MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                    Jan 11 2018, 7:52 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
T. Andrew Perkins                                        Curtis T. Hill, Jr.
Peterson Waggoner & Perkins, LLP                         Attorney General of Indiana
Rochester, Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Joshua Givens,                                           January 11, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         25A03-1708-CR-1760
        v.                                               Appeal from the Fulton Circuit
                                                         Court
State of Indiana,                                        The Honorable A. Christopher
Appellee-Plaintiff                                       Lee, Judge
                                                         Trial Court Cause No.
                                                         25C01-1701-F6-58



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1760 | January 11, 2018          Page 1 of 11
[1]   Joshua Givens appeals his conviction for Level 6 Felony Unlawful Possession

      of a Syringe,1 arguing that he was denied his Sixth Amendment right to counsel

      when the trial court granted his request to proceed pro se. Finding no error, we

      affirm.


                                                     Facts
[2]   On January 24, 2017, the State charged Givens with Level 6 felony unlawful

      possession of a syringe. An initial hearing took place that same day, during

      which Givens told the trial court that he could read, write, and understand

      English; that he completed school through the eleventh grade; that he was not

      under the influence of drugs or alcohol; that he understood the charge against

      him; and that he understood the potential penalty range. The trial court also

      advised Givens that he had a right to be represented by an attorney and that he

      could proceed without an attorney. The trial court asked Givens whether he

      had any mental or physical disabilities that prevented him from working;

      Givens replied, “Education.” Tr. p. 8. Givens stated that he wanted a public

      defender, and he was appointed one.


[3]   On March 13, 2017, Givens pleaded guilty to the charge. During his guilty plea

      hearing, Givens stated that he was of sound mind, that he was not under the

      influence of drugs or alcohol, and that the decision to plead guilty was his own




      1
          Ind. Code § 16-42-19-18(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1760 | January 11, 2018   Page 2 of 11
      choice. He also assured the trial court that he understood the nature of the

      charge and the potential penalty range. The trial court accepted his guilty plea.


[4]   On April 7, 2017, Givens moved to withdraw his guilty plea, and the trial court

      granted his motion. On May 5, 2017, Givens filed a motion to proceed pro se

      and to dismiss his public defender. During a June 12, 2017, hearing, the

      following exchange took place:


              The Court: . . . You plan on representing yourself here?


              The Defendant: Yes, sir.


              The Court: One more time.


              The Defendant: Yes, sir.


              The Court: You’re going to represent yourself?


              The Defendant: Yes.


              The Court: There are perils and risks to self-representation, and
              I’m assuming that you don’t have any legal education. And if
              you’re going to represent yourself that means that I’m going to be
              looking to you to present evidence, which you think is
              appropriate. You’re going to need to know how to present that
              evidence. If the State wants to produce evidence, which you find
              objectionable, you’re going to need to know how to formulate
              objections in a legal sense, and you’re going to have to question
              witnesses, give opening statements, and so forth. Do you
              understand that?



      Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1760 | January 11, 2018   Page 3 of 11
        The Defendant: Yes, sir.


        The Court: All right. And knowing all of that you still want to
        proceed without a lawyer?


        The Defendant: Yes, sir.


        The Court: Anybody threaten you in any way to get you to
        make that request?


        The Defendant: No, sir.


        The Court: Anybody promise you anything to get you to make
        you to get that request?


        The Defendant: No, sir.


        The Court: Do you understand that we have a trial set here—a
        bench trial?


        The Defendant: Yes.


        The Court: All right. And that’s set on July the 6th, I think.
        And then you’re going to represent yourself in that trial?


        The Defendant: Yes, sir.


                                                ***


        The Court: . . . I’m contemplating if we were going to go forward
        with a jury trial I would keep [the public defender] as standby


Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1760 | January 11, 2018   Page 4 of 11
              counsel. I don’t know that I need to do that in this bench trial
              scenario. . . .


              Public Defender: . . . In talking with [Givens] I don’t think he
              needs me, but, you know, I’m happy to be here with him.


              The Court: All right. If we were doing a jury trial I would
              require you to be here, but he’s indicated he wants to represent
              himself. I questioned him about that, and I think he understands
              the risks associated with that.


      Tr. p. 25-28.


[5]   On June 30, 2017, Givens filed a motion for discovery, asking for “a copy of

      police reports, body cam footage evidence, and/or any other depositions,

      paperwork, etc.” Appellant’s App. Vol. II p. 32. On July 6, 2017, Givens filed

      a “motion for affidavit of indigency.” Id. at 38. That same day, a bench trial

      took place. Before it started, the trial court acknowledged Givens’s motions

      and asked for clarification about his affidavit. Givens explained that it was

      “just in case I need any paperwork, transcripts, a copy of anything that I don’t

      have money to pay for those transcripts.” Tr. p. 31. The trial court asked

      whether Givens had changed his mind about representing himself; Givens

      replied, “No, no.” Id. at 32. The trial court then asked Givens whether he had

      received a copy of the police report. Givens said that he had, but that he had

      not seen the footage from the officer’s body camera. The trial court allowed

      Givens to view the video before the trial.




      Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1760 | January 11, 2018   Page 5 of 11
[6]   During the trial, Givens declined to give an opening statement, cross-examined

      the sole witness about how the syringes are typically used and whether Givens’s

      intent to use them for drugs could be established, and made a closing argument

      that was based on legal research and case law. The trial court guided Givens

      when it was his turn to present evidence, stating that he could testify, call a

      witness, or present other evidence.


[7]   After finding Givens guilty as charged, the trial court offered the parties “a

      couple of weeks to get ready for sentencing.” Id. at 49. Givens said that

      “Actually, I would prefer to proceed with sentencing today if that’s at all

      possible.” Id. The trial court then proceeded with sentencing, during which the

      trial court confirmed the accuracy of the presentence investigation report and

      Givens confirmed his credit time. The State asked for a sentence of two and

      one-half years with no time suspended based on Givens’s criminal history.

      Givens agreed that “I think it’s in the best interest of justice to do the two-and-a-

      half years, none of it suspended, no probation.” Id. at 52. The trial court

      imposed a sentence of two and one-half years with no time suspended. Givens

      now appeals.


                                   Discussion and Decision
[8]   Givens’s sole argument on appeal is that the trial court erred by permitting him

      to proceed pro se because his waiver of his right to counsel was not knowing,

      voluntary, and intelligent.




      Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1760 | January 11, 2018   Page 6 of 11
[9]    The Sixth Amendment to the United States Constitution guarantees a criminal

       defendant the right to counsel. Jones v. State, 783 N.E.2d 1132, 1138 (Ind.

       2003). Implicit in the right to counsel is the right to self-representation. Drake v.

       State, 895 N.E.2d 389, 392 (Ind. Ct. App. 2008). However, before a defendant

       waives his right to counsel and proceeds pro se, the trial court must determine

       that the defendant’s waiver of counsel is knowing, voluntary, and intelligent.

       Jones, 783 N.E.2d at 1138. We review de novo a trial court’s finding that a

       defendant waived his right to counsel. Miller v. State, 789 N.E.2d 32, 37 (Ind.

       Ct. App. 2003).


[10]   Our Supreme Court has stated that there are no specific “talking points” a trial

       court must follow when advising a defendant of the dangers and disadvantages

       of proceeding without counsel. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind.

       2001). Instead, a trial court needs only to come to a “considered

       determination” that the defendant is making a knowing, voluntary, and

       intelligent waiver of his right to counsel. Id. Our Supreme Court has adopted

       four factors for an appellate court to consider when determining whether a

       knowing, voluntary, and intelligent waiver has occurred: (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. In making this analysis, we are mindful that the trial court is in the

       best position to assess whether the defendant has made a knowing, voluntary,

       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1760 | January 11, 2018   Page 7 of 11
       and intelligent waiver, and we will most likely affirm “where the judge has

       made the proper inquiries and conveyed the proper information, and reaches a

       reasoned conclusion about the defendant’s understanding of his rights and

       voluntariness of his decision.” Id. at 1128 (internal quotation marks and

       citation omitted).


[11]   Givens does not address the sufficiency of the trial court’s inquiry into his

       decision, but argues that each of the remaining three Poynter factors weigh in his

       favor. Regarding whether Givens understood the dangers and disadvantages of

       self-representation, Givens contends that the trial court’s advisement was

       inadequate because it was “relatively short” and focused on “procedural steps”

       with which a pro se defendant might be unfamiliar. Appellant’s Br. p. 16.

       Specifically, the trial court advised that


               There are perils and risks to self-representation, and I’m
               assuming that you don’t have any legal education. And if you’re
               going to represent yourself that means that I’m going to be
               looking to you to present evidence, which you think is
               appropriate. You’re going to need to know how to present that
               evidence. If the State wants to produce evidence, which you find
               objectionable, you’re going to need to know how to formulate
               objections in a legal sense, and you’re going to have to question
               witnesses, give opening statements, and so forth. Do you
               understand that?


       Tr. p. 25. In short, the trial court ensured that Givens knew that, by proceeding

       pro se, he would have to present evidence, object to evidence, and question

       witnesses on his own. Givens assured the trial court that he understood these


       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1760 | January 11, 2018   Page 8 of 11
       expectations. Givens contends that the trial court should have also explained

       the importance of counsel. But a trial court does not have to follow specific

       talking points when advising a defendant of the risks of proceeding pro se.

       Poynter, 749 N.E.2d at 1126. Moreover, Givens appears to have been aware of

       the advantages of having counsel, considering that he had previously requested

       a public defender and had been represented for several months before his trial.

       The trial court did not err through its advisement of the dangers and

       disadvantages of proceeding pro se.


[12]   With respect to the next Poynter factor regarding Givens’s background and

       experience, Givens contends that the trial court made no specific inquiry but

       simply assumed that Givens had no legal education. At Givens’s initial

       hearing, however, Givens told the trial court that he could read, write, and

       understand English, and that he completed school through the eleventh grade.

       Further, Givens has a substantial criminal history, including two felony

       convictions and six misdemeanor convictions, and, as of April 2017, had

       several pending felony and misdemeanor charges in addition to the one in the

       instant case. In other words, Givens has had extensive contact with the

       criminal justice system, giving him enough experience to know to request

       discovery from the State, to file motions with the trial court, to cross-examine a

       witness, to conduct legal research, and to formulate cogent legal argument. As

       the result of his request for discovery, the State provided him a copy of the

       police report, and the trial court allowed him time before his trial to view the

       officer’s body camera recording. The evidence in the record regarding Givens’s


       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1760 | January 11, 2018   Page 9 of 11
       background and experience do not support a conclusion that his decision to

       represent himself was unknowing, involuntary, or unintelligent.


[13]   Regarding the final Poynter factor about the context of Givens’s decision to

       proceed pro se, the record shows that the trial court did not ask Givens why he

       decided to dismiss his public defender and proceed pro se. It would be a better

       practice for the trial court to do so, and we encourage trial courts to make

       thorough inquiries of defendants who want to represent themselves in the

       future. Given the totality of the circumstances in this case, however, we do not

       find that the trial court erred by not asking additional questions to determine

       why Givens wanted to proceed pro se. The trial court was more than

       accommodating of Givens’s decision to represent himself, delaying the start of

       the trial so that Givens could view the officer’s body camera recording and,

       during the trial, explaining to Givens what his next steps should be.


[14]   In sum, Givens had representation, pleaded guilty, and moved to withdraw his

       guilty plea all before he decided to proceed pro se during a bench trial. Because

       he had had representation during this case and has had extensive experience

       with the criminal justice system, Givens was aware of the advantages of having

       counsel. Further, while representing himself, Givens was able to request

       discovery, file motions, cross-examine a witness, and present legal research and

       case law in support of his defense. Under these facts and circumstances, we

       conclude that Givens’s decision to proceed pro se was knowingly, voluntarily,

       and intelligently made.



       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1760 | January 11, 2018   Page 10 of 11
[15]   Finally, Givens contends that the trial court erred by failing to readvise him of

       his right to counsel before his sentencing hearing. Givens directs us back to the

       trial court’s advisement about the risks of self-representation, during which the

       trial court made no mention of the advantages of having counsel at sentencing.

       At the start of the bench trial, the trial court confirmed that Givens still wanted

       to proceed pro se. Following the bench trial, the trial court offered the parties

       significant time to prepare for sentencing. Givens requested that they proceed

       with sentencing that same day—in other words, his knowing, voluntary, and

       intelligent waiver of his right to counsel continued uninterrupted through the

       end of the proceedings.2 Therefore, the trial court did not err by not inquiring

       again about Givens’s waiver of his right to counsel.


[16]   The judgment of the trial court is affirmed.


       Barnes, J., and Bradford, J., concur.




       2
        We also note that Givens wholly agreed with the sentence proposed by the State and imposed by the trial
       court.

       Court of Appeals of Indiana | Memorandum Decision 25A03-1708-CR-1760 | January 11, 2018      Page 11 of 11
