COA reverses denial of PCR petition

January 30, 2018

A pro se defendant sentenced to 100 years of incarceration can take his case back to the trial court after the Indiana Court of Appeals found his appellate counsel prejudiced him by not raising the issue of whether his waiver of counsel was knowing, intelligent and voluntary.

In Major Wilson v. State of Indiana, 45A03-1707-PC-1466, Major Wilson was appointed a public defender to represent him on 10 charges for various crimes but filed a motion to dismiss his public defender when his friends retained private counsel for him. When the trial court denied that motion, he moved to proceed pro se.

The judge repeatedly told Wilson he did not have the right to represent himself and did not acquiesce until the public defender cited to the 2004 case of Stroud v. State of Indiana. The public defender agreed to serve as standby counsel, and Wilson was convicted of Class A felony criminal deviate conduct and Class B felony burglary while armed with a deadly weapon and sentenced him to 100 years.

The Indiana Court of Appeals affirmed Wilson’s convictions on direct appeal in 2015, prompting his petition for post-conviction relief. During an ensuing evidentiary hearing, Wilson’s appellate counsel testified she did not request transcripts from the hearings in which the waiver of his right to counsel as discussed but should have done so.

The Lake Superior court denied the PCR petition, finding “no constitutional requirement for appellate counsel to look beyond the trial record for issues on appeal… .” The court also noted neither Wilson nor his standby counsel had informed his appellate counsel that there may have been a question as to his waiver of the right to counsel.

But the Indiana Court of Appeals reversed the denial of Wilson’s PCR petition, finding he did receive ineffective assistance of appellate counsel. In a Tuesday opinion, Judge John Baker first chastised the trial court’s “egregious lack of knowledge” on the right to proceed pro se and the procedures for waiving the right to counsel and advised the judge to review relevant caselaw “without delay.”

Turning to the merits of the appeal, Baker then wrote a record on appeal constitutes “all proceedings before the trial court,” including pre-trial transcripts, so neither Wilson nor his standby counsel were required to inform his appellate counsel of possible issues with his counsel waiver.  The trial court also failed to ensure Wilson’s waiver was knowing, voluntary and intelligent by not asking any questions to ensure those requirements were met.  

Further, an unknowing waiver argument on appeal would have been stronger than the insufficient evidence argument Wilson’s appellate counsel raised, Baker said. Thus, Wilson was prejudiced by his appellate counsel’s ineffective representation, and the presence of standby counsel did not waive the trial court’s duty to ensure his waiver of counsel met the necessary requirements.

“Here, the transcript is clear on its face: the trial court did not advise Wilson of the risks of self-representation, let alone ask even one question to ascertain whether his waiver of his right to counsel was knowing, voluntary, and intelligent,” Baker wrote. “Had appellate counsel raised this issue on appeal, it is highly likely that this Court would have reversed the judgment against Wilson and remanded for a new trial.”

The case was remanded for further proceedings.


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