Wilson v. State

94 N.E.3d 312

Major WILSON, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent

Court of Appeals Case No. 45A03–1707–PC–1466

Court of Appeals of Indiana.

Filed January 30, 2018

Attorneys for Appellant : Stephen T. Owens, Public Defender, Richard Denning, Deputy Public Defender, Indianapolis, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Angela N. Sanchez, Deputy Attorney General, Indianapolis, Indiana

Baker, Judge.

[1] Major Wilson appeals the denial of his petition for post-conviction relief, arguing that the post-conviction court erroneously determined that he did not receive the ineffective assistance of appellate counsel. Finding that the post-conviction court erred in its determination and that Wilson did receive the ineffective assistance of appellate counsel, we reverse and remand for further proceedings.

Facts

[2] On March 6, 2014, the State charged Wilson with ten counts of various crimes. On March 12, 2014, a public defender entered an appearance on Wilson's behalf. On July 10, 2014, Wilson filed a pro se motion asking the trial court to dismiss his public defender. A pre-trial hearing took place on July 30, 2014, during which the following exchange took place:

Public Defender: ... Judge, first thing, Mr. Wilson has asked and has actually filed with the Court, to strike the appearance of the Lake County Public Defender's Office altogether from this case.

His friends have retained a firm down in Indianapolis that will not enter their appearance until our appearance is struck, so I'm asking—

The Court: That's denied. He's set for trial.

Public Defender: I—

The Defendant: I'm ready for trial.

The Court: Pardon?

The Defendant: I'm ready for trial, ma'am.

The Court: Okay. Then we'll go to trial. If I—if I let you have substitute counsel at this point—

The Defendant: Well, can I file for pro se then. I'll do it myself. I'll represent myself.

The Court: No, no, you can't do that.

The Defendant: It's my right; right?

The Court: It's my decision. No, you don't have a right to represent yourself.

The Defendant: Well, I will not have him represent me then.

The Court: You don't have a right to represent yourself.

The Defendant: I won't have him represent me. I'm ready for trial.

The Court: You don't—you don't want [the public defender] to represent you?

The Defendant: No, I'm ready for trial.

The Court: Why is that?

The Defendant: I just don't feel that he can give me reasonable representation during the trial....

* * *

The Court: Okay. All right. I can not require you to go forward with [the public defender], but I can require you to go forward on August 18th.

The Defendant: I'm ready.

The Court: So if you're—well, you may be ready, but you need to advise your people in Indianapolis that they got a trial set on August 18th.

The Defendant: And if they're not here, I'll represent myself.

The Court: No, I've already decided you can't represent yourself.

The Defendant: I'm sorry, ma'am. That's why I'm—I'm going for it. I'm sorry, I mean, I have that right. I know I have that right.

The Court: No, you don't have that right to represent yourself.

The Defendant: Yes, I do, ma'am.

The Court: You do not. Where did somebody tell you that? What right did you read? Where did you read that?

The Defendant: I have a right to represent myself; I know this.

The Court: You don't have that—see, that's why you can't represent yourself, because you don't know what rights you have.

Okay. [Public defender], we'll strike your appearance....

Appellant's Ex. p. 18–22.

[3] A second pre-trial hearing took place on August 6, 2014, during which the following exchange took place:

The Defendant: My friend has not been able to come to an agreement on the lawyer fees.

The Court: Okay.

The Defendant: And they're still working on it, but as of right now, no—no agreement on my counsel, but I am still ready to go to trial.

The Court: Okay. You're ready to go to trial.

The Defendant: Yes, ma'am.

The Court: And I remember we had the discussion about your ability to represent yourself at that trial.

The Defendant: Yeah, Judge.

The Court: I think my ruling was that I didn't find you—that that was in your best interest.

* * *

The Court: ... [Public defender]?

Public Defender: Yes, Judge.

The Court: Standby counsel?

Public Defender: I will assist the Court in any way, shape, or form.

* * *

Public Defender: If Mr. Wilson needs standby counsel, I'd be more than happy to stand in with him.

Id. at 4–6. The following exchange then took place at the bench:

Public Defender: Would you like me to be standby counsel for the trial, Judge? ...

The Court: He doesn't need you.

Public Defender: I know that. I know that.

The State: But he doesn't want anyone, Judge, other than this alleged Indianapolis attorney .... He's made that very clear that he wants to go forward on the 18th.

The Court: What is—

The State: I think it's very—I think it's very—it would be very difficult for him to not have anybody.

The Court: I think so too.

The State: But he doesn't want the—my understanding of Mr. Wilson's point of view is he absolutely doesn't want [the public defender] but he also doesn't want anyone from the public defender's office ....

* * *

The State: So, I mean, I believe he needs to be made aware that he will be held to the same standards that every lawyer is held to.

The Court: This man can't present a cogent argument to me about [an unavailable witness]....

The State: I understand.

Public Defender: Judge, I just want to suggest to the Court is for simply to inquire whether or not he would like to have standby counsel appointed, give him the choice on the record and—

The Court: If he says "No," then—

Public Defender: —and what will happen—

The Court: —are you suggesting that I let this man go to—

Public Defender: Judge.

The Court: —trial without—

Public Defender: The last—

The Court: —lawyer?

* * *

Public Defender: ... I'd be more than happy to be standby counsel. I think he's got a right to represent himself. Clearly—

The Court: Where does that say that?

The State: Can I—if I can get my—I had a case.

The Court: Oh, you looked it up, right?

Public Defender: He does.... I'll be here. I'll standby counsel.

The Court: Okay. Give me the cite.

Public Defender: Stroud.

The State: Stroud v. State of Indiana.... It's from the Supreme Court of Indiana, 2004, and in relevant part it says that the right of self representation is implicit in the Sixth Amendment of the constitution and in Article 1, Section 13 of the Indiana constitution. However, a request to proceed pro se is a waiver of your right to counsel, and there are several requirements to invoke that right. The defendant's request must be clear, unequivocal, and must be made within a reasonable time before the first day of trial.

* * *

The State: Also his choice must be made on the record knowing, intelligent, and voluntary.

Id. at 7–11. Following this discussion, the trial court told Wilson, "You may represent yourself." Id. at 11. The trial court then asked Wilson whether he would like to have standby counsel. Wilson agreed, stating, "I'll go by the Court's decision, go ahead let him [act] as standby." Id. at 13.

[4] A jury trial took place on August 20, 2014; the jury found Wilson guilty as charged. Wilson admitted to being an habitual offender. The trial court entered judgment only for Wilson's convictions of Class A felony criminal deviate conduct and Class B felony burglary while armed with a deadly weapon and found him to be an habitual offender. On November 5, 2014, the trial court imposed an aggregate sentence of 100 years.

[5] On direct appeal, Wilson's appellate counsel argued only that the State presented insufficient evidence to support Wilson's conviction for Class B felony burglary. We affirmed in a memorandum decision. Wilson v. State , No. 45A03-1412-CR-425, 2015 WL 4740412, at *1 (Ind. Ct. App. Aug. 11, 2015).

[6] On August 18, 2016, Wilson filed a pro se petition for post-conviction relief. On January 9, 2017, he filed, by counsel, an amended petition for post-conviction relief. An evidentiary hearing took place on March 9, 2017. Appellate counsel testified that she did not request transcripts from Wilson's pre-trial hearings in which his waiver of his right to counsel was discussed; she also testified that she thought she should have requested them. During the hearing, the following exchange took place:

The Court: One moment, please. [Appellate counsel], you did indicate that you had some correspondence with the petitioner, with Mr. Wilson; is that correct?

Appellate Counsel: Yes.

The Court: Do you recall what the basic substance or nature of the correspondence was?

Appellate Counsel: Well, I don't want to—I'm concerned about the attorney/client privilege.

The Court: It's waived by virtue of you having been alleged ineffective, and the case law is clear on that. So if you'd answer the question, please.

Appellate Counsel: We discussed—he discussed problems that he had with his appointed counsel. And he addressed some issues that he considered for appeal, things that he wanted discussed.

The Court: So problems with his appointed counsel, obviously prior to representing himself; is that correct?

Appellate Counsel: Yes.

The Court: And then I'm sorry, what was the other?

Appellate Counsel: Just that—things that he thought might be pertinent for appeal.

The Court: All right....

PCR Tr. p. 10–11. On June 15, 2017, the post-conviction court denied Wilson's petition, making the following conclusions of law:

10. There is no constitutional requirement for appellate counsel to look beyond the trial record for issues on appeal, and it is incumbent upon the trial counsel to inform appellate counsel of any issues not preserved in the record. Stephenson v. State , 864 N.E.2d 1022 (Ind. 2007). In this case neither the Petitioner, who acted as his own counsel, nor his standby counsel ... informed appellate counsel that there may be some question as to Petitioner's waiver of the right to counsel. Appellate counsel in this case, after reviewing the trial record and after

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