Boyle v. State
| Decision Date | 31 December 1990 |
| Docket Number | No. 44A04-9008-CR-373,44A04-9008-CR-373 |
| Citation | 564 N.E.2d 346 |
| Parties | Delvin E. BOYLE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Randy Coffey, Public Defender, Angola, for appellant.
Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant, Delvin E. Boyle, appeals from his sentencing on two (2) counts of Dealing in Cocaine, class B felonies. We affirm.
Defendant presents one (1) issue for our review, which we restate as follows:
Did the Defendant "knowingly, voluntarily and intelligently" waive his right to counsel at the sentencing hearing?
On March 8, 1989, the LaGrange County Prosecutor's Office filed an Information, which charged Defendant with Dealing in Cocaine. Defendant appeared at the initial hearing with his counsel, J. Scott VanDerbeck. Thereafter, VanDerbeck moved to withdraw from the case, which was granted on April 7, 1989. Defendant was then represented by Douglas D. Seely, Jr., who entered his appearance on April 3, 1989.
On September 25, 1989, Defendant filed his Motion to Enter a Plea of Guilty. After conducting a hearing, the court accepted the guilty plea of Defendant. The matter was then scheduled for a sentencing hearing on October 26, 1989.
Thereafter, the sentencing hearing was continued on several occasions because of certain health problems that plagued attorney Seely. Defendant was kept advised of the situation, and he consented to the delay in sentencing. The matter was eventually reset for April 27, 1990.
On April 17, 1990, Seely determined that his health had not improved to the point where he could provide representation "in a legally competent manner." Seely realized he would have to withdraw from the case, and he informed his client of this on or about April 17, 1990. Defendant did not object to the withdrawal, and it was granted at the sentencing hearing on April 27, 1990.
After granting the withdrawal motion, the trial court informed Defendant that he had the following three options: (1) he could hire another attorney; (2) the court could appoint public defender Randy Coffey to represent him; or (3) he could proceed to represent himself. With respect to this last option, the trial judge warned Defendant that this was a "very serious case." The judge also emphasized that he could not sanction or recommend such self-representation. The court then granted a recess for Defendant to confer with Coffey (who attended the hearing at the court's request).
When the court reconvened after recess, Defendant expressed his desire to proceed with the sentencing hearing and to represent himself. Coffey informed the court that he had discussed the options with Defendant, including the possibility of a continuance so that he could properly prepare for sentencing, and proceeding with the hearing with him present in an advisory capacity as standby counsel. Defendant elected to proceed with Coffey as standby counsel in the event he needed any legal advice. In addition, the court inquired about whether Defendant had any legal training, and discovered that Defendant had received some training in military law while in the Army. The court then allowed the hearing to proceed with Defendant representing himself and Coffey as standby counsel.
Defendant argues that at the sentencing hearing "[h]is right to counsel was not fully explained to him, and the danger of proceeding [pro se ] without counsel was not made apparent to him." In support, he cites several cases which state that "[m]erely making the defendant aware of his constitutional right to counsel is insufficient"; the trial judge must also "establish a record showing that the defendant was made aware of the nature, extent, and importance of the right and the consequences of waiving it." Kirkham v. State (1987), Ind.App., 509 N.E.2d 890, 892, reh. denied, trans. denied; Blinn v. State (1982), Ind.App., 441 N.E.2d 49, 51.
We first note that both the United States Constitution and the Indiana Constitution guarantee the right to counsel. Jackson v. State (1982), Ind.App., 441 N.E.2d 29, 31. The law is clear that a criminal defendant has this right even at a sentencing hearing. See, Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977); Guajardo v. State (1989), Ind.App., 544 N.E.2d 174, 176. Correlative to the right to counsel is the right of a criminal defendant to waive counsel and represent himself. Faretta v. California, 422 U.S. 806, 833-835, 95 S.Ct. 2525, 2540-2541, 45 L.Ed.2d 562 (1975); Kirkham, 509 N.E.2d at 892. If a defendant elects to represent himself, it must be shown that he knowingly and voluntarily waived his right to be represented by counsel. Id. Therefore, the trial judge must establish a record showing not only that he made the defendant aware of his constitutional right to counsel, but also that the defendant was made aware of the nature, extent, and importance of the right and the consequences of waiving it. Id.; Phillips v. State (1982), Ind.App., 433 N.E.2d 800, 802.
It is undisputed in this case that the trial court satisfied its first obligation--it made the Defendant aware of his right to counsel on several occasions. The record shows that the trial judge stated:
Further you understand you have a right to be represented by [a] competent attorney at all stages or proceedings, including trial and appeal. If you can't afford to pay a lawyer now or at a later date, the court would appoint counsel for you at public expense.
* * * * * *
You can hire another attorney or I would consider appointing Mr. Coffey because I sent him over there one day ... Even though you may not be indigent, but I would consider putting Mr. Coffey in at public expense to represent you in the sentencing hearing and anything flowing out of that.
Instead, the parties focus their arguments around whether the trial court satisfied its second obligation--making the Defendant aware of the consequences of waiving the right to counsel. While the trial court's warnings about self-representation were not that detailed or extensive, they were sufficient under the particular facts and circumstances of this case.
The record shows the judge made several warnings about self-representation. He indicated that this was a "very serious case," and he could not sanction or recommend that the Defendant proceed pro se and represent himself. The judge then granted a recess, and the public defender also explained the three options (including self-representation) to the Defendant. Upon returning from recess, Defendant informed the court that he elected to proceed pro se with Coffey as standby counsel in case he needed legal advice. No one forced the Defendant to proceed in this manner, as the judge had indicated his willingness to appoint counsel and continue the sentencing hearing. In addition, the judge also discovered that Defendant had some training in military law, as evidenced by the following colloquy:
The judge then allowed the hearing to proceed with standby counsel as requested. Therefore, many of the disadvantages that a layman would suffer were obviated. Jackson, 441 N.E.2d at 33.
We also note that Defendant was effective in presenting his arguments as to sentencing, as the trial court cited to several of the mitigating circumstances he advanced in reaching its decision on an appropriate sentence.
When viewed in the context of the facts and circumstances of this case, we cannot say that Defendant's waiver of his right to counsel was involuntary, unintelligent and unknowing. Affirmed.
The trial court did not satisfy its obligation of informing Boyle of the advantages and disadvantages of counsel and, therefore, Boyle's waiver of the right to counsel could not have been knowing, intelligently and voluntarily made. I would remand for resentencing.
The majority opinion, among other things, stands for the proposition that a person who serves in the armed services has sufficient legal knowledge and training to waive his right to counsel without being informed of the advantages of counsel and the disadvantages of proceeding without counsel. I cannot subscribe to this theory.
Whenever an accused represents himself, the record must demonstrate not only that he had the knowledge of his right to counsel, but also that if he proceeds without counsel, he does so fully aware of the nature, extent and importance of the right and the possible consequences of waiving it. Phillips v. State, (1982), Ind.App., 433 N.E.2d 800. If an accused is not advised of the consequences of proceeding pro se, at best he has merely been made aware of his right to counsel, but cannot knowingly and voluntarily waive his right to representation by counsel. Kirkham v. State (1987), Ind.App., 509 N.E.2d 890.
Although the judge did warn Boyle about self-representation, indicating that this was a "very serious case" and that he could not recommend that Boyle proceed pro se, the record is devoid of meaningful instruction on the value of counsel. Therefore, Boyle's choice to proceed pro se could not have been a knowing and intelligent decision, but was based instead on his desire to "get on with it" after months of waiting...
To continue reading
Request your trial
-
Puckett v. State
...Id. Correlative to the right to counsel is the right of a criminal defendant to waive counsel and represent himself. Boyle v. State, 564 N.E.2d 346, 347 (Ind. Ct.App.1990). However, out of concern that defendants could conduct their own defense ultimately to their own detriment, self-repres......