Boyle v. State

MILLER, Presiding Judge,

dissenting.

I dissent. The trial court did not satisfy its obligation of informing Boyle of the advantages and disadvantages of counsel and, therefore, Boyle's waiver of the right to counsel could not have been knowing, intelligently and voluntarily made. I would remand for resentencing.

The majority opinion, among other things, stands for the proposition that a person who serves in the armed services has sufficient legal knowledge and training to waive his right to counsel without being informed of the advantages of counsel and the disadvantages of proceeding without I cannot subscribe to this theory. counsel.

*349Whenever an accused represents himself, the record must demonstrate not only that he had the knowledge of his right to counsel, but also that if he proceeds without counsel, he does so fully aware of the mature, extent and importance of the right and the possible consequences of waiving it. Phillips v. State, (1982), Ind.App., 433 N.E.2d 800. If an accused is not advised of the consequences of proceeding pro se, at best he has merely been made aware of his right to counsel, but cannot knowingly and voluntarily waive his right to representation by counsel. Kirkham v. State (1987), Ind.App., 509 N.E.2d 890.

Although the judge did warn Boyle about self-representation, indicating that this was a "very serious case" and that he could not recommend that Boyle proceed pro se, the record is devoid of meaningful instruction on the value of counsel. - Therefore, Boyle's choice to proceed pro se could not have been a knowing and intelligent decision, but was based instead on his desire to "get on with it" after months of waiting in jail without the opportunity for bond. The majority points out that Boyle was advised by public defender, Randy Coffey, outside of the presence of the court during a 15 minute recess, regarding the three options presented by the court-1) hire another counsel, which would require another continuance, 2) accept representation by the public defender at public expense, which would also require a continuance, or 8) proceed that day representing himself. There is nothing in the record to indicate that the public defender advised Boyle of what disadvantages he would risk in representing himself at sentencing.

I recognize that the trial judge was in a difficult position and was sensitive to the tension between the right to counsel and the right of self-representation. The judge did pointedly advise Boyle against self-representation, but the court did not go far enough in making a record which would establish that Boyle knew what rights he was waiving.

Boyle was not informed that 1) he was entitled to subpoena and call witnesses and to present information in his own behalf, IC 35-38-1-8; Miller v. State (1987), Ind., 517 N.E.2d 64; 2) participation of counsel at the sentencing stage is important in the evaluation of the relevance and significance of aggravating and mitigating factors, Gardner v. Florida (1977), 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393; 3) debate between adversaries aids in the truth seeking function which is served by providing counsel the opportunity to comment on facts which may influence the sentencing decision. Id. at 360, 97 S.Ct. at 1205; 4) counsel aids when the accused is confronted with the intricacies of the law and the advocacy of the public prosecutor, United States v. Gouveia (1984), 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146; 5) a defendant who represents himself is held to the same standards as an attorney as to the law and procedure and the State will be represented by experienced professional legal counsel, Dowell v. State (1990), Ind.App., 557 N.E.2d 1063.1

The court should also inquire on the record into the defendant's mental capacity, educational background, and his familiarity with legal procedures and rules of evidence. Id. Finally, the defendant should be informed that if he chooses to proceed pro se, he cannot later claim inadequate representation. Id. Without being fully advised, Boyle did not have sufficient information to make a knowing, intelligent waiver of his right to counsel.

The majority finds that Boyle's waiver of his right to counsel was not involuntary, unintelligent and unknowing based on the *350facts and circumstances of this case. The majority refers to the fact that the court permitted Coffey to act as standby counsel and that Boyle had some training in military law. The appointment of standby counsel is not a substitute for an advisement of the dangers and disadvantages of self-representation. See Dowell, supra at 1066, n. 3. Furthermore, the court's finding that Boyle had training in military law does not persuade me that Boyle had legal training or familiarity with legal procedures and rules of evidence. Boyle stated that he had graduated from high school and, in response to the court's question whether he had any legal training, Boyle replied that he was drafted into the service in 1981. The trial court suggested that he must have received some military law during basic training.2 The information received during basic training concerning military law (saluting an officer, for example) could hardly be characterized as "legal training," and certainly could not be the equivalent of training which would prepare a defendant for a criminal proceeding.

The majority also observes that Boyle was effective in presenting arguments at sentencing and the trial court cited mitigating factors which Boyle had raised. Additionally, I note that the record indicates that the trial court gave Boyle the benefit of the doubt on his objections to information contained in the presentence report. However, the issue here is not whether Boyle can show harm or prejudice. The only remedy for an invalid waiver of the right to counsel is to remand to the trial court for resentencing. See U.S. v. Allen (1990 10th Cir.), 895 F.2d 1577, citing Penson v. Ohio, (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (harmless error analysis does not apply to invalid waivers of counsel) and Satterwhite v. Texas (1988), 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284, (fundamental importance of assistance of counsel does not cease as the prosecuto-rial process moves from the trial even to the appellate stages).

. - Dowell involved a question of pre-trial waiver, rather than waiver at the sentencing stage. Dowell also mentioned that the defendant should be informed that an attorney has skill and expertise in preparing a proper defense which includes investigating and interrogating witnesses, gathering documentary evidence, presenting favorable statements on the defendant's behalf, recognizing objectionable, prejudicial evidence and making proper objections. These are important at the sentencing stage as well. Boyle was employed. He could have called his employer as a witness. Boyle did introduce documentary evidence regarding the satisfaction of a judgment. An attorney could have presented a favorable statement on his behalf or made relevant objections to prejudicial evidence.

. In this exchange (quoted by the majority), the judge made statements to the effect that everyone in the service gets a little military law training and then recited his own experience. The defendant responded "Yeah". This response was amibiguous and not informative for our purposes. Boyle might very well have been responding to the judge's statements by saying "[Is that right". In any event, I know of no authority which distinguishes people with military experience from all other defendants who must be informed of their rights The next logical step in this theory is to distinguish those people who regularly watch courtroom dramas such as Perry Mason.