Hagy v. State

Indiana Court of Appeals

Hagy v. State

639 N.E.2d 693, 1994 Ind. App. LEXIS 1208, 1994 WL 493547

CourtIndiana Court of Appeals

DecidedSeptember 13, 1994

Docket20A05-9310-CR-397

StatusPublished

Cited by11 cases

This text of 639 N.E.2d 693 (Hagy v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hagy v. State, 639 N.E.2d 693, 1994 Ind. App. LEXIS 1208, 1994 WL 493547 (Ind. Ct. App. 1994).

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Opinions

RUCKER, Judge.

Defendant-Appellant Natalie Hagy appeals the trial court's order revoking her probation and reinstating her previously sus[694]*694pended sentence. Hagy raises a single issue for our review which we rephrase as whether she knowingly, intelligently, and voluntarily waived her right to counsel.

We reverse.

On August 12, 1991, pursuant to the terms of a plea agreement, Hagy pled guilty to theft as a Class D felony for which she received an eighteen-month suspended sentence and was placed on probation. Approximately one month later, on September 14, 1991, Hagy appeared in court to respond to the State's allegations that she had violated the terms of her probation. Hagy was not represented by counsel. The trial court asked Hagy what she wanted to do about an attorney, and when Hagy replied that she did not know, the court continued the case for two weeks so that Hagy could review the allegations and decide whether she wanted to be represented by counsel. At the continued hearing on September 28, 1992, Hagy appeared without counsel and agreed to the trial court placing her on intensive supervision.

On April 12, 1993, Hagy appeared in court, again without counsel, regarding allegations that she had violated the terms of the intensive supervision program. The trial judge advised Hagy that she was entitled to representation by an attorney and that she could receive appointed counsel if she were indigent. Hagy requested court appointed counsel which the trial judge granted. The case was then continued. On May 8, 1998, Hagy appeared in court with her attorney and the judge gave Hagy until June 1, 1998, to begin complying with the terms of her probation, namely: report to her probation officer at least three times a week, obtain employment, regularly attend the Second Chanee Program, make an attempt to obtain her GED, and complete her community service hours. On June 14, 1998, Hagy again "appeared in court without counsel regarding allegations that she had still failed to comply with the terms of her probation. The trial judge again advised Hagy that she was entitled to counsel and asked Hagy what she wanted to do. Hagy replied that she would hire her own attorney. The case was continued for two weeks. At the continued hearing held June 28, 1993, Hagy appeared in court without counsel. The judge asked Hagy if she were representing herself, and Hagy replied yes. The hearing then proceeded. After listening to the evidence, the trial judge revoked Hagy's probation and ordered her to serve the previously imposed eighteen-month sentence. This appeal arose in due course.

The law is well-settled that whenever a defendant proceeds to trial without the benefit of counsel, the record must reflect that the right to counsel was voluntarily, knowingly, and intelligently waived. Martin v. State (1992), Ind.App., 588 N.E.2d 1291; Mitchell v. State (1981), Ind.App., 417 N.E.2d 364. Waiver of the right to counsel may involve an assertion by the defendant of his or her constitutionally protected right of self-representation. However, where the defendant chooses to represent himself or herself, the defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open'" Faretta v. California (1975), 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581. Following Faret-ta, our courts have required that where a defendant requests to proceed without counsel, the defendant must be fully advised regarding the dangers and disadvantages of self-representation. Kindred v. State (1988), Ind., 524 N.E.2d 279, McKeown v. State (1990), Ind.App., 556 N.E.2d 3, trans. denied.

The State does not argue that the trial court advised Hagy of the dangers or disadvantages of proceeding without counsel. Rather, relying on Leonard v. State (1991), Ind., 579 N.E.2d 1294, the State implies that Hagy waived her right to counsel by her background, experience, and conduct. However, in Leonard, the trial judge explicitly warned the defendant of the dangers and disadvantages of self-representation. Id. at 1296. Here, the trial judge merely asked Hagy, a nineteen-year-old high school dropout who appeared in court without counsel, "Are you just going to represent yourself today?" Record at 100. Hagy replied, "Yeah." Record at 100. The trial judge then asked the State to present its case. At [695]*695the close of the hearing Hagy was ordered to serve her eighteen-month sentence. Hagy was never advised of the dangers and disadvantages of proceeding pro se. The record does not support the State's argument that Hagy knowingly, intelligently, and voluntarily waived her right to counsel. The judgment of the trial court is therefore reversed.

Judgment reversed.

BARTEAU, J., concurs. STATON, J., concurs with separate opinion.

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RUCKER, Judge.

Defendant-Appellant Natalie Hagy appeals the trial court's order revoking her probation and reinstating her previously sus[694]*694pended sentence. Hagy raises a single issue for our review which we rephrase as whether she knowingly, intelligently, and voluntarily waived her right to counsel.

We reverse.

On August 12, 1991, pursuant to the terms of a plea agreement, Hagy pled guilty to theft as a Class D felony for which she received an eighteen-month suspended sentence and was placed on probation. Approximately one month later, on September 14, 1991, Hagy appeared in court to respond to the State's allegations that she had violated the terms of her probation. Hagy was not represented by counsel. The trial court asked Hagy what she wanted to do about an attorney, and when Hagy replied that she did not know, the court continued the case for two weeks so that Hagy could review the allegations and decide whether she wanted to be represented by counsel. At the continued hearing on September 28, 1992, Hagy appeared without counsel and agreed to the trial court placing her on intensive supervision.

On April 12, 1993, Hagy appeared in court, again without counsel, regarding allegations that she had violated the terms of the intensive supervision program. The trial judge advised Hagy that she was entitled to representation by an attorney and that she could receive appointed counsel if she were indigent. Hagy requested court appointed counsel which the trial judge granted. The case was then continued. On May 8, 1998, Hagy appeared in court with her attorney and the judge gave Hagy until June 1, 1998, to begin complying with the terms of her probation, namely: report to her probation officer at least three times a week, obtain employment, regularly attend the Second Chanee Program, make an attempt to obtain her GED, and complete her community service hours. On June 14, 1998, Hagy again "appeared in court without counsel regarding allegations that she had still failed to comply with the terms of her probation. The trial judge again advised Hagy that she was entitled to counsel and asked Hagy what she wanted to do. Hagy replied that she would hire her own attorney. The case was continued for two weeks. At the continued hearing held June 28, 1993, Hagy appeared in court without counsel. The judge asked Hagy if she were representing herself, and Hagy replied yes. The hearing then proceeded. After listening to the evidence, the trial judge revoked Hagy's probation and ordered her to serve the previously imposed eighteen-month sentence. This appeal arose in due course.

The law is well-settled that whenever a defendant proceeds to trial without the benefit of counsel, the record must reflect that the right to counsel was voluntarily, knowingly, and intelligently waived. Martin v. State (1992), Ind.App., 588 N.E.2d 1291; Mitchell v. State (1981), Ind.App., 417 N.E.2d 364. Waiver of the right to counsel may involve an assertion by the defendant of his or her constitutionally protected right of self-representation. However, where the defendant chooses to represent himself or herself, the defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open'" Faretta v. California (1975), 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581. Following Faret-ta, our courts have required that where a defendant requests to proceed without counsel, the defendant must be fully advised regarding the dangers and disadvantages of self-representation. Kindred v. State (1988), Ind., 524 N.E.2d 279, McKeown v. State (1990), Ind.App., 556 N.E.2d 3, trans. denied.

The State does not argue that the trial court advised Hagy of the dangers or disadvantages of proceeding without counsel. Rather, relying on Leonard v. State (1991), Ind., 579 N.E.2d 1294, the State implies that Hagy waived her right to counsel by her background, experience, and conduct. However, in Leonard, the trial judge explicitly warned the defendant of the dangers and disadvantages of self-representation. Id. at 1296. Here, the trial judge merely asked Hagy, a nineteen-year-old high school dropout who appeared in court without counsel, "Are you just going to represent yourself today?" Record at 100. Hagy replied, "Yeah." Record at 100. The trial judge then asked the State to present its case. At [695]*695the close of the hearing Hagy was ordered to serve her eighteen-month sentence. Hagy was never advised of the dangers and disadvantages of proceeding pro se. The record does not support the State's argument that Hagy knowingly, intelligently, and voluntarily waived her right to counsel. The judgment of the trial court is therefore reversed.

Judgment reversed.

BARTEAU, J., concurs. STATON, J., concurs with separate opinion.

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639 N.E.2d 693, 1994 Ind. App. LEXIS 1208, 1994 WL 493547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hagy-v-state-indctapp-1994.

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