Nation v. State

• Citation: 438 N.E.2d 1003
• Decision Date: 02 August 1982
• Docket Number: No. 2-281A36,2-281A36
• Parties: Earl NATION, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Court of Appeals of Indiana

Page 1003

438 N.E.2d 1003

Earl NATION, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 2-281A36.

Court of Appeals of Indiana,

Second District.

Aug. 2, 1982.

Robert W. Hammerle, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION FOR REHEARING

SHIELDS, Judge.

In response to the state's petition for rehearing, we re-examine our opinion appearing at 426 N.E.2d 436, Ind.App. At 426 N.E.2d 437 we state:

"[T]he waiver of the right to the assistance of counsel must be shown to have been voluntarily, knowingly, and intelligently made. Johnson v. Zerbst, (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. It is the duty of the trial court to establish a record which shows that an accused who has elected to waive counsel and proceed pro se has done so voluntarily, knowingly, and intelligently. This court cannot infer a voluntary and intelligent waiver of this fundamental constitutional right from a silent record. Johnson v. Zerbst; Faretta [ v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 462] Grubbs v. State, (1970) 255 Ind. 411, 265 N.E.2d 40; Wallace v. State, (1977) 172 Ind.App. 535, 361 N.E.2d 159.

"The record must affirmatively show the defendant was expressly advised of both his right to the assistance of counsel and the disadvantages of self-representation in clear and unambiguous language. Mitchell v. State, (1981) Ind.App., 417 N.E.2d 364; McDandal v. State, (1979) Ind.App., 390 N.E.2d 216; Wallace v. State.

"The record in this case is deficient under this standard. It fails to show the trial court informed Nation of his right to the assistance of counsel."

We reaffirm those statements with this additional explanation.

We agree, as articulated by Chief Judge Buchanan in his dissent, the record in this cause could support the inference Nation was aware of his right to counsel in that he had previously hired and been represented by counsel. However, we disagree it is illogical to insist the trial court directly and expressly advise Nation of that right as a condition precedent to his voluntary, knowing, and intelligent waiver of the right to counsel. We emphasize we are not referring to counsel of choice but of the right to counsel. Nation went to trial without counsel.

We hold the record of the proceedings of a defendant who affirmatively seeks to exercise his right to proceed pro se and waive his constitutionally protected right to counsel must include, on its face, direct evidence the defendant has been advised in clear and unambiguous language, 1) of his right to counsel, ¹ 2) the exercise of his right to proceed pro se constitutes a waiver of that right, ² and 3) of the disadvantages of self-representation. Whatever form the direct evidence may take, it may not be evidence from which the advice, waiver, and request are only inferrable. ³

We appreciate the apparent harshness of this rule, but in fact deem it necessary and prophylactic. It is easily understood, easily applied, and easily enforced. It curtails a frequently used and misused claim of error. Thus its justification is to avoid having to probe ambiguity and imposing upon the time and resources of the courts.

It is in the sense of this rule that the record of the proceedings in this case is silent.

The record fails to show on its face, by direct evidence, that Nation was ever advised of his right to counsel and that a request to proceed pro se, if granted, would result in a waiver of that right.

Further, we find the record before us is deficient in showing Nation clearly and unequivocally exercised his right to proceed pro se. One factor, of course, that must be weighed is his lack of express advice and waiver of his right to counsel. But another factor, as important, coexists. The supreme court held in Russell v. State, (1978) Ind., 383 N.E.2d 309, 313, that a request to proceed pro se must be clear and unequivocal. Thus, half-hearted expressions of dissatisfaction with counsel and general references to self-representation do not constitute an adequate assertion of the right.

The colloquy between the trial court and Nation concerned Nation's dissatisfaction with his previously employed counsel. When specifically asked by the judge if he would rather proceed pro se, Nation responded only that his...