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New Supreme Court lineup could change pro se case outcome

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The Indiana Supreme Court is thinking about rehearing a case it ruled on four months ago, in which a majority at the time created a new rule but offered no guidance for trial judges on informing future defendants about the dangers of proceeding pro se.

But what’s changed since that 3-2 ruling in David Hopper v. State of Indiana, No. 13S01-1007-PC-399, is what could ultimately change the outcome of this case if it’s reheard, since now-retired Justice Theodore Boehm was the authoring justice for the majority and he’s no longer a part of the state’s highest court.

Following its Sept. 28, 2010, decision, the court on Monday issued an order that expresses its interest in considering whether it should rehear the issues on this case out of Marion County.

David Hopper had originally pled guilty in 2005 to operating while intoxicated, signing a “waiver of attorney” form but later seeking post-conviction relief on the grounds that his waiver wasn’t made knowingly or intelligently and that denied him the constitutional right to counsel.

The Marion Superior judge denied that petition and the Court of Appeals reversed in Hopper’s favor, but a three-justice majority affirmed the trial judge’s findings as applied to Hopper but also using the court’s supervisory power to set a new standard for future defendants.

“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,” Justice Boehm wrote at the time for the majority that also included Justices Robert Rucker and Frank Sullivan.

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.

As a result of the lack of guidance to trial courts, Chief Justice Randall T. Shepard and Justice Brent Dickson dissented. They 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, the chief justice wrote. He also noted that his colleagues 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.

Following that ruling, the state filed a rehearing request in late October and Hopper did not file a response. Now in its order dated Jan. 10, the Supreme Court is ordering Hopper to file a response to the state’s rehearing request by Feb. 11. Any interested amicus curiae parties are also invited to submit briefs before that date. A separate order setting oral arguments will also be issued by the Supreme Court, which since the Hopper ruling now has a new lineup –authoring Justice Boehm has left the court and Justice Steven David has taken that seat.
 

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  1. My husband financed a car through Wells Fargo In dec 2007 and in Jan 2012 they took him to court to garnish his wages through a company called autovest llc . Do u think the statue of limitations apply from the day last payment was received or from what should have been the completion of the loan

  2. Andrew, you are a whistleblower against an ideologically corrupt system that is also an old boys network ... Including old gals .... You are a huge threat to them. Thieves, liars, miscreants they understand, identify with, coddle. But whistleblowers must go to the stake. Burn well my friend, burn brightly, tyger.

  3. VSB dismissed the reciprocal discipline based on what Indiana did to me. Here we have an attorney actually breaking ethical rules, dishonest behavior, and only getting a reprimand. I advocated that this supreme court stop discriminating against me and others based on disability, and I am SUSPENDED 180 days. Time to take out the checkbook and stop the arrogant cheating to hurt me and retaliate against my good faith efforts to stop the discrimination of this Court. www.andrewstraw.org www.andrewstraw.net

  4. http://www.andrewstraw.org http://www.andrewstraw.net If another state believes by "Clear and convincing evidence" standard that Indiana's discipline was not valid and dismissed it, it is time for Curtis Hill to advise his clients to get out the checkbook. Discrimination time is over.

  5. Congrats Andrew, your street cred just shot up. As for me ... I am now an administrative law judge in Kansas, commissioned by the Governor to enforce due process rights against overreaching government agents. That after being banished for life from the Indiana bar for attempting to do the same as a mere whistleblowing bar applicant. The myth of one lowly peasant with the constitution does not play well in the Hoosier state. As for what our experiences have in common, I have good reason to believe that the same ADA Coordinator who took you out was working my file since 2007, when the former chief justice hired the same, likely to "take out the politically incorrect trash" like me. My own dealings with that powerful bureaucrat and some rather astounding actions .. actions that would make most state courts blush ... actions blessed in full by the Ind.S.Ct ... here: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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