COA orders withdrawal of guilty plea made without counsel

The Franklin Circuit Court must withdraw a first-time felon’s pleas to two drug counts after erroneously finding the man knowingly, voluntarily and intelligently waived his right to counsel.

In February 2017, Stephen Wirthlin was charged with possession of methamphetamine and two counts of dealing in a synthetic drug or lookalike, all as Level 6 felonies. Wirthlin appeared pro se at his initial hearing and requested a speedy trial, but indicated multiple times he wasn’t sure if he would hire an attorney.

Wirthlin then began plea negotiations with the prosecutor and agreed, without consulting an attorney, to plead guilty to the possession charge and one count of dealing. He also signed a document regarding his rights at the guilty plea stage, including the right to counsel.

The parties returned to the Franklin Circuit Court on the same day as the initial hearing for a plea hearing, with Wirthlin telling the judge he understood that he was waiving his right to counsel. The court then accepted the plea and sentenced him to two years, with 16 months suspended to probation.

But in September 2017, Wirthlin — who was then represented by counsel — moved to withdraw his plea, arguing it was based on “his misunderstanding that a waiver of counsel was necessary to quickly resolve the case.” The trial court denied the motion, finding Wirthlin had been advised of his right to counsel orally and in writing.

Wirthlin then appealed in Stephen Wirthlin v. State of Indiana, 24A01-1711-CR-2662, and the Indiana Court of Appeals on Wednesday reversed the denial of his motion to withdraw. Judge John Baker initially noted that Wirthlin never explicitly waived his right to counsel orally, but only said he was “not sure” what he would do about an attorney. Baker specifically pointed to the initial hearing, when Wirthlin told the court, “I didn’t say I didn’t want (an attorney), I said I couldn’t afford one.”

“The fact that Wirthlin did not explicitly request appointment of a public defender is of no moment, and the trial court erred by burdening him with the obligation to do so,” Baker wrote. 

Similarly, Baker said Wirthlin’s signature on written forms advising him of his right to counsel and presented to him at the initial and plea hearings also did not constitute explicit and thorough waivers. Rather, those documents were boilerplate advisement of rights, he said.

Further, the trial judge never inquired into Wirthlin’s “decision” to waive his right to counsel, nor did it work with Wirthlin when he expressed confusion and uncertainty about the process, the appellate judge said.

“We acknowledge that Wirthlin signed the documents pointed to by the State, but those documents do not, and cannot, suffice to fulfill the trial court’s responsibility to ensure knowing, intelligent, and voluntary waiver of counsel.”

Thus, the appellate court remanded Wirthlin’s case with instructions to withdraw his plea, vacate his convictions and sentence and to continue the proceedings.

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