JW v. State, 85A04-0108-JV-365.
Decision Date | 29 January 2002 |
Docket Number | No. 85A04-0108-JV-365.,85A04-0108-JV-365. |
Citation | 763 N.E.2d 464 |
Parties | J.W., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Court | Indiana Appellate Court |
Gary A. Cook, Peru, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Respondent, J.W., a juvenile, appeals an adjudication finding him to be a delinquent child for committing theft, Ind. Code § 35-43-4-2, an act which would be a Class D felony if committed by an adult, and forgery, Ind.Code § 35-43-5-2, an act which would be a Class C felony if committed by an adult.
We reverse and remand.
J.W. raises one issue on appeal, which we restate as follows: whether the juvenile court erroneously conducted a fact-finding hearing by allowing the defense counsel to withdraw after J.W. informed the juvenile court that he wished to have counsel during the hearing.
On April 30, 2001, the juvenile court conducted a fact-finding hearing. At the beginning of this hearing, J.W.'s counsel advised the court of her desire to withdraw from the case. J.W.'s counsel explained that she represented J.W. in a case during the previous week and that J.W. and his father, Mr. Wilcox, were dissatisfied with her services. According to J.W.'s counsel, Mr. Wilcox intended to file an appeal on the previous case alleging ineffective assistance of trial counsel. Mr. Wilcox informed the judge that he did not want J.W.'s present counsel to continue to represent his son. Moreover, Mr. Wilcox asked for a continuance in order to have time to secure private counsel for his son.
Initially, J.W. agreed with his father and stated that he was unhappy with his counsel's performance due to the previous case. However, J.W. specifically stated that he wanted to proceed at the hearing with his appointed counsel. The following exchange took place between the court and J.W.:
(R. 5). The juvenile court continued to question J.W. about whether he wanted Ms. Zimmerman-Ingang to continue to represent him. During this exchange, Ms. Zimmerman-Ingang interjected that she could not represent J.W. due to the underlying circumstances and requested that the juvenile court continue the scheduled hearing in order to give J.W. and Mr. Wilcox ample time to seek a new lawyer. The juvenile court responded, (R. 6).
After reviewing the docket, the Prosecutor found that the fact-finding hearing for this matter was already continued two times and he also stated that his witnesses were currently present in the courtroom. The Prosecutor wanted to proceed with the hearing. Then, the following exchange transpired between the juvenile court and J.W.:
(R. 7). J.W.'s counsel again reiterated her concern over representing J.W. and the juvenile court permitted her to withdraw. The juvenile court then proceeded with the fact-finding hearing without representation for J.W. and found J.W. to be a delinquent. On June 4, 2001, the juvenile court committed J.W. to the Indiana Boys' School until he turns twenty-one (21) years old or is otherwise discharged.
This appeal followed.
J.W. argues, and the State concedes, that the juvenile court erroneously allowed him to proceed with the fact-finding hearing without representation. Specifically, J.W. states that he never waived his constitutional right to be represented by counsel, nor does the record show that he asserted his right to self-representation. Further, J.W. maintains that the juvenile court had a duty to advise him of the advantages of representation and the dangers of self-representation. Because J.W. was denied legal counsel at the fact-finding hearing and because J.W. did not validly waive his right to counsel, he asks for a new trial.
95 S.Ct. 2525; Sherwood, 717 N.E.2d at 134.
Generally, a request to waive counsel should prompt the court to conduct a pre-trial hearing to determine a defendant's competency to proceed without counsel and to establish a record of a defendant's waiver of his right to counsel. Dobbins v. State, 721 N.E.2d 867, 873 (Ind.1999). Hearings on the question of self-representation need only be had when the right is properly asserted, by a clear and unequivocal request within a reasonable time prior to the first day of trial. Id. The sole purpose of this hearing is to determine the defendant's competency to represent himself, and to establish a record of his waiver of his right to counsel. Id. There is no requirement that a defendant be advised of the right to self-representation, nor is a knowing, voluntary and intelligent waiver of the right of self-representation constitutionally mandated. Id. However, the record must show that the defendant was advised of the nature, extent, and importance of the right to counsel and the consequences of waiving that right. Callahan v. State, 719 N.E.2d 430, 439 (Ind.Ct.App.1999). Specifically, the juvenile court should warn a defendant who proceeds pro se in a criminal case of the dangers and pitfalls of self-representation. Poynter v. State, 749 N.E.2d 1122, 1127 (Ind.2001).
The decision whether to grant a defendant's request to change his counsel immediately prior to trial is a matter within the sound discretion of the trial court. Robinson v. State, 724 N.E.2d 628, 634 (Ind.Ct.App.2000), trans. denied. The determination of the trial court will be reversed only when it constitutes a clear abuse of discretion that resulted in prejudice to the defendant's right to a fair trial. Id.
In the present case, the record does not reflect that J.W. voluntarily, knowingly, and intelligently waived his right to counsel. J.W. neither waived his right to counsel nor asserted his right to self-representation. In fact, J.W. was forced to represent himself after the juvenile court allowed J.W.'s counsel to withdraw immediately prior to his trial. Further, the record does not...
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