MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any
court except for the purpose of establishing                        Feb 21 2017, 9:29 am

the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott H. Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Quincy D. Sullivan,                                      February 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1606-CR-1246
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff                                       Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-1504-FB-15



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017     Page 1 of 5
      Quincy Sullivan appeals his convictions for two counts of Robbery, 1 a Class B

      felony, five counts of Confinement,2 a class B felony, and one count of

      Conspiracy to Commit Robbery,3 a class B felony. Sullivan argues that the trial

      court committed fundamental error by allowing Sullivan’s co-defendant to

      proceed pro se in the middle of trial and by neglecting to sever the two

      defendants’ cases sua sponte. Finding no fundamental error, we affirm.


[1]   On April 9, 2015, the State charged Sullivan and Albert Webb with two counts

      of Class B felony robbery, five counts of Class B felony confinement, and one

      count of Class B felony conspiracy to commit robbery. As the two cases dealt

      with precisely the same set of alleged facts, the co-defendants’ joint jury trial

      began on February 29, 2016. At the outset of the trial, Sullivan and Webb were

      each represented by attorneys. Three days into the trial, Webb requested to

      represent himself because he was dissatisfied with his attorney’s performance.

      The trial court strongly discouraged Webb from doing so, advising him of the

      dangers and disadvantages of self-representation, but Webb insisted on

      representing himself. At the close of the trial, the jury found Webb and

      Sullivan guilty as charged.


[2]   Sullivan concedes that he did not object to Webb’s request to represent himself,

      nor did he request that the cases be severed at the time Webb’s request was



      1
          Ind. Code § 35-42-5-1.
      2
          I.C. § 35-42-3-3.
      3
          Ind. Code § 35-41-5-2; I.C. § 35-42-5-1.


      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017   Page 2 of 5
      granted. Therefore, to succeed on appeal, he must meet the extremely high bar

      of establishing fundamental error. E.g., Ryan v. State, 9 N.E.3d 663, 668 (Ind.

      2014). To constitute fundamental error, the error must be a clearly blatant

      violation of basic and elementary principles of due process and present an

      undeniable and substantial potential for harm such that a fair trial was

      impossible. E.g., id. Additionally, Sullivan must establish that the error was so

      severe that it would have compelled any competent trial judge to immediately

      intervene, regardless of the defendant’s decision not to object or request other

      relief. Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014).


[3]   With respect to Sullivan’s contention that the trial court should have severed

      the two cases sua sponte, we note that it has long been the case that trial courts

      do not “have a duty to order separate trials sua sponte.” Snider v. State, 274 Ind.

      401, 403, 412 N.E.2d 230, 232 (1980). Consequently, he has not established

      that any competent trial judge would have been compelled to intervene sua

      sponte.


[4]   With respect to Sullivan’s contention that the trial court committed

      fundamental error by permitting Webb to proceed pro se, we note that the right

      to representation is personal. E.g., Carter v. State, 512 N.E.2d 158, 162 (Ind.

      1987) (observing that “[t]he policy supporting the right of self-representation is

      personal autonomy,” noting that as the defendant is the one who must suffer

      the consequences of his decision as to counsel, “he is entitled to choose his

      advocate, a lawyer or himself”). Therefore, Sullivan may not challenge Webb’s

      decision to proceed pro se, or the trial court’s ruling permitting Webb to do so.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017   Page 3 of 5
      Cf. Horton v. State, 51 N.E.3d 1154, 1159 (Ind. 2016) (holding that the choice to

      exercise the personal right to a jury trial may not be exercised by proxy); Reed v.

      State, 748 N.E.2d 381, 390 (Ind. 2001) (holding that defendant cannot exercise

      State’s right to grant use immunity); Eaton v. State, 274 Ind. 73, 75, 408 N.E.2d

      1281, 1283 (1980) (holding that a personal right against self-incrimination may

      not be exercised by a third party). Sullivan continued to be represented by an

      attorney, and he had no more ability to demand that Webb waive his right of

      self-representation than Webb had to demand that Sullivan waive his right to be

      represented by counsel.


[5]   In any event, the trial court had discretion to grant or deny Webb’s request,

      given that the request was made after the trial had begun. Koehler v. State, 499

      N.E.2d 196, 198-99 (Ind. 1986). In this case, Webb did not request a delay in

      the trial, nor had he engaged in any other conduct that would argue against

      granting his motion. Webb asserted his fundamental right to represent himself,

      even in the fact of the trial court’s advisement against it, and the trial court did

      not commit fundamental error by granting Webb’s request.


[6]   Furthermore, Sullivan has failed to establish that these rulings made a fair trial

      impossible. Although he complains that he was “tied” to “every in-artfully

      framed question, fumbling objection, or statement made by Webb,” he does not

      explain how Webb’s conduct made a fair trial impossible. Appellant’s Br. p. 8.

      The record reveals that both Webb and Sullivan’s attorney strenuously cross-

      examined the remaining witnesses, pursued identical trial strategies, and raised

      similar arguments to the jury. Under these circumstances, we cannot see how

      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017   Page 4 of 5
      Webb’s self-representation made a fair trial impossible for Sullivan. In sum,

      Sullivan has not established that the trial court committed fundamental error by

      neglecting to sever the cases sua sponte or by permitting Webb to proceed pro

      se.


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


      Mathias, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017   Page 5 of 5
