Belmares-Bautista v. State, 57A04-1003-CR-223.

• Citation: 938 N.E.2d 1229
• Decision Date: 22 December 2010
• Docket Number: No. 57A04-1003-CR-223.,57A04-1003-CR-223.
• Parties: Oscar I. BELMARES-BAUTISTA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

938 N.E.2d 1229

Oscar I. BELMARES-BAUTISTA, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

No. 57A04-1003-CR-223.

Court of Appeals of Indiana.

Dec. 22, 2010.

Elizabeth A. Gabig, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Wade James Hornbacher, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BOEHM, Senior Judge.

Ligonier police officer Josh Halsey pulled Oscar I. Belmares-Bautista over for playing loud music on his car stereo. Halsey asked Belmares-Bautista for his driver's license, and Belmares-Bautista produced what appeared to be a driver's license from the state of Aguascalientes, Mexico. Halsey identified the documentas a forgery and arrested Belmares-Bautista. Belmares-Bautista represented himself in a bench trial and was convicted of possession of a counterfeit government-issued identification, a Class A misdemeanor, and operating a vehicle without ever having received a valid license, a Class C misdemeanor.

The only issue is whether Belmares-Bautista knowingly, voluntarily and intelligently waived his right to counsel. Belmares-Bautista signed a Spanish language waiver form and conducted his trial through an interpreter. He does not contend that the form erroneously translated the standard English language form or that he was otherwise coerced or misled. For the reasons explained below, we hold that this record is sufficient to support the trial court's waiver of his right to counsel.

The right to be represented by counsel is protected by both the Federal and Indiana Constitutions. Jackson v. State, 868 N.E.2d 494, 499 (Ind.2007) (citing U.S. Const. amend. VI and Ind. Const. art. 1, § 13). An accused may waive the right to counsel if the accused's waiver is "intelligent and competent." Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); see also Iowa v. Tovar, 541 U.S. 77, 87-88, 124 S.Ct. 1379, 1387, 158 L.Ed.2d 209 (2004) (stating "any waiver of the right to counsel [must] be knowing, voluntary, and intelligent."). Whether there has been an intelligent waiver of the right to counsel depends on "the particular facts and circumstances" of the case. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023. The State bears the burden of proving that Belmares-Bautista was made aware of his right to the assistance of counsel and knowingly, voluntarily and intelligently waived his right. See Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). In the absence of a factual dispute, we review de novo the trial court's determination that Belmares-Bautista knowingly, voluntarily, and intelligently waived his right to counsel.

Before his initial hearing Belmares-Bautista had signed a Spanish-language document captioned "DELITOS MENORES." Appellant's App. p. 14. An English translation of the document is not in the record. At the initial hearing, at which Belmares-Bautista did not have counsel, the trial court and Belmares-Bautista held the following discussion through an interpreter:

Court: And were you able to read and understand your rights?

Belmares-Bautista: Yes.

Court: Do you want to represent yourself?

Belmares-Bautista: Yes.

Tr. p. 6. Next, at or before a pretrial conference on December 21, 2009, Belmares-Bautista signed a Spanish-language document captioned "AVISO Y RECONOCIMIENTO." Appellant's App. p. 18. The record contains no English translation of this document, and the trial court did not discuss the form with Belmares-Bautista on the record.

Belmares-Bautista contends the State cannot establish a valid waiver of his right to counsel in view of these gaps in the record. We do not agree. The parties do not contend the transcript is inaccurate or point to any facts outside the trial record that would bear on the waiver claim. The State points to nothing beyond these two documents and the above-quoted exchange between Belmares-Bautista and the court to support its claim of intentional waiver. However, Belmares-Bautista makes no claim that these Spanish language documents erroneously translated a standard advisement of the right to counsel or that he did not understand the advice. We will not disturb the trial court's...