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Pro se defendant must be advised of rights

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The requirement to advise a defendant of the dangers of self-representation and the benefit of counsel applies equally regardless of whether a pro se defendant is choosing to plead guilty or go to trial, the Indiana Court of Appeals decided today.

The appellate court declined to follow Sedberry v. State, 610 N.E.2d 284, 286 (Ind. Ct. App. 1993), Redington v. State, 678 N.E.2d 114, 118 (Ind. Ct. App. 1997), and Greer v. State, 690 N.E.2d 1214, 1217 (Ind. Ct. App. 1998), in ruling on David Hopper v. State of Indiana, No. 13A01-1002-PC-41, because they seem to establish two different standards for reviewing a wavier of counsel. Those cases apply a less demanding standard for defendants who choose to plead guilty than those who want to go to trial. The state wanted the judges to follow Sedberry, which held if a defendant waived his right to counsel and pleads guilty, there’s no need to advise the defendant about the dangers of proceeding without counsel because the defendant isn’t going to trial.

“We posit that the direction Sedberry takes us diminishes plea negotiations and guilty plea hearings in importance. We believe both are, indeed, critical stages of the proceeding where representation by a lawyer is crucial,” wrote Judge Michael Barnes.

Hopper pleaded guilty to Class A misdemeanor operating while intoxicated after waiving his rights to counsel. He read a form provided by the court, which stated if his case was serious enough, the judge would appoint a public defender. The judge also explained if he couldn’t afford an attorney, one would be appointed, but the judge never explained the dangers of waiving representation.

Hopper filed a petition for post-conviction relief several years later when he was represented by counsel, arguing he didn’t knowingly or intelligently waive his right to counsel. He also stated he was a high school drop out and didn’t understand some of the terminology in the form given to him.

“The right to counsel in a criminal case is not dependent upon the ‘seriousness’ of the case,” wrote Judge Barnes. “If this form is still in use, we direct that the references to the ‘seriousness’ of the case be deleted from the form’s discussion of the right to counsel.”

There’s no evidence the form advises defendants on the peril of proceeding without representation, the trial court judge didn’t inform Hopper of those dangers, and there’s no evidence Hopper independently understood the disadvantages of self-representation. Because his decision wasn’t knowingly or intelligently made, there’s no need to decide whether he was prejudiced by a lack of representation, the appellate court concluded. The judges remanded the case for further proceedings.
 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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