                                                                                 FILED
                                                                             Nov 13 2018, 9:13 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Curtis T. Hill, Jr.
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                George P. Sherman
                                                                Supervising Deputy Attorney
                                                                General
                                                                Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Yusuf Hotep-El,                                           November 13, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-477
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Alicia A. Gooden,
      Appellee-Plaintiff.                                       Judge
                                                                The Honorable Richard E.
                                                                Hagenmaier, Commissioner
                                                                Trial Court Cause No.
                                                                49G21-1608-F5-32766



      Friedlander, Senior Judge.


[1]   Yusuf Hotep-El appeals the trial court’s termination of his self-representation.

      We affirm.



      Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018                           Page 1 of 34
[2]   In August 2016, Hotep-El was charged with possession of cocaine, a Level 5
                 1                                                                   2
      felony; two counts of possession of a narcotic drug, both Level 5 felonies;
                                                                             3
      possession of a controlled substance, a Level 6 felony; driving while suspended,
                                           4                                             5
      a Class A misdemeanor; possession of marijuana, a Class B misdemeanor; and
                                                                         6
      later he was also alleged to be an habitual offender.


[3]   At his initial hearing on these charges, Hotep-El was appointed counsel to

      represent him. Subsequently, a motions hearing was held on February 15,

      2017, at which Hotep-El, through counsel, requested permission to represent

      himself. Following a proper inquiry by the court, his request was granted with

      appointed counsel remaining as standby counsel.


[4]   At a hearing in April, the court terminated Hotep-El’s self-representation. The

      court stated that his abundant inappropriate filings as well as his statements and

      behavior in court caused it concern regarding his mental fitness. The court then

      reappointed standby counsel for the purpose of determining whether a

      competency evaluation was warranted.




      1
          Ind. Code § 35-48-4-6 (2014).
      2
          Ind. Code § 35-48-4-6.
      3
          Ind. Code § 35-48-4-7 (2014).
      4
          Ind. Code § 9-24-19-2 (2016).
      5
          Ind. Code § 35-48-4-11 (2014).
      6
          Ind. Code § 35-50-2-8 (2015).


      Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018       Page 2 of 34
[5]   In May, defense counsel filed a combined notice of insanity defense and motion

      for psychiatric examination to determine Hotep-El’s competence to stand trial,

      which the trial court granted. Dr. Olive and Dr. Parker were appointed to

      examine Hotep-El. Dr. Olive concluded he was competent. Dr. Parker,

      although unable to conduct a complete evaluation, formed an opinion that

      Hotep-El was capable of understanding the nature of the proceedings against

      him and assisting his counsel. At the pretrial conference and competency

      hearing in July 2017, the trial court found Hotep-El competent to stand trial

      based on the doctors’ reports. Appointed counsel continued as counsel for

      Hotep-El.


[6]   At the final pretrial conference in January 2018, the State asked the court to

      address the status of Hotep-El’s representation. The court and defense counsel

      then attempted to ask Hotep-El if he wanted the public defender to represent

      him or if he wanted to represent himself, but he refused to answer the question.


[7]   On the first morning of trial, defense counsel informed the court that Hotep-El

      was requesting to proceed pro se. The court denied the request and proceeded

      with the trial. The State dismissed the charge of driving while suspended, and

      the jury found Hotep-El guilty on all remaining charges and determined that he

      is an habitual offender. The court sentenced Hotep-El to an aggregate sentence

      of ten years executed. He now appeals.


[8]   Hotep-El contends the trial court improperly terminated his self-representation.

      The Sixth Amendment guarantee of a defendant’s right to counsel encompasses


      Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018     Page 3 of 34
      the right of a defendant to represent himself. Hopper v. State, 957 N.E.2d 613

      (Ind. 2011) (citing Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L.

      Ed. 2d 562 (1975)). Yet, this right is not without limits. The United States

      Supreme Court recognized that “[t]he right of self-representation is not a license

      to abuse the dignity of the courtroom. Neither is it a license not to comply with

      relevant rules of procedural and substantive law.” Faretta, 422 U.S. at 834 n.46.


[9]   While the trial court terminated Hotep-El’s right to proceed pro so at a hearing

      in April 2017, a timeline of events and background information prior to and

      following that hearing is helpful to our discussion. At Hotep-El’s initial

      hearing, counsel was appointed to represent him. Despite that, he sent

      numerous pro se documents to the court throughout January and February

      2017. Some of these documents were entitled “Averment of Jurisdiction – Quo

      Warranto,” “Affidavit of Fact – Writ of Discovery,” and “Affidavit of Error.”

      Appellant’s App. Vol. II, pp. 71-133. Many of these documents contained the

      following, or a similar, heading:


                  THE MOORISH NATIONAL REPUBLIC FEDERAL
                       GOVERNMENT NORTHWEST AFRICA
                THE MOORISH DIVINE AND NATIONAL MOVEMENT
                                    OF THE WORLD.
                  Northwest Amexem/Northwest Africa/North America.
                                    ‘The North Gate’.
                          Societas Republicae Ea Al Maurikanos.
                  Aboriginal and Indigenous Natural Peoples of the Land.
                      The true and de jure Al Moroccans/Americans




      Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018       Page 4 of 34
       Id. at 71. In addition, several showed copies being sent to people or

       organizations such as the United Nations, the International Criminal Court, the

       International Court of Justice, Interpol, the President of the United States, the

       U.S. Department of State, and the U.S. Justice Department. See id. at 72. On

       February 7, 2017, the court issued an order denying Hotep-El’s pro se requests

       because he was represented by counsel and explaining that Trial Rule 11

       requires pleadings and motions to be signed by an attorney when a party has

       representation.


[10]   At the motions hearing in February 2017, defense counsel informed the court

       that Hotep-El did not want counsel to represent him and that he wanted to

       represent himself. The court asked Hotep-El if he understood what a jury trial

       is and that he was charged with felony charges. Hotep-El answered

       affirmatively. The court further inquired as to Hotep-El’s education,

       understanding of trial procedure, and mental health history. Hotep-El informed

       the court that he has a GED and culinary arts training, that he has experienced

       several jury trials, and that he had never been treated for any mental illness.

       The court instructed Hotep-El that his opponent would be a trained lawyer, that

       he would be held to the same standard as an attorney, and that he would be

       expected to know the rules of evidence, investigate, engage in plea negotiations,

       conduct voir dire, make opening and closing arguments, subpoena witnesses,

       and preserve issues for appeal. See Tr. Vol. 2, pp. 5-10. After receiving Hotep-

       El’s acknowledgment that he understood what would be required of him, the




       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018      Page 5 of 34
       court granted his request to represent himself and ordered appointed counsel to

       remain as standby counsel.


[11]   Once Hotep-El’s request to represent himself was granted, the court asked for

       his contact information. He stated his mailing address and his email address.

       However, when the deputy prosecutor asked him to write his email address on

       paper, Hotep-El replied that he did not “consent to filling out any

       documentation, for the record.” Id. at 15. Hotep-El then told the court he

       wanted to read his documentation into the record and stated, “Department of

       jurisdiction, Code 1, sir, for the record, to be read into the record. Notice to

       Agent is notice to principle, notice to principle is notice to agent.” Id. at 16. He

       continued, “According to the Canon, Rule of 2.6, I’m showing a right to be

       heard.” Id. The court informed Hotep-El:


               There are certain formalities, there’s certain evidentiary rules of
               things that we have to follow as attorneys in court. You’re held
               to that same standard. If you become obstructive, particularly in
               front of the jury, then you can forfeit your right to represent
               yourself. You can even forfeit your right to be present during
               trial. Do you understand that? I’ll let you represent yourself,
               but you’re going to follow procedures and rules.

               *****

               Like I say, we are certainly happy to let you represent yourself,
               but if you become such a distraction because of your
               stubbornness, I’m just giving you a warning on that, that you
               won’t be representing yourself, okay?

       Id. at 17, 22. Hotep-El replied that he understood and then asked, “I have a

       question. I’m on this electronic house monitor on the (inaudible) arrest and


       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018        Page 6 of 34
       coercion and I do not consent to any confinement, detainment, anything that

       lines up with that. So could you order that this be taken off my leg?” Id. at 22.

       The court denied his motion.


[12]   In March 2017, there was again a flurry of filings by Hotep-El with documents

       entitled “Affidavit of Fact,” “Writ of Mandamus,” “Legal Notice of Removal,”

       and “Averment of Jurisdiction – Quo Warranto.” See Appellant’s App. Vol. II,

       pp. 154, 168, 171, 173, 177, 189, 194, 199. One such Writ of Mandamus states,

       in part:


               COMES NOW, Yusuf Hotep-El, Natural Person, In Propria
               Persona Sui Juris (not to be confused with, nor substituted by,
               Pro Se by unauthorized hand of another). I am Aboriginal
               Indigenous Moorish-American; possessing Free-hold by
               Inheritance and Primogeniture Status; standing squarely
               Affirmed, aligned and bound to the Zodiac Constitution, with all
               due respect and honors given to the Constitution for the United
               States Republic, North America. Being a descendant of
               Moroccans and born in America, with the blood of the Ancient
               Moabites from the Land of Moab, who received permission from
               the Pharaohs of Egypt to settle and inhabit North-West
               Africa/North Gate. The Moors are the founders and are the true
               possessors of the present Moroccan Empire; with our Canaanite,
               Hittite and Amorite brethren, who sojourned from the land of
               Canaan, seeking new homes. Our dominion and inhabitation
               extended from Northeast and Southwest Africa, across the Great
               Atlantis, even unto the present North South and Central America
               and the Adjoining Islands-bound squarely affirmed to THE
               TREATY OF PEACE AND FRIENDSHIP OF SEVENTEEN
               HUNDRED AND EIGHTY-SEVEN (1787) A.D. superseded by
               THE TREATY OF PEACE AND FRIENDSHIP OF
               EIGHTTEEN [sic] HUNDRED AND THIRTY-SIX (1836)
               A.D. between Morocco and the United States

       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018     Page 7 of 34
               (http://www.yale.edu/lawweb/avalon/diplomacy/barbary/b
               arl866t.htm or at Bevines Law Book of Treatises) the same as
               displayed under Treaty Law, Obligation, Authority as expressed
               in Article VI of the Constitution for the United States of America
               (Republic).


       Id. at 173. Hotep-El also accused the trial court judge of violating her oath of

       office to uphold the U.S. Constitution, claimed she did not have jurisdiction to

       hear the case, and accused her of knowingly committing fraud. See id. at 174.

       On March 24, 2017, the court issued its “General Order Regarding

       Miscellaneous Filings” in which it noted that Hotep-El’s filings did not appear

       to pertain to his pending criminal action, struck all documents as improper, and

       admonished Hotep-El that future filings not complying with the trial rules or

       pertaining to the pending cause would also be struck.


[13]   In April, the court held a hearing on a notice of a pretrial release violation

       which alleged that Hotep-El had failed for five days to report for home

       detention and to be hooked back up to GPS monitoring for this case after he

       was arrested and released on new charges of driving while suspended and

       refusing to identify himself. At the hearing, this colloquy ensued:


               THE DEFENDANT: I’m not in need of the Public Defender’s
               Agency.


               THE COURT: All right. I know I—I think you are representing
               yourself in your current case. Do you understand that?


               THE DEFENDANT: Yeah. For the record, I In Propria
               Persona.

       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018       Page 8 of 34
        *****


        THE COURT: Mr. El, how do you plan on representing
        yourself [at the contested hearing for the pretrial release
        violation/probation violation]?


        THE DEFENDANT: Through starting, going on
        documentation, studying court rules, studying evidentiary rules,
        like I’ve been doing. And for the record, My Honor, filed on
        April 3rd, 2017, a violation of jurisdiction, (inaudible) for the
        record to be read into the record, notice to agent. There’s no —


        THE COURT: All right. I know where you’re going with this.
        You have a lot of what I would consider unorthodox laws and
        views that you want to bring up that I don’t recognize. Do you
        understand what a jury trial is?


        THE DEFENDANT: For the record, you—I definitely
        understand, but what is so unorthodox about my (inaudible)?


        THE COURT: What is a jury trial?


        THE DEFENDANT: What I’m reading, what makes what I’m
        reading unorthodox?


        THE COURT: Tell me what a jury trial is.


        THE DEFENDANT: I’m not here to exercise any law or
        practice any law, I mean we all are here. I mean [sic] tell you
        what a jury trial, I’m not trying to be disrespectful, My Honor,
        but I—




Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018        Page 9 of 34
        THE COURT: Well, I’m asking you on the record what is a jury
        trial?


        THE DEFENDANT: I mean what are you asking me this for,
        My Honor? I mean I’m [sic] just now told you I understand
        what a jury trial is.


        THE COURT: Because you’re acting somewhat disorderly
        today and I’m a little concerned about your ability to represent
        yourself under the laws that you’re going to have to represent
        yourself on. Okay? So I’m just asking you some simple
        question[s], what’s a jury trial?


        THE DEFENDANT: Well, I do not choose to exercise any, you
        know, on the record for the record, I’m not trying to exercise any
        [sic] what a jury trial is, what any words mean.


        THE COURT: All right. So you’re just—you’re not going to
        answer that question?


        THE DEFENDANT: No, I don’t refuse to answer anything, My
        Honor.


        THE COURT: Well—


        THE DEFENDANT: I’m just not understanding the question
        that you’re asking.


        THE COURT: Well, I’m going to give you one more chance.
        It’s not a hard question, tell me what a jury trial is.


        THE DEFENDANT: A simple—I mean something that you
        have a trial with juries on.

Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018       Page 10 of 34
        THE COURT: Okay. What do they do?


        THE DEFENDANT: You have 12 peers, or six peers on some
        cases.


        THE COURT: Okay.


        THE DEFENDANT: To decide, make decisions on crimes,
        whether you’re guilty or not guilty.


        THE COURT: Okay. All right.


        THE DEFENDANT: And proven beyond a reasonable doubt.


        THE COURT: How do you pick a jury? How do you go to pick
        a jury?


        THE DEFENDANT: Well, (inaudible) I explain exactly what a
        jury was, I get to exercise my right. I mean I don’t see how this
        pertains—


        THE COURT: Well, I mean I’m going to go through this. I
        want to see if you’re competent to represent yourself at this point.


        THE DEFENDANT: I am, My Honor.


        *****


        THE COURT: Based on what I’ve heard, I’m a little concerned
        right now of a lot of different things regarding your ability to
        represent yourself in this case; also based on some of the things



Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018      Page 11 of 34
        I’ve heard about your activities at the Track Group the other day,
        and I know it’s just allegations at this point.


        So, I am going to appoint the Public Defender office to represent
        you in this probation violation. I am going to appoint the Public
        Defender’s Office to represent you in your current case, the Level
        5 felony case, and I’m also going to order an examination by a
        couple of psychiatrists just to—


        THE DEFENDANT: Well, I object.


        THE COURT: —just to [sic] as to your competency at this
        point, sir.


        THE DEFENDANT: Well, I object, My Honor. For the
        record, I—


        THE COURT: I know you do.


        THE DEFENDANT: I do not consent to a psychiatrist.


        THE COURT: Okay.


        THE DEFENDANT: And for the record, I—


        THE COURT: Actually, what I will do—actually, I’ll appoint
        the Public Defender’s Office to represent you and then I’ll wait
        for their determination—


        THE DEFENDANT: Well—


        THE COURT: —but I honestly think—

Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018       Page 12 of 34
        Well, let me put it this way, at this point I am going to order him
        examined as to his competency to stand trial at this stage.


        THE DEFENDANT: Well, for the record, My Honor, so we
        definitely—I mean I do not need the services of the Public
        Defender Agency.


        THE COURT: Well, I don’t know. If the Public Defender
        meets with you again, if the psychiatrists meet you and say
        you’re fully competent, you understand what—


        THE DEFENDANT: Well, I see—I see, for the record, you all
        being—you all being restricting my documents from the record.


        THE COURT: Sir, you’re interrupting me.


        THE DEFENDANT: I’m not trying to interrupt you.


        THE COURT: Okay, you’re interrupting me.


        THE DEFENDANT: Okay.


        THE COURT: If you meet with the Public Defender and the
        psychiatrists give you a clean bill of health, then I don’t see why
        you couldn’t represent yourself, but right now, you’re also
        demonstrating an inability to follow the Court’s rules because
        Judge Gooden, some weeks ago, issued orders on what motions
        you would—can file and what you can’t. I don’t have the order
        in front of me, but I know that there have been a lot of motions,
        her orders striking everything you’re filing because you’re not
        complying with the Rules of Procedure.


        THE DEFENDANT: Okay. Now—

Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018      Page 13 of 34
        THE COURT: So that also tells me that you’re not doing a very
        good job representing yourself right now.


        *****


        THE DEFENDANT: I mean I—for the record, I do not consent
        to any further jail time, prison time.


        THE COURT: I understand, but again, your behavior has
        warranted this. You have not followed the rules regarding the
        pleadings that you filed. You’re talking something about
        Moorish law that doesn’t even apply to your case.


        THE DEFENDANT: Well, for the record, My Honor, I would
        like to explain this to you. Well, I know I know [sic] that the
        delegation of authority the Prosecution is supposed to provide,
        due to the fact that the Prosecution has brought forth the
        allegations or whatever criminal charges that I am facing. And
        the delegation of order of authority would clearly tell me what
        the position is of the commissioners and the magistrates, and
        administration of these—of this venue.

        Now, the oath of office is just the oath of office to the
        Constitution. Now these things—these is all the things, all the
        (inaudible) unorthodox. If one that took the oath to the
        Constitution in there, and me asking for the oath of office to the
        Constitution, that’s not unorthodox to me.


        THE COURT: Okay.


        THE DEFENDANT: And my documentation speaks clear, it’s
        not veering off or anything—




Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018     Page 14 of 34
        THE COURT: —Well, here’s another—Mr. Hotep-El, here’s
        another problem we have is that 49G21-1309-FD-58514, that is
        the case you’re here for on a probation violation. You have
        continually, allegedly continually tested positive for use of drugs.
        And a person that is allegedly using drugs, I would think would
        have a harder time representing himself. I’m not saying that
        you’ve been found guilty of anything, but that’s just another fact
        that I have to consider as to your ability to do this.


        *****


        THE COURT: —All right. With all that’s going on, and again,
        I’m going to repeat this, you continually file irrelevant pleadings
        that have been stricken, the allegations of drug use on your
        behalf. You’re not showing up—


        THE DEFENDANT: Well, I would like to object for the record.
        It sounds like you’re practicing law from the bench.


        THE COURT: —not showing up—sir—


        THE DEFENDANT: —it sounds like you’re practicing law
        from the bench—


        THE COURT: —not showing up for your Community
        Corrections or pretrial release afterward. All this tells me that
        there is an issue as to your competency at this point. One more
        time, I am going to appoint a Public Defender’s Office to
        represent you, both of these case[s], and I am going to order an
        independent—two psychiatrists to review you for competency at
        this point.


Tr. Vol. 2, pp. 28, 29-31, 32-34, 35-36, 38.


Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018      Page 15 of 34
[14]   The court’s order from the hearing states, in part:


               The Court further now questions the Defendant’s ability to
               represent himself. He has repeatedly violated the Court[’]s Order
               in [this case] by filing inappropriate and improper pleadings
               based on “Moorish Law[.”] He has exhibited irrational behavior
               in court and there are now allegations of menacing behavior that
               have been brought to the attention of the court during the
               hearing. The court takes note of the Defendant[’]s criminal
               history and drug use.


               As Such the Court now appoints the Office of the Public
               Defender to represent the Defendant in these cases. Since the
               Defendant is now represented by Counsel, the court leaves the
               decision as to competency evaluation to appointed counsel and
               does not now order the same.


       Appellant’s App. Vol. II, pp. 226-27.


[15]   The trial court should not grant a defendant’s request for self-representation

       unless it is satisfied that the defendant has the mental capacity to understand the

       proceedings. Ellerman v. State, 786 N.E.2d 788 (Ind. Ct. App. 2003). As the

       transcript and the court’s order demonstrate, the court reappointed the public

       defender, who had been acting as standby counsel, for the purpose of

       determining whether a competency evaluation was warranted and specifically

       explained on the record its concern that Hotep-El may not be competent to

       stand trial. Although the trial court had previously questioned Hotep-El

       concerning his waiver of counsel at the hearing in February, his conduct and

       filings over the intervening months, as well as his colloquy with the court at the



       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018    Page 16 of 34
       April hearing, so concerned the court that it believed his competency to stand

       trial may need to be examined by experts.


[16]   Moreover, “[a] trial judge may terminate self-representation by a defendant

       who deliberately engages in serious or obstructionist misconduct.” German v.

       State, 268 Ind. 67, 73, 373 N.E.2d 880, 883 (1978) (citing Illinois v. Allen, 397

       U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)). Indeed, trial judges

       “‘confronted with disruptive, contumacious, stubbornly defiant defendants

       must be given sufficient discretion to meet the circumstances of each case.’”

       Gilmore v. State, 953 N.E.2d 583, 592 (Ind. Ct. App. 2011) (quoting Allen, 397

       U.S. at 343).


[17]   As the record here demonstrates, Hotep-El had submitted filings in violation of

       court orders, disrupted and impeded court proceedings with statements

       concerning irrelevant, nonsensical subjects, and had exhibited

       evasive/argumentative behavior such that the court had difficulty

       distinguishing between his genuine inability to understand the proceedings (i.e.,

       competency to stand trial) and his intent to impede them (i.e., deliberate

       obstructionist behavior). Thus, the trial court did not abuse its discretion in

       determining reasonable grounds existed for seeking a determination of Hotep-

       El’s competency to understand the proceedings and to stand trial. See Benefiel v.

       State, 716 N.E.2d 906 (Ind. 1999) (whether reasonable grounds exist to order

       evaluation of competency is within sound discretion of court). Further, given

       the circumstances of this case and Hotep-El’s obstreperous behavior, the trial



       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018      Page 17 of 34
       court did not err in terminating, or at least suspending, his self-representation

       while it obtained such a determination.


[18]   Following the termination in April of Hotep-El’s self-representation for the

       purpose of determining his competency to stand trial, his obstructionist

       behavior continued. In addition, he never asserted a clear and unequivocal

       request to again proceed pro se. Once the trial court reappointed counsel,

       counsel moved for a psychiatric evaluation. The court appointed Doctors Olive

       and Parker to evaluate Hotep-El. Following his examination of Hotep-El, Dr.

       Olive concluded he was competent and possessed sufficient ability to consult

       with his attorney and understand the proceedings against him with a reasonable

       degree of rational understanding. Dr. Parker, on the other hand, was unable to

       complete a formal evaluation because Hotep-El abruptly left the interview after

       only a few minutes. Nevertheless, based on the brief interview and the

       available records, it was Dr. Parker’s opinion that Hotep-El was capable of

       understanding the nature and objectives of the proceedings against him and

       assisting his counsel, though he might not be willing to cooperate with either.

       Dr. Parker noted that Hotep-El is a follower of a set of fringe political beliefs

       known as the sovereign citizen movement, which he described as using odd

       interpretations of both federal and state laws and constitutions to conclude that

       they do not apply to these citizens. He further characterized the followers of

       this movement as typically serving as their own counsel, filing unconventional

       motions in an attempt to frustrate the court proceedings, and generally

       competent to stand trial as they typically do not have a serious mental illness.


       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018      Page 18 of 34
[19]   In May, Hotep-El filed correspondence with the court indicating he did not

       consent to the public defender taking his case and complaining that he had not

       heard from defense counsel and that counsel had a conflict of interest. Further

       correspondence accused defense counsel of violating the rules of professional

       conduct and declined his services while also stating that Hotep-El did not waive

       any of his rights. See Appellant’s App. Vol. II, pp. 228, 240.


[20]   At the pretrial conference/competency hearing in July, the trial court found

       that Hotep-El was competent to stand trial based upon the doctors’ reports. At

       the end of the hearing, Hotep-El stated:


               THE DEFENDANT: Well, for the record I am not (inaudible)
               man. The court continues to have these gentleman [sic] on my—
               on this—this suit, when I—I clearly have made record that it’s a
               conflict of interest, due to this fact it’s prejudice of my nationality
               and things, and things like that, but the Court continues to force
               this attorney on me.
               For the record, on the record, and let the record reflect I’m in
               proper persona (inaudible). I’m here on the threat, duress, and
               coercion.
               Furthermore, I do not consent to any other jail time, prison time,
               to finally detain me, and I demand that this Court dismiss all the
               suits, and for the record, on the record, and let the record reflect.

               *****

               No, matter, I filed a removal with the Federal Court, and I’ve
               also sent to the tribunal the consent sheet. I want to know if you
               have signed the documentation to transfer this to the Federal
               Court, for lack of jurisdiction; one other issue which the tribunal
               has got a copy of the documentation?

               *****

               For the record I have not consent [sic] to proceed.

       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018         Page 19 of 34
               THE COURT: I understand.

               THE DEFENDANT: The Court has not prove—proven
               jurisdiction, judicial must be proven—

               THE COURT: I understand.

               THE DEFENDANT: —or the town. So it’s versus United
               States.

       Tr. Vol. 2, pp. 47-49.


[21]   Throughout July, August, September, October, November, and December of

       2017, and January and February of 2018, Hotep-El continued to file pro se

       documents with the court. These filings are filled with illogical and nonsensical

       statements and alleged theories of law. See Appellant’s App. Vol. III, pp. 17-22,

       28-30, 33, 34, 37-39, 41, 93, 96-97, 100-102, 104-106, 113-128, 135-40, 147-51,

       183-221, 238-39; Appellant’s App. Vol. IV, pp. 2-8. In response, the court

       issued orders stating he was represented by counsel and citing Trial Rule 11.

       See Appellant’s App. Vol. III, pp. 26, 42, 45, 94, 109, 131, 143, 222; Appellant’s

       App. Vol. IV, p. 9.


[22]   In addition, in October Hotep-El filed with the court an “Affidavit to Dismiss

       Public Defender” in which he requested dismissal of the public defender due to

       a conflict of interest and deterioration of their relationship. Yet, he also stated,

       “the Petitioner is exercising rights to self representation and do [sic] not waive

       his rights to a [sic] attorney.” Appellant’s App. Vol. III, pp. 104-06. He filed

       similar documents with the court in November and again in January 2018. See

       id. at 113-14, 207-08, 238-39.
       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018      Page 20 of 34
[23]   At the final pretrial conference in January 2018, the State noted Hotep-El’s

       previous requests to represent himself and the results of his competency

       evaluations and inquired as to the status of the situation. The court and the

       parties responded:


               THE COURT: Well, I mean, I did, we had a hearing on this,
               and you know, it was my ruling at the time based on—and I
               can’t go back and recreate the wheel on all my thought processes,
               but I did find that with what was going on that he did—was not
               legally competent to represent himself. I denied his right to go
               pro se in this case.

               Is that still what he wants to do?

               [DEFENSE COUNSEL]: Mr. Hotep-El, what do you want to
               do? Do you want me to represent you, or do you want to
               represent yourself, or what?

               THE DEFENDANT: For the record, I’m Yusuf Hotep-El, In
               Propria Persona (inaudible) to the jury, here by special
               appearance (inaudible). I continue to exercise my rights and
               reserve them, and I will respectfully demand that this Court
               continue to reserve all my rights.

               And for the record, I’ve been—I mean, I’ve been in propria
               persona, (inaudible). Since no matter when the Court addressed
               or said that I was incompetent, I haven’t stopped filing my
               documents. I have continued to file in proper personas to the
               jurors. I haven’t waived any of my rights.

               For the record, with all due respect the Court has no right—no
               right or no authority to weigh any of my rights. Today I’m here
               to address, you know, the—the tax matter, and—

               THE COURT: The tax matters?

               THE DEFENDANT: Well, I sent—I sent it via certified mail,
               certified numbers 7013171000019184890. The tax 156. For the
               record, on the record you were provided with executor and

       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018   Page 21 of 34
        appointed as—as a co-trustee (inaudible). And like I said, I have
        documents to tender, for the record, on the record, and let the
        record reflect.

        THE COURT: All right. I’m not sure what to make of all that,
        but—

        [DEFENSE COUNSEL]: Well, just answer the man’s question,
        do you want to represent yourself, or do you want me to
        represent you?

        [THE DEFENDANT]: I am in Propria persona.

        [STATE]: Okay. So I think the record is clear, as clear as it’s
        going to get.

        THE COURT: No. He hasn’t answered my question.

        THE DEFENDANT: Yeah. I do not consent to proceeding, but
        I’m—I am in proper persona, two jurors. I am going to
        representing—

        THE COURT: What does that—

        THE DEFENDANT: I am in my proper self.

        THE COURT: —mean, you’re in propria persona?

        THE DEFENDANT: I’m in my proper self.

        THE COURT: Okay. You’re in your proper self?

        THE DEFENDANT: Yes, sir.

        THE COURT: But do you want [defense counsel] to be your
        attorney at trial?

        THE DEFENDANT: Well, for the record, on the record, like I
        said, I have to continue to reserve my rights. He’s—he was
        appointed by the Court.

        THE COURT: Right.

Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018      Page 22 of 34
               THE DEFENDANT: And it’s not disrespect to him, I mean,
               he’s always represented the corporation, he can never represent.
               He also (inaudible) up here. Because once again I’m in propria
               persona.

               THE COURT: So whether he sits there or not you think that
               you’re in proper persona?

               THE DEFENDANT: It’s a fact.

               THE COURT: Okay.

               [DEFENSE COUNSEL]: The record has to be clear.

               THE DEFENDANT: I have answered the question. I’m not the
               right representative. I’m the attorney of facts, so therefore I’m in
               propria persona.

       Tr. Vol. 2, pp. 59-61.


[24]   And then:


               THE COURT: I am not going to allow this man to represent
               himself, when he’s sitting here telling me he wants to address tax
               issues. I don’t know that he understands even what he’s here for
               today. I know he’s legally competent. I don’t know whether
               this—if this is an act, or what’s going on, but he is currently
               not component [sic] to be an attorney for himself.


               [STATE]: Okay.


               THE COURT: I think I made that ruling—


               THE DEFENDANT: Well, I’d like to object, are you a doctor,
               My Honor.


               THE COURT: You can object all you want at that this point
               Mr. [Hotep-El]. I have made that ruling in this case, and that’s
       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018      Page 23 of 34
        based on a lot of different factors. The violations of [Judge
        Gooden’s] file, the continuing stream of I guess sovereign
        citizen type of filings. The fact that when I address questions
        to you about your case, all I hear are issues about taxes, and
        things at in persona, whatever.


        But, [defense counsel], you will be his attorney for trial.


        *****


        But I know from what I’ve seen of this man, my experience is
        that I don’t know that we could ever get through a trial with
        all the documents he wants to put in, the tax issues he wants to
        raise.


        As a matter [sic] fact, I actually feel like if he represented himself
        he would not be around at trial very long, because he would have
        to be removed because of all the stuff.


        [DEFENSE COUNSEL]: I think this would be an [appropriate]
        time for the Court to inform Mr. Hotep-El of what would be
        expected of his demeanor at trial. If I’m going to represent him,
        then that means he cannot represent himself, and he can’t be
        making—


        THE COURT: Well—


        [DEFENSE COUNSEL]: —objections, and—


        THE COURT: No, he cannot and he cannot—


        [DEFENSE COUNSEL]: Because—


        THE COURT: —do anything except through his attorney. If
        you’ve got motions they have to be—


Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018        Page 24 of 34
        THE DEFENDANT: I don’t have an attorney.


        THE COURT: —through your attorney. If you—


        [STATE]: You do now.


        THE COURT: —at some point if you become disruptive to the
        proceedings, Mr. [Hotep-El], you will be—the Court can do a lot
        of things. I could bind and gag you, I don’t prefer to do that, but
        at some point you risk not being at your jury trial, I may have to
        remove you.


        THE DEFENDANT: Well, I object, for the record. I am not
        the corporation, I am Yusuf Hotep-El, in propria persona. I
        have—


        THE COURT: Mr. [Hotep-El], we’ve gone through that. If you
        do not behave at trial you were [sic] forfeit your right to be at
        trial; do you understand that, sir?


        THE DEFENDANT: No. I not—I not [sic] have waived of my
        rights.


Id. at 62-65 (emphasis added). As the hearing was concluding, Hotep-El

continued:


        THE DEFENDANT: Well, for the record mine—I still have my
        documents to file. I have my documents to tender.


        THE COURT: You can give those to your attorney. If he thinks
        that they’re relevant to any issues in this case he—


        THE DEFENDANT: I don’t have an attorney—



Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018     Page 25 of 34
        THE COURT: —will file them.


        THE DEFENDANT: —my Honor.


        THE COURT: He’s sitting right—


        THE DEFENDANT: He’s fired—


        THE COURT: —right next to you.


        THE DEFENDANT: —for the record. And let the record
        reflect.


        THE COURT: You fired him?


        THE DEFENDANT: Yes. He’s fired.


        THE COURT: All right. We’ll see you February 1st, Mr.
        [Hotep-El].


        *****


        THE COURT: We went off the record. I just want to make it
        clear for the record that Mr. [Hotep-El] became very unruly and
        disruptive as he was leaving. He indicated that his life was in
        danger, and that the officer had threatened him, and he’s back
        there screaming now.


        So, again, I’m making that for the record, because it’s been my
        continual belief that this man cannot represent himself, and I
        think he continues to give us evidence every time he comes to
        court. Okay.

Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018      Page 26 of 34
       Id. at 68-69 (emphasis added).


[25]   Finally, on February 1 the morning of trial, defense counsel informed the court

       that Hotep-El was requesting to represent himself. The court responded:


               THE COURT: And I understand that. But I think I’ve made
               quite a significant record of this over the last few months. I just
               did not feel that he’s competent to represent himself as an
               attorney. And I’m not going to go through all the different
               reasons again. So I’m going to deny that motion.


               Mr. Hotep-El, I will tell you today that this is going to be a jury
               trial. We’re going to conduct this in a civil manner. I know that
               you have been prone to voice your displeasure with many things
               at different times during your hearings in this case. But we need
               to act civilly today. You are represented by attorneys.


               You cannot speak to the jury or me unless it’s through your
               attorneys. So we’re just going to do this in a calm, civilized
               manner. You can forget your right to be here at any point if you
               become disruptive. Do you understand that, Mr. Hotep-El?


               THE DEFENDANT: Well, for the record, on the record and let
               the [sic] reflect, I am Yusuf Dunwayne Hotep-El In Propria
               Persona (inaudible)—


               THE COURT: Okay. Well, see, you’re not going into legal
               things without your attorney commenting. I’m just asking for a
               yes or no. Do you understand the ground rules on proper
               behavior in this Court?


               THE DEFENDANT: And also, Your Honor, I’ve filed
               documentation with the Court which—


       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018          Page 27 of 34
        THE COURT: All right, Mr. El, apparently, you’re not going to
        answer my question. So let’s just say I’ve given you your
        warning, okay?


        THE DEFENDANT: Well, for the record, my Honor, I have
        filed documentation with the Court—


        THE COURT: All right. And I have rejected all your
        documentation because it has not been filed through your
        attorney.


Id. at 82-83. While the court and the attorneys discussed preliminary

instructions, Hotep-El interrupted:


        THE DEFENDANT: I want to place on the record that—


        THE COURT: Mr. [Hotep-El], we’re going to get off to a bad
        start. You have no right to say anything unless it’s through your
        attorney at this point, okay?


        THE DEFENDANT: They’re fired, they’re fired, they’re fired, I
        don’t need him on the—


        THE COURT: Okay.


        THE DEFENDANT: So, I mean, I’m just—


        THE COURT: All right. Well, I’ve gone over the ground rules.
        The jury’s not here yet. But I’m not going to give you too much
        rope based on your prior conduct. If you just disrupt these
        proceedings and are not proceeding in a civilized manner, you
        will forfeit your right to be here. Okay?


Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018    Page 28 of 34
        THE DEFENDANT: For the record, My Honor, I do not forfeit
        any of my rights.


Id. at 86. Later, while the court and counsel were discussing instructions and

verdict forms out of the presence of the jury, Hotep-El addressed the court:


        THE DEFENDANT: For the record, I want the record to reflect
        I have a right to be heard right 2.6. And I just want to make
        record of this is on the record, Joseph Hotep-El. Certified 90-70-
        13-170000, 1918, 4906, there was a written clarification of the
        tribunal on 1/25 I sent—I put it in the certified mail, which was
        continuously ignored. For the record, I do not consent to any
        further jail time, prison time, make a finding of detainment, et
        cetera. I want to put on the record, also that I filed in jury
        instructions, certified number 7013.17100000, 1918. It was for
        my respectfully requesting and demand a jury instructions of this
        tribunal going into jury trial. And also my in propria persona
        appearance in which it has been ignored for the record. And that
        by my documents that I’ve lawfully filed with this tribunal being
        denied, it has biased and prejudiced my due process. For the
        record, on the record, let the record reflect.


        *****


        Well, for the record, I want to let the record reflect I have
        continued to make aware of, you know, [Trial Court
        Commissioner] that I did not need or require, or that I was
        terminating the services of the Public Defender Agency, yet, the
        trial still proceeded over my objections and my continuance.
        You know, like I said, I put in—I put in the proper
        documentation assuming that I was in propria persona—you
        know, my in propria persona appearance. Not to be confused
        with pro se. So therefore, I mean, just make a record.



Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018    Page 29 of 34
               *****


               —I would address the jurisdiction of the Court which has been
               assumed, but not been proven by the state [sic] of Indiana which
               April 3rd, 2017 documents was filed certified mail, also further
               was filed on 2/6/2017 certified mail. Not stamped by the court,
               affirming the jurisdiction, per Warnto (phonetic) and written
               nature of discovery, requesting that the state [sic]of Indiana
               provides Joseph Hotep-El with the oath of office, and delegation
               of authority, also bond and signatures of each public official
               operating within this tribunal. Yet, still, there has been no
               production from the State account and as well as it has assumed
               jurisdiction. The want for jurisdiction it still doesn’t have
               jurisdiction, because it still has not been proven. For the record,
               on the record, and let the record reflect.


               *****


               I just want to make clear, the last time I was in here, for the
               record, on the record, and let the record reflect that [Trial Court
               Commissioner], that you was fired, as executor and appointed
               co-trustee for settlement closure in this tax matter. It still has not
               been—you know, so that’s just for the record. And that’s all I
               was here for, from the get go of the Clerk attachment.


       Id. at 245, 246, 247-48.


[26]   We observe that recently, the Texas Court of Appeals dealt with a similar case

       of obstreperous conduct. In Lewis v. Texas, 532 S.W.3d 423 (Crim. App. 2016),

       the defendant, who was being prosecuted for possession of cocaine, engaged in

       confrontational and obstructive behavior, raised the so-called defense of being a




       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018        Page 30 of 34
“sovereign citizen,” and made irrelevant references to the Uniform Commercial

Code. On appeal, the court held:


        The record in this case indicates that appellant is one of a loosely-
        formed group of citizens who believe that they are sovereign
        individuals, beyond the reach of any criminal court. These so-
        called “sovereign citizens” share a common vernacular and
        courtroom strategy. Courts across the country have encountered
        their particular brand of obstinacy—not consenting to trial,
        arguing over the proper format and meaning of their names,
        raising nonsensical challenges to subject matter jurisdiction,
        making irrelevant references to the Uniform Commercial Code,
        and referring to themselves as trustees or security interest holders.
        These calculated obstructions and delay tactics pose a unique
        challenge for trial courts considering Faretta motions. When a
        defendant asserts irrelevant or nonsensical arguments, it becomes
        difficult to discern whether he lacks a complete understanding of
        the proceedings or whether he is simply attempting to subvert
        them. See United States v. Mosley, 607 F.3d 555, 557-59 (8th Cir.
        2010) (upholding a trial judge’s decision to deny self-
        representation based on an observation that the defendant either
        did not understand the proceedings or was ‘unwilling to
        participate in them’). The trial court’s own assessment,
        therefore, is critical in determining whether the defendant
        actually lacks the mental capacity to conduct his own defense or
        whether he is utilizing his intact mental capacity to consciously
        obstruct the proceedings against him. We hold, that in either
        case, the trial court may deny the defendant’s request to represent
        himself and insist on representation by appointed counsel.


Id. at 430-31 (internal footnotes omitted). The court further explained that

although it relies “heavily on the trial court’s assessment of an obstreperous

defendant,” the trial court’s discretion to deny a defendant’s right of self-

representation is limited. Id. at 431. First, allowing a defendant to represent

Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018       Page 31 of 34
       himself will, necessarily, result in delay. Nevertheless, as long as the delay is

       not a calculated obstruction, such delay cannot deprive a defendant of his right

       of self-representation once it has been properly asserted. Id. Second, the denial

       of self-representation cannot be based on expected obstructive behavior. Id.


[27]   Once the court was informed that Hotep-El was found competent, it was clear

       that his filings, statements, and behavior that disrupted and delayed the

       proceedings were not disruptions related to an inability to understand the

       proceedings or to self-representation without a legal education; rather, they

       were deliberate and calculated tactics. Further, the trial court’s decisions were

       based, not on conjecture, but on firsthand observation of Hotep-El’s behavior

       each time he was present in court and with every filing. We thus conclude that

       given these facts it was not improper for the trial court to decline to reinstate

       Hotep-El’s pro se status when his deliberate obstructive behavior did and

       further threatened to undermine the proceedings and compromise the court’s

       ability to maintain order and efficiency of its courtroom and caseload.


[28]   Moreover, a defendant asserting his right of self-representation must do so

       clearly and unequivocally. Stroud v. State, 809 N.E.2d 274 (Ind. 2004). Our

       Supreme Court has explained, “half-hearted expressions of dissatisfaction with

       counsel fail to meet the requisite clear and unequivocal assertion for the right of

       self-representation.” Dobbins v. State, 721 N.E.2d 867, 872 (Ind. 1999). None of

       Hotep-El’s statements represent a clear and unequivocal request to proceed

       without counsel; rather, they are complaints about counsel and declarations

       asserting his right to counsel. Further, he consistently accepted the assistance of

       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018      Page 32 of 34
       his court-appointed counsel, and when asked, point blank, if he wanted to

       proceed pro se, he stated, “I’m not the right representative.” Tr. Vol. 2, p. 61.


[29]   In addition, our Supreme Court has held that a request to proceed pro se on the

       morning of trial is per se untimely, and denial of such a request is permissible.

       Moore v. State, 557 N.E.2d 665 (Ind. 1990). Thus, even if Hotep-El had clearly

       and unequivocally asserted his right to self-representation the morning of trial,

       such request was per se untimely and its denial was proper.


[30]   Finally, we note that Hotep-El argues the trial court improperly denied his

       request to represent himself because he was found competent to stand trial and

       was not found to be suffering from a severe mental illness. His argument is

       based on our Supreme Court’s decision in Edwards v. State, in which the Court

       stated, “We understand [Indiana v.] Edwards[, 554 U.S. 164, 128 S. Ct. 2379,

       171 L. Ed. 2d 345 (2008)] to announce the following rule of law: a trial court

       may deny a defendant’s request to act pro se when the defendant is mentally

       competent to stand trial but suffers from severe mental illness to the point where

       he is not competent to conduct trial proceedings by himself.” 902 N.E.2d 821,

       824 (Ind. 2009).


[31]   While we understand his argument, we conclude it is not reasonable in light of

       the overwhelming evidence in the record. As this opinion sets forth, the trial

       court did not deny Hotep-El the right to proceed pro se because it determined

       that he suffered from a mental illness so severe that he was not competent to

       conduct his own defense. Nonetheless, the trial court uses the term


       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018     Page 33 of 34
       “competency” at times to refer to Hotep-El’s actual mental competence to stand

       trial as determined by Doctors Olive and Parker and mistakenly at other times

       to refer to his obstructionist conduct. When taken in context, the court’s

       meaning is readily apparent, and its conclusion is clear: Hotep-El was legally

       competent and was intending to deliberately impede the proceedings. See Tr.

       Vol. 2, pp. 63-64. Although the trial court indicated at the April hearing that

       Hotep-El could again represent himself if he was found competent to stand trial,

       the court’s decision on this issue changed given the behavior and tactics set

       forth in the record and discussed in this opinion. Dr. Parker’s report further

       explains the sovereign citizen movement to which Hotep-El claimed affiliation,

       characterizing the movement’s members as typically unwilling to cooperate

       with the proceedings and counsel and attempting to frustrate court proceedings.


[32]   We conclude, therefore, that the trial court did not err when it terminated

       Hotep-El’s self-representation in order to determine his competency to stand

       trial and subsequently when it did not reinstate his pro se status based on its

       conclusion that he sought to use the courtroom for deliberate disruption of the

       proceedings.


[33]   Judgment affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-477 | November 13, 2018     Page 34 of 34
