R.W. v. State

• Citation: 901 N.E.2d 539
• Decision Date: 19 February 2009
• Docket Number: No. 31A05-0803-JV-161.,31A05-0803-JV-161.
• Parties: R.W., a Child Alleged to be a Delinquent Child, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

901 N.E.2d 539

R.W., a Child Alleged to be a Delinquent Child, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 31A05-0803-JV-161.

Court of Appeals of Indiana.

February 19, 2009.

John T. Evans, Corydon, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

R.W. appeals from his adjudication as a delinquent child for committing Public Intoxication, a Class B misdemeanor when committed by an adult. He presents two issues for our review, but we address only the following dispositive issue: whether the trial court provided R.W. a meaningful opportunity to consult with his mother regarding the waiver of his right to counsel during his initial hearing.

We reverse.

FACTS AND PROCEDURAL HISTORY

On September 7, 2007, students at Lanesville High School in Harrison County reported to school officials that R.W. smelled of alcohol. School officials removed R.W. from class, R.W. admitted he had been drinking, and the school officials informed the police. A deputy from the Harrison County Sheriff's Department arrived, took R.W. into custody, and measured R.W.'s blood alcohol content to be 0.06%.

On September 14, the State filed a petition alleging R.W. to be a delinquent, namely, that he had committed public intoxication, a Class B misdemeanor when committed by an adult. On September 17, the trial court held an initial hearing, which R.W. attended with his mother. At that hearing, the following exchange took place:

THE COURT: Okay. So you're [R.W.'s mother] here representing his interest as well. Okay. You [R.W.] have certain rights in Court. One, the right to a copy of the charges and there's two of them there. In one of them you're charged with minor consuming, a status offense and a delinquent act alleging that on or about the seventh day of September 2007, in Harrison County, [R.W.] did before becoming eighteen years of age, violate Indiana Code 7.1-5-7 concerning minors and alcohol, specifically [R.W.] tested .06 percent on a portable breath test . . . and that's a status offense because if the person had been an adult that is twenty-one years of age it would not have been an offense. And under [the cause number ending in] JD-108, the petition alleging delinquency is identical in the first few paragraphs but then it goes into paragraph five and it says that you, alleges that you committed an act defined under Indiana Code, 31-37-1-2, that would have been a crime if committed by an adult[,] that is public intoxication[,] a Class [B] misdemeanor in that at the same time and place you did then and there, you were then and there found in an unlawful state of intoxication caused by your use of alcohol or a controlled substance and you were in a public place[,] specifically Lanesville High School in Harrison County.

[R.W.]: Yes, ma'am.

THE COURT: Do you understand the nature of those charges?

[R.W.]: Yes, ma'am.

THE COURT: Okay. And under JS-104, there is a sixth paragraph, the possible penalties have to do with what can happen to you if you either admit or are found, been found to have committed the offenses. And that's when it talks about removing you from the home, placing you in a secure detention facility or Indiana Boys' School or placing you and your family in treatment facilities. You can be required to surrender your driver's license, you can be required to pay restitution. You can be partially or completely emancipated. You can be required to attend [an] alcohol and drug services program. You could be required to perform community services. You could be, supervision over you could be placed with the probation department and you could be required to attend out[-]patient treatment at a social service agency, psychological, psychiatric[,] medical or education facility from an individual practitioner. These are among the many things that can be done to you. Do you understand this[?]

[R.W.]: Yes, ma'am.

THE COURT: And do you understand this as well, his mother?

[MOTHER]: Yes.

THE COURT: You have certain rights in the proceeding besides knowing what the charges are and what the possible penalties are. You have the right to be represented by an attorney. And you have a right for the Court to appoint an attorney if you do not have the means or your parents do not have the means to appoint one. What do you wish to do about an attorney? Do you wish to have an attorney at this time?

[R.W.]: No, ma'am.

THE COURT: Do you then wish to waive your right to an attorney?

[R.W.] Yes, ma'am.

THE COURT: A child cannot waive the right to an attorney unless a parent agrees with that waiver. . . .

[MOTHER]: I agree.

THE COURT: So, is it your intention, [R.W.'s mother]?

[MOTHER]: Yes.

THE COURT: To join your son in agreeing to waive your right to an attorney?

[MOTHER]: Yes.

THE COURT: Okay. You have other rights that I have outlined[][s]everal times ahead of you today, did you hear them?

[R.W.]: Yes, ma'am.

THE COURT: And you know the nature of the charges, and [to] be represented by an attorney, to have a speedy trial for the Court, confront and cross examine the witnesses, to require witnesses to come in and testify on your behalf, the right to remain silent. You don't have to say anything against yourself and the right to require the State to prove that you committed the delinquent act beyond a reasonable doubt, either before you are adjudicated to be a status offender or adjudicated to be a delinquent. You understand all of that?

[R.W.]: Yes, ma'am.

THE COURT: All right. Now what do you wish to do about the offense. Do you either wish to admit or deny the offense?

[R.W.]: I admit that I had been drinking, ma'am.

THE COURT: Okay. You understand that if you admit the allegations of the status offense or the petition alleging delinquency that you're giving up all those rights that I just went over with you[?]

[R.W.]: Yes, ma'am.

THE COURT: Is that your intention to give up all those rights and take responsibility for your actions?

[R.W.]: Yes, ma'am.

THE COURT: Okay. Has anyone forced you to do this?

[R.W.]: No, ma'am. I felt like I was under peer pressure but I wouldn't really say that it was peer pressure. I guess just wanting to look cool or somewhat.

THE COURT: Has anyone offered you any leniency or special treatment to get you to come in here and admit these acts?

[R.W.]: No, ma'am.

THE COURT: Do you feel that this admission is your own free will?

[R.W.]: Yes, ma'am.

THE COURT: And [R.W.'s mother,] do you feel like he's doing this on his own or have you made him do this?

[MOTHER]: He admitted on his own.

THE COURT: Okay. Do you still want to admit the allegations?

[R.W.]: Yes, ma'am.

Transcript at 8-15. The court then adjudicated R.W. a delinquent, ordered the State to prepare a predisposition report, and scheduled a disposition hearing. The court also informed R.W. and his mother that they could "make [their] own recommendation at that time too." Id. at 23.

On December 17, 2007, the court held the disposition hearing. At the same time, the court heard a number of other petitions pending against R.W. In at least one of those other petitions, R.W. was represented by counsel. However, the trial court expressly informed R.W.'s counsel that he was "not appointed" to address the public intoxication charge, Id. at 37. The court also reiterated that R.W. had waived his right to counsel at the initial hearing, and the court did not inquire with R.W. to determine whether R.W. wished to waive his right to counsel for the disposition hearing. The State then recommended that R.W. be made a ward of the Department of Correction. R.W. and R.W.'s mother recommended that he be released to his home. And R.W.'s probation officer gave the court no recommendation. See id. at 44-45, 47-48, 52. The trial court accepted the State's recommendation and entered its disposition order accordingly. Neither the parties nor the court referenced or inquired into the predisposition report, which, apparently, had not been prepared as ordered.¹

On January 15, 2008, R.W., by counsel, filed a motion to correct error with the trial court. In that motion, R.W. asserted that the trial court erred in its disposition order for each of the following reasons: (1) R.W. was denied his right to counsel; and (2) the court did not receive or consider the predisposition report before the court entered its disposition order. After a hearing, the trial court denied R.W.'s motion. This appeal ensued.

DISCUSSION AND DECISION

R.W. asserts that the trial court improperly denied him his right to counsel at his initial hearing. As this court recently stated in the context of adult prosecutions:

A criminal defendant's Sixth Amendment right to counsel is essential to the fairness of a criminal proceeding. Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Implicit in the right to counsel is the right to self-representation. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Because a criminal defendant gives up many benefits when the right to counsel is waived, "the accused must `knowingly and intelligently' forgo those relinquished benefits." Id. at 835, 95 S.Ct. 2525 (quoting Johnson v. Zerbst 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Furthermore, when a defendant asserts his or her right to self-representation, the trial court should advise the defendant of the "dangers and disadvantages of self-representation." Id.

Our Supreme Court has stated that there are no specific "talking points" when advising a defendant of the dangers and disadvantages of proceeding without counsel, and that a trial court needs only to come to a "considered determination" that the defendant is making a knowing, voluntary, and intelligent waiver of his or her right to counsel. Poynter v. State, 749 N.E.2d 1122, 1126 (I...