FILED
Jun 21 2017, 8:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey K. Branstetter Curtis T. Hill, Jr.
Blanton, Branstetter & Pierce, LLC Attorney General of Indiana
Jeffersonville, Indiana James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James A. Hart, June 21, 2017
Appellant-Defendant, Court of Appeals Case No.
59A01-1607-CR-1655
v. Appeal from the Orange Superior
Court
State of Indiana, The Honorable R. Michael Cloud,
Appellee-Plaintiff. Judge
Trial Court Cause No.
59D01-1507-CM-680
Pyle, Judge.
Statement of the Case
[1] James Hart (“Hart”) appeals his conviction by jury of Class A misdemeanor
invasion of privacy. Prior to trial, Hart told the trial court that he did not want
court-appointed counsel, but then he failed to obtain his own counsel in the
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months that followed. A week prior to trial, Hart filed a motion for a
continuance, requesting additional time to obtain counsel. The trial court
denied the motion, and Hart subsequently represented himself at trial. On
appeal, Hart argues that the trial court erred by trying him without counsel
because he did not knowingly, intelligently, and voluntarily waive his right to
counsel. The State argues that, even though Hart did not verbally waive his
right to counsel, he waived his right through his conduct of failing to obtain a
lawyer in a timely manner. Because we find that the trial court did not properly
advise Hart of the dangers of representing himself, we agree with Hart that he
did not knowingly, intelligently, and voluntarily waive his right to counsel
verbally or through his conduct. Accordingly, we reverse Hart’s conviction and
remand to the trial court for a new trial.
[2] We reverse and remand.
Issue
Whether Hart knowingly, intelligently, and voluntarily waived his
right to counsel.
Facts
[3] On July 30, 2015, Hart was charged with Class A misdemeanor invasion of
privacy for violating a protective order that prohibited him from visiting the
French Lick Resort, his wife’s place of employment.
[4] On September 14, 2016, the trial court held an initial hearing on Hart’s charge.
At the hearing, Hart appeared and executed a document entitled “Waiver of
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Appearance and Written Report of Initial Hearing.” (App. 110). The waiver
provided:
. . . the Defendant herein is now informed of his/her
constitutional rights, which rights are as follows:
1. To retain counsel, and if he intends to do so he must do so
within . . . [t]en days . . . because there are deadlines for filing
motions and raising defenses, and if those deadlines are missed
the legal issues and defenses that could have been raised are
waived.
2. To assigned counsel at no expense to him if he is indigent.
(App. 110). Hart signed another section of the waiver that provided: “I, the
defendant herein, do hereby certify and state that I have read and understand
this Appearance and Written Report of Initial Hearing . . . .” (App. 111). The
trial court acknowledged that Hart had signed the waiver but did not ask
whether Hart intended to retain an attorney or was indigent.
[5] At the next pre-trial conference, on January 19, 2016, Hart and the trial court
engaged in the following exchange:
[COURT]: Are you going to represent yourself at trial?
[HART]: Oh, I’ll do what ever (sic) I want. I don’t got to
answer that today, do I?
[COURT]: Well, I just didn’t know if you were waiving the right
to counsel or you, you wanted me to consider appointing a
lawyer or?
[HART]: I don’t, I don’t need your monkeys, no thank you. . . .
(Tr. Vol. 2 at 6-7). The trial court then asked Hart how many days were
necessary for his jury trial. Hart and the court agreed on the number of days,
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and the trial court set the trial for June 8, 2016. The court also asked Hart if he
wanted a final pre-trial conference, and Hart responded “Oh, heck no. We’re
not coming to no agreement with this right here. . . . [the Prosecutor]’s too
chicken to fight real criminals so she comes after us hard working people. . . .
So let’s rock.” (Tr. Vol. 2 at 12).
[6] Subsequently, one week before the scheduled jury trial, Hart filed, among other
motions, a motion to continue the trial. The trial court held a hearing on the
motions the day before the scheduled trial. At that hearing, Hart requested a
continuance because two of his witnesses were unable to appear on the
originally scheduled trial date due to medical complications and because the
trial conflicted with a work assignment he had received. In addition, Hart said
“I’ve recently tried to seek out legal counsel, [] and stuff like that and been
denied because everybody’s too booked up. So, you know they say they need
more time and financially I haven’t been able to pull it together, you know,
until recently.” (Tr. Vol. 3 at 12). As a result, Hart requested more time to
obtain counsel. The trial court denied the motion, noting that it was the day
before the trial, and the court had already summoned the seventy-five potential
jurors. The trial court also noted that Hart had received notice of the trial
almost six months previously and could have requested a continuance at any
point before May 27 when the court had summoned the jurors.
[7] Over the next three days, the trial court conducted the jury trial. Hart appeared
pro se, and the trial court never questioned his lack of representation. At the
conclusion of the trial, the jury found Hart guilty as charged. The trial court
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sentenced Hart to one (1) year with all but sixty (60) days suspended to
probation. Hart now appeals.
Decision
[8] On appeal, Hart argues that he did not voluntarily, knowingly, and intelligently
waive his constitutional right to counsel and, accordingly, the trial court
violated that right by conducting his trial before he could obtain counsel. In
response, the State argues that even if Hart did not verbally waive his right to
counsel, he implicitly waived that right through his conduct of failing to obtain
counsel during the six months after he received notice of his charges and his
trial date.
[9] A criminal defendant’s right to counsel is a fundamental individual right
protected by the Sixth Amendment of the United States Constitution. Leonard
v. State, No. 71S00-1509-LW-539 (Ind. May 2, 2017). “‘Of all the rights that an
accused person has, the right to be represented by counsel is by far the most
pervasive for it affects his ability to assert any other rights he may have.’”
Poynter v. State, 749 N.E.2d 1122, 1125-26 (Ind. 2001) (quoting United States v.
Cronic, 466 U.S. 668, 684 (1984)). Accordingly, it is well-settled that when a
defendant proceeds to trial without the benefit of counsel, the record must
reflect that the right to counsel was voluntarily, knowingly, and intelligently
waived. Brickert v. State, 673 N.E.2d 493, 495 (Ind. Ct. App. 1996), reh’g denied,
trans. denied. Whether there has been an intelligent waiver depends on the
“‘particular facts and circumstances surrounding that case, including the
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background, experience, and conduct of the accused.’” Poynter, 749 N.E.2d at
1127 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). It is the
responsibility of the trial judge to determine whether there is an intelligent and
competent waiver, and it is “‘fitting and appropriate for that determination to
appear on the record.’” Id. (quoting Johnson, 304 U.S. at 465). There are no
prescribed “talking points” the court is required to use; however, making a
defendant aware of his constitutional right to counsel is insufficient. See id. at
1126 (“There are no prescribed talking points the court is required to
include[.]”); Eaton v. State, 894 N.E.2d 213, 217 (Ind. Ct. App. 2008), trans.
denied. The trial court must also tell the defendant of the “‘dangers and
disadvantages of self-representation.’” Poynter, 749 N.E.2d at 1126 (quoting
Faretta v. California, 422 U.S. 806 (1975)).
[10] We review the trial court’s conclusion that a defendant knowingly and
voluntarily waived the right to counsel de novo. R.W. v. State, 901 N.E.2d 539,
543 (Ind. Ct. App. 2009). We also note that a “strong presumption exists
against waiver of the constitutional rights to counsel.” Eaton, 894 N.E.2d at
217 (quoting Mitchell v. State, 417 N.E.2d 364, 369 (Ind. Ct. App. 1981)).
[11] The complicating factor here is that Hart never asserted his right to self-
representation, which would have raised the question of whether he intended to
waive his right to counsel. He denied the trial court’s offer of court-appointed
counsel when he said “I don’t need your monkeys,” but he never stated that he
intended to represent himself instead. (Tr. Vol. 2 at 7). To the contrary, at his
hearing on his motion to continue, Hart told the court that he had tried to
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obtain a lawyer and wanted more time to do so because all the lawyers he had
spoken to had been booked. Then, later at the hearing, he reiterated “I told you
I needed time to get legal counsel[,] too[.] I was still working on that, so.” (Tr.
Vol. 3 at 43). Accordingly, Hart never verbally asserted his right to self-
representation or said that he did not want counsel.
[12] Nevertheless, the State argues that Hart implicitly waived his right to counsel
by failing to obtain counsel even though he had received notice of his trial date
several months prior to trial. In support of this argument, the State cites Brickert
v. State, 673 N.E.2d 493, 496 (Ind. Ct. App. 1996), reh’g denied, trans. denied, in
which we held that Brickert had waived his right to counsel by failing to obtain
counsel after the trial court had granted him a continuance to do so. We do not
find our holding in Brickert relevant because our supreme court later recognized
in Poynter that Brickert conflicted with other precedent and clarified the issue of
waiver of the right to counsel. See Poynter, 749 N.E.2d at 1126-27 (stating that it
would “take [the] opportunity to clarify” the issue of waiver of the right to
counsel because Brickert and other cases provided “inconsistent precedent”).
[13] In Poynter, Poynter had told the trial court that he intended to hire an attorney
to represent him. Id. at 1124. A month and a half later, the trial court had
continued one pre-trial conference because Poynter had not yet obtained an
attorney. Id. Then, at the next pre-trial conference, Poynter had appeared
without an attorney and had said that he had been working seven days a week,
twelve hours a day, and had been too tired to talk to an attorney. Id. at 1125.
The court had set the case for a bench trial and told Poynter that “with or
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without an attorney you need to be prepared for a trial on this date.” Id.
Poynter had agreed but had appeared on the trial date without an attorney. Id.
Neither Poynter nor the trial court had commented on his lack of attorney, and
the trial court had conducted the trial with Poynter representing himself. Id.
[14] On appeal to the supreme court, Poynter argued that he had not waived his
right to an attorney, and the trial court had therefore erred in trying him
without counsel. Id. at 1124. In response, the State argued that Poynter had
waived his right to an attorney through his conduct of telling the court that he
would hire an attorney and then appearing without an attorney. Id. In its
opinion, the supreme court recognized that a defendant may waive his right to
an attorney through his conduct. Id. at 1126. However, the supreme court
reaffirmed that such a waiver must still be made knowingly, intelligently, and
voluntarily. See id. To determine whether Poynter’s waiver had been knowing
and intelligent, the court considered the following four factors established by
the Seventh Circuit Court of Appeals: “‘(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 1127-28 (quoting
U.S. v. Hoskins, 243 F.3d 407, 410 (7th Cir. 2001)).
[15] Ultimately, the supreme court concluded that Poynter had not knowingly and
intelligently waived his right to counsel because there was nothing in the record
to indicate that the trial court had advised Poynter of the dangers and
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disadvantages of self-representation or that Poynter might have independently
understood the dangers and disadvantages of self-representation. Id. at 1128.
The court commented that the trial court’s “lack of advisement weigh[ed]
heavily against finding a knowing and intelligent waiver.” Id.
[16] Since Poynter, Indiana courts have likewise held that in order for a defendant to
knowingly and intelligently waive his right to counsel through his conduct, the
trial court must warn the defendant of the dangers and disadvantages of self-
representation. See Gilmore, 953 N.E.2d at 592 (finding that, even though
Gilmore had caused five court-appointed attorneys to withdraw, he had not
waived his right to counsel and noting that a knowing and intelligent waiver of
the right to counsel “include[d] a warning on the dangers and disadvantages of
self-representation established in an on-the-record hearing where specific
findings [were] made”); Kowalskey, 42 N.E.3d at 106 (concluding that
Kowalskey had not waived his right to counsel through his conduct because
there were no findings regarding whether the trial court had given Kowalskey
the required “warnings regarding the dangers and disadvantages of self-
representation”).
[17] In light of Poynter, Gilmore, and Kowalskey, we conclude that Hart cannot have
knowingly and intelligently waived his right to counsel absent an advisement
regarding the dangers and disadvantages of self-representation. Because Hart
never received such an advisement, we conclude that the trial court erred in
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trying him without counsel. We reverse Hart’s conviction and remand to the
trial court for a new trial.1
[18] Reversed and remanded.
[19] Baker, J., and Mathias, J., concur.
1
Notably, a trial court need not advise a defendant of the dangers and disadvantages of representation if the
trial court concludes that the defendant has “forfeited” his right to counsel through his conduct. See United
States v. Goldberg, 67 F.3d 1092, 1099-1101 (3rd Cir. 1995) (discussing the differences between “waiver” of the
right to counsel and “forfeiture” of the right to counsel). However, the State does not allege here that Hart
forfeited his right to counsel. Moreover, we conclude that his conduct was not the type of abusive or
“extremely dilatory” conduct to which the doctrine of forfeiture applies. See Gilmore v. State, 953 N.E.2d 583
(concluding that Gilmore’s conduct, which caused five different court-appointed attorneys to withdraw from
representing him and delayed his trial for approximately four years “was not of the kind often associated with
a finding of forfeiture of the right to counsel”); McLeod, 53 F.3d at 326 (“[U]nder certain circumstances, a
defendant who is abusive toward his attorney may forfeit his right to counsel.”).
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