Hopper v. State Of Ind.
| Decision Date | 02 August 2010 |
| Docket Number | 31D01-0004-CM-307,No. 31D01-0906-PC-8,No. 31A01-1003-PC-89,31A01-1003-PC-89,31D01-0906-PC-8 |
| Parties | DAVID HOPPER, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
ATTORNEY FOR APPELLANT: BART M. BETTEAU, Betteau Law Office, LLC, New Albany, Indiana
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, ZACHARY J. STOCK, Deputy Attorney General, Indianapolis, Indiana
David Hopper appeals the post-conviction court's denial of his petition for postconviction relief. Hopper raises one issue, which we revise and restate as whether the post-conviction court erred in denying his petition for post-conviction relief. We affirm.
The relevant facts follow. In April 2000, the State charged Hopper with public intoxication as a class B misdemeanor and possession of marijuana as a class A misdemeanor. On May 8, 2000, the trial court held an initial hearing1 and the trial court talked to him about the right to have a lawyer. Hopper signed an "Advice of Rights" and entered a plea of not guilty.2
On July 31, 2000, Hopper without counsel entered into a plea agreement in which Hopper pled guilty to possession of marijuana as a class A misdemeanor, and the State agreed to dismiss the charge of public intoxication as a class B misdemeanor. The State agreed to recommend that Hopper be sentenced to one year in the Harrison County Jail with all but time served suspended. Hopper also signed a Misdemeanor Written Advisement and Waiver of Rights form which provided in part:
State's Exhibit 1. That same day, the trial court held a guilty plea hearing and Hopper indicated that he had read, signed and "go[ne] over in detail the Plea Agreement and written advisement form." Defendant's Exhibit C. The trial court accepted the plea agreement and sentenced Hopper to one year with all time suspended except for time served.
On June 29, 2009, Hopper filed a petition for post-conviction relief and request for specific findings of fact and conclusions of law. Hopper argued that he was denied his right to due process and his right to counsel because he "entered a plea of guilty pro se in the absence of a valid waiver of counsel," and because "his alleged guilty plea was tainted by illegal acts of the prosecutor in engaging in plea negotiations with the Accused who had not waived counsel." Appellant's Appendix at 5-6. After a hearing, the postconviction court found that Hopper was advised of his right to counsel and denied Hopper's petition.
Before discussing Hopper's allegations of error, we note the general standard under which we review a post-conviction court's denial of a petition for post-conviction relief. The petitioner in a post-conviction proceeding bears the burden of establishing grounds for relief by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When appealing from the denial ofpost-conviction relief, the petitioner stands in the position of one appealing from a negative judgment. 810 N.E.2d at 679. On review, we will not reverse the judgment unless the evidence as a whole unerringly and unmistakably leads to a conclusion opposite that reached by the post-conviction court. Id. Further, the post-conviction court in this case entered findings of fact and conclusions thereon in accordance with Indiana Post-Conviction Rule 1(6). Id. "A post-conviction court's findings and judgment will be reversed only upon a showing of clear error-that which leaves us with a definite and firm conviction that a mistake has been made." Id. In this review, we accept findings of fact unless clearly erroneous, but we accord no deference to conclusions of law. Id. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Id.
The issue is whether the post-conviction court erred in denying Hopper's petition for post-conviction relief. Hopper argues that he did not knowingly, intentionally, and voluntarily waive his right to counsel because a hearing was not conducted, he was not advised of the disadvantages of self-representation, and he did not unequivocally demand the right of self-representation.
Generally, the Sixth Amendment to the U.S. Constitution and Article 1, section 13 of the Indiana Constitution guarantee a criminal defendant the right to appointed counsel. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). The right to counsel can be relinquished only by a knowing, voluntary, and intelligent waiver of the right. Id. at 1132 n.2. Waiver of assistance of counsel may be established based upon the particular factsand circumstances surrounding the case, including the background, experience, and conduct of the accused. Id. at 1132. A defendant's request to proceed pro se must be clear and unequivocal. Stroud v. State, 809 N.E.2d 274, 279 (Ind. 2004).
"When a defendant asserts the right to self-representation, the court should tell the defendant of the 'dangers and disadvantages of self-representation.'" Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001) (quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541 (1975)). "There are no prescribed 'talking points' the court is required to include in its advisement to the defendant; it need only come to a considered determination that the defendant is making a voluntary, knowing, and intelligent waiver." Id. (quoting Leonard v. State, 579 N.E.2d 1294, 1296 (Ind. 1991)). This determination must be made with the awareness that the law indulges every reasonable presumption against a waiver of this fundamental right. Id.
In Sedberry v. State, 610 N.E.2d 284, 287 (Ind. Ct. App. 1993), trans. denied, 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. See also Redington v. State, 678 N.E.2d 114, 118 (Ind. Ct. App. 1997) (), reh'g denied, trans. denied; Greer v. State, 690 N.E.2d 1214, 1217 (Ind. Ct. App. 1998) (), trans. denied. Hopper argues that Sedberry and its progeny were wrongly decided or are distinguishable. The State argues that Sedberry should govern this case. Even assuming that the trial court was required to inform Hopper of the pitfalls of self-representation, we cannot say that Hopper met his burden.3
Here, Hopper does not argue that the evidence introduced at the post-conviction hearing supports the proposition that he was not advised of the pitfalls of selfrepresentation or that he did not unequivocally assert his right to proceed pro se. Rather, Hopper appears to base his arguments on the fact that there is no transcript of the initial hearing. Specifically, Hopper argues that the record "certainly does not indicate that a hearing was held and a record created of Hopper's purported waiver." Appellant's Brief at 8. Hopper argues that "[b]ecause of the lack of any record whatsoever, no evidence exists that Hopper was adequately advised as to the disadvantages of self-representation." Id. at 9. Hopper also argues that "[t]he lack of a record also means that there is no evidence that Hopper unequivocally demanded his right of self-representation." Id.
The fact that the record of the hearing can neither be found nor reconstructed does not, in and of itself, require granting post-conviction relief. Hall v. State, 849 N.E.2d 466, 470 (Ind. 2006). In Hall, the post-conviction petitioner alleged that he had not been advised of his Boykin4 rights before pleading guilty but was unable to find or reconstruct a record of his guilty plea hearing. Id. at 468. The Court in Hall held that the absence of a record was not enough to warrant post-conviction relief:
The fact that the record of a guilty plea hearing can neither be found nor reconstructed does not of itself require granting post-conviction relief. Rather, as with any claim made in a petition for post-conviction relief, a claim that the petitioner's conviction was obtained in violation of federal or state constitutional safeguards must be proven by a preponderance of the evidence. And of course the law of this jurisdiction has long imposed on petitioners seeking post-conviction relief the burden of establishing their grounds for relief.
Id. at 470. The Court concluded that the petitioner's testimony which "said nothing about any advisement or lack of advisement of rights" was insufficient to carry his burden of proof. Id. at 472.
Here, the record reveals that the trial court held an initial hearing on May 8, 2000. See Defendant's Exhibit D. However, the record does not contain a transcript of...
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