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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. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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