Drake v. State, 77A04-0803-CR-158
4th Dist.; 10-28-08, Ind.App. 895 N.E.2d 389
Attorney: John Pinnow
Holding: Defendant did not voluntarily, knowingly and intelligently waive his right to counsel. Court considers four factors when determining whether a knowing and intelligent waiver of counsel occurred: (1) the extent of the court’s inquiry into the defendant’s decision, (2) other evidence in the record that establishes whether defendant understood the dangers and disadvantages of self-representation, (3) defendant’s background and experience, and (4) the context of defendant’s decision to proceed pro se. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001). Here, trial court warned Defendant that “there are several procedural matters when you are trying a case that you won’t know what to do. . . you don’t have the expertise to select a jury for example.” Also, trial court warned that Defendant could not simultaneously represent himself and claim that he has no idea what is going on during the proceedings. But, trial court did not advise Defendant of any other disadvantages of proceeding without counsel or any of the advantages that counsel could provide. Moreover, Defendant’s only prior contacts with the criminal justice system were three guilty pleas to misdemeanors during which he was represented. Also, trial court originally granted a motion for competency evaluation, which was withdrawn by Defendant when proceeding pro se. Defendant’s father believed Defendant suffered from manic depression and was a “conspiracist in his thought process.” But, Defendant’s decision to proceed pro se was tactical in nature because he thought the public defender worked with the prosecutor and he would not be advised of everything if he was represented.
A trial court does not have to order a competency evaluation every time a defendant asserts his or her right to proceed without counsel. But, the sparse record, coupled with Defendant’s questionable mental capacity, leads to conclusion that trial court should have inquired further in Defendant’s background, education and abilities. Thus, Defendant did not make a voluntary, knowing and intelligent waiver of his right to counsel. Held, judgment reversed.
NOTE: In dicta, Court of Appeals suggests sixteen advisements and inquiries that should be conducted before a defendant is permitted to proceed pro se.
