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Judge: Man did not knowingly waive right to counsel

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An Indiana Court of Appeals judge raised six points in a dissent Monday as to why he disagreed with his colleagues’ decision to affirm the revocation of a man’s probation based on the conclusion that the defendant knowingly, intelligently, and voluntarily waived his right to counsel.

In Vincent M. Butler, Jr. v. State of Indiana, No. 84A01-1008-CR-414, Judges Nancy Vaidik and Paul Mathias found because Vincent Butler admitted he violated his probation, the trial court wasn’t required to warn him of the dangers of self-representation in order to establish a knowing, intelligent, and voluntary waiver of his right to counsel. They found the record showed the trial court adequately advised Butler of his right to counsel and he knowingly waived that right.

Butler pleaded guilty to five counts of Class D felony theft and was sentenced to one year executed and four years suspended to probation. Because of credit time served, he was immediately placed on probation. Three months later, the state filed a petition to revoke his probation for several reasons, including he tested positive for drugs and alcohol.

At his hearing, the trial judge told Butler he could have a lawyer represent him and one would be appointed if he couldn’t afford it. Butler declined an attorney and said he understood he had a right to a lawyer. He then admitted to violating the terms of his probation after the judge asked whether he admitted or denied violating probation. The trial court found he admitted violating probation and at a later hearing revoked his probation and ordered him to serve the remaining four years of his sentence in the Department of Correction.

The majority relied on Greer v. State, 690 N.E.2d 1214, 1217 (Ind. Ct. App. 1998), to uphold the lower court’s decision, although Judge Vaidik did point out in a footnote that their reliance on the case is called into question by the Indiana Supreme Court decision in Hopper v. State, 934 N.E.2d 1086, in which the justices recently granted a petition for rehearing on.

The judges also pointed out Butler’s extensive criminal history and experience with the criminal justice system. He has had his probation revoked multiple times, and the fact he did ask for and receive appellate counsel shows that he knew how to exercise his right to an attorney when he so desired, wrote Judge Vaidik.

Judge Kirsch dissented on these two points. He found this case not similar to Greer in that the defendant in that case voluntarily admitted that he planned on pleading guilty while the trial court was advising him of his right to counsel, whereas in the instant case, Butler didn’t admit to the violation until questioned by the judge.

He also disagreed with the majority regarding Butler’s criminal history being used to support his wavier of counsel was knowing, intelligent and voluntary. There’s no evidence that career criminals generally or Butler specifically possess a specialized legal knowledge rendering them capable of making a voluntary waiver of their rights in the absence of a full and adequate disclosure of the importance of those rights, wrote Judge Kirsch.

“Indeed, the conclusion could be easily drawn that an extensive criminal history is more likely reflective of the lack of critical thinking skills, not their presence,” he wrote.

He also dissented because he believed the Supreme Court abrogated Greer in Hopper,  the trial judge never determined Butler’s competency, he wasn’t made aware of the perils of self-representation, and the record is unclear as to the extent of which of his admissions was qualified and equivocal.
 

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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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