                                                                         Jul 30 2015, 6:42 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Paula M. Sauer                                             Gregory F. Zoeller
Danville, Indiana                                          Attorney General of Indiana

                                                           Ellen H. Meilaender
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Gabriel Kowalskey,                                         July 30, 2015

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           32A01-1503-CR-99
        v.                                                 Appeal from the Hendricks Superior
                                                           Court

State of Indiana,                                          The Honorable Rhett M. Stuard,
                                                           Judge
Appellee-Plaintiff.                                        Cause No. 32D02-1406-FB-39
                                                           Cause No. 32D02-1409-F6-142




Brown, Judge.




Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015                          Page 1 of 18
[1]   Gabriel Kowalskey brings this interlocutory appeal from the decision of the trial

      court that he, by his conduct, waived his right to counsel. Kowalskey raises

      two issues which we revise and restate as whether the court erred in finding

      that, by his conduct, he waived or forfeited his right to counsel. We reverse and

      remand.


                                        Facts and Procedural History

[2]   On June 9, 2014, the State charged Kowalskey with possession of cocaine and

      possession of marijuana as class B felonies under cause number 32D02-1406-

      FB-39 (“Cause No. 39”), and on that day Herb Witham was appointed as

      Kowalskey’s pauper counsel. The State later amended the information under

      Cause No. 39 to add counts charging Kowalskey with carrying a handgun

      without a license as a class A misdemeanor, carrying a handgun without a

      license as a class C felony, and unlawful possession of a firearm by a serious

      violent felon as a class B felony. On July 23, 2014, Witham filed a motion to

      withdraw appearance and appoint alternate counsel “due to a conflict in regard

      to his continued representation of the defendant.” Appellant’s Appendix at 39.

      The same day, the court granted Witham’s motion and appointed Tyler Starkey

      as counsel for Kowalskey.


[3]   On September 2, 2014, the State charged Kowalskey with battery of a public

      safety official as a level 6 felony under cause number 32D-1409-F6-142 (“Cause

      No. 142”), and the court appointed Starkey as pauper counsel for him.




      Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015   Page 2 of 18
[4]   On December 2, 2014, Starkey filed a motion to withdraw appearance in Cause

      No. 39 and Cause No. 142 “for the reason that there has been a breakdown in

      the attorney-client relationship.” Id. at 77, 123. On the following day, the court

      granted Starkey’s motion and, in its order stated “Def. given 10 days to obtain

      counsel.” Id. at 78, 124.


[5]   On December 15, 2014, the State filed a motion for attorney status hearing in

      Cause Nos. 39 and 142 stating that the court had previously appointed two

      attorneys to represent Kowalskey, both of whom withdrew their appearances,

      and asking the court to inform Kowalskey of the advisements required by

      Gilmore v. State, 953 N.E.2d 583 (Ind. Ct. App. 2011). The following day, the

      court issued an order scheduling an attorney status hearing for January 6, 2015,

      and stating that, at the hearing, Kowalskey would be warned that if his

      obstreperous behavior persists the court would find that he has chosen self-

      representation by his own conduct and that he would be warned of the dangers

      and disadvantages of self-representation.


[6]   On January 6, 2015, the court held a hearing on the State’s motion. The court

      asked Kowalskey “do you want to go out for a court-appointed lawyer or . . .

      where are we on this,” and Kowalskey stated “there’s some things that I don’t

      understand about the way the process goes here.” Transcript at 7. He stated

      that Witham was his attorney up to his omnibus date and that that was the first

      time Witham visited him. The court stated that it did not matter and that what

      mattered was that the case kept moving along and Kowalskey’s rights were

      protected. The following exchange then occurred:

      Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015    Page 3 of 18
              The Court: You have . . . had two attorneys; you couldn’t . . . for
              whatever reason couldn’t work with either of those. I mean we could
              try one more time and appoint you a lawyer and if you want to see if
              you can work with somebody that’s fine; I have no problem with that
              and we can do that or if you don’t think you can work with anybody
              then – then we can have you waive your right to a lawyer and you can
              try to represent yourself, you know, we’ll have to talk about that but as
              we sit here right now, uh, I need to know how you want to proceed in
              this case.
              Gabriel Kowalskey: I need a lawyer.

      Id. at 8.


[7]   After questioning Kowalskey about his finances and finding that he qualified

      for a court-appointed lawyer, the court appointed Eric Oliver as his counsel in

      Cause Nos. 39 and 142. The following exchange then occurred:

              The Court: . . . . Uh, now, Mr. Kowalskey, uh, that Gilmer [sic] case .
              . . what it tells us is that, uh, if you keep having problems with lawyers
              over and over and over . . . the Court can enter just on its own that
              you’ve decided to represent yourself, okay. I can enter a motion that
              says by your own conduct, uh, you have decided to represent yourself.
              Uh, you know . . . and since you’ve chosen to hire court-appointed –
              have court-appointed counsel today we’re not going to go into that but
              if we get to that point, you know, they’ll have to inform you of, uh,
              you know, the dangers of self-representation and the risks that are
              involved in it. The short story is, uh, you would be held to the same
              standard as this attorney sitting right here who’s been to law school,
              okay.
              Gabriel Kowalskey: Yeah.
              The Court: And – and so, uh, obviously that’s a risk that you – you,
              you know, you may not want to take. So I’m going to have Mr. Oliver
              come see you, okay. . . .
                                                      *****
              Gabriel Kowalskey: . . . [T]here was one more thing that I wanted to
              - I don’t know if it’s maybe I should do it but I was speaking to it with
      Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015              Page 4 of 18
              him but when I did have Tyler Starkey, my former attorney, I went to
              a video court for Battery, the liquid thrown on – water thrown on the
              staff. I went to video court and then after that I had a visit with Tyler
              Starkey.
              The Court: Okay.
              Gabriel Kowalskey: I asked him for a fast and speedy to get this over
              with since I’ve done five, six months -
              The Court: Okay.
              Gabriel Kowalskey: -- in here already; let’s get this done with, you
              know, maybe even sign a plea today but he failed to do that. I wrote
              him letters after letters and that’s where our relationship really -
              The Court: Okay.
              Gabriel Kowalskey: -- deteriorated because of that subject and, uh,
              surveillance camera subject which is on the other case but I have the
              copy right here, the letters that I sent to him asking for a fast and
              speedy and I haven’t been to court one time and it’s been over three
              months since I’ve been to that video court. And I didn’t and just for
              the record I didn’t have any problem with Tyler Starkey. You know, I
              thought he was working real well for me until the very end, the last
              two months where he refused to - or failed to contact me. I wrote him
              over seven letters with the same, you know, literature inside.
                                                      *****
              The Court: Okay, let’s show for the record that [Kowalskey] requests
              a fast and speedy on [Cause No. 142]. . . .
              Gabriel Kowalskey: Thank you.

      Id. at 9-10, 12-13.


[8]   On February 4, 2015, the court held a pretrial conference, at which Kowalskey

      appeared with Oliver. On February 5, 2015, the court received a letter from

      Kowalskey in Cause No. 39. In the letter, Kowalskey stated his concerns about

      “the prosecution, all three of [his] current and former lawyers, and the three

      arresting officers’ inability to produce dash-cam footage or CVS’s surveillance

      Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015              Page 5 of 18
footage from the night of the incident . . . .” Appellant’s Appendix at 91. He

stated “I know for a fact that all three officers had their emergency lights

activated,” that “I also know for a fact that CVS has an archive surveillance

system,” that “the officers deny ever having activated their lights, as if they

never even pulled up on me and made a stop,” and that “[t]herefore, I began to

pursue the CVS’s surveillance cameras to prove that they did, in fact, make an

investigatory stop.” Id. He further stated that “after 8 months and three

different lawyers I get advised by Eric Oliver at a court hearing on 2-4-15 that

the prosecution does not have the CVS footage,” that “[w]hen asked why, Mr.

Oliver claimed that [it] had been deleted by CVS,” that “I then asked Mr.

Oliver how he obtained the message that the footage had been deleted to which

he admitted that he made up that statement,” that “[h]e then admitted that the

only information the prosecution offered was that they did not have CVS’s

footage in their possession,” and that, “[l]astly, he admitted that he never put

forth effort in contacting CVS for the footage personally.” Id. at 91-92.

Kowalskey stated, “I am scheduled for a suppression hearing and without

footage from the scene or an honest account from at least one of the officers I

cannot ‘definitely’ prove the arresting officer made an Invalid Investigatory

Stop – they claim a stop was never made.” Id. at 92. Kowalskey also said “I’m

not asking to fire [] Oliver. That is by no means not my intentions of this letter”

and that “[a]ll that I’m hoping with this letter is that you, Your Honor, . . .

demand that the prosecution produce or pursue obtaining either one of the three

officer’s dash-cam or footage from CVS . . . .” Id. The court’s chronological



Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015      Page 6 of 18
       case summary for Cause No. 39 contains an entry indicating that the clerk was

       to provide a copy of the letter to the State and Oliver.


[9]    On February 6, 2015, Oliver filed a motion to withdraw appearance in Cause

       No. 39 and Cause No. 142 stating that he “received a letter on or about

       February 5, 2015 from Mr. Kowalskey containing information that prohibits

       [him] from representing [Kowalskey] further.” Id. at 93, 130.


[10]   On February 9, 2015, the court held a hearing under both causes at which

       Kowalskey appeared with Oliver. The following exchange occurred:

               The Court: [T]he Court got one letter from you which I forwarded on
               to the State and Mr. Oliver indicating that you felt like he was lying to
               you and, uh, quite possibly violating your due process rights. Uh, Mr.
               Kowalskey, we were here in Court back in January; do you remember
               that?
               Gabriel Kowalskey: Yes, I absolutely do.
               The Court: And, uh, that was on January 6, 2015 and you and I had a
               discussion sitting right here about the fact that if I was going to appoint
               you another attorney and that if you couldn’t get along with that
               attorney and did something to cause him to withdraw that you’re
               going to proceed on your own; do you remember that?
               Gabriel Kowalskey: Yeah, I remember.
               The Court: And now it appears to me that you have accused your
               attorney of some kind of misconduct, at least not representing you to
               the best of his ability, that’s caused him to file this Motion to
               Withdraw of Appearance.
               Gabriel Kowalskey: Right. . . . Your Honor, I don’t want you to or
               Eric Oliver to be under the impression that, uh, I don’t want him as a
               lawyer just like all of the rest of my lawyers, I just wanted to inform
               someone because I was trying to actually speak to you and tell you
               about some things before I left court that day.
               The Court: Um um (affirmative response).

       Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015            Page 7 of 18
        Gabriel Kowalskey: And it was going to be the same issues. . . . I’m
        feeling that although I do believe that Eric Oliver is a – probably a
        fabulous lawyer, it’s just I told him some things that he should have
        reacted in a certain way and . . . didn’t and that gives me the, uh,
        understanding that he might not be doing exactly what I need to do for
        my case. And I was just hoping that you could set things right; that’s
        why I wrote you the letter and maybe influence or persuade, I don’t
        know which one, my lawyer or even the prosecutor but more so my
        lawyer to – to work diligently or sincerely. That’s the only reason that
        I wrote you that letter.
        The Court: I don’t have any control over your lawyer’s, uh,
        relationship with you. . . . Oliver has been in practice . . . [s]even
        years. . . . Mr. Starkey has been a lawyer for ten years . . . . Mr.
        Witham . . . has been in practice for twenty years and been a public
        defender right here in this court for probably fifteen years and you
        can’t get along with any of those people. . . . And I warned you last
        time you were here that we couldn’t tolerate that anymore.
                                                *****
        Gabriel Kowalskey: . . . I have no type of, you know, harsh feeling
        toward [] Oliver or actually any of the other, uh, lawyers that I had.
        That is not what I’m to do and I don’t want a different lawyer; I don’t
        have time to have a different lawyer. The reason why I’m so stressed
        and writing all these letters is because the fact that in a week . . . I will
        be having a suppression. I’m – I’m fighting for my life. . . .
        The Court: . . . [T]he bottom line is is due to your obstreperous
        conduct, the conduct that you keep demonstrating towards attorneys,
        uh, you know, this Court can find that you have waived by your
        conduct your right, uh, to have a lawyer. . . .
        Eric Oliver: [T]here’s been nothing that’s changed and the reason
        being is my concern is the effective assistance. . . . He wants to have
        the best of both worlds and have the lawyer but dictate to the lawyer
        how they handle the case and that just doesn’t make a feasible
        solution. . . .

Transcript at 25-30. The court granted Oliver’s motion to withdraw his

appearance. The court appointed appellate counsel for the purpose of this


Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015                  Page 8 of 18
       interlocutory appeal and certified its orders in Cause No. 39 and Cause No. 142

       that Kowalskey waived his right to the appointment of pauper counsel for

       interlocutory appeal.


                                                     Discussion

[11]   The issue is whether the trial court erred in finding that Kowalskey, by his

       conduct, waived or forfeited his right to counsel. He contends that he was not

       advised of any of the pitfalls of self-representation or advantages of being

       represented by an attorney, that there was no voluntary, knowing, and

       intelligent waiver of his right to counsel, that the record does not establish

       obstreperous conduct on his part, and that there was insufficient evidence of

       antagonistic conduct to conclude that he forfeited his right to counsel.

       Kowalskey argues that the court advised him, at the time it appointed Oliver,

       that if he did not get along with his new attorney the court would at that time

       advise him of the dangers and risks of self-representation, and that the court

       never gave him the required Gilmore warnings. He argues that the court took no

       affirmative step to ensure he appreciated the dangers and disadvantages of self-

       representation, that there was no analysis of whether he had made a knowing

       and intelligent waiver of his right to counsel, and that there was no on-the-

       record evidentiary hearing where specific findings were made as required by

       Gilmore. Kowalskey maintains that many of the waiver-by-conduct cases

       involve defendants whose conduct appeared to constitute determined efforts to

       manipulate and obstruct the trial process, that the record here shows his earnest

       struggle to push the process forward and not thwart the State’s efforts to

       Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015     Page 9 of 18
       prosecute him, and that his actions were aimed at obtaining the evidence

       needed to challenge the State’s case.


[12]   The State asserts that, while there is no dispute that Kowalskey did not

       affirmatively waive his right to counsel, the trial court properly found that he

       forfeited or waived his right to counsel through his conduct. It argues that the

       court held a hearing as required by Gilmore and sufficiently warned Kowalskey

       of the consequences of his conduct to allow the court to subsequently determine

       that he had forfeited his right to counsel. The State points to the court’s

       statement at the January 6, 2015 hearing that it would “try one more time” and

       the court’s warning that, if Kowalskey kept having problems with his attorneys,

       the court could decide that he had chosen to represent himself. The State

       argues that, although the court could have and perhaps ideally would have

       given a more expansive warning, the warnings given were sufficient to place

       Kowalskey on notice of the consequences of continuing to make it impossible

       for any attorney to represent him. The State also contends that the court

       sufficiently warned Kowalskey of the disadvantages of proceeding without

       counsel, that this was not a situation where a defendant was expressing a desire

       to represent himself because he felt he could do better than an attorney, and

       instead the record shows Kowalskey understood it was not in his best interest to

       proceed pro se.


[13]   The right to be represented by counsel is protected by both the Federal and

       Indiana Constitutions. U.S. CONST. amend. VI; IND. CONST. art. 1, § 13. The

       right to counsel can be waived by a knowing, voluntary, and intelligent waiver.

       Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015   Page 10 of 18
       Gilmore, 953 N.E.2d at 589 (citing Jones v. State, 783 N.E.2d 1132, 1138 (Ind.

       2003)). Waiver of assistance of counsel may be established based upon the

       particular facts and circumstances surrounding the case, including the

       background, experience, and conduct of the accused. Id. (citing Jackson v. State,

       441 N.E.2d 29, 32 (Ind. Ct. App. 1982)). “Of all the rights that an accused

       person has, the right to be represented by counsel is by far the most pervasive

       for it affects his ability to assert any other rights he may have.” Poynter v. State,

       749 N.E.2d 1122, 1125-1126 (Ind. 2001) (citation omitted).


[14]   In Gilmore v. State, this court addressed the waiver or forfeiture of a defendant’s

       right to counsel due to the defendant’s conduct. 953 N.E.2d at 589. Gilmore

       had five court-appointed attorneys, all of whom withdrew from representing

       him due to a breakdown of the attorney-client relationship. Id. at 585-586. The

       trial court found in part that Gilmore had waived his right to counsel by his

       obstreperous conduct. Id. at 585. On appeal, this court first set forth portions

       of the opinion of the United States Court of Appeals, Third Circuit, in United

       States v. Goldberg:

               A waiver is an intentional and voluntary relinquishment of a known
               right. The most commonly understood method of “waiving” a
               constitutional right is by an affirmative, verbal request. Typical of
               such waivers under the Sixth Amendment are the requests to proceed
               pro se and requests to plead guilty. . . . The High Court has
               emphasized the importance of an affirmative, on-the-record waiver,
               noting that it indulges every reasonable presumption against waiver of
               fundamental constitutional rights.
                                                       *****



       Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015      Page 11 of 18
               At the other end of the spectrum is the concept of forfeiture. Unlike
               waiver, which requires a knowing and intentional relinquishment of a
               known right, forfeiture results in the loss of a right regardless of the
               defendant’s knowledge thereof and irrespective of whether the
               defendant intended to relinquish the right. . . . In United States v.
               McLeod, 53 F.3d 322 (11th Cir. 1995), . . . the Eleventh Circuit
               concluded that a defendant who is abusive toward his attorney may
               forfeit his right to counsel.
                                                       *****
               Finally, there is a hybrid situation (“waiver by conduct”) that
               combines elements of waiver and forfeiture. Once a defendant has
               been warned that he will lose his attorney if he engages in dilatory
               tactics, any misconduct thereafter may be treated as an implied request
               to proceed pro se and thus, as a waiver of the right to counsel. . . .
               Thus, instead of “waiver by conduct,” this situation more
               appropriately might be termed “forfeiture with knowledge.”
                                                       *****
               [F]orfeiture would appear to require extremely dilatory conduct. On
               the other hand, a “waiver by conduct” could be based on conduct less
               severe than that sufficient to warrant a forfeiture. This makes sense
               since a “waiver by conduct” requires that a defendant be warned about
               the consequences of his conduct, including the risks of proceeding pro
               se. . . . [A] true forfeiture can result regardless of whether the
               defendant has been advised of the risks of proceeding pro se. . . .

       Id. at 589-590 (citing United States v. Goldberg, 67 F.3d 1092, 1099-1101 (3rd Cir.

       1995)). The court in Gilmore then reviewed several opinions which examined

       the concepts of forfeiture and waiver by conduct, including the Indiana

       Supreme Court opinion in Poynter v. State, 749 N.E.2d 1122 (Ind. 2001).


[15]   In Poynter, the defendant indicated that he would retain his own counsel, but

       after continuances were granted so that he could secure private counsel, a bench

       trial was held and neither the trial court nor the parties commented regarding


       Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015         Page 12 of 18
       the absence of an attorney for the defendant. Poynter, 749 N.E.2d 1126. The

       trial court found the defendant guilty, and on appeal the defendant maintained

       that the court had a duty to advise him of the advantages of representation by

       counsel and the dangers of self-representation and that the lack of advisement

       negated any finding of a voluntary, knowing, and intelligent waiver of his right

       to the assistance of counsel. Id. at 1124-1125.


[16]   In its opinion, the Indiana Supreme Court initially stated that, “[w]hen a

       defendant asserts the right to self-representation, the court should tell the

       defendant of the ‘dangers and disadvantages of self-representation,’” Poynter,

       749 N.E.2d at 1126 (citing Faretta v. California, 422 U.S. 806, 835, 95 S. Ct.

       2525, 2541 (1975)), and that “[t]here are no prescribed ‘talking points’ the court

       is required to include in its advisement to the defendant; it need only come to a

       considered determination that the defendant is making a voluntary, knowing,

       and intelligent waiver.” Id. (citing Leonard v. State, 579 N.E.2d 1294, 1296 (Ind.

       1991)). The Court noted “[t]his determination must be made with the

       awareness that the law indulges every reasonable presumption against a waiver

       of this fundamental right.” Id.


[17]   The Court then observed that several courts have held that a verbal waiver of

       the right to counsel may not be necessary and that “so long as the . . . court has

       given a defendant sufficient opportunity to retain the assistance of . . . counsel,

       defendant’s actions which have the effect of depriving himself of . . . counsel

       will establish a knowing and intentional choice.” Id. (citing United States v.


       Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015    Page 13 of 18
       Hoskins, 243 F.3d 407, 410 (7th Cir. 2001) (finding the defendant’s conduct to

       be sufficient to imply waiver and that the trial court’s inquiry was sufficient and

       provided explicit warning of consequences of continued conduct); United States

       v. Irorere, 228 F.3d 816, 828 (7th Cir. 2000) (holding that the defendant waived

       the right to counsel by his conduct where the court appointed four separate

       lawyers all of whom either requested to withdraw or were fired by the

       defendant and the defendant had been advised of the dangers and disadvantages

       of self-representation pursuant to Faretta)). The Court also observed that, “[i]n

       each of these waiver-by-conduct cases, . . . the courts recognized that, just like

       an express verbal waiver, an implied waiver is not valid absent a finding under

       the totality of the circumstances that the waiver is knowing and intelligent” and

       that “this finding invariably included evidence of an admonition to the

       defendant on the dangers and disadvantages of self-representation.” Id. (citing

       Hoskins, 243 F.3d at 411; Irorere, 228 F.3d at 828).


[18]   The Court in Poynter then noted that, in United States v. Hoskins, the Seventh

       Circuit Court of Appeals, in analyzing the defendant’s waiver of his right to

       counsel, relied upon the following considerations: (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 1127-1128

       (citing Hoskins, 243 F.3d at 411). The Court found that, “[c]onsidering these

       factors within the circumstances of the present case we find that the trial court,

       Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015    Page 14 of 18
       while it did determine that the defendant was advised of his trial rights and did

       tell the defendant of the procedural outcome if he failed to secure counsel, did

       not at any time advise the defendant on the dangers and disadvantages of self-

       representation” and that “[t]his lack of any advisement weighs heavily against

       finding a knowing and intelligent waiver.” Id. at 1128. The Court also noted

       that, while there is evidence that the defendant chose to work and sleep rather

       than take the time to hire an attorney, his conduct did not result in gross delays

       or clearly appear to intend manipulation of the process. Id.


[19]   In Gilmore, after reviewing Poynter and other cases, this court addressed whether

       Gilmore, by his conduct, had waived or forfeited his right to counsel and

       concluded:

               In the present case, Gilmore engaged in behavior that led his court-
               appointed attorneys to withdraw from representation.
               Understandably, the trial court became dissatisfied with the delay
               seemingly caused by Gilmore in moving the case forward. This
               conduct was not of the kind often associated with a finding of
               forfeiture of the right to counsel. Nor does this conduct fit neatly into
               the category of cases in which waiver of the right to counsel is found,
               as Gilmore repeatedly requested representation by counsel. Instead, it
               appears to be more along the lines of a waiver by conduct or forfeiture
               with knowledge. As such, Gilmore was and is entitled to a hearing during
               which he should be warned that if his obstreperous behavior persists, the trial
               court will find that he has chosen self-representation by his own conduct. Then
               the inquiry turns to an analysis of whether Gilmore made a knowing and
               intelligent waiver of his right to counsel, which includes a warning of the
               dangers and disadvantages of self-representation established in an on-the-record
               evidentiary hearing where specific findings are made. While not condoning
               Gilmore’s apparent obstreperous conduct, because those warnings
               were not given to Gilmore, we conclude that the trial court erred by
               finding that Gilmore had waived his right to counsel. We, therefore,

       Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015                Page 15 of 18
               vacate the trial court’s order and remand for further proceedings
               consistent with this opinion.

       Gilmore, 953 N.E.2d at 592-593 (emphasis added).


[20]   In this case, Kowalskey specifically stated at the January 6, 2015 hearing that

       he needed a lawyer and at the February 9, 2015 hearing that his letter was sent

       to influence his lawyer to work diligently or sincerely, that he did not wish to

       have a different lawyer, that he did not “have time to have a different lawyer,”

       and that he was stressed because the suppression hearing was scheduled for a

       week later. Transcript at 30. Thus, Kowalskey did not expressly and verbally

       waive his right to counsel, and we must determine whether a waiver by conduct

       or forfeiture with knowledge occurred.


[21]   Oliver indicated that Kowalskey’s February 5, 2015 letter prompted his request

       to withdraw appearance. In the letter, Kowalskey stated that he was scheduled

       for a suppression hearing, that the police had denied making an investigatory

       stop, that he knew the police had activated their emergency lights and thus that

       there had been an investigatory stop, that Oliver had not attempted to contact

       CVS for its surveillance system footage, that without footage he could not prove

       the arresting officer did not make a valid investigatory stop, and that he was not

       asking to fire Oliver but was hoping the court would demand the prosecutor to

       produce or obtain the officers’ dash-cam footage or the CVS footage. At the

       February 9, 2015 hearing, Kowalskey stated that he did not want a different

       lawyer, that he did not have time to have a different lawyer, and that he was

       stressed and wrote the letter because his suppression hearing was scheduled for

       Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015      Page 16 of 18
       a week later. The record does not establish that Kowalskey, in sending his

       letter to the court, engaged in obstreperous conduct or behavior. The court did

       not make specific findings supporting the conclusion that Kowalskey, by his

       letter or otherwise, engaged in obstreperous conduct.


[22]   Moreover, similar to Poynter, while the trial court may have informed

       Kowalskey at the January 6, 2015 hearing that, if he kept having problems with

       lawyers, it could determine that he had decided to represent himself and that “if

       we get to that point, . . . they’ll have to inform you of . . . the dangers of self-

       representation and the risks that are involved in it,” the court did not at that time

       or later advise Kowalskey of the dangers and disadvantages of self-

       representation. Transcript at 10 (emphases added). The court’s sole statement

       at the January 6, 2015 hearing that “[t]he short story is [Kowalskey] would be

       held to the same standard as this attorney sitting right here who’s been to law

       school” was not an adequate advisement of the dangers and disadvantages of

       self-representation under the circumstances. Id. at 10. Like in Poynter, this lack

       of an adequate advisement of the dangers and disadvantages of self-

       representation “weighs heavily against finding a knowing and intelligent

       waiver.” See Poynter, 749 N.E.2d at 1128.


[23]   Additionally, the court did not enter specific findings, addressing the factors

       outlined in Hoskins and adopted in Poynter or otherwise, regarding whether it

       had given Kowalskey the required warnings regarding the dangers and

       disadvantages of self-representation, the extent to which Kowalskey’s behavior

       related to his attorneys’ requests to withdraw their appearances, his background

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       and experience, the context of Oliver’s request to withdraw appearance and

       Kowalskey’s January 5, 2015 letter regarding his approaching suppression

       hearing, or whether Kowalskey had made a knowing and intelligent waiver of

       his right to counsel under the circumstances as required by Gilmore. The trial

       court did not undertake an analysis of whether, or make specific findings

       supporting the conclusion that, Kowalskey demonstrated obstreperous conduct

       after being warned that such conduct could result in the waiver of his right to

       counsel or made a knowing and intelligent waiver of his right to counsel which

       included a warning of the dangers and disadvantages of self-representation.


[24]   Based upon the record, Gilmore, and Poynter, and mindful that the law indulges

       every reasonable presumption against a waiver of the fundamental right to

       counsel, we conclude that the trial court erred in finding that Kowalskey, by his

       conduct, waived his right to pauper counsel. See Poynter, 749 N.E.2d at 1124-

       1128; Gilmore, 953 N.E.2d at 589-593. Accordingly, we reverse the order of the

       trial court and remand for further proceedings.


                                                     Conclusion

[25]   For the foregoing reasons, we reverse the orders of the trial court in Cause No.

       39 and Cause No. 142 finding that Kowalskey by his conduct waived his right

       to counsel and remand for further proceedings consistent with this opinion.


[26]   Reversed and remanded.


       Crone, J., and Pyle, J., concur.


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