Nation v. State
| Decision Date | 01 October 1981 |
| Docket Number | No. 2-281A36,2-281A36 |
| Citation | 426 N.E.2d 436 |
| Parties | Earl NATION, Appellant (Defendant Below), v. STATE of Indiana, Appellee, (Plaintiff Below). |
| Court | Indiana Appellate Court |
Robert W. Hammerle, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-appellant Earl Nation (Nation) appeals from a conviction by the court of two counts of promoting prostitution, arguing he did not voluntarily, knowingly, and intelligently waive the right to counsel. 1
We reverse.
A defendant charged with a crime is guaranteed the right to be represented by counsel by Article I, Section 13 of the Indiana Constitution and the Sixth and Fourteenth Amendments of the United States Constitution. Moore v. State, (1980) Ind., 401 N.E.2d 676. He also has the constitutional right to waive the assistance of counsel and represent himself if he so chooses. 2 Faretta v. California, (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 462; Russell v. State, (1978) Ind., 383 N.E.2d 309. Although the right to counsel and the right of self-representation are both constitutional rights, the standards for establishing the relinquishment of these rights differ greatly due to the nature of the rights and the interest to be protected. Russell. As was stated in Russell:
Because the sole value furthered by the right of self-representation is that of personal autonomy, a defendant need not be advised of his right of self-representation and will be deemed to have voluntarily waived this right by the mere failure to timely and unequivocally assert it. A knowing and voluntary waiver of the right of self-representation is not constitutionally mandated. Russell.
On the other hand, the 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, 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. A record which does not show a defendant was advised of his right to counsel does not show a knowing and intelligent waiver. A defendant cannot be deemed to have knowingly and intelligently waived a right of which he was not informed. Smith v. Lane, (1970 7th Cir.) 426 F.2d 767.
Given the presumption which exists against the waiver of the constitutional right to counsel, Mitchell, we find the record insufficient to support a conclusion that Nation voluntarily, knowingly, and intelligently waived his right to counsel.
Reversed and remanded with instructions to grant a new trial.
Unlike the majority, I believe the record does demonstrate that Nation, knowing of his right to be represented by counsel, voluntarily and intelligently relinquished that right. Nation has raised three additional issues, none of which presents reversible error. Because I would affirm the judgment of conviction, I discuss all of the issues in logical sequence; the majority reverses on the basis of Issue II.
The facts most favorable to the State disclose that on July 20, 1979, Thomas King (King) introduced seventeen-year-old Janice Marie Longworth (Longworth) to Nation. Longworth testified as to the purpose of the introduction: "He (King) was going to take me to meet Earl Nation because he told me that Earl Nation wanted me to work as a prostitute for him." Record at 84.
On July 23, Nation, after giving Longworth a choice of three locations at which she could work as a prostitute, took her to a house in Marion County owned by Margaret Burns. There, for approximately ten days, Longworth performed sexual acts for money, relinguishing her earnings to Nation at the end of each day.
On October 2, 1979 Nation was charged by information with four offenses. Count I charged him with promoting prostitution by "knowingly or intentionally entic(ing) or compel(ling) another person to become a prostitute(.)" Ind.Code § 35-45-4-4(1). Count II charged him with promoting prostitution by "receiv(ing) money or other property from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution (.)" Id. § 35-45-4-4(4). Nation was charged with contributing to the delinquency of a minor under count III and with intimidation under count IV.
Nation retained attorney Timothy O'Connor (O'Connor) for his defense. O'Connor represented Nation during the preliminary hearing, at which Nation waived arraignment and plead not guilty. O'Connor represented Nation at a pre-trial hearing at which Nation waived trial by jury and also filed several motions for continuance on his behalf. After O'Connor withdrew from the case at Nation's request, Nation hired attorney James A. Connor (Connor).
Nation's trial commenced with the following discussion between Nation, the court, and Connor:
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Jackson v. State
...N.E.2d 364; McDandal v. State, (1979) Ind.App., 390 N.E.2d 216. The court will engage in a presumption against waiver. Nation v. State, (1982) Ind.App., 426 N.E.2d 436. Jackson's decision to proceed in propria personna with his defense was made known to the court in the following exchange d......
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Nation v. State
...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 "[T]he waiver of the right to the assistance of counsel must be shown to have been voluntarily, knowingly, and in......