NM v. State, 49A02-0303-JV-231.

• Court: Court of Appeals of Indiana
• Citation: 791 N.E.2d 802
• Docket Number: No. 49A02-0303-JV-231.,49A02-0303-JV-231.
• Parties: In the Matter of N.M., a child alleged to be delinquent, Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner.
• Decision Date: 16 July 2003

791 N.E.2d 802

In the Matter of N.M., a child alleged to be delinquent, Appellant-Respondent,
v.
STATE of Indiana, Appellee-Petitioner

No. 49A02-0303-JV-231.

Court of Appeals of Indiana.

July 16, 2003.

791 N.E.2d 803

Susan K. Carpenter, Public Defender of Indiana, Amy E. Karozos, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

N.M. appeals her adjudication as a delinquent for committing an act that would be robbery, a Class B felony, if committed by an adult.¹ She raises one issue for our review, which we restate as whether her waiver of her right to counsel was knowing, intelligent, and voluntary. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On December 9, 2001, fifteen-year-old N.M. and two other teenage girls went to the laundry room at Pinnacle Square Apartments. There, the three girls confronted another teenager, A.O. N.M. showed A.O. a gun, and the three girls demanded that A.O. give them her shoes. A.O. gave them her shoes.

791 N.E.2d 804

The Lawrence police began investigating the robbery of A.O. and learned that N.M. was involved. On December 19, 2001, N.M.'s probation officer filed a notice of violation of home detention. Christine Magness, N.M.'s mother, took N.M. to the Lawrence Police Department, where Detective Woodruff advised N.M. and Magness of N.M.'s Miranda rights. After consulting with Magness in a room alone, N.M. admitted her participation in the robbery of A.O., and she was arrested and taken to the Marion County Juvenile Detention Facility. The State filed a delinquency petition alleging N.M. committed an act that would be robbery if committed by an adult

At some point on the 19th, N.M. and Magness signed a "Court Advisement of Rights." (Appellant's App. at 15.) That document provided, in pertinent part: "The child has a right to be represented by a lawyer at all stages of the court proceedings. Having such a right, the case may be continued at any point in order to consult a lawyer for him/her." (Id.) Above N.M.'s and Magness's signatures are the words, "I Have Read And I Understand The Rights Listed Above." (Id.)

The next day, N.M. and Magness appeared in court for the initial hearing. The judge read the delinquency petition to N.M. and Magness as they read along on a separate copy. The trial court advised N.M. of her right to an attorney as follows:

Court: [N.M.], you have a number of rights that are guaranteed to you in this matter. The first of these rights that you have, you have the right to have an attorney. Do you wish to have an attorney in this case?

[N.M.]: No.

The Court: No what?

[N.M.]: No sir, I don't, I don't need an attorney.

The Court: Oh you don't, alright. Mom, you think your daughter needs a lawyer here?

[Magness]: No sir she ... she knows.

The Court: Alright, we'll show knowing lawful waiver of counsel in this matter.

(Tr. # 1 at 2.)² Then, after the judge told N.M. the other rights she had and the possible dispositional alternatives, N.M. admitted she used a gun to force A.O. to give up her shoes. The trial court found the petition to be true. At a dispositional hearing held later, the court ordered N.M. committed to the Girls' School for twenty-four months.

On October 17, 2002, N.M. moved for relief from judgment, claiming she did not knowingly or voluntarily waive her right to an attorney at the initial hearing. The trial court held a hearing, where N.M. presented evidence in support of her motion. (See Tr. # 2.) Thereafter, the trial court denied N.M.'s motion.

DISCUSSION AND DECISION

N.M. claims the trial court erred in denying her motion for relief from judgment. A trial court has discretion to grant or deny a motion for relief from judgment. S.E. v. State, 744 N.E.2d 536, 538 (Ind.Ct. App.2001). We reverse a trial court's decision only for an abuse of that discretion. Id. A trial court abused its discretion if its

791 N.E.2d 805

decision was clearly against the logic and effect of the facts and circumstances, or reasonable inferences therefrom, that were before the court. Id.

N.M.'s request for relief from the judgment was based upon her waiver of counsel at the initial hearing. N.M. claims that she did not knowingly and voluntarily waive her right to counsel under Ind.Code § 31-32-5-1 because neither she nor her mother was informed that counsel would be appointed to represent her if they were unable to afford counsel.

N.M. had a right to counsel under the Sixth Amendment to the United States Constitution. J.W. v. State, 763 N.E.2d 464, 467 n. 1 (Ind.Ct.App.2002) (a juvenile facing a delinquency proceeding is entitled to "the guiding hand of counsel at every step in the proceedings against him.") (quoting In re Gault, 387 U.S. 1, 36, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)). She also had a statutory right to counsel in the juvenile proceedings against her. Ind. Code § 31-32-2-2 ("[A] child charged with a delinquent act is also entitled to ... be represented by counsel under IC 31-32-4...."). See also Ind.Code 31-32-4-1.

For a juvenile's waiver of her right to counsel to be valid, it must be freely and voluntarily given. D.H. v. State, 688 N.E.2d 221, 224 (Ind.Ct.App. 1997). Before a juvenile can waive the right to counsel, the record should show that the juvenile was "advised of the nature, extent, and importance of the right to counsel and the consequences of waiving that right." J.W., 763 N.E.2d at 467. "Specifically, the juvenile court should warn a defendant who proceeds pro se in a criminal case of the...