Eugene Dullen v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 15, 2016
• Docket: 49A02-1506-CR-505
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 15 2016, 8:44 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Gregory F. Zoeller Matthew D. Anglemeyer Attorney General of Indiana Marion County Public Defender Agency Eric P. Babbs Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eugene Dullen, February 15, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1506-CR-505 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Stanley E. Kroh, Judge Pro Tempore Trial Court Cause No. 49G03-1211-FB-74483

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 1 of 12 [1] Eugene Dullen (“Dullen”) appeals the trial court’s revocation of his placement

in Marion County Community Corrections (“Community Corrections”),

raising the following restated issue: whether, in connection with his

Community Corrections violation, Dullen’s waiver of counsel was knowing,

voluntary, and intelligent in light of the trial court’s advisements about the

dangers and pitfalls of representing himself.

[2] We affirm.

Facts and Procedural History [3] On March 1, 2013, Dullen pleaded guilty pursuant to a plea agreement and was

convicted of Class C felony1 criminal confinement resulting in bodily injury. As

part of the plea agreement, Dullen admitted to being a habitual offender.

Appellant’s App. at 25, 78-80. The trial court sentenced him to an aggregate

executed sentence of seven years, five years in the Indiana Department of

Correction (“the DOC”) and two years in work release through Community

Corrections. During and after his incarceration, Dullen filed several pro se

pleadings, including two motions to correct erroneous sentence, a petition for

an order clarifying concurrent sentencing, and a petition for waiver of

Community Corrections fees. Id. at 99, 112, 128, 146.

1 We note that Dullen committed his crimes before the Indiana General Assembly changed felony offenses from classes of felonies to levels of felonies.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 2 of 12 [4] On October 29, 2014, having completed his sentence in the DOC, Dullen began

serving his two-year term in Community Corrections and was housed at the

Duvall Residential Center (“the Center”). Most weeks, the Center provided

Dullen with a pass that allowed him to leave the Center and go to the law

library. On March 6, 2015, Dullen left the Center after his case manager (“the

Case Manager”) issued him a pass. Tr. at 76. Dullen was told to return to the

Center no later than 5:30 p.m.; however, four hours after that deadline, Dullen

had not returned. Id.; Appellant’s App. at 149. Corrections officers and the Case

Manager contacted local hospitals and called Dullen’s emergency contacts

without success. Dullen did not contact the Center and remained

“unmonitored for a period of ten days.” Tr. at 77-78, 81, 89. Community

Corrections filed a notice of violation, alleging that Dullen’s failure to return to

the Center violated the terms of Community Corrections. Appellant’s App. at

149.

[5] On March 17, 2015, the trial court held a hearing on the Community

Corrections violation.2 During that hearing, the trial court advised Dullen of

his rights, including, that if Dullen could not afford an attorney, an attorney

would be appointed at no cost to him. Tr. at 24. The trial court asked Dullen if

he intended to hire an attorney, to which Dullen replied, “No, I do not.” Id. at

25. The trial court also asked Dullen if he was “asking the court to appoint an

2 At that time, Dullen also had a pending petition for post-conviction relief, which the trial court addressed at the March hearing. The substance of that petition, however, is not relevant to this appeal.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 3 of 12 attorney to represent [him].” Id. Again, Dullen replied, “No, I am not.” Id.

When asked whether he wanted to represent himself, Dullen said, “Yes.” Id. at

25-26. The trial court responded:

Okay. Well, I would recommend you consider talking with an attorney before you make these decisions, but that’s your call. You have the constitutional right to represent yourself if you choose to. My concern is if you don’t have legal experience or training, you might miss an issue or some mitigating factor that an attorney might be able to spot on your behalf.

I would also tell you, if I was in your situation, I would want to talk with an attorney before making any decisions. But, again, that’s your decision. If you choose to represent yourself, you have the absolute constitutional right to do that. And is that what you want to do? You want to represent yourself?

Id. at 26. Dullen noted, “I can talk to the attorney, but I don’t feel that the

attorney is going to represent me as I need to be represented.” Id. Thereafter,

the trial court appointed counsel for Dullen “for the time being,” and informed

him that his attorney would meet him for his next hearing. Id. at 27.

[6] On March 18, 2015, Dullen signed an advisement of rights form in connection

with the Community Corrections violation, which again informed Dullen,

“You also have the right to have an attorney represent you in this proceeding.

You may hire an attorney of your choosing or, if you cannot afford to hire your

own attorney, the court can appoint an attorney to represent you at no cost to

you.” Appellant’s App. at 150. By signing this form, Dullen confirmed that he

had read and understood his rights. Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 4 of 12 [7] An evidentiary hearing was held on May 19, 2015, to again address both

Dullen’s petition for post-conviction relief and his Community Corrections

violation. At the start of the hearing, the trial court once more stated, “I want

to make sure you don’t want to talk with an attorney about the Community

Corrections violation.” Tr. at 36. Dullen responded, “No, I don’t.” Id. As

Dullen began to testify, the trial court immediately said,

And you do understand that you have the right—on the Community Corrections violation, you have the right to be represented by an attorney. And if you can’t afford to hire an attorney, the Court will appoint an attorney to represent you at no cost to you. Do you understand that?”

Id. Dullen said that he understood, explaining: “At . . . this time in my life,

and in view of the misrepresentation that I have experienced through the Public

Defender’s Office, there is no way that I would have a public defender represent

me in anything.” Id. at 37. The trial court opined, “I suspect it’s more of a

miscommunication or a misunderstanding rather than not being represented

properly . . . but the court will have to look at that in the [petition for post-

conviction relief].” Id. The trial court continued:

[THE COURT:] [I]f I was in your shoes, I would want to talk with a lawyer before I made any decisions regarding the Community Corrections violation. . . . The thing is you’re looking at, if they prove the violation, the Court would likely order that you be returned to the Department of Correction to finish out the sentence.

THE PETITIONER: I would object.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 5 of 12 THE COURT: Well – and I am just explaining that I – in the Court’s view, you’d be better off talking with an attorney rather than representing yourself if you don’t have training and experience [with] these matters. But again, that’s your choice. If you choose to represent yourself, you have the right to do that.

Id. at 37-38.

[8] As the hearing continued, Dullen complained that he was being restricted in the

presentation of his evidence. The trial court offered, “[Y]ou’ve got the right to

your opinion. But the thing is, you are held to the same standard as any other

attorney would be in representing yourself.” Id. at 47. Just prior to hearing

evidence on the Community Corrections violation, the trial court asked Dullen

one final time if he wanted to consult with an attorney, to which Dullen

responded that he wanted to get the proceeding out of the way. Id. at 64-65. As

to the violation, the State offered the testimony of the Case Manager, who

testified that Dullen, in violation of his terms of Community Corrections, had

failed to return to the Center after a visit to the library. Id. at 76-81. Although,

Dullen testified as to the extenuating circumstances he believed excused his

failure to return, the trial court found Dullen had committed a Community

Corrections violation and ordered him to serve the remainder of his sentence in

the DOC. Dullen now appeals.

Discussion and Decision [9] We begin by noting that in its appellee’s brief, filed with this court on

November 2, 2015, the State maintained that Dullen’s impending release from

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 6 of 12 the DOC—projected as November 7, 2015—caused his case to be moot, and

therefore should be dismissed. Appellee’s Br. at 8. Citing to Breedlove v. State, 20

N.E.3d 172, 174 (Ind. Ct. App. 2014), trans. denied, the State argued, “When

this court is unable to provide effective relief upon an issue, it is deemed moot,

and this Court will not reverse the trial court’s determination when no change

in the status quo will result.” Id. On December 22, 2015, this court issued an

order to show cause, asking Dullen to declare whether he had been released

from the DOC, and, if so, why his appeal should not be dismissed as moot.

[10] In his timely filed Verified Response,3 Dullen concedes that he was released

from the DOC following the completion of his sentence but cites to two reasons

why his case should not be dismissed as moot: (1) the collateral consequences

of allowing the Community Corrections violation to remain on his record; and

(2) whether his waiver of counsel was knowingly, voluntarily, and intelligently

made is a question of great public interest.

[11] As to the first reason, Dullen offers, “Rendering the appeal moot overlooks the

collateral consequences of a community corrections revocation, such as the fact

that such revocation will thereafter be included in Dullen’s criminal history and

that it could be used as a statutory aggravator in the future.” Verified Response at

4. It is true that a single aggravating factor may support the imposition of an

enhanced sentence. Field v. State, 843 N.E.2d 1008, 1011-12 (Ind. Ct. App.

3 Dullen filed Appellants Verified Response to this Court’s Order to Show Cause with this court on January 6, 2016. For ease of reference, we will refer to this document, and cite to it, as “Verified Response.”

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 7 of 12 2006), trans. denied. Further, “history of criminal or delinquent behavior” is

considered by the courts as an aggravating factor. Ind. Code § 35-38-1-7.1.

That being said, Dullen’s criminal history began in 1968 with convictions for

operating a vehicle with no license and while under the influence. From 1982

through 1990, Dullen was convicted of attempted burglary, battery, and

possession of cocaine. In 1995, Dullen was convicted of eight counts of

criminal confinement and was found to be a habitual offender. In light of his

extensive criminal history, the inclusion of the revocation of Dullen’s placement

in Community Corrections as part of his criminal history will have little, if any,

collateral consequences.

[12] As to the second consideration, Dullen argues that moot questions may still be

addressed on their merits.

[A]lthough moot cases are usually dismissed, Indiana courts have long recognized that a case may be decided on its merits under an exception to the general rule when the case involves questions of great public interest. Cases in this category typically raise important policy concerns and present issues that are likely to recur.

Verified Response at 2 (citing Breedlove, 20 N.E.3d at 17 (citations omitted)

(internal quotation marks omitted). Dullen asserts that the issue before this

court is not, as the State asserts, whether Dullen was properly committed to the

DOC for his Community Corrections violation. Instead, the issue is whether

Dullen knowingly, voluntarily, and intelligently waived his right to counsel,

which he asserts is a question of great public interest that may be addressed as

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 8 of 12 an exception to the general rule that a moot issue must be dismissed. Because

this court has previously recognized waiver of counsel as a claim that “reflects a

question of great public importance and involves issues likely to recur,” we will

address Dullen’s waiver claim. See A.S. v. State, 929 N.E.2d 881, 887 (Ind. Ct.

App. 2010) (court addressed waiver of counsel claim, notwithstanding issue

was moot since child was no longer in detention, under mootness exception

that claim was “question of great public importance and involve[d] issues likely

to recur”)

[13] Dullen alleges that his Sixth Amendment right to counsel was violated because

he did not make a knowing, voluntary, and intelligent waiver of his right to

counsel during the evidentiary hearings addressing his Community Corrections

violation. Dullen argues that his waiver cannot be knowing, voluntary, and

intelligent when “[t]he primary reason [he] wished to represent himself is

because he felt he had received poor representation from Public Defenders in

the past.” Appellant’s Br. at 4.

[14] We review de novo a trial court’s finding that a defendant waived his right to

counsel. Jackson v. State, 992 N.E.2d 926, 932 (Ind. Ct. App. 2013), trans.

denied. “A criminal defendant’s Sixth Amendment right to counsel is essential

to the fairness of a criminal proceeding.” Id. “Implicit in the right to counsel is

the right to self-representation.” Id. However, before a defendant waives his

right to counsel and proceeds pro se, the trial court must determine that the

defendant’s waiver of counsel is knowing, voluntary, and intelligent. Id. (citing

Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003)). “Waiver of assistance of

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 9 of 12 counsel may be established based upon the particular facts and circumstances

surrounding the case, including the background, experience, and conduct of the

accused.” Jones, 783 N.E.2d at 1138.

[15] When a defendant asserts his right to proceed pro se, the trial court must

“acquaint the defendant with the advantages to attorney representation and the

disadvantages and the dangers of self-representation.” Jackson, 992 N.E.2d at

932. There are no specific “talking points” a trial court must follow when

advising a defendant of the dangers and disadvantages of proceeding without

counsel. Kowalskey v. State, 42 N.E.3d 97, 104 (Ind. Ct. App. 2015) (quoting

Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001)). Instead, a trial court needs

only to come to a “‘considered determination’ that the defendant is making a

knowing, voluntary, and intelligent waiver of his or her right to counsel.” Drake

v. State, 895 N.E.2d 389, 392 (Ind. Ct. App. 2008) (citing Poynter, 749 N.E.2d at

1126).

[16] Our Supreme Court has adopted four factors to consider when determining

whether a knowing, voluntary, and intelligent waiver occurred:

(1) the extent of the court’s inquiry into the defendant’s decision, (2) other evidence in the 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.

Poynter, 749 N.E.2d at 1127-28 (quoting United States v. Hoskins, 243 F.3d 407,

410 (7th Cir. 2001) (finding defendant’s conduct to be sufficient to imply Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 10 of 12 waiver, and that trial court’s inquiry was sufficient and provided explicit

warning of consequences of continued conduct)).

[17] Regarding the first factor, the trial court, here, inquired repeatedly and

extensively into Dullen’s decision to represent himself. The trial court asked

Dullen no less than three times, over two hearings, whether he was sure he

wanted to waive his right to counsel and, instead, represent himself. Tr. at 24-

26, 36-38, 64-65. Dullen clearly stated that he knew he had the right to

appointed counsel at no charge, but on each occasion refused counsel. Id. at

25-26, 36-37, 64-65. Dullen also signed an advisement of rights form in

connection with the Community Corrections violation, which again informed

him that he had the right to counsel. Appellant’s App. at 150. At one point the

trial court did, in fact, appoint “counsel for the time being.” Tr. at 27.

Nevertheless, Dullen served as his own counsel at the evidentiary hearings for

the Community Corrections violation.

[18] As to the second factor, the trial court explained to Dullen the dangers and

disadvantages of self-representation, saying, “My concern is if you don’t have

legal experience or training, you might miss an issue or some mitigating factor

that an attorney might be able to spot on your behalf,” and “I would also tell

you, if I was in your situation, I would want to talk with an attorney before

making any decisions.” Id. at 26. The trial court also cautioned, “[I]f I was in

your shoes, I would want to talk with a lawyer before I made any decisions

regarding the Community Corrections violation. . . . The thing is you’re

looking at, if they prove the violation, the Court would likely order that you be

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 11 of 12 returned to the Department of Correction to finish out the sentence.” Id. at 37.

The trial court also advised Dullen, that he would be “held to the same

standard as any other attorney would be in representing yourself.” Id. at 47.

[19] In connection with the third factor, Dullen had extensive background and

experience with the legal system. Dullen had been charged with crimes on

more than twenty separate occasions, and he was convicted of more than ten

crimes, many of which were felonies. Dullen was familiar enough with the

legal system that, while in jail and acting pro se, he filed several pleadings,

including two motions to correct erroneous sentence, a petition for an order

clarifying concurrent sentencing, and a petition for waiver of Community

Corrections fees. Appellant’s App. at 99, 112, 128, 146.

[20] Concerning the fourth factor, Dullen alleged that his decision to proceed pro se

was a result of his concern that he did not believe that he was being well served

by Public Defenders. Whether true or not, Dullen had the right to have

appointed counsel, and he opted to act as his own counsel.

[21] We, therefore, conclude that Dullen was not denied his Sixth Amendment right

to counsel and that the trial court properly determined that his waiver of his

right to counsel was knowing, voluntary, and intelligent. Accordingly, we

decline to disturb the trial court’s finding that Dullen committed a violation of

his terms of Community Corrections. Affirmed.

[22] Mathias, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-505 | February 15, 2016 Page 12 of 12