Spears v. State, 80A04-9304-CR-122

• Decision Date: 29 September 1993
• Docket Number: No. 80A04-9304-CR-122,80A04-9304-CR-122
• Parties: William L. SPEARS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 366

621 N.E.2d 366

William L. SPEARS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 80A04-9304-CR-122.

Court of Appeals of Indiana,

Fourth District.

Sept. 29, 1993.

Thomas R. Lett, Tipton, for appellant.

MILLER, Judge.

William Spears, age thirty-four (34), was convicted by a jury of battery, a class B misdemeanor, and requests a new trial. He claims: 1) the trial court erred in denying him pauper counsel; and 2) he did not knowingly and voluntarily waive his right to counsel. Spears' second claim is dispositive.

We reverse.

FACTS

Spears was charged with battery, a class B misdemeanor, on January 6, 1992. An initial hearing was held on January 29, 1992 at which Spears requested a court-appointed attorney. The court placed him under oath, conducted a brief examination into his financial status, and denied Spears' request. After the court advised Spears to obtain private counsel, Spears stated: "I choose not to represent with counsel, because I do not want one." R. 15. The court then informed Spears of his right to a speedy trial, to confront witnesses, to subpoena witnesses, and to a jury trial.

On August 13, 1992, the trial court ordered Spears to attend a Status of Counsel hearing. While no hearing on the record was held that day, Spears did sign two pre-printed documents. The first is entitled "Waiver of Attorney." This form indicates Spears' name, birthday, and place of birth. It noted that Spears' completed school through the fifth grade and indicates that although he can write and understand English, he cannot read English. The form listed the offense with which he was charged and the maximum penalties therefor.

The Waiver of Attorney form lists Spears' rights with regard to his defense, with or without the assistance of counsel. It ends with the statement: "I DECLARE THAT I DO NOT WANT TO BE DEFENDED BY AN ATTORNEY IN THIS CASE." R. 22. Spears signed and dated the form.

The second document is entitled "Demand to Proceed Pro Se." This form indicates Spears' name and that he has completed the Waiver of Attorney form. The purpose of the form is to request of the trial court that Spears be allowed to represent himself. It also indicates that the court purportedly advised Spears that, as a pro se litigant, he would be held to the same procedural standards as an attorney, that an attorney possesses skills that Spears does not, and that the court advised against this course of action. Spears signed and dated this document as well.

The same day, August 31, 1992, the court granted Spears' demand to proceed pro se. Later, Spears represented himself at a jury trial and was convicted of battery.

DECISION

On August 10, 1993, the State waived its right to file an opposing brief in this matter. The prima facie error rule provides that when an appellee does not file a brief, we will reverse, provided that in his or her own brief the appellant makes a showing that prima facie error has occurred. Johnson Cty. Rural Elec. v. Burnell (1985), Ind.App., 484 N.E.2d 989, 991. The purpose of this rule is not intended to benefit the appellant. Rather, it is intended to relieve this court of the burden of controverting the arguments advanced for reversal. Id. Prima facie error means error at first sight, on first appearance, or on the face of it. Id.

The second issue Spears raises is that he did not knowingly and voluntarily waive his right to counsel. "The right to counsel can be relinquished only by a knowing, voluntary, and intelligent waiver of the right." Dowell v. State (1990), Ind.App. 557 N.E.2d 1063, 1065, trans. denied, cert. denied sub nom. --- U.S. ----, 112...