Seniours v. State

• Decision Date: 31 May 1994
• Docket Number: No. 03A05-9307-CR-00260,03A05-9307-CR-00260
• Citation: 634 N.E.2d 803
• Parties: Charles N. SENIOURS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 803

634 N.E.2d 803

Charles N. SENIOURS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 03A05-9307-CR-00260.

Court of Appeals of Indiana Fifth District.

May 31, 1994.

James Long, Columbus, for appellant.

Pamela Carter, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SHARPNACK, Chief Judge.

Charles N. Seniours appeals his conviction for child molesting as a Class C felony. We reverse and remand for a new trial.

Seniours presents two issues for our review. Because we reverse, we need only address the dispositive issue of whether the trial court erred in failing to determine whether Seniours knowingly, intelligently, and voluntarily waived his right to counsel.

The facts reveal that Seniours was charged with one count of child molesting on March 30, 1992. Seniours entered a plea of not guilty on April 8, 1992, and the matter was set for trial for August 4, 1992. On May 6, 1992, G. Terrence Coriden entered his appearance for Seniours as private counsel. On July 21, 1992, Coriden filed a motion to withdraw appearance, stating that Seniours had insufficient funds to retain an attorney and needed a court-appointed attorney. On July 30, 1992, the Court conducted a hearing on Coriden's motion. At the hearing, Coriden testified that after an initial payment of $650.00, he had received none of the $100.00 per week installments agreed to by Seniours. Seniours testified that he earned $270.00 per week working full time, that he had to pay $70.00 child support and $25.00 rent out of that money, and that he would be unable to pay $8,000 for an attorney. The court granted Coriden's motion to withdraw, but found that Seniours did not qualify to have a public defender represent him. The court continued the trial until December 8, 1992, to allow Seniours time to find a new attorney.

On November 9, 1992, at a pre-trial conference in the matter, Seniours informed the court that he had not yet hired counsel. Seniours testified that he had found an attorney to represent him for $3,500.00 who would accept half that amount before the pretrial conference, but Seniours was unable to meet with the attorney because of logistical difficulties on both sides. He further testified that the attorney called him on the day of his appointment and advised that he could not take the case because he was "back [sic] up on his other cases." Record, p. 94. Seniours testified that he had the money to make the initial payment. The court set another hearing and provided Seniours with a list of eight attorneys who handled cases of his type.

On November 23, 1992, a further status hearing was held. Seniours had not yet found an attorney, but claimed to have an appointment to see one that week. The court set another hearing for the following week.

On November 30, 1992, Seniours informed the court that he could not afford an attorney because he was so far into debt that he could not see his way out. Seniours claimed to have spoken with several attorneys and to have found one who agreed to two payments of $1,500 each, but who could not take the case until after January. The court pointed out that the State had agreed to continue the case to February, and Seniours indicated that the continuance would help him in hiring a lawyer. The court set another hearing for January.

At the January 11, 1993, status hearing, Seniours informed the court that he still did not have an attorney because he was being forced to move. Seniours told the court that he earned $9.00 per hour, but that he took home only $100.00 per week after deductions. The court refused to set another hearing, stating:

"Now, you're making $9.00 an hour and I don't know how serious you consider this to be, but I'm telling you this is very serious and you need to make more of an effort to secure counsel because I'm going to go ahead and proceed to trial and find that you have not found counsel and that you should be able to, given the cash bond that you have filed, given the fact that you had fifteen hundred dollars saved towards this and you should be able to save more than that towards this because this should be your number one priority right now. So, I cannot find based upon the testimony that I've had here today and what I've had before, that you're eligible for a court appointed attorney and I'm not going to appoint one to represent you at this point."

Record, p. 112-13.

On February 18, 1993, the trial was held, with Seniours proceeding pro se. The jury found Seniours guilty as charged. On April 22, 1993, Seniours was sentenced to four years imprisonment, with two and one-half years suspended.

Seniours argues that the trial court erred in permitting him to proceed pro se without first determining that he knowingly, willingly, and voluntarily waived his constitutional right to assistance of counsel.

Under Indiana law, a strict standard will be applied to a determination of whether a defendant has waived the right to counsel.

" 'The right to counsel can only be relinquished by a knowing, voluntary, and intelligent waiver of the right.' Dowell v. State (1990), Ind.App., 557 N.E.2d 1063. Whenever a defendant proceeds pro se, it is incumbent upon the trial court to determine if the waiver of the right to counsel is made knowingly and voluntarily. Kirkham v. State (1987), Ind.App., 509 N.E.2d 890, 892. To make such a determination, the trial court must conduct a hearing to determine the defendant's competency to represent himself and also to establish a record of the waiver. Dowell, supra. The record must show that the defendant was made aware of the 'nature, extent, and importance' of the right to counsel and the necessary consequences of waiving such a right. Kirkham, supra. 'Merely making the defendant aware of his constitutional right is insufficient.' Id. '[T]he trial court should inquire into the educational background of the defendant, the defendant's familiarity with legal procedures and rules of evidence, and additionally, into the defendant's mental capacity if there is any question as to the defendant's mental state.' Dowell, supra. However, the trial court need not specifically inquire into each of the guidelines enunciated in Dowell. It is sufficient if the record reveals that, after being apprised of the advantages of representation by counsel and the pitfalls of self-representation, a defendant voluntarily, knowingly, and intelligently chooses self-representation. Leonard v. State (1991), Ind., 579 N.E.2d 1294."

Martin v. State (1992), Ind.App., 588 N.E.2d 1291, 1293.

The facts of the present case show that the trial court repeatedly urged Seniours in no uncertain terms to secure an attorney, provided him with lists of attorneys to contact, and postponed trial several times in order to give Seniours every opportunity to have benefit of counsel. The court hammered upon the seriousness of the charges and the potential fines and terms of imprisonment facing Seniours. Indeed, it may be said that prior to trial the court bent over backwards to accommodate Seniours and to comply with the requirements of due process. Nonetheless, there is nothing in the record to show that Seniours voluntarily, knowingly, and intelligently chose to represent himself.

During the course of the status hearings, the possibility that trial would proceed whether or not Seniours employed counsel is mentioned twice, but in terms that do not suggest the consequences of a decision to proceed pro se. On November 3, 1992, the judge stated, "I understand that you're in debut [sic], but I ... this is going to have to be one of your priorities or you're going to have to handle this on your own." Record, p. 90. On January 11, 1993, the court stated, "I'm telling you this is very serious and you need to make more of an effort to secure counsel because I'm going to go ahead and proceed to trial and find that you have not found counsel." Record, p. 111. Following the transcript of the January 11, 1993, hearing, the record jumps to the transcript of the trial, at which Seniours acts the role of his own attorney. The record contains no reference whatsoever to Seniours' choice to represent himself and no inquiry by the court concerning Seniours' capacity to do so. Moreover, there is no evidence in the record that the court inquired into Seniours' background and familiarity with legal procedures; that he had been apprised of the advantages of representation by counsel or the pitfalls of self-representation; or that Seniours voluntarily, knowingly, and intelligently chose to proceed pro se. The most that may be inferred from Seniors' participation in the trial is his acquiescence, but no evidence of an affirmative waiver exists.

The ultimate question before us, then, is whether this acquiescence and Seniours' conduct in failing to secure counsel constitute a waiver of his right to counsel.

As in Fitzgerald v. State (1970), 254 Ind. 39, 257 N.E.2d 305, "[t]he absence of counsel in this case is directly attributable to the appellant's own conduct," and

"it would be unreasonable to fault anyone but the appellant himself for the failure to have the assistance of counsel at his trial. There are many instances in the law in which one may waive a particular right by his own conduct with respect to that right, and were no other considerations present in this case, we would be inclined to characterize the conduct of the appellant as amounting to just such a waiver. Ordinarily courts are unwilling to reward a litigant for his own misconduct.

Notwithstanding the above, in the case at bar we are dealing with no ordinary right but rather with a constitutional right of fundamental importance--the right to the assistance of counsel. Constitutional rights have occupied a sacred position in our legal system and rightfully so. The concepts, principles and rights embodied in both the United States and Indiana Constitutions command the most sensitive...