Hart v. State, 062117 INCA, 59A01-1607-CR-1655

Docket Nº:59A01-1607-CR-1655
Opinion Judge:Pyle, Judge.
Party Name:James A. Hart, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney:ATTORNEY FOR APPELLANT Jeffrey K. Branstetter Blanton, Branstetter & Pierce, LLC Jeffersonville, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
Judge Panel:Baker, J., and Mathias, J., concur.
Case Date:June 21, 2017
Court:Court of Appeals of Indiana
 
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James A. Hart, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

No. 59A01-1607-CR-1655

Court of Appeals of Indiana

June 21, 2017

Appeal from the Orange Superior Court The Honorable R. Michael Cloud, Judge Trial Court Cause No. 59D01-1507-CM-680

ATTORNEY FOR APPELLANT Jeffrey K. Branstetter Blanton, Branstetter & Pierce, LLC Jeffersonville, Indiana

ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

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 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 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. . . . ...

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