Atkinson v. State, 24A01-0402-CR-49.

• Docket Nº: No. 24A01-0402-CR-49.
• Citation: 810 N.E.2d 1190
• Case Date: July 02, 2004
• Court: Court of Appeals of Indiana

810 N.E.2d 1190

Jeffrey J. ATKINSON, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 24A01-0402-CR-49.

Court of Appeals of Indiana.

July 2, 2004.

810 N.E.2d 1191

John Pinnow, Special Assistant to the State Public Defender, Greenwood, IN, Attorney for Appellant

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Jeffrey J. Atkinson appeals his convictions for Resisting Law Enforcement,¹ a class A misdemeanor, and Possession of Paraphernalia,² a class A misdemeanor. Specifically, Atkinson maintains that the convictions cannot stand because the record is silent as to whether he waived his right to be represented by counsel at the trial. In the alternative, he argues that the evidence was insufficient to support either conviction.

Concluding that the record does not support a conclusion that Atkinson waived his right to be represented by counsel at trial, we are compelled to reverse and remand. Additionally, in reviewing the evidence presented at trial, we further conclude that Atkinson may not be retried on either offense because the evidence failed to show that he committed the offenses that the State had actually charged. Thus, we reverse the judgment of the trial court and order that Atkinson be discharged.

FACTS

On May 30, 2003, the Indiana State Police received a telephone call from Nioka Rowe in Franklin County that implicated Atkinson in the theft of a golf cart. Upon checking Atkinson's criminal history, the police officers became aware that he was wanted on two felony warrants in Ohio. At some point, the officers stopped a van, and one of the occupants stated that Atkinson fled from the vehicle on foot when the police had begun to follow them. While a search for Atkinson was initiated, it was eventually abandoned when the police were unable to locate him.

Later that afternoon, an individual contacted the Franklin County Sheriff's Department and reported that Atkinson was in a Buick automobile and was getting ready to leave. Upon receiving a description of the vehicle, the Buick was stopped and a search of the trunk revealed that Atkinson was hiding inside. Atkinson admitted his identity along with his knowledge of the outstanding warrants. When Trooper Gill was searching Atkinson, he found a package of cigarette rolling papers in one of Atkinson's pockets. Atkinson then admitted to Trooper Gill that he used the papers to "smoke a little marijuana." Tr. p. 7.

As a result of the incident, Atkinson was charged with the above offenses. With regard to the resisting law enforcement charge, the State alleged that Atkinson:

unlawfully, knowingly, or intentionally forcibly resist[ed], obstruct[ed], or interfere[d] with the authorized service or execution of a civil or criminal process or order of a court, to wit: fled and hid from Indiana law enforcement officers who were attempting to serve two outstanding felony warrants from Butler County, Ohio.

Appellant's App. p. 5 (emphasis added).

Additionally, the charging information as to the possession of paraphernalia offense provided as follows:

Atkinson did on or about May 30, 2003, at said County of Franklin and State of Indiana, did then and there unlawfully, knowingly, intentionally, or recklessly possess a raw material, instrument, device,

810 N.E.2d 1192

or other object that is to be used primarily for testing the strength, effectiveness, or purity [of] a controlled substance.

Appellant's App. p. 6 (emphasis added).

At the initial hearing conducted on June 6, 2003, Atkinson told the court that he desired to plead guilty. However, the State responded that it was not prepared to offer a plea agreement at that time. Thus, a preliminary plea of not guilty was entered on Atkinson's behalf.

Counsel was not appointed for Atkinson, and a bench trial commenced on December 17, 2003, at which time he proceeded pro se. The trial court did not discuss with Atkinson the right to counsel and whether he desired to waive that right. During the course of the trial, Atkinson attempted to cross-examine the State's sole witness, and he did not call any witnesses of his own. Atkinson also admitted to the trial court that he did not have time to prepare for trial. In the end, Atkinson was found guilty as charged, and he now appeals.

DISCUSSION AND DECISION

I. Waiver of Right to Counsel

In addressing Atkinson's argument that his convictions must be reversed because he did not waive his right to be represented by counsel, we initially observe that a criminal defendant is guaranteed the right to representation by counsel by the United States and Indiana constitutions. U.S. Const. Amend. VI, XIV; Ind. Const. Art. I § 13. The right to counsel can only be relinquished by a knowing, voluntary and intelligent waiver of the right. Dowell v. State, 557 N.E.2d 1063, 1065-66 (Ind.Ct.App.1990), trans. denied. Additionally, a defendant who asserts his right to self-representation should be warned of the dangers and pitfalls of self-representation. Poynter v. State, 749 N.E.2d 1122, 1127 (Ind.2001). The record must establish that the defendant was made aware of the nature, extent and importance of the right to counsel and the consequences of waiving that right. Van Donk v. State, 676 N.E.2d 349, 351 (Ind.Ct.App.1997).

In this case, Atkinson argues, and the State concedes, that he was not given the proper warnings with respect to waiving his...