ILNews

Majority orders new requirement for pro se defendants with little guidance

Back to TopE-mailPrintBookmark and Share

Three Indiana Supreme Court justices created a new requirement as an exercise of supervisory powers when it comes to informing future defendants about the dangers of proceeding pro se, leaving two justices to dissent because the new requirement provides no guidance as to what trial courts must do or say.

In David Hopper v. State of Indiana, No. 13S01-1007-PC-399, David Hopper originally pled guilty in 2005 to operating while intoxicated. He signed a “waiver of attorney” form. In 2009, he filed a petition for post-conviction relief saying his waiver wasn’t made knowingly and intelligently and because of that, he was denied his right to counsel in violation of the U.S. and state constitutions.

The Court of Appeals reversed the denial of relief by the post-conviction court. The judges found a waiver of counsel entered into without advice of both the right to counsel and the dangers of proceeding pro se is not knowing and voluntary. They pointed out the value of counsel’s experience in bargaining for a plea and the ability to find weaknesses in the state’s position to allow for negotiation.

The Court of Appeals referred to the constitutions, but Justices Theodore Boehm, Robert Rucker, and Frank Sullivan decided not to base their holding on either the federal or state constitution, noted Justice Boehm for the majority.

“Rather, we exercise our supervisory power to require that in the future a defendant expressing a desire to proceed without counsel is to be advised of the dangers of going to trial as required by Faretta, and also be informed that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution’s case,” he wrote.

The majority noted this new advisement, which is prospectively applied, will require minimal additional time or effort at the initial hearing and may encourage defendants to accept counsel. They don’t believe it will impose a significant burden on the judicial process, but didn’t offer any specific instructions on how trial courts were to advise defendants.

Since this will apply to future cases only, the majority affirmed the judgment of the trial court.

Chief Justice Randall T. Shepard and Justice Brent Dickson dissented. Chief Justice Shepard wrote that the primary beneficiaries of the decision will be repeat offenders, people like Hopper “because he has been charged with yet another offense and it would be helpful to him if he could wipe out his last conviction for drunk driving.”

The warnings mandated by the majority aren’t required by the federal Constitution and the majority explicitly declined to say that they are required by the state constitution, he continued, and they acted “without a word” on balancing the social costs or benefits within the mandate.

The dissent questioned how many people will decide not to plead guilty because of the “minimal” judicial intervention introduced by the majority, or how many repeat offenders will avoid penalties because the warning was omitted or found inadequate with the benefit of hindsight.

“That society, or even offenders, will be better off is far from clear,” he wrote.
 

ADVERTISEMENT

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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

ADVERTISEMENT