MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jan 23 2020, 9:27 am
court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Leeman                                           Curtis T. Hill, Jr.
Leeman Law Office and                                    Attorney General of Indiana
Cass County Public Defender
                                                         George P. Sherman
Logansport, Indiana                                      Supervising Deputy
                                                         Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brianna Simmons,                                         January 23, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1944
        v.                                               Appeal from the Cass Superior
                                                         Court
State of Indiana,                                        The Honorable Richard A.
Appellee-Plaintiff                                       Maughmer, Judge
                                                         Trial Court Cause No.
                                                         09D02-1903-CM-180



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1944 | January 23, 2020                 Page 1 of 3
[1]   On March 12, 2019, the State charged Simmons with Class A misdemeanor

      theft. At the initial hearing, Simmons told the trial court that she planned to

      hire an attorney. At a subsequent pretrial hearing, Simmons stated that her

      boyfriend was working on hiring an attorney for her; the trial court noted that

      her trial was scheduled for May 6 and that if she appeared without an attorney,

      the prosecutor would likely object to a continuance.


[2]   Simmons’s trial took place on May 6, 2019. The trial court asked if she had

      retained an attorney and Simmons indicated that she had not; the trial court

      immediately indicated that she would proceed pro se. Tr. Vol. II p. 13.

      Simmons asked for more time to get an attorney, explaining that she had lost

      her job in the process of trying to hire one and that court staff had told her to

      explain her situation to the trial court on the date of her trial. Id. at 14. The

      trial court did not respond to Simmons. Instead, it turned to the prosecutor,

      stating, “if you want to proceed with your case, you may.” Id. at 15. At no

      point did the trial court advise Simmons about the dangers of self-

      representation. Ultimately, the trial court found Simmons guilty and sentenced

      her to one year of incarceration.


[3]   Before a defendant may waive her right to counsel and proceed pro se, the trial

      court must determine that the defendant’s waiver of counsel is knowing,

      voluntary, and intelligent. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). As

      part of that process, the trial court is required to advise the defendant of the

      dangers and disadvantages of self-representation. Poynter v. State, 749 N.E.2d

      1122, 1128 (Ind. 2001) (holding that record did not show a knowing, voluntary,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1944 | January 23, 2020   Page 2 of 3
      and intelligent waiver where defendant appeared at trial without an attorney

      after previously stating he would hire an attorney).


[4]   Here, the trial court refused to even engage in a conversation with Simmons

      about her lack of counsel. It took no steps to ensure that she was waiving

      counsel—and ignored the fact that she explicitly stated that she wanted an

      attorney. The trial court uttered not one sentence in an attempt to advise

      Simmons of the dangers and disadvantages of self-representation. Pursuant to

      Poynter, we can only conclude that Simmons’s “waiver” of counsel was not

      knowing, voluntary, and intelligent. The State concedes as much, agreeing that

      Simmons’s conviction should be vacated and the matter remanded for a new

      trial.


[5]   The judgment of the trial court is reversed and remanded for further

      proceedings.


      Riley, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1944 | January 23, 2020   Page 3 of 3
