A.S v. State Of Ind.

• Decision Date: 30 June 2010
• Docket Number: No. 10A01-0908-JV-423.,10A01-0908-JV-423.
• Citation: 929 N.E.2d 881
• Parties: A.S., Appellant-Respondent,v.STATE of Indiana, Appellee-Petitioner.
• Court: Indiana Appellate Court

929 N.E.2d 881

A.S., Appellant-Respondent,v.STATE of Indiana, Appellee-Petitioner.

No. 10A01-0908-JV-423.

Court of Appeals of Indiana.

June 30, 2010.

COPYRIGHT MATERIAL OMITTED

Bart M. Betteau, Betteau Law Office, LLC, New Albany, IN, Attorney for Appellant.

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

OPINION

MAY, Judge.

A.S. was taken into custody after she hit a fellow high school student. At her detention hearing, the court deprived A.S. of her rights to be represented by counsel, to present evidence, and to confront witnesses against her. Counsel thereafter was appointed for A.S., and a hearing on whether she was a delinquent occurred three months later.¹ The court found her to be a delinquent and extended the probation she was serving for a prior adjudication.

A.S. appeals her detention because she was denied certain rights at her initial detention hearing, and argues she should not subsequently have been adjudicated a delinquent because her hearing did not take place within sixty days and she was not tried by a jury. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY²

On October 6, 2008, A.S. was detained on suspicion of battery. She was in ninth grade and fourteen years old. At a detention hearing the next day, no witnesses were sworn and no evidence was heard. The court found probable cause A.S. was a delinquent and in need of further detention, but gave no reason for her continued detention. Before the hearing, A.S. and her mother were presented with, and they signed, a document the trial court appears to have treated as a waiver of a number of rights including A.S.'s right to counsel.

On October 10, 2008, the State filed a delinquency petition, and A.S. asked the court to set a hearing to review its detention order.³ Counsel appeared for A.S. that day. A previously scheduled prehearing conference was held on October 14. Afterward the court noted in the docket that a “Pre-hearing Conference/Agreement of Admission Notice,” (App. at 2), had been filed, and the court set an Admission Hearing for October 29.

The record does not reflect notice of the October 29 hearing was provided to A.S. or her counsel, and they did not appear. Later counsel moved to continue the hearing to November 5. The court reset the admission hearing as requested, but on November 3, A.S. moved to vacate the admission hearing and set a factfinding hearing. The court set a factfinding hearing for November 19.

After a number of continuances, the factfinding hearing was held January 7, 2009. On February 20, the court found A.S. a delinquent, and on May 19, it extended for six months the probation she was already serving for a prior adjudication.

DISCUSSION AND DECISION

1 A.S.'s Detention

The State violated A.S.'s right to counsel at her detention hearing. In a companion case arising out of proceedings involving A.S. in the same court and before the same magistrate as in the case before us, we recently found A.S.'s alleged waiver of counsel was invalid:

Prior to the May 28, 2008, initial hearing, A.S. and her mother (Mother) were presented with a document entitled “Advisement of Rights for Juvenile Hearing” (Advisement), which reads, in pertinent part, as follows:

I understand that I have the following rights: to know the nature of the allegation(s) against the juvenile; to be represented by an attorney; to a speedy trial; to confront all witnesses; to subpoena witnesses; to introduce evidence on my own behalf; to refrain from testifying against myself; and to have the State of Indiana prove that I committed the offense by a preponderance of the evidence if a petition to modify or to prove that I committed the offense beyond a reasonable doubt if a delinquency petition.

I understand that I may hire an attorney of my own choice, waive my right to an attorney, or ask the Court to appoint an attorney to represent me.

A.S. v. State, 923 N.E.2d 486, 488 (Ind.Ct.App.2010). Both A.S. and Mother signed that Advisement, which is the same form A.S. and Mother signed in the case before us. In both cases, the trial court confirmed at the initial hearing that A.S. and Mother had signed the Advisement, but did not ask A.S. if she wanted legal representation, inquire as to whether she desired appointed counsel, or advise her as to the burdens of proceeding pro se. In both cases, the trial court stated in the initial hearing entry in the Chronological Case Summary (CCS): “Witnesses sworn, testimony heard,” (App. at 2), 923 N.E.2d at 488, but in fact no witnesses were sworn and no testimony was heard at either hearing.

In A.S., an out-of-court pre-hearing conference was conducted with the deputy prosecutor, A.S., and Mother. At some point, all three signed an “Agreement of Admission” that called for A.S. to admit all of the allegations, be placed on probation, and receive a suspended sentence. At a subsequent hearing, during which the trial court did not confirm A.S. had knowingly waived her right to counsel, A.S. admitted all the allegations. The trial court then found A.S. to be delinquent and ordered her to comply with the terms of the Agreement. 923 N.E.2d at 488.

A.S. moved for relief from judgment, alleging her right to counsel and due process had been violated because she was adjudicated a delinquent without counsel and without waiving her right to counsel. Her motion was denied, and on appeal we reversed because:

The right to counsel is guaranteed to children involved in juvenile proceedings by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, section 13 of the Indiana Constitution. A judgment is void if it is based on the denial of a defendant's-or, here, a juvenile's-constitutional right to be represented by counsel.

In the context of adult criminal proceedings, the right to counsel is essential to the fairness of those proceedings. Because a defendant gives up many benefits when the right to counsel is waived, the accused must knowingly and intelligently waive that right. When a defendant asserts his right to self-representation, the trial court should advise the defendant of the dangers and disadvantages of self-representation. Although there are no specific “talking points,” our Supreme Court has adopted four factors to consider when determining whether a knowing and voluntary waiver occurred:

(1) the extent of the court's inquiry into the defendant's decision, (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation, (3) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se.

In the context of juvenile adjudications, “the State bears a heightened burden in securing the juvenile's waiver of his or her right to counsel.” Pursuant to Indiana Code section 31-32-5-1(2), a parent can waive a juvenile's right to an attorney only if:

(A) [the parent] knowingly and voluntarily waives the right;

(B) [the parent] has no interest adverse to the child;

(C) meaningful consultation has occurred between [the parent] and the child; and

(D) the child knowingly and voluntarily joins with the waiver[.]

Our Supreme Court has held that “[t]he meaningful consultation requirement of the statute is a matter peculiar to juvenile waivers; it is a safeguard additional to those requirements common to adult waivers-that they be knowingly, voluntarily, and intelligently made.” In other words, in a juvenile context, the threshold inquiry is whether the parent and juvenile both made knowing and voluntary waivers in accordance with constitutional jurisprudence; if it is found that they did so, the next inquiry is whether there was an opportunity for meaningful consultation.

Id. at 490-91 (citations omitted) (emphasis in original).

In that situation virtually identical to the case before us, we determined A.S. and Mother did not knowingly and voluntarily waive the right to counsel guaranteed by the Indiana and United States Constitutions. Id. at 491. The trial court made no inquiry into the ostensible decision of A.S. and Mother to proceed pro se. The advisement they signed explained A.S.'s rights, including the right to be represented by an attorney, but nowhere in the record did they state affirmatively that they intended and wished to proceed without representation. There was no evidence in the record that A.S. and Mother understood the dangers and disadvantages of self-representation. A.S. was not advised that an attorney could investigate and present her self-defense claim. There was no evidence in the record establishing the background and experience of either A.S. or Mother, and the conversation Mother had with the trial court at the initial hearing suggested she was confused about the procedures to be followed. Id.

On that record, we could not find “any evidence establishing that Mother and A.S. knowingly and voluntarily waived the right to counsel. Similarly, there is no evidence that they were advised of that right and the dangers of proceeding pro se and had a subsequent opportunity for a meaningful consultation on the issue.” Id. at 492-93. We accordingly found A.S.'s adjudications were void and she was entitled to relief from judgment.

As A.S. was subjected to exactly the same procedures and constitutional violation in the case before us, we conclude A.S.'s purported waiver of her right to counsel did not comport with constitutional requirements. See Id.

The State does not dispute that A.S. was subjected to the constitutional violation she alleges, but urges us not to address the merits of the violation because: 1) she waived the claim by not raising it below; and 2) the claim is moot because she is no longer being detained.

A. Fundamental Error

A.S.'s claim is not waived, as the constitutional violation was fundamental error.⁴ Generally, a claim of error must be raised during trial in order...