MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 11 2018, 9:34 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark S. Lenyo Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Duane Lamar Herron, May 11, 2018 Appellant-Defendant, Court of Appeals Case No. 71A03-1711-CR-2741 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Paul E. Singleton, Appellee-Plaintiff. Magistrate Trial Court Cause No. 71D06-1708-CM-3538
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 1 of 8 Case Summary [1] Duane Lamar Herron (“Herron”) appeals his conviction for Criminal Mischief,
as a Class B misdemeanor.1 We affirm.
Issues [2] Herron presents two issues for review:
I. Whether he voluntarily, knowingly, and intelligently waived his right to counsel; and
II. Whether sufficient evidence supports his conviction.
Facts and Procedural History [3] On May 27, 2017, Herron confronted his half-brother, David Workman
(“Workman”), about $80.00 that Workman owed Herron for performing
landscaping services. Dissatisfied with Workman’s protestation that he did not
have the funds to pay Herron, Herron took a hatchet from his backpack and
broke out the windshield of Workman’s truck. Workman summoned police
and South Bend Police Department Officer Anne Hayes (“Officer Hayes”)
responded. Officer Hayes observed damage to Workman’s truck.
1 Ind. Code § 35-43-1-2(a).
Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 2 of 8 [4] On August 16, 2017, the State charged Herron with Criminal Mischief. He was
convicted in a bench trial conducted on November 8, 2017, and sentenced to
pay $350.00 in restitution. Herron now appeals.
Discussion and Decision Waiver of Right to Counsel [5] Herron, who represented himself at the bench trial, contends that he did not
voluntarily, intelligently, and knowingly waive his right to counsel. Herron
argues that the trial court “made virtually no inquiry” regarding Herron’s self-
representation decision and that “the record does not demonstrate any
acknowledgment that Herron actually understood anything about the trial
process.” Appellant’s Brief at 10.
[6] The Sixth Amendment, applicable to the states through the Fourteenth
Amendment, guarantees a criminal defendant the right to counsel before he
may be tried, convicted, and punished, and this protection also encompasses a
right of self-representation. Hopper v. State, 957 N.E.2d 613, 617 (Ind. 2011)
(citing Faretta v. California, 422 U.S. 806 (1975)). A defendant who waives his
right to counsel must knowingly and intelligently forgo the relinquished
benefits, and he should be made aware of the dangers and disadvantages of self-
representation. Id. at 618. “There is no particular formula or script that must
be read to the defendant.” Id. The information that must be provided depends
on a range of case-specific factors, including the defendant’s education or
Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 3 of 8 sophistication, the complexity of the charge, and the stage of the proceeding.
Id. (citing Iowa v. Tovar, 541 U.S. 77 (2004)).
[7] A court determining whether a waiver of trial counsel was made voluntarily
and intelligently must consider (1) the extent of the court’s inquiry into the
defendant’s decision, (2) other evidence of record that establishes whether the
defendant understood the dangers and disadvantages of self-representation, (3)
the background and experience of the defendant, and (4) the context of the
defendant’s decision to proceed pro se. Id. We review the trial court’s
conclusion that a defendant knowingly and voluntarily waived the right to
counsel de novo. Hart v. State, 79 N.E.3d 936, 940 (Ind. Ct. App. 2017).
[8] On October 18, 2017, Herron signed a “Waiver of Right to Attorney and
Acknowledgment of Dangers of Self-Representation” form. (App. Vol. II, pg.
19.) In relevant part, the written advisement provided:
I know I have the right to a lawyer and the right to be my own lawyer. The Judge has warned me that it is dangerous and almost always unwise to be my own lawyer, because I will be held to the same standards of law and procedure as a lawyer and will not get any special treatment from the Court. The Judge has warned me that I may hurt my own case, and that the State has an experienced lawyer.
(App. Vol. II, pg. 19.) The waiver form additionally included an advisement
that a lawyer possesses skills in such matters as obtaining and questioning
witnesses, gathering documentation, recognizing objectionable evidence, and
making favorable statements in opening and closing. Herron acknowledged
Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 4 of 8 that he reads English and is mentally sound. He filled in a blank to indicate
that he had 16 years of education and checked a box to indicate that he was
somewhat familiar with the rules of evidence and procedure.
[9] On the day of his bench trial, Herron signed a waiver document including the
language:
I UNDERSTAND MY RIGHT TO HAVE OR REFUSE A LAWYER.
I understand that I have the right to a lawyer and the right to get time to talk to one. I understand that if I can’t afford to hire a lawyer and am charged with a misdemeanor, a public defender could be appointed for me at little or no charge. I understand that I have the right to represent myself. I understand that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems with the prosecutor’s case.
(App. Vol. II, pg. 22.) Above his signature, Herron checked a box indicating
that he would represent himself.
[10] At the outset of the bench trial, the trial court addressed Herron:
I know that we went through this the last time we were here and the time before that and the time before. But to get it on the record again, do you recall signing and dating on October 18 th, 2017, a Waiver of a Right to an Attorney and the Dangers of Self-Representation sheet; is that correct, sir.
(Tr. at 4.) Herron acknowledged that he had signed the waiver. The trial court
then explained to Herron some of the tasks for which he would be responsible Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 5 of 8 as his own attorney, emphasized that it would be in Herron’s best interests to be
represented by counsel, and reiterated that there would be “no problem” with
appointment of a public defender, if Herron so desired. (Tr. at 5.) Herron
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 11 2018, 9:34 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark S. Lenyo Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Duane Lamar Herron, May 11, 2018 Appellant-Defendant, Court of Appeals Case No. 71A03-1711-CR-2741 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Paul E. Singleton, Appellee-Plaintiff. Magistrate Trial Court Cause No. 71D06-1708-CM-3538
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 1 of 8 Case Summary [1] Duane Lamar Herron (“Herron”) appeals his conviction for Criminal Mischief,
as a Class B misdemeanor.1 We affirm.
Issues [2] Herron presents two issues for review:
I. Whether he voluntarily, knowingly, and intelligently waived his right to counsel; and
II. Whether sufficient evidence supports his conviction.
Facts and Procedural History [3] On May 27, 2017, Herron confronted his half-brother, David Workman
(“Workman”), about $80.00 that Workman owed Herron for performing
landscaping services. Dissatisfied with Workman’s protestation that he did not
have the funds to pay Herron, Herron took a hatchet from his backpack and
broke out the windshield of Workman’s truck. Workman summoned police
and South Bend Police Department Officer Anne Hayes (“Officer Hayes”)
responded. Officer Hayes observed damage to Workman’s truck.
1 Ind. Code § 35-43-1-2(a).
Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 2 of 8 [4] On August 16, 2017, the State charged Herron with Criminal Mischief. He was
convicted in a bench trial conducted on November 8, 2017, and sentenced to
pay $350.00 in restitution. Herron now appeals.
Discussion and Decision Waiver of Right to Counsel [5] Herron, who represented himself at the bench trial, contends that he did not
voluntarily, intelligently, and knowingly waive his right to counsel. Herron
argues that the trial court “made virtually no inquiry” regarding Herron’s self-
representation decision and that “the record does not demonstrate any
acknowledgment that Herron actually understood anything about the trial
process.” Appellant’s Brief at 10.
[6] The Sixth Amendment, applicable to the states through the Fourteenth
Amendment, guarantees a criminal defendant the right to counsel before he
may be tried, convicted, and punished, and this protection also encompasses a
right of self-representation. Hopper v. State, 957 N.E.2d 613, 617 (Ind. 2011)
(citing Faretta v. California, 422 U.S. 806 (1975)). A defendant who waives his
right to counsel must knowingly and intelligently forgo the relinquished
benefits, and he should be made aware of the dangers and disadvantages of self-
representation. Id. at 618. “There is no particular formula or script that must
be read to the defendant.” Id. The information that must be provided depends
on a range of case-specific factors, including the defendant’s education or
Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 3 of 8 sophistication, the complexity of the charge, and the stage of the proceeding.
Id. (citing Iowa v. Tovar, 541 U.S. 77 (2004)).
[7] A court determining whether a waiver of trial counsel was made voluntarily
and intelligently must consider (1) the extent of the court’s inquiry into the
defendant’s decision, (2) other evidence of record that establishes whether the
defendant understood the dangers and disadvantages of self-representation, (3)
the background and experience of the defendant, and (4) the context of the
defendant’s decision to proceed pro se. Id. We review the trial court’s
conclusion that a defendant knowingly and voluntarily waived the right to
counsel de novo. Hart v. State, 79 N.E.3d 936, 940 (Ind. Ct. App. 2017).
[8] On October 18, 2017, Herron signed a “Waiver of Right to Attorney and
Acknowledgment of Dangers of Self-Representation” form. (App. Vol. II, pg.
19.) In relevant part, the written advisement provided:
I know I have the right to a lawyer and the right to be my own lawyer. The Judge has warned me that it is dangerous and almost always unwise to be my own lawyer, because I will be held to the same standards of law and procedure as a lawyer and will not get any special treatment from the Court. The Judge has warned me that I may hurt my own case, and that the State has an experienced lawyer.
(App. Vol. II, pg. 19.) The waiver form additionally included an advisement
that a lawyer possesses skills in such matters as obtaining and questioning
witnesses, gathering documentation, recognizing objectionable evidence, and
making favorable statements in opening and closing. Herron acknowledged
Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 4 of 8 that he reads English and is mentally sound. He filled in a blank to indicate
that he had 16 years of education and checked a box to indicate that he was
somewhat familiar with the rules of evidence and procedure.
[9] On the day of his bench trial, Herron signed a waiver document including the
language:
I UNDERSTAND MY RIGHT TO HAVE OR REFUSE A LAWYER.
I understand that I have the right to a lawyer and the right to get time to talk to one. I understand that if I can’t afford to hire a lawyer and am charged with a misdemeanor, a public defender could be appointed for me at little or no charge. I understand that I have the right to represent myself. I understand that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems with the prosecutor’s case.
(App. Vol. II, pg. 22.) Above his signature, Herron checked a box indicating
that he would represent himself.
[10] At the outset of the bench trial, the trial court addressed Herron:
I know that we went through this the last time we were here and the time before that and the time before. But to get it on the record again, do you recall signing and dating on October 18 th, 2017, a Waiver of a Right to an Attorney and the Dangers of Self-Representation sheet; is that correct, sir.
(Tr. at 4.) Herron acknowledged that he had signed the waiver. The trial court
then explained to Herron some of the tasks for which he would be responsible Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 5 of 8 as his own attorney, emphasized that it would be in Herron’s best interests to be
represented by counsel, and reiterated that there would be “no problem” with
appointment of a public defender, if Herron so desired. (Tr. at 5.) Herron
stated that he would like to proceed without a lawyer.
[11] “If the record establishes that the defendant can read, the defendant’s signing a
written advisement can be sufficient to inform a defendant of his rights
discussed in the advisement and to establish that the defendant waived those
rights.” Belmares-Bautista v. State, 938 N.E.2d 1229, 1231 (Ind. Ct. App. 2010)
(citing Maloney v. State, 684 N.E.2d 488, 490 (Ind. 1997)). Herron does not
deny that he signed written advisements; nor does he argue that he lacked
ability to understand or appreciate the content. Rather, he faults the trial court
for the brevity of the colloquy on the day of trial.
[12] It is apparent from the trial court’s statement “we went through this the last
time we were here and the time before that and the time before,” Tr. at 4, that
Herron’s self-representation decision had been addressed previously. Because
transcripts of the prior hearings were not submitted on appeal, we are not privy
to the specific content. As such, we are not positioned to address the merits of
Herron’s specific claim that the trial court made virtually no inquiry into his
decision. However, even without the pre-trial transcripts, the record supports a
determination that Herron voluntarily, knowingly, and intelligently waived his
right to counsel.
Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 6 of 8 Sufficiency of the Evidence [13] Herron argues that the State failed to present sufficient evidence to support his
conviction. More specifically, he points to an absence of documentary evidence
of damage and Workman’s ownership of the truck at issue.
[14] Pursuant to Indiana Code Section 35-43-1-2(a), “[a] person who recklessly,
knowingly, or intentionally damages or defaces property of another person
without the other person’s consent commits criminal mischief, a Class B
misdemeanor.”
[15] In reviewing a claim of insufficient evidence, we do not reweigh the evidence or
assess the credibility of witnesses. Leonard v. State, 73 N.E.3d 155, 160 (Ind.
2017). Rather, we look to the evidence and reasonable inferences drawn
therefrom that support the verdict. Id. We will affirm the conviction if there is
probative evidence from which a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003,
1005 (Ind. 2009).
[16] Workman testified that he owned a 2003 Chevy Silverado 3500 and that, in
Workman’s presence, Herron “pulled a hatchet out of his backpack and busted
the windows out of my truck.” (Tr. at 9.) He denied giving consent to Herron
to break the windows. Officer Hayes testified that she responded to a call from
Workman and observed a truck with a broken windshield and driver’s side
damage. There was no requirement that the State produce documentary
Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 7 of 8 evidence. See Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (a conviction can
be sustained upon only the testimony of a victim-witness).
Conclusion [17] The record supports the conclusion that Herron knowingly and voluntarily
waived his right of representation by counsel. Sufficient evidence supports his
conviction.
[18] Affirmed.
Crone, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2741 | May 11, 2018 Page 8 of 8