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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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