Man who did not knowingly waive representation to get new trial

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A southern Indiana man will receive a new trial for his invasion of privacy charges after the Indiana Court of Appeals ruled Wednesday the trial court failed to advise him of the dangers of proceeding pro se.

After James Hart was charged with misdemeanor invasion of privacy for violating a protective order prohibiting him from visiting his wife’s place of employment, Hart appeared at an initial hearing in the Orange Superior Court and executed a “Waiver of Appearance and Written Report of Initial Hearing.” The waiver notified Hart of his right to retain or be assigned counsel, but the court did not ask him whether he intended to hire an attorney or was indigent.

During a subsequent pretrial conference, the trial court judge asked Hart if he was going to waive his right to counsel or ask for an attorney to be appointed, and Hart told the court “I don’t need your monkeys.” Trial was set for June 8, 2016, but one week before trial, Hart moved for a continuance for more time to obtain counsel, among other reasons.

The trial court denied the motion and Hart proceeded to trial pro se. The trial court never questioned his lack of representation. Hart was found guilty as charged.

On appeal in James A. Hart v. State of Indiana, 59A01-1607-CR-1655, Hart argued he did not voluntarily, knowingly and intelligently waive his right to counsel, so the trial court violated that right by proceeding to trial before he hired an attorney. The state, however, argued that even if Hart did not verbally waive his right to counsel, he did so implicitly by failing to obtain counsel in the six months between notice of his charges and the trial date.

In a Wednesday opinion, Indiana Court of Appeals Judge Rudolph Pyle reversed Hart’s convictions, writing for the unanimous panel that “making a defendant aware of his constitutional right to counsel is insufficient.”

“The complicating factor here is that Hart never asserted his right to self-representation, which would have raised the question of whether he intended to waive his right to counsel,” Pyle wrote. “He denied the trial court’s offer of court-appointed counsel when he said ‘I don’t need your monkeys,” but he never stated that he intended to represent himself instead.”

Since the decision in Poynter v. State, 749 N.E.2d 1122, 1125-26 (Ind. 2001), Pyle said Indiana courts have “held that in order for a defendant to knowingly and intelligently waive his right to counsel through his conduct, the trial court must warn the defendant of the dangers and disadvantages of self-representation.” Here, Hart did not receive such an advisement, so he could not have knowingly and intelligently waived his right to counsel, the judge said.

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