Redington v. State

• Decision Date: 27 March 1997
• Docket Number: No. 25A03-9606-PC-218,25A03-9606-PC-218
• Citation: 678 N.E.2d 114
• Parties: John P. REDINGTON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 114

678 N.E.2d 114

John P. REDINGTON, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.

No. 25A03-9606-PC-218.

Court of Appeals of Indiana.

March 27, 1997.

Rehearing Denied May 22, 1997.

Transfer Denied July 16, 1997.

Susan K. Carpenter, Public Defender, C. Brent Martin, Deputy Public Defender, Indianapolis, for Appellant-Petitioner.

Pamela Carter, Attorney General, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for Appellee-Respondent.

Pamela Carter, Attorney General, Lisa M. Paunicka, Deputy Attorney General, Indianapolis, for Appellee-Respondent.

OPINION

STATON, Judge.

John P. Redington appeals the denial of his petition for post-conviction relief. This case presents two issues for review which we state as:

I. Whether a post-conviction relief petitioner who did not voluntarily, knowingly and intelligently waive his right to counsel before pleading guilty must demonstrate prejudice before he is entitled to relief.

II. Whether Redington voluntarily, knowingly and intelligently waived his right to counsel before he pled guilty.

We affirm in part and reverse in part.

The relevant procedural history follows. In June of 1978, Redington pled guilty to one count of Theft as a class D felony. On March 26, 1993, Redington filed a petition for post-conviction relief challenging this guilty plea. At the post-conviction hearing, the State agreed that the advisement given Redington at his guilty plea hearing did not meet the requirements of Wallace v. State, 172 Ind.App. 535, 361 N.E.2d 159 (1977), reh. denied, trans. denied, 267 Ind. 43, 366 N.E.2d 1176 (1977), concerning the dangers of proceeding pro se. However, the post-conviction court concluded that under White v. State, 497 N.E.2d 893 (Ind.1986), Redington was required to demonstrate some type of prejudice from the deficient advisement, and that Redington failed to meet this burden. Accordingly, the post-conviction court denied Redington's petition for post-conviction relief. Notably, the post-conviction court did not make any express finding or conclusion as to whether failure to comply with Wallace at a guilty plea hearing rendered Redington's waiver of counsel involuntary, unknowing or unintelligent. This appeal ensued.

Under the rules of post-conviction relief, the petitioner bears the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1, § 5; Weatherford v. State, 619 N.E.2d 915, 917 (Ind.1993), reh. denied. Since Redington had the burden of establishing his grounds for relief, he is appealing from a negative judgment. To prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the trial court. Id.

I. Applicability of White

When Redington pled guilty in 1978, the Indiana Code provided that "[a] guilty plea shall not be accepted from a defendant unrepresented by counsel who has not freely and knowingly waived his right to counsel." IND.CODE § 35-4.1-1-2(a) (1976), repealed by 1981 Ind. Acts P.L. 298, SEC. 9(a). ¹ The State contended, and the post-conviction court agreed, that Redington was required to plead specific facts in accordance with White from which the court could conclude that Redington would have changed his decision to plead guilty had he been properly advised of his right to counsel. ² We conclude the post-conviction court erred in applying White to the issue of waiver of counsel at a guilty plea hearing.

In White, our supreme court held that in order for a post-conviction relief petitioner to be entitled to relief when challenging his guilty plea, the petitioner must "plead specific facts from which a finder of fact could conclude by a preponderance of the evidence that the trial judge's failure to make a full inquiry in accordance with § 35-35-1-2(a) rendered his decision [to plead guilty] involuntary or unintelligent." White, supra, at 905. Thus, on its face, White only applies to the advisements enumerated in IC 35-35-1-2(a). ³ Cases prior to White do not require a showing of prejudice in order to set aside a guilty plea where the defendant was not properly advised of his right to counsel. See Rader v. State, 181 Ind.App. 546, 393 N.E.2d 199 (1979); DeFrisco v. State, 153 Ind.App. 609, 288 N.E.2d 576 (1972). Redington and the State have not directed us to, and we did not locate, any cases applying White outside the context of 35-35-1-2(a), much less applying White to waiver of counsel. Too, in the context of waiver of counsel and proceeding to trial pro se, our courts do not require a showing of prejudice in order for a defendant to be entitled to relief where he was not properly advised and admonished concerning the right to and importance of trial counsel. See Hagy v. State, 639 N.E.2d 693 (Ind.Ct.App.1994); Seniours v. State, 634 N.E.2d 803 (Ind.Ct.App.1994). We can decipher no legitimate reason why the result should be any different for a defendant who has pled guilty when he was not properly advised and admonished concerning his right to counsel. Accordingly, we conclude that a post-conviction relief petitioner need not comply with White once it is shown that he did not voluntarily and intelligently waive his right to counsel before pleading guilty.

II. Voluntariness of Waiver of Counsel

Nevertheless, the predicate determination to relief is that Redington demonstrate that he did not voluntarily and intelligently waive his right to counsel before he pled guilty. We conclude that Redington's waiver of counsel was voluntary, knowing and intelligent.

Before addressing whether Redington made a knowing, voluntary and intelligent waiver of counsel before pleading guilty, it is necessary to clarify the factual juxtaposition of this case. According to Redington, "The State conceded ... that John Redington had not been properly advised as to the importance of his right to be represented by an attorney." Brief of Appellant at 8. This statement is, at best, a quite liberal interpretation of the State's concession at the post-conviction hearing. ⁴ A more careful reading of the record reveals that the State only conceded that the trial court did not "do what the Wallace case and the others say that you have to...." Record at 70. Nowhere could we find a concession by the State that Redington was not properly advised as to his right to counsel or that he did not voluntarily, knowingly and intelligently waive this right. In fact, at one point the State argued that "[n]owhere in there is the advisement of the dangers of self representation, but on the other hand there is nothing in there that really indicates that it was an involuntary waiver...." Record at 71. Thus, we begin our analysis with the concession by the State, and only this concession, that Redington was not properly advised of the dangers of proceeding pro se under the standards as set forth by Wallace and its progeny.

Given the State's concession, Redington contends that we are required to conclude that his waiver of counsel before he pled guilty was not voluntary, knowing and intelligent. The State counters that failure to comply with the admonishments set forth in Wallace does not render the waiver of counsel at a guilty plea hearing involuntary, unknowing or unintelligent. ⁵ We agree with the State.

Wallace was written shortly after the United States Supreme Court's decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), where the Court recognized a criminal defendant's right to proceed to trial pro se. While a criminal defendant can waive his right to counsel and proceed pro se, the waiver must be done voluntarily, knowingly and intelligently. Wallace, supra, at 162. Wallace addressed the requirements of a voluntary, knowing and intelligent waiver of the right to counsel before proceeding to trial. "The record must demonstrate that he is fully aware of the nature, extent and importance of the right he has waived and the possible consequences thereof so 'his choice is made with his eyes open.' " Wallace, supra, at 164. The consequence of proceeding pro se is the polestar of any admonishment or warning concerning waiving the right to counsel. See Wallace, supra, at 163 (defendant must be made aware of the consequence of his choice); Faretta supra, 422 U.S. at 834, 95 S.Ct. at 2541 (defendant should be made aware of the dangers and disadvantages of self-representation). There is no rigid mandate which sets forth specific inquiries or warnings which a trial court should make before determining that a waiver is voluntary and intelligent. Leonard v. State, 579 N.E.2d 1294 (Ind.1991). Accordingly, Wallace and its progeny generally require a warning to the effect that a defendant will be held to the "ground rules" of trial procedure, that the defendant will be treated like an attorney, responsible for making objections and following procedural and evidentiary rules, and that the defendant be made aware of the pitfalls of self-representation. See Leonard, supra (defendant advised of pitfalls of self-representation); Kindred v. State, 521 N.E.2d 320 (Ind.1988) (voluntary waiver where defendant advised he would be treated like an attorney and held in strict accordance with procedural rules); Nation v. State, 445 N.E.2d 565 (Ind.1983), reh. denied (voluntary waiver where defendant told of jeopardy of self-representation, need to know procedural and evidentiary rules and how to properly object); Coleman v. State, 630 N.E.2d 1376 (Ind.Ct.App.1994), trans. denied (voluntary waiver where defendant told he would be treated as an attorney, responsible for arguments, questioning witnesses and jurors, could not argue in closing, and advised evidentiary objections would not be explained).

The reasons for the above warnings are obvious, and were aptly detailed by Justice Sutherland in Powell v. Alabama.

Even the intelligent and...