Nation v. State, 283S66

• Citation: 445 N.E.2d 565
• Decision Date: 22 February 1983
• Docket Number: No. 283S66,283S66
• Parties: Earl NATION, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 565

445 N.E.2d 565

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

No. 283S66.

Supreme Court of Indiana.

Feb. 22, 1983.

Robert W. Hammerle, Indianapolis, for appellant.

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

PRENTICE, Justice.

Defendant (Appellant) was charged with Count I, Promoting Prostitution, Ind.Code Sec. 35-45-4-4(1) (Burns 1979), Count II, Promoting Prostitution, Ind.Code Sec. 35-45-4-4(4) (Burns 1979), Count III, Contributing The cause is before us upon the State's (Appellee's) Petition to Transfer. Said Petition is now granted pursuant to Ind.R.App.P. 11(B)(2)(b) in that the decisions and opinions of the Court of Appeals erroneously decided a new question of law, i.e., that a knowing and voluntary waiver of the right to counsel, by a defendant who expresses a desire to discharge his retained counsel and to proceed to trial pro se, may not be found, absent a record that discloses direct evidence that he was advised, in clear and unambiguous language, that he has a right to counsel and that the exercise of his right to proceed pro se constitutes a waiver of that right to counsel.

to the Delinquency of a Minor, Ind.Code Sec. 35-46-1-8 (Burns 1979), and Count IV, Intimidation, Ind.Code Sec. 35-45-2-1 (Burns 1979). After a bench trial, Defendant was convicted of Counts I and II, acquitted of Counts III and IV, and sentenced to six (6) years imprisonment, four (4) years of which were suspended, upon Count I and two (2) years imprisonment upon Count II, sentences to run concurrently.

The appeal assigns four issues, as hereinafter set forth. The Court of Appeals, however, did not address those issues but, instead, focused, sua sponte, upon the trial court's failure to have advised the defendant, specifically, of his right to counsel prior to allowing him to go to trial pro se. Upon rehearing, it announced a prophylactic rule, substantially as hereinbefore related, and held that under such rule it could not be found that the defendant had clearly and unequivocally exercised his right to proceed pro se.

The Court of Appeals has fashioned a proposed rule of law to apply in all cases where the right to counsel has been waived, which is implicit in electing to represent one's self, as therapeutic as our rule and statute relating to waivers required to authorize the acceptance of a guilty plea.

We have (by split decisions) ordered several guilty pleas vacated because the record of advisements did not comport to the requirements of the aforementioned rule and statute, notwithstanding that the record, as a whole and in context, left little, if any, doubt that the accused understood all of his rights. As stated by the Court of Appeals, the rule 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." 438 N.E.2d 1003 at 1005. Unquestionably, one proposing to proceed pro se is entering upon a hazardous adventure and should be fully advised and forewarned; but we do not perceive the need to extend the application of "guilty plea advisements" rules to pro se trials. Guilty pleas are, in and of themselves, convictions. The same is not true of self representation, regardless of how ill advised it may be.

The record reveals that Defendant did have counsel whom he had retained but that he was dissatisfied with him because he could not obtain from him the assurances that he desired. Since he had counsel, he must have known that counsel was available to him; and if he knew he could have counsel, it is immaterial whether he understood that it was his right rather than a mere privilege. The court urged him to have representation, and he declined.

Having representation, Defendant was not entitled to a continuance to enable him to obtain new counsel, and having funds, he was not entitled to the services of pauper counsel. The defendant had the option of proceeding with his previously chosen counsel, for a fee, or of proceeding pro se. He opted for the latter, notwithstanding the court's attempt to dissuade him. There is no reason to believe that advisements, by the judge, that he had a constitutional right to counsel could have altered his decision or the course of the proceedings.

The appeal assigns four errors:

(1) The trial court abused its discretion in permitting defense counsel to withdraw on the morning of trial and in permitting Defendant to proceed pro se.

(2) Defendant did not knowingly and intelligently waive his right to counsel.

(3) The evidence was insufficient to support the verdict as to count one (1), and the verdict upon that count was contrary to law under the doctrine of collateral estoppel.

(4) The verdict upon count two (2) was contrary to law under the doctrine of collateral estoppel.

On the day trial commenced, defense counsel brought a problem to the trial court's attention:

"MR. CONNOR: As I mentioned earlier today, Mr. Nation has refused to pay me the balance of my fee, although he has the money, or at least told me that he has the money. And, has asked that I withdraw so that he can proceed Pro Se."

The trial court was understandably reluctant to allow Defendant to proceed pro se and after questioning defense counsel, asked the Defendant about his position:

"MR. NATION: Yes, sir. I feel as though to pay the man for a job that he said he doesn't feel as though he could help me on much. And, just like he said, I refuse to pay him. And, I told him that I can go .. come up here and go to jail myself. I don't need to pay him. I'm not pleading guilty to nothing. I don't feel as though I'm guilty of anything. And, it's just like, I've been in construction all my life. And, if I tell a man that I can't do the job, he's not going to pay me to do it."

During the colloquy which ensued, the trial court attempted to dissuade Defendant from representing himself. He noted defense counsel's reputation and experience, of which Defendant was aware. Defendant was nevertheless adamant:

"THE COURT: But you seriously believe that you would rather proceed Pro Se? That you would rather represent yourself?

"MR. NATION: The man told me that he didn't honestly think that he could help me out. And, therefore, I don't feel as though I should pay him. Therefore, I don't feel as though he should represent me."

The Court then asked Defendant if he understood the jeopardy involved in representing oneself, the need to learn technical rules of evidence and how to make objections, and that a lawyer's duty is not to insure a not guilty verdict but rather a fair trial. Defendant responded and the following occurred:

"MR. NATION: I'm aware of that, but when they tell you that they don't think that they can help you. That they figure you are going to jail anyway, then why pay them to defend you?

"MR. CONNOR: May I interrupt?

"THE COURT: Just a minute. Go ahead, Mr. Connor.

"MR. CONNOR: I would like to state for the record that I did not tell the gentleman that. This morning, when I asked him for the balance of my fee, he said 'Can you guarantee anything?' That's when the problems started. When I told him that I couldn't. I just wanted that for the record.

"THE COURT: He asked you for a guarantee, and under the Canons of Ethics, you refused to give it to him.

"MR. CONNOR: Yes, sir. That's correct."

The trial court then released counsel from his obligation to defend Defendant and asked him to remain in court in a "stand by" capacity. Defendant then agreed to try the case:

"THE COURT: And, we will proceed to try this. Is that your wish, Mr. Nation?

"MR. NATION: Yes, it is.

ISSUE I

Defendant first contends that the trial court abused its discretion in allowing defense counsel to withdraw and, thereby, allowing him to proceed pro se. He reasons that his "half hearted expressions of dissatisfaction" with his attorney were not the clear and unequivocal assertion of the right to represent himself required by Russell v. State, (1978) 270 Ind. 55, 61, 383 N.E.2d 309, 313 and Anderson v. State, (1977) 267 Ind. 289, 294, 370 N.E.2d 318, 320, cert. denied, (1978) 434 U.S. 1079, 98 S.Ct. 1273, 55 L.Ed.2d 786. Consequently, he asserts that Defendant's reliance upon Russell is misplaced. In that case and other such cases, eg., Dixon v. State, (1982) Ind., 437 N.E.2d 1318, 1321, we considered claims that a trial court had erroneously forced an accused to trial with counsel although he wished to defend himself. We determined that systemic considerations favored requiring that the right to self representation be timely asserted and that a motion made on the morning of the trial came too late.

the trial court erred in permitting him to represent himself as no demand or request to be so permitted had been made.

Neither Russell nor Dixon treated the situation at bar. Here, rather than forcing a lawyer upon an accused, the trial court, on the morning of trial, relieved the accused of his lawyer, and permitted him to proceed pro se, in accord with his request and our decisions in German v. State, (1978) 268 Ind. 67, 373 N.E.2d 880, and Duncan v. State, (1980) Ind., 412 N.E.2d 770, 773. German discharged his attorney after the jury had been impanelled. After questioning him about his qualifications to defend himself, the trial court required him to elect between proceeding pro se or with his attorney of record. He chose to proceed pro se, and we found no merit in his contention that the trial court had erroneously compelled him to represent himself. Similarly, Duncan, on the morning of trial, sought to obtain a new court appointed attorney and stated that in no event did he want to be represented by his counsel of record. We again upheld the conviction over a claim that the court had forced him to represent himself. Under German and Duncan, a trial court...