MEMORANDUM DECISION FILED
May 03 2017, 9:33 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK
Memorandum Decision shall not be regarded as Indiana Supreme Court
Court of Appeals
precedent or cited before any court except for the and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jacob P. Wahl Curtis T. Hill, Jr.
Ripstra Law Office Attorney General of Indiana
Jasper, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Corey A. Wharton, May 3, 2017
Appellant-Defendant, Court of Appeals Case No.
82A05-1609-CR-2244
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana, The Hon. David D. Kiely, Judge
The Hon. Michael J. Cox,
Appellee-Plaintiff.
Magistrate
Trial Court Cause No.
82C01-1606-F6-3598
Bradford, Judge.
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Case Summary
[1] Appellant-Defendant Corey Wharton appeals from his convictions for theft and
resisting law enforcement, which arose from an incident where he was observed
shoplifting merchandise in an Evansville department store. After being advised
of the perils of self-representation, Wharton chose to proceed pro se. Wharton
consistently advanced the argument that the trial court did not have jurisdiction
over him due to his alleged “Moorish” nationality. Wharton represented
himself at trial, after which a jury found Wharton guilty of theft and resisting
law enforcement, both as Class A misdemeanors. Wharton then pled guilty to
the enhanced charge of Level 6 felony theft, and the trial court sentenced him to
two years of incarceration for theft and one year for resisting law enforcement,
both sentences to be served concurrently in therapeutic work release. Wharton
contends that the record establishes that his waiver of counsel was not made
voluntarily and intelligently. Because we disagree, we affirm.
Facts and Procedural History
[2] On the evening of June 17, 2016, Felicia Johnson, a security camera operator at
Dillard’s department store in Evansville, observed Wharton shoplifting clothing
inside the store. Johnson recognized Wharton because he is her first cousin.
Johnson notified Evansville Police Officer Stephen Kleeman, then working
security part-time for Dillard’s, who confronted Wharton. Because Wharton
did not cooperate with Officer Kleeman, he called for additional officers.
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Wharton remained belligerent when officers attempted to pat him down before
placing him in a police cruiser.
[3] On June 21, 2016, the State charged Wharton with Level 6 felony theft and
Class A misdemeanor resisting law enforcement. At a hearing on June 30,
2016, Wharton informed the trial court that he intended to represent himself,
and the trial court advised him as follows:
THE COURT: Let me, I have to advise you of the perils of
representing yourself, I know we’ve been through this before, but
I want to make a record on this. First of all sir I am advising you
that I think it’s best if you had an attorney because they have
experience that you don’t have and the education that you don’t
have, do you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: And also I’m going to have to hold you at the
same standard that I would an attorney when it comes to trial
procedure and the trial rules and the evidence rules, do you
understand that?
THE DEFENDANT: Yes.
THE COURT: Do you understand you’ll be responsible for
making arguments, questioning the witnesses, and selecting
jurors?
THE DEFENDANT: Yes.
THE COURT: Do you understand that an attorney has
experience and trial strategies and (inaudible) that you may not
have as far as (inaudible) questions so as not to open the door?
THE DEFENDANT: Yes.
THE COURT: The possible penalties in this case, it’s a level 6, 2
½ years, minimum 6 months, you could be fined up to $10,000
and the Court could enter judgment as an A misdemeanor. On
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an A misdemeanor, maximum term 1 year, minimum no time,
do you understand the range of penalties that could be imposed?
THE DEFENDANT: Yes.
Tr. Vol. I pp. 4-5.
[4] Wharton then asked permission to address the court:
THE DEFENDANT: Judge, my Honor, with all due respect to
this Court and the men and women of the association, bar
association of the United States of America, I concede in the
name of law justice that I myself cannot be tried in this union
states courtroom by said union states, law of land, and I have my
legal proof right here sitting before me. The present union states
municipal and civil law codes of demand is an incorporated
political unit, a self-government established by the political
powers of the general assembly of the union based on the running
(inaudible) and the city of Philadelphia PA 1854 which governs
all the Caucasian people, Christians and Jews of 1863 union
states right republic (inaudible) to ever become citizens of this
union state republic. I have my national card right here, I’m a
Salvadoran citizen.
Tr. Vol. I pp. 5-6. The trial court took Wharton’s address to be a motion to
dismiss, which it denied. Wharton told the trial court that his name was
Majestic Shavazz El. The trial court also appointed standby counsel for
Wharton.
[5] At a hearing on July 26, 2016, Wharton rejected a plea offer from the State.
When the trial court informed Wharton that he could not have hybrid
representation and Wharton’s standby counsel said that he would be unable to
make Wharton’s argument based on his alleged “Moorish Nationality,”
Wharton chose to continue representing himself with standby counsel. Tr. Vol.
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I p. 14. On August 1, 2016, the trial court held a hearing on Wharton’s motion
to suppress, and Wharton reiterated his Moorish-Nationality argument and
once again rejected the State’s plea offer. The trial court denied Wharton’s
jurisdictional claim and his motion to suppress.
[6] On August 5, 2016, jury trial was held, at which Wharton immediately renewed
his jurisdictional claim. When the trial court asked, Wharton refused to give
his birthdate or social security number, and he repeatedly insisted on being
addressed as Majestic Shavazz El. Wharton also made an objection (which the
trial court overruled) to the deputy prosecutor on alleged conflict-of-interest
grounds because he had represented Wharton in 2013 in a previous criminal
matter.
[7] Wharton made the following opening statement to the jury:
THE DEFENDANT: Yes. In this case, I don’t know if many of
you know about the law, there’s a difference between legal and
the law, policies and people’s rights. Today I’m defending
myself, I’m not a lawyer, to prove my innocence in this case.
You will see in this case, just like any of you, anybody can be
wrongfully accused, anybody can be stereotyped, anybody can be
targeted in any case if we allow this case to go on, but
constitutionally you will see where my rights were violated. I
was stereotyped, number one, then off a play of words I was
sought out, I was, had a gun drawn on me, a taser gun, in front
of my son, drawn on me in this case. I was thrown to the
ground. I was dragged out of the Mall and I was just out
shopping with my family and I wear a brace on my leg and they
dragged me through the store and my shoe came off because my
brace, it won’t stay on very well, but they drug me through the
store and helped me put that brace and shoe back on and they
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said that was resisting arrest. Also, I said I wish not for you to
search me. So first you will see that I was accused and
stereotyped off of hearsay, no personal knowledge of anybody
shoplifting. You will see the video. I was followed through the
store. I never pick up anything that I don’t pay for that I didn’t
want and put back. I also will bring in Dillard’s receipts and
they’re going to say, well we couldn’t find the pair of jeans, that
doesn’t mean I committed a crime because it’s not against the
law if I left something in the dressing room or someone picked it
up, I don’t know, but it’s not a crime if I leave something in the
dressing room. It’s not a crime and like ladies and gentlemen as
you will see in this case, this is not just about me, this is about
my constitutional rights. They still are in the play. They still
have to follow policies. They still have to follow legal policies,
Dillard’s shoplifting policies, security policies, he was working
off duty in uniform as a Dillard’s security officer. He never
approached me as a security officer, but yes, he had on his
uniform so I know he’s a cop so I’m not going to go against that,
I’m going to do what he ask me to do, but I have the right to
know what is going on when I have no prior knowledge of why
this man is wanting me to lay on the floor of Finish Line, in an
Affidavit they said it was Foot Locker, I was never in Foot
Locker, I was in Finish Line, and why do I need to lay on the
ground and I have a right to say, hey, what’s going on, why am I
being arrested officer, am I being detained. He says nothing, he
just pull, he speaks to me with his taser and a beam at my head in
front of my son. My son was crying, and you’re going to see this
because I’m very passionate about this because you guys got kids
and nobody needs to go through this and I rest my case right
there.
Tr. Vol. II pp. 26-28. Wharton’s closing argument largely mirrored his opening
statement, with him specifically alleging that he was targeted without probable
cause and that the State failed to prove he intended to steal anything from
Dillard’s.
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[8] The jury found Wharton guilty of theft and resisting law enforcement, both as
Class A misdemeanors. Wharton then pled guilty to the enhanced charge of
Level 6 felony theft. On August 31, 2016, the trial court sentenced Wharton to
two years of incarceration for theft and one year for resisting law enforcement,
both sentences to be served concurrently in therapeutic work release.
Discussion and Decision
Waiver of Counsel
[9] Wharton contends that his waiver of counsel was not made voluntarily and
intelligently.
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.
Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed.
2d 562 (1975). This protection also encompasses an affirmative
right for a defendant to represent himself in a criminal case. Id.
However, “[i]t is undeniable that in most criminal prosecutions
defendants could better defend with counsel’s guidance than by
their own unskilled efforts.” Id. at 834, 95 S. Ct. 2525. Because
the defendant who waives his right to counsel and proceeds to
trial unrepresented is forgoing “many of the traditional benefits
associated with the right to counsel.... the accused must
‘knowingly and intelligently’ forgo those relinquished benefits.”
Id. “[H]e should be made aware of the dangers and
disadvantages of self-representation, so that that the record will
establish that ‘he knows what he is doing and his choice is made
with eyes open.’” Id. at 835, 95 S. Ct. 2525 (quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87
L. Ed. 268 (1942)).
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There is no particular formula or script that must be read to the
defendant. The information that must be given “will depend on
a range of case-specific factors, including the defendant’s
education or sophistication, the complex or easily grasped nature
of the charge, and the stage of the proceeding.” Iowa v. Tovar,
541 U.S. 77, 88, 124 S. Ct. 1379, 158 L. Ed. 2d 209 (2004).
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. We have
drawn these factors from case law in the Seventh Circuit, see
United States v. Hoskins, 243 F.3d 407 (7th Cir. 2001), and applied
them in situations as diverse as trial for battery, Poynter v. State,
749 N.E.2d 1122 (Ind. 2001), and for capital murder, Kubsch v.
State, 866 N.E.2d 726 (Ind. 2007).
Hopper v. State, 957 N.E.2d 613, 617-18 (Ind. 2011).
[10] On June 30, 2016, the trial court advised Wharton of the perils of self-
representation, advice that Wharton does not claim was deficient in any
respect. There are also other indications in the record that Wharton understood
the perils of self-representation. On July 26, 2016, the trial court further
discussed Wharton’s representation, with Wharton wanting to represent himself
in part and have his standby counsel represent him in part, apparently so that
Wharton could make the Moorish-Nationality argument that his standby
counsel refused to make but still have representation during trial. When the
trial court told Wharton that he could not have hybrid representation, he again
stated that he would represent himself. The above indicates that while
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Wharton understood that he might be better served by having counsel during
trial, he made the conscious choice to advance his Moorish-Nationality
argument instead.
[11] As a whole, the record indicates that Wharton’s background has provided him
with a fairly thorough understanding of the criminal justice system. Although
Wharton’s formal education is limited (he has earned a GED), he has a lengthy
criminal history, including six prior felony convictions, several misdemeanor
convictions, and two juvenile adjudications, dating back to 1993. Wharton’s
actions while defending himself indicate that his lengthy association with the
criminal justice system has taught him much. Prior to trial, Wharton filed
several pro se motions. Before and during trial, Wharton advanced his Moorish-
Nationality argument, raised an alleged conflict-of-interest claim against the
deputy prosecutor, cross-examined the State’s witnesses, objected to questions
by the State, presented his own evidence, chose not to testify, and made a
cogent opening statement and final argument to the jury. Wharton’s education
and background indicate that his waiver of counsel was voluntary and
intelligent.
[12] Wharton’s main argument is that his waiver of counsel occurred in a context of
incompetence, pointing, of course, to his Moorish-Nationality argument as
evidence of that alleged incompetence. Wharton argues that he relied heavily
upon his belief system, which he describes as based on “‘radical political
ideals’” or “detached from reality” to support his defense. Appellant’s Br. p. 9.
While Wharton’s argument regarding his alleged Moorish nationality is wholly
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without merit and could be described as peculiar, his decision to pursue it does
not indicate incompetence. Indeed, a fair reading of the record indicates that
the argument was likely intended to disrupt and frustrate the process, perhaps in
an attempt to make such a nuisance of himself that the State would be willing to
offer a better plea agreement.1 Be that as it may, the record clearly indicates
that Wharton was able to present lucid, reasonable arguments based on actual
legal concepts when it suited him, as he did during his opening statement and
closing argument. The record in this case does not support a conclusion that
Wharton was incompetent. As such, Wharton has failed to establish that his
waiver of counsel was not voluntary and intelligent.
[13] The judgment of the trial court is affirmed.
Najam, J., and Riley, J., concur.
1
It is worth noting that Wharton is the latest in a line of criminal defendants advancing variations of the
argument that the courts of Indiana do not have jurisdiction over them due to their “Moorish” status. See,
e.g., Brown v. State, 64 N.E.3d 1219, 1229 (Ind. Ct. App. 2016) (“Here, Ankh-El [a/k/a Brown] asserts that
the trial court denied his request to retain ‘Consuls from the Moorish American Nation’ because they did not
have licenses to practice law in Indiana.”) (bracketed material added); Taylor-Bey v. State, 53 N.E.3d 1230,
1231 (Ind. Ct. App. 2016) (“Tyreese Taylor-Bey was convicted of murder. He now appeals, arguing that the
trial court lacked jurisdiction based on his status as a ‘Moorish American National Sovereign’ and ‘Secured
Party Creditor.’”).
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