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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. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  2. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

  5. To Bob- Goooooood, I'm glad you feel that way! He's alive and happy and thriving and out and I'm his woman and we live in West Palm Beach Florida, where his parents have a sprawling estate on an exclusive golf course......scum bag

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