Hopper v. State, No. 13A01-1002-PC-41 (Ind. App. 4/28/2010)
| Decision Date | 28 April 2010 |
| Docket Number | No. 13A01-1002-PC-41.,13A01-1002-PC-41. |
| Parties | DAVID HOPPER, Appellant-Petitioner, v. STATE OF INDIANA, Appellee-Respondent. |
| Court | Indiana Appellate Court |
BART M. BETTEAU, Betteau Law Office, LLC, New Albany, Indiana, Attorney for Appellant.
GREGORY F. ZOELLER Attorney General of Indiana. MONIKA PREKOPA TALBOT, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
David Hopper appeals the denial of his petition for post-conviction relief ("PCR petition"), which challenged his conviction for Class A misdemeanor operating while intoxicated ("OWI"). We reverse and remand.
The sole issue is whether the post-conviction court properly concluded that Hopper knowingly and intelligently waived his right to counsel before pleading guilty to the OWI charge.
On April 18, 2005, the State charged Hopper with one count of Class A misdemeanor OWI and one count of Class C misdemeanor operating a vehicle with a blood alcohol content of .08% or more. The trial court also conducted an initial hearing on that date. At that time, Hopper was given a boilerplate document titled, "Your Rights in Court." App. p. 46. Among other things, it advised Hopper, Id. On the back of the document, Hopper signed a section named, "Waiver of Attorney." Id. at 47. This section said in part, Id.
Hopper subsequently entered into plea negotiations with the State. On May 19, 2005, he appeared in court to plead guilty to the OWI charge. At that time, the trial court said to Hopper, App. p. 50. Hopper responded, "Yes." Id. This was the full extent of the trial court's examination of Hopper's waiver of counsel. Hopper then admitted to the factual basis for the OWI charge, and the trial court accepted the plea and sentenced Hopper accordingly.
On July 30, 2009, Hopper, now represented by counsel, filed a PCR petition. It alleged that his waiver of counsel before pleading guilty was not knowing and intelligent. At the post-conviction hearing, Hopper testified that he did not graduate from high school, having dropped out after his sophomore or freshman year, and that he did not understand some of the terminology in the "Your Rights in Court" form. There also was evidence that in 2000 Hopper was convicted of a traffic offense of some kind—precisely what offense the record does not reveal—which had resulted in a license suspension; Hopper was not represented by counsel in the 2000 case either. On November 6, 2009, the post-conviction court denied the PCR petition. Hopper now appeals.
"In post-conviction proceedings, the defendant bears the burden of proof by a preponderance of the evidence." Stephenson v. State, 864 N.E.2d 1022, 1028 (Ind. 2007), cert. denied. We review factual findings of a post-conviction court under a "clearly erroneous" standard but do not defer to any legal conclusions. Id. We will not reweigh the evidence or judge the credibility of the witnesses and will examine only the probative evidence and reasonable inferences therefrom that support the decision of the post-conviction court. Id.
A criminal defendant's right to counsel is guaranteed by both the Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana Constitution. Castel v. State, 876 N.E.2d 768, 770 (Ind. Ct. App. 2007). This right can only be relinquished by a knowing, voluntary, and intelligent waiver. Id. at 771. We review de novo a conclusion that a defendant knowingly, intelligently, and voluntarily waived the right to counsel. Drake v. State, 895 N.E.2d 389, 393 (Ind. Ct. App. 2008).
When a defendant informs a trial court that he or she wishes to proceed without counsel, Sedberry v. State, 610 N.E.2d 284, 286 (Ind. Ct. App. 1993), trans. denied. Generally, in order for a defendant's waiver of counsel to be knowing and intelligent, a trial court should advise a defendant "of the potential pitfalls surrounding self-representation so that it is clear that `he knows what he is doing and [that] his choice is made with eyes open.'" Kubsch v. State, 866 N.E.2d 726, 736 (Ind. 2007) (quoting Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975)), cert. denied. There are no "magic words" a trial court must utter to ensure a defendant adequately understands the gravity of the situation.1 Id. Rather, appellate courts generally consider four factors when reviewing the adequacy of a waiver of counsel: "`(1) the extent of the court's inquiry into the defendant's decision, (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation, (3) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se.'"2 Poynter v. State, 749 N.E.2d 1122, 1127-28 (Ind. 2001) (quoting United States v. Hoskins, 243 F.3d 407, 410 (7th Cir. 2001)). The law indulges every reasonable presumption against a waiver of the fundamental right to counsel. Id. at 1126.
Here, there clearly was no conversation or advisement by the trial court to Hopper regarding the "dangers and disadvantages" of self-representation. See Faretta, 422 U.S. at 835, 95 S. Ct. at 2541. In fact there was no meaningful inquiry by the trial court at all with respect to whether Hopper waived his right to counsel knowingly and intelligently. Nonetheless, the State urges that we adhere to Sedberry and cases that have followed it. In Sedberry, a panel of this court held that where a defendant waives his or her right to counsel and pleads guilty, there is no need to advise a defendant about the perils of proceeding pro se because the defendant will not be attempting to conduct a trial. Sedberry, 610 N.E.2d at 287. See also Redington v. State, 678 N.E.2d 114, 118 (Ind. Ct App. 1997), trans. denied; Greer v. State, 690 N.E.2d 1214, 1217 (Ind. Ct. App. 1998), trans. denied.
Hopper contends that Sedberry and its progeny were decided incorrectly, and that his waiver of counsel was not knowing and intelligent. After careful consideration, we decline to follow Sedberry, Redington, and Greer to the extent they seem to establish two different standards for reviewing a waiver of counsel: one for defendants who choose to go to trial and a different, less demanding standard for defendants who choose to plead guilty. Judge Miller dissented in Sedberry, first noting the general proposition that a defendant is entitled to counsel at all critical stages of a criminal prosecution. Sedberry, 610 N.E.2d at 287 (Miller, J., dissenting). See also Mosley v. State, 908 N.E.2d 599, 604 (Ind. 2009). Judge Miller then stated, "It seems to me that there can be no more critical stage of a criminal proceeding than the decision to plead guilty and waive one's right to a trial by the court or a jury." Sedberry, 610 N.E.2d at 287-88. We agree with this sentiment.
Many courts have observed that pretrial plea bargaining is a critical stage of criminal prosecutions for purposes of the right to counsel. See, e.g., United States v. Leonti, 326 F.3d 1111, 1117 (9th Cir. 2003); Williams v. Jones, 571 F.3d 1086, 1090 (10th Cir. 2009); State v. Bristol, 618 A.2d 1290, 1292 (Vt. 1992). In fact, it is in pretrial proceedings that the vast majority of criminal cases are resolved. The Supreme Court of Kentucky has noted It is indeed rare for any criminal prosecution not to involve some sort of plea-bargaining along the way. Arguably, when this happens it can be the most critical stage of the proceeding. . . . [I]t is in the negotiation of a criminal case where the learning and experience of legal counsel can prove most vital. The overwhelming majority of criminal cases are pled out. Our criminal justice system has arrived at a place where often the negotiating skills of a lawyer are more critical than his or her prowess in a courtroom.
Stone v. Commonwealth, 217 S.W.3d 233, 239 (Ky. 2007). It also is axiomatic that, aside from plea bargaining, a hearing at which a defendant chooses to plead guilty is a critical stage of the proceeding. White v. Maryland, 373 U.S. 59, 60, 83 S. Ct. 1050, 1051 (1963). We posit that the direction Sedberry takes us diminishes plea negotiations and guilty plea hearings in importance. We believe both are, indeed, critical stages of the proceeding where representation by a lawyer is crucial.
We find it instructive that in Redington, a panel of this court that decided to follow Sedberry included in its opinion the following quote from Justice Sutherland on the importance of trained counsel:
Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence...
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