Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
Jun 23 2014, 5:32 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PETER D. TODD GREGORY F. ZOELLER
Elkhart, Indiana Attorney General of Indiana
LARRY D. ALLEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRANDON DANIELS, )
)
Appellant-Defendant, )
)
vs. ) No. 20A03-1309-CR-374
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable Charles C. Wicks, Judge
Cause No. 20D05-1305-FD-000506
June 23, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Brandon Daniels (“Daniels”) pleaded guilty in Elkhart Superior Court to failure to
return to lawful detention, a Class D felony. Daniels appeals his conviction, arguing
that he did not intelligently and voluntarily waive his right to counsel.
We affirm.
Facts and Procedural History
On January 9, 2012, Daniels was convicted of possession of marijuana, a Class D
felony. On February 27, 2013, the trial court found that Daniels had violated conditions
of his probation and was sentenced to 180 days of community corrections work release.
On April 4, 2013, Daniels was temporarily released for an intensive outpatient program
and, thereafter, Daniels failed to return to the work release facility.
On May 15, 2013, he was charged with failure to return to lawful detention, a
Class D felony.1 At a June 10, 2013 hearing, Daniels expressed his desire to represent
himself hoping to speed the sentencing process. The trial court advised him that he had
a right to an attorney, that one would be appointed for him if he could not afford to hire
one, and that he was facing three years in prison. Daniels reiterated his desire to
represent himself, and therefore, the trial court provided him with a Waiver of Attorney
form and gave him time to read it. The form listed the benefits of attorney
representation, and allowed Daniels to indicate his graduation from high school. After
signing the form, the trial court asked Daniels “have you read over that form that explains
what an attorney can do for you.” and if he had “any questions about it.” Tr. p. 3.
1
See Ind. Code § 35-44.1-3-4(c) (“A person who knowingly or intentionally fails to return to lawful detention
following temporary leave granted for a specified purpose or limited period commits failure to return to lawful
detention, a Class D felony.”)
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Then the trial court reiterated each disadvantage of self-representation. Daniels
specifically affirmed his understanding that an attorney could investigate, prepare and
present a case for Daniels; that the State would be represented by an experienced attorney;
that Daniels would be disadvantaged by self-representation; that Daniels would be bound
by the same rules as an attorney; and that an attorney could use their skill and experience
to negotiate with the prosecutor. See Appellant’s App. pp. 14-14a.
In preparation to accept Daniels’s guilty plea, the trial court asked if Daniels was
of sound mind, and informed him of the rights he would be forfeiting by entering a plea
of guilty. The trial court then ensured that Daniels was not forced or coerced into his
decision with the following exchange:
THE COURT: Has anyone forced or threatened to put you or anyone else
in fear to get you to plead guilty today?
MR. DANIELS: Yes, your Honor.
THE COURT: What?
MR. DANIELS: No, your Honor.
THE COURT: No one has forced or threatened you to plead guilty?
MR. DANIELS: No.
THE COURT: Correct?
MR. DANIELS: No.
THE COURT: You feel the plea of guilty you’re offering is your own free
choice and decision?
MR. DANIELS: Yes, your Honor.
Tr. p. 11.
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The trial court accepted Daniels’s guilty plea and scheduled a sentencing hearing
for July 8, 2013. At the sentencing hearing, due to the aggravating factor of a previous
felony conviction, Daniels was sentenced to twenty-four months executed in the
Department of Correction. Thirteen days later, Daniels wrote the trial judge requesting
an appeal, and a public defender, asserting his mistaken belief that his escape was only a
breach of contract. See Appellant’s App. p. 10.
Discussion and Decision
“The Sixth Amendment, applicable to the states through the Fourteenth
Amendment, guarantees a criminal defendant the right to counsel before he may be tried,
convicted, and punished.” Hopper v. State, 957 N.E.2d 613, 617 (Ind. 2011) (citing
Faretta v. California, 422 U.S. 806, 807 (1975)). Accordingly, the accused must “be
made aware of the dangers and disadvantages of self-representation, so that the record
will establish that he knows what he is doing and his choice is made with eyes open.”
Id. at 618 (quoting Faretta, 422 U.S. 806 at 835) (internal quotations omitted).
Moreover, “[a] plea of guilty . . . shall not be accepted from a defendant unrepresented by
counsel who has not freely and knowingly waived his right to counsel.” See Ind. Code
§ 35-35-1-1.
In reviewing the validity of a defendant’s waiver of counsel, the role of the
appellate court is “to conduct a thoughtful examination of the record as a whole to
determine whether a particular defendant, in a particular stage of a particular case,
voluntarily and intelligently waived his right to counsel.” Hopper, 957 N.E.2d at 619.
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Courts determining whether a waiver of counsel for trial was made
voluntarily and intelligently must consider (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 618.
Importantly, both the Indiana Supreme Court and the U.S. Supreme Court “have
deliberately eschewed any attempt to formulate a rigid list of required warnings,
talismanic language, or formulaic checklist.” Id. at 619; see also Iowa v. Tovar, 541
U.S. 77, 77 (2004); Leonard v. State, 579 N.E.2d 1294, 1294 (1991). Instead the
validity of a defendant’s waiver of counsel should be examined based on the totality of
the circumstances “to determine whether any omissions or other circumstances warranted
starting over.” Id. at 622. In most cases this requires that an omission or other
circumstances changed the outcome of the case. Daniels makes no such argument.
Moreover, it appears Daniels’s appeal stems from his mistaken belief that he had merely
committed breach of contract.
Daniels argues the trial court failed to ensure that he read his Waiver of Attorney
form; that the trial court failed to ascertain whether he was forced or coerced to waive his
right to an attorney; and that the trial court failed to make specific findings that he
intelligently and voluntarily waived his right to counsel. Absolutely none of Daniels’s
arguments is supported by the record in any way.
First, only after specifically and repeatedly asking Daniels if he was certain that he
wanted to waive his right to counsel, and further explaining the disadvantages of
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self-representation, did the court accept the waiver and ask the reporter to “show
defendant knowingly waives right to counsel.” Tr. p. 5. Second, the trial court
specifically asked if Daniels had read the Waiver of Attorney form that he had signed,
reviewed with him again the disadvantages of waiving counsel with Daniels, and
explained the gravity of the felony charge he faced. Third, the trial court questioned the
defendant to ensure he had graduated from high school and determined that there was no
force or coercion when questioning Daniels about his decision to plea guilty. Finally,
after all of this, Daniels expressed his continued preference for self-representation,
hoping to speed the sentencing process.
Our review of the record shows Daniels was repeatedly and clearly advised of
dangers and disadvantages of self-representation, and yet he chose to proceed pro se.
He cannot now claim that he did not intelligently and voluntarily waive his right to
counsel, or that he was improperly denied counsel. Hopper, supra.
For all these reasons, we conclude that Daniels intelligently and voluntarily
waived his right to counsel.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
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