Martin v. State

• Decision Date: 24 March 1992
• Docket Number: No. 64A05-9108-PC-269,64A05-9108-PC-269
• Citation: 588 N.E.2d 1291
• Parties: Edward J. MARTIN, Appellant-Defendant v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1291

588 N.E.2d 1291

Edward J. MARTIN, Appellant-Defendant v. STATE of Indiana, Appellee-Plaintiff.

No. 64A05-9108-PC-269.

Court of Appeals of Indiana Fifth District.

March 24, 1992.

Susan K. Carpenter, Public Defender of Indiana and Stephen T. Owens, Deputy Public Defender, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen. of Indiana and Mary Dreyer, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

BARTEAU, Judge.

Edward J. Martin appeals from denial of his petition for post-conviction relief. Although four issues are raised, we need discuss only one: Whether Martin knowingly and voluntarily waived his right to counsel. We reverse.

FACTS

Martin was charged with arson, Class B felony, in May of 1986. Shortly thereafter, based on the opinion of two court appointed psychiatrists, the trial court found him incompetent to stand trial and ordered commitment to Logansport State Hospital. In March of 1987, a psychiatrist evaluated Martin at the hospital and determined that he had the present ability to understand the proceedings against him and to participate in his defense. Martin was subsequently released on bail and the trial court ruled him ineligible for representation by the Public Defender's Office. Martin retained Kevin Relphorde as private counsel and thereafter entered a guilty plea pursuant to a plea agreement. The agreement called for a guilty plea to Class B felony arson and provided that both parties would argue sentencing.

At the sentencing hearing on November 9, 1988, Martin advised the trial court of his desire to withdraw his plea of guilty. He expressed his displeasure with attorney Relphorde over the plea agreement and stated that he was unsure whether he was competent to evaluate the wisdom of withdrawing his guilty plea. He also stated that he had alibi witnesses. Martin requested the court to appoint another attorney to represent him. The trial court approved Relphorde's withdrawal from the case and then questioned Martin in order to determine his eligibility for appointed counsel. Martin stated his only income was $632.00 per month in Social Security disability benefits. ¹ When Martin refused to tell the trial court where he was living, because of "security reasons," the trial court denied the request for pauper counsel based on Martin's "uncooperativeness." Martin continually maintained that he did not have funds to hire private counsel and several times requested appointment of pauper counsel. The trial court did not question Martin again concerning his eligibility for pauper counsel.

The trial court set a hearing on withdrawal of the guilty plea for December 18 1988 and informed Martin that he would be expected to retain private counsel and that the hearing would proceed whether or not he was represented by counsel. The trial court also informed Martin that if his quest to withdraw his guilty plea proved unsuccessful, sentencing proceedings would commence immediately thereafter. On December 18, 1988 Martin appeared without counsel. When asked if he was prepared for the hearing, Martin responded in the negative and stated that he had been unable to retain an attorney due to lack of funds. Nevertheless, the hearing commenced. The only evidence presented by Martin was a statement to the effect that he believed, "due to the lack of communication and misunderstanding, that the guilty plea is an error on the part of the State." The motion to withdraw the guilty plea was denied and the sentencing hearing commenced. The only statement Martin made at sentencing was a complaint concerning the denial of his right to counsel. At no time did the trial court advise Martin of the consequences of self-representation or inquire into his competence to conduct his own representation.

DISCUSSION

A defendant has the right to counsel at all critical stages of the proceedings against him. Williams v. State (1990), Ind., 555 N.E.2d 133. The test for determining if a proceeding qualifies as a "critical stage" is "whether the defendant is confronted with the intricacies of the law or the advocacy of the public prosecutor or prosecuting authorities." Id. Sentencing is considered a "critical stage" of the proceedings and thus a defendant is entitled to assistance of counsel. Guajardo v. State (1989), Ind.App., 544 N.E.2d 174. Likewise, a motion to withdraw a plea of guilty involves both intricacies of law and advocacy by the prosecutor, thus entitling a defendant to the assistance of counsel. Because the hearing on the withdrawal of the guilty plea and the sentencing hearing were both critical stages of the proceedings, Martin was entitled to assistance of counsel at each proceeding. Instead, Martin proceeded pro se.

"The right to counsel can only be relinquished by a knowing, voluntary, and intelligent waiver of the right." Dowell v. State (1990), Ind.App., 557 N.E.2d 1063. Whenever a defendant proceeds pro se, it is incumbent upon the trial court to determine if the waiver of the right to counsel is made knowingly and voluntarily. Kirkham v. State (1987), Ind.App., 509 N.E.2d 890, 892. To make such a determination, the trial court must conduct a hearing to determine the defendant's competency to represent himself and also to establish a record of the waiver. Dowell, supra. The record must show that the defendant was made aware of the "nature, extent, and importance" of the right to counsel and the...