Jackson v. State

BOEHM, Justice.

We hold that a trial court may find a knowing and voluntary waiver of a defendant’s right to be present at his jury trial if (1) the defendant knew his trial date and (2) the defendant did not provide an adequate explanation for his absence from trial. We also hold that a trial court is not required to readvise a defendant of his right to counsel or the perils of self-representation when the- trial court revokes a defendant’s attorney’s pro hac vice status if (1) the defendant was advised of his right to have appointed counsel at his initial hearing and (2) the defendant had initially retained counsel and had made no indication to the trial court that he could not afford to hire another attorney or intended to proceed pro se. Finally, under these circumstances, a defendant’s intentional and inexcusable absence from trial can serve as a knowing, voluntary, and intelligent waiver of the right to counsel.

Facts and Procedural History

Carlos Jackson was found guilty of possession of cocaine with intent to deliver as a class A felony and possession of a handgun without a license as a class C felony. Jackson raises two issues on appeal: (1) the trial court committed reversible error when it conducted a jury trial attended by neither Jackson nor any attorney representing him and (2) the trial court committed reversible error when it did not question Jackson about his ability to hire counsel and did not inform Jackson that he had a right to a court-appointed attorney if he could not afford one. The Court of Appeals found the first of these issues dispositive, concluding that there was “simply no evidence that Jackson knowingly, voluntarily, and intelligently waived his right to counsel.” Jackson v. State, No. 15A01-0505-CR-205, 844 N.E.2d 1078, slip op. at 6 (Ind.Ct.App. Feb. 15, 2006).

On August 31, 2001, the State charged Jackson with several crimes. On September 4, 2001, Jackson was present at the initial hearing where the trial court advised Jackson of his rights. On November 28, 2001, Robert Carpenter, an attorney admitted in Indiana, filed Jackson’s motions to suppress and for bill of particulars and a demand for discovery. On December 5, 2001, Clyde Bennett II, who is not admitted in this state, was admitted as Jackson’s counsel pro hac vice. Jackson and Bennett were present for pretrial conferences on December 21, 2001 and March 20, 2002. A jury trial was scheduled for June 24, 2002. On May 28, 2002, Jackson appeared for a pretrial conference without an attorney. On June 5, 2002, Bennett successfully moved to continue the jury trial. The trial was reset for October 21, 2002 with a pretrial conference scheduled for September 23, 2002. On July 15, 2002, the trial court rescheduled the final pretrial conference for October 1, 2002.

On October 1, 2002, Jackson appeared at the pretrial conference without an attorney. The State reported that there had been no depositions and the defense had not provided it with a witness or exhibit list. The trial court revoked Bennett’s pro hac vice status and scheduled an additional pretrial hearing for October 15, 2002. Jackson was ordered to appear with an attorney licensed in Indiana. Carpenter remained Jackson’s attorney- of record. The trial court told Jackson that the October 21 trial date would remain the same but that the new attorney could file a *497motion to continue. Jackson was handed a copy of the court’s order. On October 3, 2002, the trial court sent an order with the same information to all parties and attorneys, revoking Bennett’s pro hac vice status, setting a status conference for October 15, 2002, and ordering Carpenter to appear at the hearing and be prepared for the jury trial scheduled for October 21, 2002.

On October 15, 2002, Carpenter and Jackson appeared before the trial court and notified the court that Jackson intended to retain new counsel and discharge Carpenter and Bennett. They stated that Jackson had been unsuccessful in contacting new counsel and needed additional time. The trial court granted Jackson’s request for additional time and rescheduled the jury trial for January 27, 2003 with two pretrial hearings on November 21, 2002 and December 26, 2002. Jackson was ordered to hire counsel by the November 21 pretrial conference. Neither Jackson, Carpenter, nor anyone else suggested that Jackson might proceed pro se. The trial court entered a written order setting the dates of the new pretrial hearings and the jury trial, granting Jackson’s request for additional time, noting that Jackson discharged his attorneys, and directing Jackson to retain substitute counsel by the next hearing. This order was handed to Jackson at the hearing.

On November 21, 2002 and December 26, 2002, neither Jackson nor any defense attorney appeared for the pretrial conferences, and a bench warrant was issued for Jackson’s arrest. On January 27, 2003, neither Jackson nor any defense attorney appeared for the scheduled jury trial, and the State moved to proceed with the trial in absentia. The trial court found that on October 15, 2002, Jackson had been notified of the trial date both orally and in writing by the trial court. The trial court held that Jackson’s failure to appear was willful, voluntary, and knowing. Jackson was then tried and convicted in absentia after the two-day trial.

On December 10, 2003, Attorney John Dornette filed an appearance on behalf of Jackson, a praecipe for transcript of hearing, and a motion to correct error. Jackson claimed, in an attached affidavit, that: (1) Jackson requested that Bennett refund his fee, but Bennett did not do so; (2) Jackson was unable to hire counsel; (3) Jackson “did not know to attend trial” because he did not have a lawyer and his “old lawyers led him to believe there was no trial”; and (4) that “throughout this time” Jackson continued to be represented by Bennett in another matter pending in Ohio. The trial court conducted a hearing on the motion to correct error on April 6, 2004 and subsequently denied the motion. The Court of Appeals reversed and remanded for a new trial, and we granted transfer. Jackson v. State, 860 N.E.2d 591 (Ind.2006).

Jackson’s Constitutional Rights

Of course, the constitutional rights of Jackson and every other accused must be strictly enforced. But a defendant cannot be permitted to manipulate the system simply by refusing to show up for trial. Jackson has not established on this record that any of his constitutional rights have been violated. To the contrary, we conclude that this record fully supports the trial court’s finding that Jackson willfully and knowingly refused to appear at trial and waived his right to counsel and his right to be present at trial. We also conclude that, under these circumstances, the trial court did not have a duty to readvise Jackson of the right to counsel or the perils of self-representation when it revoked Jackson’s attorney’s pro hac vice status because there was no indication that *498Jackson intended to proceed pro se or could not hire another attorney.

A. Right To Be Present at Trial

First, it is clear that Jackson waived his right to be present at his trial. Both the Federal and Indiana Constitutions afford defendants in a criminal proceeding the right to be present at all stages of their trial. U.S. Const, amend. VI; Ind. Const. art. 1, § 13. However, a defendant may be tried in absentia if the trial court determines that the defendant knowingly and voluntarily waived that right. Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind.1997) (citing Freeman v. State, 541 N.E.2d 533, 535 (Ind.1989); Fennell v. State, 492 N.E.2d 297, 299 (Ind. 1986)).

When a defendant fails to appear for trial and fails to notify the trial court or provide it with an explanation of his absence, the trial court may conclude the defendant’s absence is knowing and voluntary and proceed with trial when there is evidence that the defendant knew of his scheduled trial date.

Freeman, 541 N.E.2d at 535 (citing Carter v. State, 501 N.E.2d 439, 440-41 (Ind. 1986); Martin v. State, 457 N.E.2d 1085, 1086 (Ind.1984)); see also Lampkins, 682 N.E.2d at 1273 (“The best evidence that a defendant knowingly and voluntarily waived his or her right to be present at trial is the defendant’s presence in court on the date the matter is set for trial.” (internal quotations and citations omitted)).1 The record shows that Jackson was informed of his trial date at the pretrial conference, both orally and in writing. Jackson never contacted the court prior to his trial to address any confusion he might have had about the trial date or indicate to the trial court that he was unable to hire trial counsel.

It is not clear what Jackson’s affidavit means when he says he was “led to believe” his trial would not go forward. According to Jackson’s affidavit, Jackson “relying upon counsel, was led to believe that the January 27, 2003 trial date would be cancelled [and] that a new date would be set after an attorney appeared.” This is subject to several interpretations. Jackson could have honestly believed from his attorney’s advice that he did not have to attend trial on January 27. At the other end of the spectrum, Jackson may have been informed by his attorney that Jackson could manipulate the system by missing his trial. Taken most generously to him, his affidavit claims that his attorney informed him that he did not have to attend trial on January 27. If that was the case, that fact may support an ineffective assistance of counsel claim, but the facts necessary to support such a claim are not established on this record and are left to post-conviction procedures if Jackson believes he can establish such a claim.2 *499Even if Jackson’s absence was in reliance on counsel’s advice, it does not negate Jackson’s waiver of his right to be present at his jury trial. Consistent with Indiana law, the trial court properly concluded that Jackson’s knowledge of the trial date coupled with a lack of explanation for his absence supported a determination that there was a voluntary and knowing waiver.

B. Right to Counsel and the Trial Court’s Duty to Advise

Second, Jackson waived his right to be represented by counsel, and the trial court had no duty to readvise Jackson on the right to counsel or admonish him on the perils of self-representation when it revoked Jackson’s attorney’s pro hac vice status. The right to be represented by counsel is also 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 only by a knowing, voluntary, and intelligent waiver. Jones v. State, 783 N.E.2d 1132, 1138 n. 2 (2003). We recognize that a defendant’s absence from trial does not constitute a waiver of the right to counsel in every case. We conclude that in this case, however, the record supports the trial court’s specific finding that Jackson’s absence from trial was a “willful, knowing and voluntary act.” The record in Jackson’s case establishes that he repeatedly disregarded scheduled events. His last pretrial appearance in court ended with his counsel of record being discharged and an order setting a third and final trial date and directing Jackson to retain new counsel as he had said he would. He then failed to appear, failed to notify the court of his inability to retain counsel, and failed to request a continuance. We hold that this unexplained disregard of specific directions by the court and his own undertakings was sufficient to establish an intentional and inexcusable absence from trial and serves as a knowing, intelligent, and voluntary waiver of counsel.

Furthermore, the trial court had no duty to readvise Jackson on the right to counsel or admonish Jackson of the perils of self-representation when there was no indication that Jackson intended to proceed pro se or lacked funds to retain counsel. There is no doubt that the right to be represented by counsel includes the right of an indigent defendant in a criminal prosecution to have counsel provided for him at state expense. See, e.g., Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Pallett v. State, 269 Ind. 396, 401, 381 N.E.2d 452, 456 (1978). Jackson contends the trial court had a duty to inform Jackson that he had a right to court-appointed counsel at the time the court revoked Jackson’s attorney’s pro hac vice status. We disagree. Jackson was advised of his right to have appointed counsel at his initial hearing as reflected by the chronological case summary note of a “full advise.” Jackson makes no claim on appeal that he was not advised of this right at that time. At no time did Jackson request pauper counsel or indicate to the trial court that he could not afford an attorney. To the contrary, he represented that he would retain his own lawyer. In fact, Jackson had appeared with two retained counsel from a prominent Cincinnati law firm.3 Jackson also posted a $100,000 surety bond in the present case, apparently satisfying his bonding company that he was a reasonable *500financial risk. Jackson had ample opportunity — including the two pretrial conferences that he chose not to attend' — to inform the court that he could no longer afford an attorney if that were the case. Under these circumstances it was reasonable for the trial court to conclude that Jackson intended to and would hire a new attorney. Indeed, Jackson offers no authority to support his claim that the trial court was required to readvise him of his rights to appointed counsel at the time it revoked his attorney’s pro hac vice status.

In addition, warnings as to the perils of self-representation are irrelevant to Jackson’s case. Jackson did not represent himself; he absented himself. The problem is not self-representation but self-help by boycotting the trial altogether. The trial court would have had a duty to advise Jackson of his right to counsel and the perils of self-representation if there was some indication that Jackson intended to proceed pro se. See Poynter v. State, 749 N.E.2d 1122 (Ind.2001). But that prospect was never raised by Jackson or his attorneys. At Jackson’s last appearance in court, Carpenter remained Jackson’s attorney of record, and Jackson had expressly informed the court that he had called other attorneys and was awaiting their return calls to replace Carpenter. Poynter is significantly different from Jackson’s case in several respects. First, in Poynter the trial court was told of the possibility that the defendant would proceed pro se. At a pretrial conference, the trial court and defendant engaged in a dialogue that clearly indicated that the defendant may not hire a lawyer for trial. Id. at 1125. In this case, however, there was no suggestion that Jackson would proceed pro se or that there was any financial bar to his obtaining new representation. Second, Poynter did in fact represent himself at trial without having been warned of the dangers of self-representation. Third, in Poynter, the trial court made no finding regarding the fact that the defendant appeared for trial without counsel. Id. (“Neither the trial judge nor the parties commented regarding the absence of an attorney for the defendant.”). The trial judge in the present case, however, made a specific finding that Jackson’s absence was a “willful, knowing and voluntary act” after reviewing Jackson’s consistent failures to follow the trial court’s directions or appear for scheduled events.

The dissent points to cases finding that the right to counsel was waived knowingly and intelligently through a defendant’s conduct and notes that all of these cases involved admonitions to the defendants about the perils of self-representation. These cases, however, all involved (1) indications to the trial court that the defendant may proceed pro se and (2) a defendant who actually showed up at some stage of trial without a lawyer and proceeded pro se. Again, in this case, there was no signal to the trial court that Jackson might proceed pro se. Nor was there an opportunity before trial to warn Jackson of the perils of self-representation because Jackson never appeared without counsel or signaled that he might. A defendant cannot manipulate a trial court to thinking that he or she will hire an attorney, fail to show up at trial or send an attorney, and then assert that the right to counsel was not waived because the trial court did not admonish the defendant about proceeding pro se.

The dissent finally notes cases from the Indiana Court of Appeals and other jurisdictions that held that a defendant’s failure to appear at trial does not waive the right to counsel. We do not find that these cases suggest that Jackson’s behavior was insufficient to establish a waiver of the right to counsel. Cases from the same jurisdiction suggest a failure to ap*501pear can waive the right to counsel, even if there was no such admonition. See State v. Cain, 277 S.C. 210, 284 S.E.2d 779 (1981) (involving a defendant who was tried in absentia and not given admonitions about proceeding without counsel and finding that “a waiver of the right to counsel can be inferred from a defendant’s actions”); State v. Gill, 355 S.C. 234, 584 S.E.2d 432, 437-438 (Ct.App.2003). These cases finding a need for an admonition involved either (1) a sparse record that did not indicate that the defendant willfully disregarded the trial court’s orders; (2) indications that the defendant may try to represent himself; or (3) an unreasonably short amount of time between the withdrawal of the defendant’s attorney and trial. None of the cases involved a defendant who had appeared with a lawyer but then disappeared for trial, a clear finding by the trial court that the defendant willfully and voluntarily missed his own trial, and no suggestion that the defendant would not hire his own attorney.

We recognize that “waiver by conduct” cases usually require that the defendant be warned of the dangers of self-representation before a knowing and intelligent waiver of the right to counsel can be found. See, e.g., Bultron v. State, 897 A.2d 758, 765 (Del.2006); State v. Hampton, 208 Ariz. 241, 92 P.3d 871, 874 (2004). However, a common theme among these “waiver of conduct” cases is some indication from the defendant or counsel that a defendant may proceed pro se. In addition to a direct statement that the defendant wishes to represent himself, the need for admonishment can be established by a defendant’s showing up for trial without counsel, counsel’s withdrawing before trial, or the defendant’s indigency. But none of these occurred in Jackson’s case. We cannot expect a trial court to hunt down a defendant to admonish him about the dangers and disadvantages of self-representation if the defendant has made no indication to the trial court that he intends to proceed pro se and then subsequently does not show up for trial.

Conclusion

We affirm the trial court’s denial of Jackson’s motion to correct error.

SHEPARD, C.J., and DICKSON, J., concur. RUCKER, J., dissents with separate opinion in which SULLIVAN, J., concurs.

. We recognize that federal law does not permit a defendant to be tried in absentia in federal court if the defendant was not present at the beginning of the trial. Fed.R.Crim.P. 43, see also Crosby v. United States, 506 U.S. 255, 262, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993). The Supreme Court has not ruled that trying a defendant in absentia if the defendant was not present at the beginning of the trial violates the Federal Constitution. Crosby, 506 U.S. at 262, 113 S.Ct. 748. Accordingly, we resolve this case under Indiana state law.

. Jacksón's own self-serving affidavit in support of his motion to correct error is the only evidence relating to his claim of ineffective assistance of counsel. There is no live testimony from anyone on this issue and nothing in the record from his former attorneys supporting Jackson’s assertions or clarifying precisely what advice Jackson received from his counsel. The trial court could have properly concluded that Jackson failed to establish reasonable reliance on counsel's advice.

. According to Martindale-Hubbell, Dins-more & Shohl is a major Cincinnati firm with a wide range of practice areas and a client list including some of the nation’s largest enterprises. Martindale-Hubbell Home Page, http://www.martindale.com (search Dins-more, Cincinnati, Ohio).