New trial ordered for man denied counsel in criminal case

A man who asked for legal counsel that was not appointed in his misdemeanor invasion of privacy case will get a new trial, the Indiana Court of Appeals ruled Wednesday.

James Schenke was charged with the Class A misdemeanor count in November 2016 after he was found within eyesight of his wife’s house despite a no-contact order. He was with a friend who was collecting some of Schenke’s personal items from his wife’s house, according to the record.

About a year later, the state agreed to pretrial diversion. But after Schenke failed to meet the terms of diversion, the state moved to revoke his pretrial diversion agreement in December 2018. Prior to a bench trial, Schenke filed a motion for indigent counsel, but when he failed to show up for a hearing, Tippecanoe Superior Judge Michael A. Morrissey denied the motion, and Schenke proceeded pro se, though he continued to request appointed defense counsel even during the bench trial.

The Indiana Court of Appeals on Wednesday affirmed the revocation of Schenke’s diversion agreement but reversed his conviction and remanded for a new trial in James Schenke v. State of Indiana, 19A-CR-733.

“The trial court never engaged in a discussion with Schenke about the perils of self-representation, nor did it conduct an inquiry as to Schenke’s indigency. Instead, it repeatedly ignored his requests for counsel and ignored the many red flags indicating that Schenke was out of his depth and needed (and wanted) an attorney,” Judge John Baker wrote for the Court.

“Under these circumstances, we agree with the State that Schenke did not knowingly, voluntarily, and intelligently waive his right to counsel — he did not waive his right to counsel at all. Therefore, we reverse and remand for a new trial.”

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