Hopper v. State

• Decision Date: 29 November 2011
• Docket Number: No. 13S01–1007–PC–399.,13S01–1007–PC–399.
• Citation: 957 N.E.2d 613
• Parties: David HOPPER, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

957 N.E.2d 613

David HOPPER, Appellant (Petitioner below),

v.STATE of Indiana, Appellee (Respondent below).

No. 13S01–1007–PC–399.

Supreme Court of Indiana.

Nov. 29, 2011.

Bart M. Betteau, New Albany, IN, Attorney for Appellant.

Susan K. Carpenter, Public Defender of Indiana, James T. Acklin, Asst. Chief Deputy Public Defender, Larry A. Landis, Stacy R. Uliana, Indiana Public Defender Council, Indianapolis, IN, Attorneys for Amicus Curiae.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition for Rehearing

SHEPARD, Chief Justice.

Appellant David Hopper has been seeking to set aside a 2005 conviction for driving while intoxicated, on grounds that he had not been advised or warned of the risks of dealing with prosecutors without a lawyer. We earlier affirmed the trial court's denial of his petition for post-conviction relief.

The Attorney General has petitioned for rehearing, arguing that the rule announced in our prior opinion presents an unnecessary and impractical deviation from precedents established by the U.S. Supreme Court, and that it is unsupported by public policy. We grant rehearing to address the role and necessity of such advisements.

Facts and Procedural History

On April 18, 2005, David Hopper was charged with one count of operating a vehicle with a BAC of .08% or more, a class C misdemeanor,¹ and one count of operating a vehicle while intoxicated in a manner endangering person, a class A misdemeanor.² This was not Hopper's first encounter with the law, having been convicted in 2000 of an offense that resulted in a suspended driver's license. He proceeded pro se in 2000 as well.

At his initial hearing for the 2005 charges, Hopper was provided with a form entitled “Your Rights in Court.” (App. at 19–20.) Amongst other things, the form told Hopper:

You have the right to be represented by an attorney now, and at every stage of the court proceedings. If you want an attorney and cannot afford one, tell the Judge. If the case is serious enough, the Judge will appoint a Public Defender to help you at public expense. You have the right to hire an attorney even if you intend to plead guilty and the right to a short continuance for that purpose.

(App. at 46.) The form also told Hopper he had the right to represent himself, and that if he decided to do so—regardless of whether he intended to plead guilty or not guilty—he needed to sign a “Waiver of Attorney” on the back side of the form. In addition, the form gave extensive detail about the effects of pleading guilty or not guilty and several admonishments that if Hopper did not understand his rights or the consequence of a given plea, he was to ask the judge or request an attorney. Hopper signed the “Waiver of Attorney” provision, which said:

I do not wish to be represented by an attorney in this case. I understand that I have the right to an attorney and to a continuance to talk to an attorney. I know that if I am without funds and the case is serious enough, the Judge will appoint a Public Defender to represent me. I freely and voluntarily give up my right to be represented by an attorney.

(App. at 47.) ³ The court entered a plea of not guilty for Hopper and set an initial pretrial conference for May 19, 2005. Hopper then began plea negotiations with the State and subsequently pled guilty to the class A misdemeanor OWI charge. Following a colloquy about Hopper's rights, mental status, the nature of the charge, and the factual basis, the trial court accepted Hopper's plea and entered a conviction.

Four years later, Hopper petitioned for post-conviction relief, claiming he had not validly waived counsel before deciding to proceed pro se and that his plea negotiations were the product of this invalid waiver.⁴ The post-conviction court denied Hopper's petition. Hopper appealed.

The Court of Appeals reversed, holding that Hopper's waiver of counsel was invalid because the court had not warned him that he might achieve better results in plea bargaining with the help of a lawyer. Hopper v. State, 925 N.E.2d 499, 505–06 (Ind.Ct.App.2010).

We granted transfer and announced, using our supervisory authority, that future defendants expressing a desire to proceed without counsel must receive a Faretta⁵ advisement and “also be informed that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution's case.” Hopper v. State, 934 N.E.2d 1086, 1088 (Ind.2010). Our opinion explicitly declined to base its holding on either the Sixth Amendment or Article 1, Section 13, of the Indiana Constitution. Id.

The State's petition for rehearing followed.

Standard of Review

Rehearing is a procedure through which an appellate court can recognize and correct errors in a preceding ruling. Griffin v. State, 763 N.E.2d 450 (Ind.2002). A party seeking rehearing may do so only on issues raised in the original brief. Id. at 451. The claimed errors must be precisely articulated and go beyond a mere assertion that the original ruling was erroneous. Id. Nevertheless, “when a general rehearing is granted, the case stands before the court as if it had never been decided.” Id. (citing 5 Arch N. Bobbitt & Frederic C. Sipe, Bobbitt's Revision, Works' Indiana Practice § 111.3 (5th ed.1979)). When rehearing is granted only as to a specific issue, the original opinion will still stand except as to that particular point. Id. Accordingly, we treat this as a general rehearing.

I. Hopper's Plea Negotiations

We agree with Hopper that the entry of a guilty plea is a critical stage and a valid waiver of counsel is required for a defendant proceeding pro se. We do not reach the same conclusion with regard to Hopper's plea bargain.

Hopper argues that plea negotiations are a critical stage of the criminal proceeding at which the right to counsel is required, absent a valid waiver. (Appellant's Br. at 4–7.) This contention appears aimed at the idea that due process is violated when a defendant is not warned about plea bargaining on his own, just as it is when a defendant is not warned about going to trial solo.

A defendant's right to counsel arises at any point during a criminal proceeding in which the absence of counsel would erode the defendant's right to a fair trial. Hernandez v. State, 761 N.E.2d 845 (Ind.2002). This includes any critical stage in which “ ‘(1) incrimination may occur or (2) where the opportunity for effective defense must be seized or be foregone.’ ” Id. at 850 (quoting Casada v. State, 544 N.E.2d 189, 198 (Ind.Ct.App.1989), trans. denied ). An initial hearing conducted under Indiana's statutory scheme is not a critical stage of the criminal proceeding requiring the presence of counsel. Benner v. State, 580 N.E.2d 210 (Ind.1991).

Hopper cites a single Indiana case in support of his argument that the plea bargain phase is a critical stage requiring a separate warning: Hood v. State, 546 N.E.2d 847 (Ind.Ct.App.1989). (Appellant's Br. at 4–7.)

In Hood, the defendant was arrested, charged with theft and forgery, and held in jail awaiting his initial hearing. While in jail, the prosecutor told him that the State would forgo filing an habitual offender charge if the defendant agreed to plead guilty without counsel. At the initial hearing, Hood waived his right to counsel and pled guilty. The court accepted the pleas, but before sentencing Hood requested counsel and sought to withdraw his guilty pleas. The court denied the request and sentenced Hood to eight years. A post-conviction court found the guilty pleas to have been voluntary and intelligent. Id. at 849. The Court of Appeals reversed, holding that the prosecutor's actions in conditioning the plea agreement upon the explicit condition that Hood accept without consulting counsel tainted the subsequent waiver. Id. at 850.

There were, then, two particular factors that distinguish Hood's circumstances from Hopper's. First, in Hood the prosecutor threatened to add an additional charge as a manner of inducing the defendant to sign the agreement, and second, the plea agreement in Hood was explicitly contingent upon the defendant waiving his right to counsel.

Neither of those factors is present here. Hopper does not suggest that the prosecutor in his case threatened to add an additional charge if he refused the plea agreement.⁶ And there is no evidence that the plea agreement was contingent upon Hopper continuing to proceed pro se. The agreement itself contains no such language (App. at 55–56), and Hopper provided no testimony detailing the conversation between himself and the prosecutor. (PCR Tr. at 9.) Moreover, Hood involved a jail-house visit by the prosecutor, before the initial hearing occurred. Here, however, Hopper had already attended his initial hearing.⁷ He was already aware of the charges against him and the range of punishments. And he had already made the initial public decision to waive his right to counsel.

This is not to say that Hood was wrongly decided. Rather, the principles for which it stands do not point to relief for Hopper.

Hopper further argues that his waiver of counsel on the “Your Rights In Court” form could not constitute a valid waiver of counsel at the subsequent plea negotiations. (Appellant's Br. at 7–16.)

The Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees a criminal defendant the right to counsel before he may be tried, convicted, and punished. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This protection also encompasses an affirmative right for a defendant to represent himself in a criminal case. Id. However, “[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts.” Id. at 834, 95 S.Ct. 2525. Because the defendant who...