ILNews

Judge: Man did not knowingly waive right to counsel

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  2. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

ADVERTISEMENT