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Majority reverses Hopper advisement created last year

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A divided Indiana Supreme Court has reversed its 2010 decision to require that pro se defendants be informed about the dangers of pleading guilty without an attorney. Two of the justices who originally voted to create the “Hopper advisement” found themselves in the minority on the high court’s decision on rehearing.

In September 2010, Justices Robert Rucker, Frank Sullivan and Theodore Boehm created the “Hopper requirement” – named after defendant David Hopper – which held that trial courts must be advised of the dangers of going to trial or pleading guilty without representation as required by Faretta v. California, 422 U.S. 806 (1975). The majority in the original decision noted the new advisement – which was prospectively applied – would require minimal additional time or effort at the initial hearing and wouldn’t impose a significant burden on the judicial process. Chief Justice Randall T. Shepard and Justice Brent Dickson dissented, questioning how many people would decide not to plead guilty based on the advisement or how many repeat offenders would avoid penalties because the warning wasn’t given.

But since that 2010 ruling, Boehm has retired and been replaced by Justice Steven David, and today the high court reversed its earlier decision on a rehearing petition requested by the state. Shepard, David and Dickson made up the majority in the latest opinion. The majority affirmed the denial of post-conviction relief for Hopper – who in 2005 decided to plead guilty to a driving while intoxicated charge after waiving his right to counsel. The majority denied Hopper’s argument and overturned their earlier decision.

“While we do not doubt the value of the Hopper advisement’s language in particular stages of particular cases with particular defendants, the notion that such language should be mandatory in all stages of all cases with all defendants is misplaced,” wrote Shepard in David Hopper v. State of Indiana, No. 13S01-1007-PC-399.

Rucker and Sullivan dissented, with Rucker writing that the state’s petition for rehearing never should have been granted because the state advanced no new arguments. Rucker also couldn’t understand why the majority believes it is a bad idea to provide pro se – and likely indigent – defendants with the advisement outlined in the original Supreme Court decision: “an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution’s case.”

“I do not disagree that a Hopper advisement is not necessarily required by the Sixth Amendment or by the Indiana Constitution,” he wrote. “Nor do I advocate that the lack of an advisement would automatically result in reversal of a defendant’s conviction. But the advantages of giving such an advisement, especially at the initial hearing stage of the proceedings, far outweigh any disadvantages of doing so.”

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