Nation v. State

426 N.E.2d 436, 1981 Ind. App. LEXIS 1666

• Court: Indiana Court of Appeals
• Decided: October 1, 1981
• Docket: No. 2-281A36
• Status: Published

Opinions

SHIELDS, Judge.

Defendant-appellant Earl Nation (Nation) appeals from a conviction by the court of two counts of promoting prostitution, arguing he did not voluntarily, knowingly, and intelligently waive the right to counsel.¹

We reverse.

A defendant charged with a crime is guaranteed the right to be represented by counsel by Article I, Section 13 of the Indiana Constitution and the Sixth and Fourteenth Amendments of the United States Constitution. Moore v. State, (1980) Ind., 401 N.E.2d 676. He also has the constitutional right to waive the assistance of counsel and represent himself if he so chooses.² Faretta v. California, (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 462; Russell v. State, (1978) Ind., 383 N.E.2d 309. Although the right to counsel and the right of self-representation are both constitutional rights, the standards for establishing the relinquishment of these rights differ greatly due to the nature of the rights and the interest to be protected. Russell. As was stated in Russell:

“The right to counsel ensures that all defendants have access to the professional skill and knowledge needed to make the necessary procedural and substantive decisions in their trials; this right is also important to the implementation of the other constitutional rights of the accused, and helps ensure the accuracy of trial outcome in our adversary system. Gideon v. Wainwright, supra, at 372 U.S. [335] 342-45, 83 S.Ct. [792] 795-97, 9 L.Ed.2d [799] 804-6. The right of self-representation, on the other hand, is not recognized because it furthers these types of fair trial interests; it may actually hinder such interests. The sole value furthered by the right of self-representation is that of personal autonomy. See Faretta, supra, at 422 U.S. 815-17, 95 S.Ct. 2531-32, 45 L.Ed.2d 570-71.” 383 N.E.2d 313.

Because the sole value furthered by the right of self-representation is that of personal autonomy, a defendant need not be advised of his right of self-representation and will be deemed to have voluntarily waived this right by the mere failure to timely and unequivocally assert it. A knowing and voluntary waiver of the right of self-representation is not constitutionally mandated. Russell.

On the other hand, the waiver of the right to the assistance of counsel must be shown to have been voluntarily, knowingly, and intelligently made. Johnson v. Zerbst, (1938) 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. It is the duty of the trial court to establish a record which shows that an accused who has elected to waive counsel and proceed pro se has done so voluntarily, knowingly, and intelligently. This court cannot infer a voluntary and intelligent waiver of this fundamental constitutional right from a silent record. Johnson v. Zerbst; Faretta, Grubbs v. State, (1970) 255 Ind. 411, 265 N.E.2d 40; Wallace v. State, (1977) 172 Ind.App. 535, 361 N.E.2d 159.

The record must affirmatively show the defendant was expressly advised of both his right to the assistance of counsel and the disadvantages of self-representation in clear and unambiguous language. Mitchell v. State, (1981) Ind.App., 417 N.E.2d 364; McDandal v. State, (1979) Ind.App., 390 N.E.2d 216; Wallace v. State.

The record in this case is deficient under this standard. It fails to show the trial court informed Nation of his right to the assistance of counsel. A record which does not show a defendant was advised of his right to counsel does not show a knowing and intelligent waiver. A defendant cannot be deemed to have knowingly and intelligently waived a right of which he was not informed. Smith v. Lane, (1970 7th Cir.) 426 F.2d 767.

Given the presumption which exists against the waiver of the constitutional right to counsel, Mitchell, we find the record insufficient to support a conclusion that Nation voluntarily, knowingly, and intelligently waived his right to counsel.

Reversed and remanded with instructions to grant a new trial.

SULLIVAN, J., concurs. BUCHANAN, C. J., dissents, with opinion,

1 . Nation raises other issues on appeal but because we reverse on this issue we do not discuss the other issues which are not likely to recur upon retrial.

2 . A request to proceed pro se must be clear and unequivocal. Thus, half-hearted expressions of dissatisfaction with counsel and general references to self-representation do not constitute an adequate assertion of the right. Russell. In the case at hand it is questionable whether Nation’s request to allow counsel to withdraw satisfied the requirement of an unequivocal assertion of his right to proceed pro se. However, since we find the record does not show a knowing, voluntary, and intelligent waiver of the right to counsel, we do not reach this issue.