B. went for a run along the

      River Greenway in Fort Wayne. As A.B. approached an overpass, she saw a

      man later identified as then-fifteen-year-old Whiteside standing on the path. As

      A.B. ran past Whiteside, he grabbed her from behind and placed his arm

      around her neck. They fell to the ground. Whiteside removed his pants and

      attempted to insert his penis into A.B.’s vagina but was unable to because he

      did not have an erection. He inserted his fingers into her vagina, touched her

      breasts underneath her bra, and forced his penis into A.B.’s mouth in an




      1
          Ind. Code § 35-42-4-1 (2012).
      2
          Ind. Code § 35-42-4-2 (2012).


      Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 2 of 16
      attempt to achieve an erection. Within a few minutes, another runner

      approached Whiteside and A.B., and Whiteside fled the scene.


[3]   The other runner called 911 from A.B.’s cell phone and waited with her until

      the police arrived. When they arrived, they found A.B. to be very shaken and

      upset, and initially unresponsive to questions. A.B. was transported to a sexual

      assault treatment center, where she underwent a forensic medical examination.

      The examiner observed abrasions on A.B.’s mouth and knees and collected

      DNA swab samples from A.B.’s neck, breasts, inner thighs, and external and

      internal genitalia. This evidence was sent to the Indiana State Police but no

      match for the DNA was found at that time.


[4]   In the meantime, Whiteside committed another crime that resulted in a Class A

      felony robbery conviction. In 2014, during Whiteside’s incarceration for that

      crime, the State collected a DNA sample. When that sample was introduced

      into the database, it appeared to be a match for the DNA that was collected

      from A.B.’s body. Fort Wayne police officers then collected a new DNA swab

      from Whiteside, and a forensic scientist confirmed that Whiteside’s DNA

      matched the DNA collected from A.B.’s body.


[5]   On March 23, 2015, the State charged Whiteside with Class B felony attempted

      rape, two counts of Class B felony criminal deviate conduct, and class D felony

      sexual battery. Before the State filed criminal charges against Whiteside, the

      Allen County juvenile court found probable cause and issued an order of waiver

      of jurisdiction to criminal court.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 3 of 16
[6]   During the pendency of Whiteside’s case, he had four different public

      defenders. Although the first public defender resigned through no fault of

      Whiteside, he developed conflicts with his second, third, and fourth public

      defenders, resulting in his request, made two weeks before trial, to proceed pro

      se. The trial court conducted a hearing regarding Whiteside’s request, but the

      transcript of that hearing has not been included in the record on appeal.

      Following the hearing, the trial court issued an order finding that Whiteside

      “knowingly, and voluntarily is waiving his right to counsel and can proceed pro

      se.” Appellant’s App. Vol. II p. 94.


[7]   Four days before the scheduled trial, Whiteside filed a motion for a

      continuance. The trial court denied the motion. On May 17, 2016, the date

      that the trial was scheduled to begin, Whiteside renewed the motion. The

      following discussion occurred:


              Whiteside: I haven’t—I haven’t had the proper time to build a
                         defense. . . .


              Court:           Okay, well we had our hearing last time and the
                               only complaint that you were lodging about not
                               being ready for trial was the fact that the jail had
                               you on—I think you indicated the jail had you on
                               lockdown, that you weren’t being treated fairly at
                               the jail, that you had complaints about your
                               treatment at the jail.


              Whiteside: Yes.




      Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 4 of 16
        Court:           You didn’t even really discuss the trial. You just
                         kept saying you weren’t ready for trial, but you
                         didn’t give me any answers why you weren’t ready
                         for trial.


                                                ***


        Court:           Okay, but again Mr. Whiteside here’s the problem
                         I’m having. You’re just saying I’m not ready.
                         You’re not giving me a basis for it, . . . [y]ou’re not
                         telling me what it is that more time will produce
                         something different. All I’m hearing is I’m not
                         ready, I’m not ready.


        Whiteside: Um, I—I haven’t fully—I need time to fully, um,
                   assess my discovery, look over all my discovery. . . .
                   I need time to do a deposition. . . . Um, there are
                   about seven (7) witnesses that I never heard of. . . . I
                   would like to do my own DNA test—have my own
                   DNA test done. And, you know, just really work
                   on my case and research. . . .


Tr. Vol. I p. 4-7. The trial court noted that Whiteside’s fourth public defender

had retained a DNA expert who examined all of the DNA evidence and was

prepared to testify, but at a prior hearing, Whiteside adamantly stated that he

did not want that expert to testify, so no subpoena was issued. Additionally,

the trial court noted that there were multiple witnesses who had been

subpoenaed by Whiteside’s final attorney who were present and prepared to

testify; furthermore, his attorneys had provided all discovery to Whiteside and

gone over it with him in the past. Consequently, the trial court denied the

motion and trial proceeded as planned.
Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 5 of 16
[8]   On May 18, 2016, the jury found Whiteside guilty as charged. The trial court

      vacated the sexual battery conviction based on double jeopardy concerns.

      Following a sentencing hearing, on July 16, 2016, the trial court sentenced

      Whiteside to consecutive twenty-year terms on each of the three Class B felony

      convictions, for an aggregate sentence of sixty years imprisonment. The

      sentence in this matter is to be served consecutively to the sentence Whiteside is

      serving for his unrelated Class A felony robbery conviction. Whiteside now

      appeals.


                                   Discussion and Decision
                                      I. Waiver of Counsel
[9]   First, Whiteside argues that the trial court erred by granting his request to

      proceed pro se. A defendant who wishes to waive the constitutional right to

      counsel must do so knowingly, intelligently, and voluntarily. Hopper v. State,

      957 N.E.2d 613, 617 (Ind. 2011). Therefore, a defendant who wishes to

      proceed pro se should be made aware of the dangers and disadvantages of self-

      representation such that the record will show that he “knows what he is doing

      and his choice is made with eyes open.” Id. Our Supreme Court has held that

      courts considering whether a waiver of counsel was knowing and intelligent

      must evaluate (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. The trial court is in the best position
      Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 6 of 16
       to assess whether the defendant has made a knowing and intelligent waiver, and

       we will affirm if the trial court “has made the proper inquiries and conveyed the

       proper information, and reaches a reasoned conclusion.” Drake v. State, 895

       N.E.2d 389, 393 (Ind. Ct. App. 2008).


[10]   Here, Whiteside concedes that the inquiries made by the trial court regarding

       his waiver of counsel was proper and sufficient. Indeed, as he has not included

       the transcript of that hearing in the record on appeal, we have no way of

       reviewing that conversation in any event. The first factor, therefore, weighs in

       favor of the trial court’s decision. As for the second factor—other evidence in

       the record that establishes whether the defendant understood the dangers and

       disadvantages of self-representation—we note that the record reveals that

       Whiteside had extensive experience in the juvenile and criminal justice system,

       indicating that he was aware of the dangers and disadvantages of self-

       representation. Likewise, the third factor—the background and experience of

       the defendant—weighs in favor of the trial court’s ruling. While Whiteside was

       young at the time of his trial, he was an adult (nineteen years old at the time of

       trial) with substantial experience in the criminal justice system. He has a high

       school degree and speaks English, and nothing in the record indicates any sort

       of mental or intellectual disability. Finally, as for the context of his decision to

       proceed pro se, the record reveals that three of his four assigned public

       defenders withdrew from the case because of conflicts with Whiteside. Having

       been unable to work with 75% of his public defenders, he asked to proceed pro

       se because all four of his prior attorneys were “ineffective[.]” Tr. Vol. I p. 12.


       Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 7 of 16
       Under these circumstances, the trial court did not err by granting his request to

       proceed pro se.


[11]   Whiteside makes much of the fact that the trial court’s order stated that his

       waiver was knowing and voluntary, but omits a conclusion that the waiver was

       intelligently and unequivocally made. Initially, we note that it is entirely

       possible that the trial court made oral findings to this effect at the hearing, but

       we have no way of knowing whether or not that occurred as we do not have the

       transcript to review. And in any event, the evidence in the record supports a

       conclusion that Whiteside did, in fact, intelligently and unequivocally waive his

       right to counsel. The fact that those words were omitted from the trial court’s

       order does not change the outcome.


                                    II. Motions to Continue
[12]   Next, Whiteside argues that the trial court erred by denying his motions to

       continue—the first made four days before trial, the second made the morning of

       trial. We will reverse a trial court’s ruling on a motion to continue only where

       the decision is clearly against the logic and effect of the facts and circumstances

       before the court or where the record demonstrates prejudice to the defendant

       from a denial of the continuance. Tharpe v. State, 955 N.E.2d 836, 843 (Ind. Ct.

       App. 2011). Continuances to allow additional time for preparation are

       generally disfavored in criminal cases. Id.


[13]   We do not have the transcript from the hearing at which Whiteside’s first

       motion to continue was discussed, but based on the trial court’s comments on

       Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 8 of 16
       the morning of trial, it sounds as though Whiteside had no genuine arguments

       regarding his need for a continuance or what a continuance would accomplish.

       The morning of trial, when pushed by the trial court for an answer, Whiteside

       identified several concrete things he would do, given more time: (1) review

       discovery provided by the State; (2) depose witnesses; (3) perform another

       DNA test; and (4) do further research. Tr. Vol. I p. 7.


[14]   As for discovery provided by the State, Whiteside’s prior attorneys had

       provided him with all discovery and had even gone over it all with him. 3 As for

       deposing witnesses, Whiteside did not identify which witnesses he would

       depose nor why he wished to conduct depositions. Regarding DNA evidence,

       his prior public defender had retained a DNA expert to testify about the State’s

       DNA evidence but Whiteside adamantly told the trial court that he did not

       want that expert to testify; consequently, no subpoena was issued for that

       individual. Finally, as for “further research,” Whiteside did not offer anything

       specific that he wished to learn, nor did he identify what goals he would be able

       to accomplish if he had been given more time.


[15]   It was Whiteside’s decision to request to proceed pro se a mere twelve days

       before his trial was scheduled to take place. He was unable, until the day trial

       was to begin, to articulate a single reason why a continuance was warranted.




       3
        There was some last-minute discovery provided by the State in the weeks leading up to the trial, but the
       State told the trial court that it did not intend to rely on or introduce that discovery into evidence at trial.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017                   Page 9 of 16
       The trial court, which had the benefit of personal interaction with Whiteside

       throughout the pretrial proceedings, was wholly unpersuaded:


               You cannot have it both ways sir. You cannot tell me in [sic] the
               one hand that you are smarter than everybody in the room and
               can represent yourself and have filed multiple pro se motions and
               multiple letters with the Court that indicate that you clearly
               understand your case, that you clearly understand what’s going
               on, that you have a very good understanding of the discovery in
               the State’s case against you, and then in the next breath tell me
               I’m sorry Judge I don’t know what’s going on. You cannot and I
               will not allow you to manipulate the system in that fashion sir.
               We are here, we are ready for trial. You are ready for trial Mr.
               Whiteside, you’ve told me that repeatedly in your letters and in
               your conversations with the Court.


       Tr. Vol. I p. 27. We will not second-guess the trial court’s assessment of the

       situation, and find no error in the denial of Whiteside’s last-minute motions to

       continue the trial.


                                            III. Sentencing
[16]   Finally, Whiteside argues that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offenses and his character. Indiana

       Appellate Rule 7(B) provides that this Court may revise a sentence if it is

       inappropriate in light of the nature of the offense and the character of the

       offender. We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 10 of 16
       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[17]   Whiteside was convicted of three Class B felonies. For each, he faced a

       sentence of six to twenty years imprisonment, with an advisory term of ten

       years. Ind. Code § 35-50-2-5(a). The trial court imposed three maximum

       twenty-year terms, for an aggregate sentence of sixty years.


[18]   With respect to the nature of the offenses, Whiteside assaulted a woman who

       was out on a run. He attempted to put his penis in her vagina and successfully

       put his penis in her mouth and his fingers in her vagina. The encounter was not

       a protracted one as they were quickly interrupted by another runner. While we

       do not intend to minimize these crimes, and have no doubt that they will

       impact the victim for the rest of her life, we cannot say that these offenses are

       the worst of the worst or that they are particularly heinous.


[19]   With respect to Whiteside’s character, as a juvenile he was adjudicated

       delinquent for possession of marijuana, criminal conversion, and burglary.

       When he committed the instant offenses he was a mere fifteen years old. At the

       time of the juvenile waiver hearing in this case, he had been convicted of Class

       A felony robbery and sentenced to twenty-five years for that offense. While

       incarcerated and awaiting trial, he committed and was convicted of Level 6

       felony battery on a fellow inmate.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 11 of 16
[20]   We find Whiteside’s young age to be of particular importance and agree with

       the United States Supreme Court that there are at least four significant

       differences between juveniles and adults:


            As compared to adults, juveniles have a “‘lack of maturity and an
             underdeveloped sense of responsibility.’” Graham v. Florida, 560 U.S. 48,
             68 (2010) (quoting Roper v. Simmons, 543 U.S. 551, 569 (2005)).
            Juveniles “are more vulnerable or susceptible to negative influences and
             outside pressures, including peer pressure.” Roper, 543 U.S. at 569.
            Juveniles have limited control over their own environments and often
             “lack the ability to extricate themselves from horrific, crime-producing
             settings.” Miller v. Alabama, 132 S.Ct. 2455, 2458 (2012).
            A juvenile’s character “is not as well formed as an adult’s and his actions
             are less likely to be evidence of irretrievable depravity.” Roper, 543 U.S.
             at 570.

       In sum, “because juveniles have lessened culpability they are less deserving of

       the most severe punishments.” Graham, 560 U.S. at 68. In other words,

       “juvenile offenders cannot with reliability be classified among the worst

       offenders.” Roper, 543 U.S. at 569.


[21]   It is evident that Whiteside is far from a model citizen and that prior attempts at

       rehabilitation have been unsuccessful. We cannot say, however, that he is the

       worst of the worst or that he is a defendant who deserves the maximum possible

       term. Given our analysis above regarding the nature of the offenses and given

       his youthful age at the time he committed them, we believe that a sixty-year

       aggregate sentence was an inappropriate outlier. We do believe, however, that

       an aggregate term above the advisory sentence is warranted given Whiteside’s

       significant criminal history. Therefore, we revise Whiteside’s sentence to three

       Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 12 of 16
       consecutive ten-year terms, to be served consecutively to the sentence he is

       currently serving for robbery.


[22]   The judgment of the trial court is affirmed in part and reversed in part with

       instructions to revise Whiteside’s sentence to three consecutive ten-year terms.


       Mathias, J., concurs.
       Pyle, J., concurs in part, dissents in part with a separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 13 of 16
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Walik L. Whiteside,                                      Court of Appeals Case No.
                                                                02A05-1607-CR-1659
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellees-Plaintiff.




       Pyle, Judge, concurring in part, dissenting in part.


[23]   I concur with the majority that the trial court did not commit error by allowing

       the defendant to represent himself and denying his motion to continue the trial

       date. However, I respectfully disagree that the sentence imposed was

       inappropriate. The majority correctly points out that it is often very appropriate

       for judges to be merciful and compassionate when administering justice. On

       the other hand, it also incumbent upon us as appellate judges to be particularly

       deferential to the weight given to the evidence and witness credibility by a

       sentencing judge. As I have noted in prior cases, the trial and sentencing judges

       are in the best position to make determinations about who and what to believe.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 14 of 16
       They get to see the facial expressions of witnesses; they get to hear the pain or

       remorse in the voices of victims, family members, and defendants; they get to

       watch body language; and they get to make judgments based on the intonation

       in a witness’s voice. None of these critical decision making factors are reflected

       in an appellate record. Love v. State, 61 N.E.3d 290 (Ind. Ct. App. 2016) (Pyle,

       J., dissenting), trans. pending.


[24]   In this case, the Defendant opted to exercise his constitutional right to represent

       himself during a jury trial, giving him the opportunity to cross-examine his

       victim. The sentencing judge observed the entire trial and presided over the

       sentencing hearing. The sentencing judge heard the victim describe her pain;

       heard her describe the shock she felt while getting choked and wrestled to the

       ground; heard her remember pleading for her life; heard her recount thinking

       that she would never see her children again; and heard her recount “this cannot

       be happening to me.” (Sent. Tr. 15).


[25]   The sentencing judge also heard and considered evidence of this young

       defendant’s criminal history. A criminal history accumulated before his

       sixteenth birthday. A criminal history that includes juvenile adjudications for

       possession of marijuana, criminal conversion, and battery as class A

       misdemeanors. In addition, the Defendant committed the offense of burglary

       on September 22, 2012 (which would have been a class B felony if committed

       by an adult) and was sentenced to the Indiana Boys School. However, before

       committing that offense, the Defendant committed the instant offenses in this

       case. Following his release from Boys School, the Defendant also committed

       Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 15 of 16
       and was convicted of a class A felony robbery during which he had shot and

       paralyzed another victim. (Sent. Tr. 17).


[26]   Yes, it is true, there are significant differences between adults and juvenile

       offenders. However, I respectfully disagree with my colleagues’ belief that this

       Defendant is not the worst of the worst deserving of the maximum sentence. I

       believe the record supports the sentence imposed by the sentencing judge.

       Remember, the question posed by Indiana Appellate Rule 7(B) is not whether

       the sentence is appropriate, but whether the sentence is inappropriate.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1607-CR-1659 | March 30, 2017   Page 16 of 16
