Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                         Jul 25 2014, 9:31 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

DORI NEWMAN                                         GREGORY F. ZOELLER
Newman & Newman                                     Attorney General of Indiana
Noblesville, Indiana
                                                    J.T. WHITEHEAD
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ANDREW PRAIRIE,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 29A02-1309-CR-841
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HAMILTON SUPERIOR COURT
                             The Honorable Gail Bardach, Judge
                              Cause No. 29D06-1209-FD-8926


                                          July 25, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
        Andrew Prairie appeals his convictions of Class D felony attempted theft,1 Class B

misdemeanor unauthorized entry of a motor vehicle,2 and three counts of Class D felony

receiving stolen property.3 He asserts the trial court denied him the right to represent himself.

We affirm.

                           FACTS AND PROCEDURAL HISTORY

        On September 18, 2012, Prairie was charged with the five crimes of which he was

convicted. At a hearing held on April 4, 2013, Prairie’s public defender moved to withdraw

her appearance due to a breakdown in the attorney-client relationship. Prairie agreed to her

withdrawal. The court informed Prairie that appointing new counsel would cause a delay,

and he agreed to the delay.

        On April 25, 2013, the trial court held a “final” pre-trial hearing with new counsel,

Mr. Kress. At this hearing, Kress moved to continue the trial because he had another case

being tried at the same time. Prairie complained about having another continuance, stating

he had requested a speedy trial. The court reminded him that he agreed to the prior

continuance and asked if he wanted to renew his request for a speedy trial. Prairie then

requested a change of venue because he thought the judge was “biased against [him] from the

get go.” (Tr. at 44.) After this, Prairie opined the judge had already found him guilty. The

trial court ended the hearing by stating Prairie could file a change of venue and the court

would let Kress know those requirements.


1
  Ind. Code § 35-41-5-1 (2012) (attempt); Ind. Code § 35-43-4-2(a) (2012) (theft).
2
  Ind. Code § 35-43-4-2.7(d) (2012).
3
  Ind. Code § 35-43-4-2 (2012).
                                                    2
       On May 16, 2013, the trial court held another “final” pre-trial hearing. At this

hearing, Prairie reported his dissatisfaction with Kress. Prairie asked that Kress be removed

from his case and indicated he would proceed pro se, stating: “I would like to vacate my trial

date . . . I would like to go pro se, Your Honor.” (Id. at 53.) The court said, “I think it would

be an extremely unwise decision on your part.” (Id.) Prairie responded, “I think it would be

an unwise decision to have an attorney that doesn’t want to represent me and has issues with

me representing me in trial.” (Id.)

       The court noted that Prairie was not happy with his lawyer and indicated it would

inquire whether Kress was willing to represent Prairie at trial and whether Kress was capable

of representing Prairie. The court informed Prairie that if he were to represent himself Kress

would be appointed as standby counsel in case Prairie had any questions during trial. Prairie

then expressed discontent over video meetings with Kress and the court reminded him that he

walked out of meetings with Kress. As the hearing concluded, Prairie restated he wanted to

vacate his trial date. The court informed Prairie that what he was requesting was another

continuance and that everyone was ready for trial except him. Prairie indicated he still

wanted to continue the trial in order to meet with Kress to find out more about the law, and

the court granted his request.

       At the last “final pre-trial hearing on July 25, 2013, Kress informed the court that

Prairie did not respond to a plea offer and he had cut their most recent video meeting short.

The State then withdrew the plea offer. After this, Prairie stated he wanted to accept the plea

offer, but Kress indicated it was too late and he did not think the State could present a factual

                                               3
basis for a plea given Prairie’s past behavior in court. Prairie then stated: “I’d like to fire Mr.

Kress as my attorney at this point in time.” (Id. at 73.) The court denied Prairie’s request to

fire his attorney. Prairie became belligerent with the court and when asked what size

clothing he needed for trial, he responded “Take a guess, Your Honor. You know everything

else. You figure it out.” (Id. at 78.) The court ordered Prairie removed from the courtroom

for his behavior and set the jury trial for August 13, 2013.

       At the start of the jury trial, Prairie again expressed his desire to dismiss Kress as his

attorney. The court informed him that while he was entitled to counsel, that did not mean he

was entitled to counsel of his own choosing. The court then conducted an inquiry into

Kress’s competence and the adequacy of his representation. The court found Kress

competent and fully prepared to represent Prairie at trial. The court then informed Prairie

that the only way it would remove Kress from the case would be if Prairie exercised his right

to represent himself. The court reminded Prairie that proceeding pro se was an unwise

decision. When Prairie was asked, “Do you want to represent yourself today[,]” (id. at 103),

he did not answer. The court then gave Prairie the choice of proceeding with Kress or

representing himself, and Prairie indicated that he wanted to proceed with Kress.

       The jury found Prairie guilty of all counts, and the court sentenced him to serve all

sentences concurrently which resulted in an aggregate sentence of three years in the

Department of Correction.

                              DISCUSSION AND DECISION

       Self-representation is guaranteed by the Sixth Amendment of the United States

                                                4
Constitution and Article 1 § 13 of the Indiana Constitution. Taylor v. State, 944 N.E.2d 84,

88 (Ind. Ct. App. 2011). A defendant’s request to proceed pro se must be “clear and

unequivocal, and it must be made within a reasonable time prior to the first day of trial.” Id.

The right to counsel may be waived only by a knowing, voluntary, and intelligent waiver of

the right. Miller v. State, 789 N.E.2d 32, 37 (Ind. Ct. App. 2003). The trial court is in the

best position to assess whether the defendant made a knowing and intelligent waiver, and its

findings will be upheld “where the judge has made the proper inquiries and conveyed the

proper information, and reaches a reasoned conclusion.” Poynter v. State, 749 N.E.2d 1122,

1128 (Ind. 2001).

       Four factors are considered when reviewing whether a defendant knowingly and

intelligently waived his right to counsel: “(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. at 1127-28 (quoting U.S. v. Hoskins, 243 F.3d 407, 410 (7th Cir. 2001)). Prairie

asserts he was denied the right to proceed pro se.

       During the pre-trial conference on May 16, 2013, Prairie requested to proceed pro se.

The trial court conducted an extensive inquiry into Prairie’s decision. The trial court

explained it was an unwise decision and noted some of the pitfalls of self-representation such

as not knowing the law. Next, the court learned Prairie needed access to the law library or

someone to explain the law to him. The trial court asked why Prairie wanted to proceed pro

                                              5
se, and Prairie explained his discontent with meeting with Kress via video; he thought the jail

was recording those visits and the prosecution would get a copy of the video recording.

Overall, the trial court’s inquiry was sufficient and adhered to the four factors that the

Indiana Supreme Court established. See id. (establishing the four factors to examine when a

defendant requests self-representation). We note the pre-trial conference did not end with

Prairie maintaining his request to proceed pro se; rather, he asked to continue his trial date

and meet again with Kress.

       The second time Prairie asked to dismiss Kress, on July 25, 2013, he did not ask to

proceed pro se. The court denied Prairie’s request to “fire Mr. Kress[,]” (Tr. at 73), and

stated “I am not going to replace Mr. Kress.” (Id. at 77.) Prairie never asked to represent

himself during this pre-trial conference, and the court was well within its discretion to deny

Prairie’s request for another new attorney. See McBride v. State, 992 N.E.2d 912, 917 (Ind.

Ct. App. 2013) (stating McBride was entitled to counsel, not counsel of his own choosing).

       Prairie also asked at trial to dismiss Kress. The trial court responded that it would not

dismiss Kress unless Prairie wanted to proceed pro se. It told Prairie that self-representation

was an unwise decision and stated that it would inquire again about the four factors from

Poynter if Prairie wanted to proceed pro se. Prairie responded that he wanted to proceed

with Kress.




                                               6
          At no time did the court deny Prairie the right to represent himself. Accordingly, we

affirm.

          Affirmed.

KIRSCH, J., and BAILEY, J., concur.




                                                7
