MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 23 2018, 9:33 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 Suzy St. John Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Patricia Claywell, March 23, 2018 Appellant-Defendant, Court of Appeals Case No. 49A04-1703-CR-567 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy Jones, Judge Appellee-Plaintiff. The Honorable David Hooper, Magistrate Trial Court Cause No. 49G08-1606-CM-24914
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 1 of 21 STATEMENT OF THE CASE [1] Appellant-Defendant, Patricia Claywell (Claywell), appeals her conviction for
operating a vehicle while intoxicated in a manner that endangers a person, a
Class A misdemeanor, Ind. Code § 9-30-5-2(b).
[2] We reverse and remand.
ISSUE [3] Claywell raises one issue on appeal, which we restate as: Whether the trial
court denied her right to self-representation in violation of the Sixth
Amendment to the United States Constitution.
FACTS AND PROCEDURAL HISTORY [4] At approximately 3:00 p.m. on June 27, 2016, Ronald Brown (Brown) was
standing on the corner of Dr. Martin Luther King Jr. Street and 25th Street in
Indianapolis, Marion County, Indiana, when he observed a black SUV turn
from Dr. Martin Luther King Jr. Street onto 25th Street and come to a complete
stop in the middle of the road. The vehicle idled in the middle of the street for
some time, and then a woman, later identified as Claywell, emerged from the
vehicle and walked over to the sidewalk. Brown observed that she seemed
“disoriented”; he questioned her as to whether anything was wrong but was
unable “to understand” her response. (Tr. Vol. II, pp. 42-43). Claywell
returned to the vehicle, “drove off about another five hundred or eight hundred
feet and came to a complete stop.” (Tr. Vol. II, p. 45). As Claywell sat
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 2 of 21 motionless in her vehicle in the middle of the street, Brown called for police
assistance.
[5] Within minutes of Brown’s report to 9-1-1, Indianapolis Metropolitan Police
Department Officer Brian Meeks (Officer Meeks) arrived to check on the
welfare of Claywell. Officer Meeks parked behind Claywell’s SUV, which was
“several feet from the curb.” (Tr. Vol. II, p. 52). Officer Meeks remained in his
vehicle for “[m]aybe five or six minutes” and noted that Claywell’s vehicle was
still running and, given that the brake lights were illuminated, still in gear. (Tr.
Vol. II, p. 53). Officer Keith Shelton (Officer Shelton) arrived a short time later
to provide assistance.
[6] Officer Meeks approached the driver-side window, and when he knocked,
Claywell was “[s]urprised” to see him standing there. (Tr. Vol. II, p. 53).
Claywell attempted to exit her vehicle but had failed to first shift it into park.
Officer Meeks “had to walk her through the process of putting the car in park
while turning the key back on so that she could manually move it into park and
then shut the car off.” (Tr. Vol. II, pp. 55-56). “It was like speaking to a small
child.” (Tr. Vol. II, p. 56). Claywell rolled down her window, and when
Officer Meeks inquired as to her well-being, Claywell’s response “was unclear.
She would begin a sentence and then stop and look at [the officer] as if she had
finished her sentence, but [the officer] wasn’t sure what she was trying to tell
[him].” (Tr. Vol. II, p. 54). This happened “at least three or four” times. (Tr.
Vol. II, p. 54). Claywell’s speech was “slow and disorganized.” (Tr. Vol. II, p.
56). When Officer Meeks asked for identification, Claywell provided “some
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 3 of 21 sort of pamphlet of paperwork that was no[t] identification.” (Tr. Vol. II, p.
85).
[7] At the officers’ request to exit the vehicle, Claywell was “[v]ery unsteady
coming out of the vehicle. Using both hands on both sides, one hand on the car
door and one hand on the car frame. Very slow. When she was on her own
two feet, [the officers] were concerned that she may fall down.” (Tr. Vol. II, p.
86). At that time, Officer Meeks called for medical assistance. However, before
the ambulance arrived, Officer Meeks administered a vertical gaze nystagmus
test—which is one field sobriety test “designed to indicate the presence of a
narcotic o[r] other drug.” (Tr. Vol. II, p. 64). Officer Meeks and Officer
Shelton both observed involuntary jerking of Claywell’s eyes. Once emergency
medical personnel arrived, the officers helped escort Claywell to the ambulance.
The paramedic noted that Claywell had “a very high heart rate.” (Tr. Vol. II, p.
62).
[8] The officers followed the ambulance to Eskenazi Hospital. Based on Claywell’s
“slow and disoriented speech and her unsteady balance, poor manual dexterity
and the fact that she was operating a vehicle,” Officer Meeks believed that he
had probable cause that Claywell was operating a motor vehicle while
intoxicated. (Tr. Vol. II, p. 68). Accordingly, he advised Claywell of Indiana’s
implied consent law, informing her that she was required to submit to a
chemical test, the refusal of which would result in the suspension of her driving
privileges. At first, Claywell indicated that she would consent, but when a
nurse arrived to complete the test, Claywell declined. As a result, Officer
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 4 of 21 Meeks obtained a warrant to retrieve a sample of Claywell’s blood. The lab
results indicated a presence of phencyclidine in Claywell’s blood.
Phencyclidine—more commonly known as PCP—is “a central nervous system
depressant as well as a stimulant and it also has hallucinogenic properties.”
(Tr. Vol. II, p. 113). PCP is known to “cause an increased heartrate as well as
disorientation. A lot of confusion and stupor and it can also have people
hallucinate and see things that aren’t really there.” (Tr. Vol. II, pp. 113-14).
[9] On June 28, 2016, the State filed an Information, charging Claywell with Count
I, operating a vehicle while intoxicated in a manner that endangers a person, a
Class A misdemeanor. On December 2, 2016, the State amended the
Information by adding Count II, operating a vehicle while intoxicated with a
controlled substance, a Class C misdemeanor. On February 10, 2017, the State
filed to add a habitual vehicular substance offender sentencing enhancement to
the Information. At Claywell’s initial hearing on June 28, 2016, the trial court
appointed an attorney from the Marion County Public Defender Agency to
represent her.
[10] On June 29, 2016, the trial court ordered the immediate suspension of
Claywell’s driver’s license for one year based on Claywell’s refusal to submit to
a chemical test when offered. On July 28, 2016, Claywell filed a verified
petition for a hearing on her refusal to submit to a chemical test. Claywell
claimed that she “did not refuse to take a chemical test and/or was not properly
advised of the Indiana Implied Consent Law.” (Appellant’s Conf. App. Vol. II,
p. 33). On August 16, 2016, Claywell, via her public defender, requested that
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 5 of 21 the refusal hearing scheduled for August 17, 2016, be converted to a pre-trial
conference based on counsel’s belief that “a refusal hearing is [not] in . . .
Claywell’s best interests.” (Appellant’s App. Vol. II, p. 38). The trial court
granted Claywell’s motion and converted the hearing to a pre-trial conference.
[11] On August 17, 2016, the trial court held the pre-trial conference as requested.
At that time, Claywell voiced her displeasure over her attorney’s actions in
cancelling the refusal hearing and alleged that there had been an attempt to
coerce her into accepting a plea bargain. Claywell’s public defender explained
that he was endeavoring to act in Claywell’s best interests, but he had advised
her that “[i]f you would like to represent yourself or hire an attorney, you may
do that.” (Supp. Tr. p. 7). Claywell then responded, “Right. So I came to
represent myself. So I’m here for my Refusal hearing to represent myself.”
(Supp. Tr. p. 7). From there, the following colloquy ensued:
THE COURT: Well, here’s the procedural trick now is that first, we have to sort out the issue that you have an attorney, because you can’t have both.
[CLAYWELL]: I know. So, he can withdraw[] and I can file an appearance to move forward pro se.
THE COURT: Are you moving with withdrawal?
[PUBLIC DEFENDER]: I don’t know that the Public Defender Agency can legally withdraw[]. She can file to represent herself Pro Se.
THE COURT: Ok.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 6 of 21 [PUBLIC DEFENDER]: Since we’ve been to [c]ourt, I can’t actually withdraw[].
THE COURT: Alright. So, there’s not much I can accomplish for you today and I’m sorry for that. I can’t make a Refusal hearing happen for you today. The best I can do for you is we’ll set this for Pre-Trial. If your intention is to represent yourself--
[CLAYWELL]: --Ok, and I will INAUDIBLE. I’m going to INAUDIBLE South Meridian. So I’ll represent myself. I’m going to INAUDIBLE South Meridian.
(Supp. Tr. pp. 7-8).
[12] Following the pre-trial hearing, Claywell continued to be represented by the
Public Defender Agency, although it appears that a new public defender was
assigned. On October 12, 2016, the trial court conducted a hearing on the issue
of Claywell’s refusal to submit to a chemical test pursuant to Indiana’s implied
consent law. Claywell contended that she did not knowingly refuse to submit
to a chemical test when requested because she was too incoherent at the time.
However, the trial court found that evidence of Claywell’s moments of clarity
while refusing to submit to a chemical test—such as her repeated demands for
the officers’ names and badge numbers to report what she perceived as
mistreatment—established that she was more “difficult or agitated versus being
totally confused and out of it in this situation.” (Tr. Vol. II, p. 18).
Accordingly, the trial court denied Claywell’s request to terminate the license
suspension.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 7 of 21 [13] Near the end of the refusal hearing, Claywell’s public defender informed the
trial court that, despite an earlier conversation with Claywell about not
testifying regarding the refusal, Claywell was adamant that she did want to
speak. However, the trial court advised Claywell that she “might want to listen
to [her attorney’s advice] because he’s looking out for your best interest whether
you think so or not and he’s, he did a fine job arguing the facts that you had.”
(Tr. Vol. II, p. 20). The following conversation then occurred:
[PUBLIC DEFENDER]: Just to make the record clear. On and off through the past couple of weeks, my client has communicated that she wants to represent herself and I’ve told her that she’s free to do that. In [c]ourt earlier today, she said that she’s ok with me moving forward. At this point, I have to let her address the [c]ourt. She’s communicating now that she wants to represent herself.
THE COURT: Is that your desire?
[CLAYWELL]: That’s been my desire since the last hearing.
THE COURT: Why is that?
[CLAYWELL]: I told them out there that I wanted to represent myself in the hallway before I went to [c]ourt and he said something else, because nothing that I’ve sat here and given to him has been presented in [c]ourt today.
THE COURT: Well, let me explain something to you, because I know you’ve got a lot of stuff that you want to tell me. I know you’ve been in our [c]ourt office several times and you like to talk loud enough where I can hear you and I don’t listen to what you’re saying, because I can only listen to what is in front of me in [c]ourt. Now, there is one specific reason you were to be here
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 8 of 21 today. Can you tell me what that was?
[CLAYWELL]: A refusal hearing.
THE COURT: Can you explain to me why we having [sic] that and what your burden was today?
[CLAYWELL]: First off, because I was supposed to have one--
THE COURT: --You were not supposed to have one last time you were here. Let me make that very clear to you.
[CLAYWELL]: I have the minutes right here and you approved it.
THE COURT: You were not to have one last time. What I told you was this. Is that the officer had to be subpoenaed to be here.
[CLAYWELL]: You weren’t here last time.
THE COURT: I have my file. Ok. So I can already see right now that you representing yourself is probably not going to be in your best interest, but we’re going to go through this. You’ve had Pre-Trial Conferences.
[CLAYWELL]: On the minutes it says, I mean, it was approved and then I got a phone call at home and was told if I didn’t take a plea bargain that they were going to, I got called on a Monday night and told that if I did not take a plea bargain, that they were going to withdraw[] the refusal hearing. I think that’s like against my amendments.
THE COURT: Wow. You need a lawyer and you need one bad--
[CLAYWELL]: --I’m not INAUDIBLE--
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 9 of 21 THE COURT: --Because, what you just said right there makes zero sense at all.
[CLAYWELL]: Zero sense to get a phone call and get--
THE COURT: --That doesn’t make any sense--
[CLAYWELL]: --Threatened--
THE COURT: --And that you’re going to have to take a plea or your refusal hearing is going away and that it’s against your amendments. You are going to be held to the same standard as a practicing attorney. Alright.
[CLAYWELL]: That’s fine. I’m going to go to 50 South Alabama. That’s fine.
THE COURT: No. It doesn’t just happen like that. You don’t get to act disrespectful to the [c]ourt and then just walk out.
[CLAYWELL]: I’m sorry.
THE COURT: I’m just going to go to 50 South Alabama and do whatever you’re going to do. I don’t know what you’re going to do there. I have no idea or Meridian, I have no idea what you’re doing. Ok.
[PUBLIC DEFENDER]: INAUDIBLE I think there are some INAUDIBLE for [t]rial if she lets me represent her.
THE COURT: There might be. There very well could be issues, but if she’s not going to listen to what they are, then that’s on her. We set it for refusal hearing. You got your refusal hearing. This has been moving fairly, along fairly quickly. You’ve gotten everything, but you don’t have your lab results is what the State has not yet provided and what they are going to have to provide that before [t]rial. . . .
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 10 of 21 (Tr. Vol. II, pp. 21-24). The trial court and attorneys then briefly discussed trial
dates before circling back to Claywell’s desire to proceed pro se.
THE COURT: . . . As far as you wanting to represent yourself, how far did you go in school?
[CLAYWELL]: I’m INAUDIBLE college. I’ve been a paralegal for fourteen years. I know the implied consent law. I’ve been working in criminal justice for longer than fourteen years.
THE COURT: You’ve been a paralegal for a criminal attorney? Who’s that?
[CLAYWELL]: I’ve worked for Steven Gellar and for Marla Thomas officer [sic].
THE COURT: Ok. Have you ever appeared in [c]ourt with either of them or sat through any [t]rials with any of those people?
[CLAYWELL]: Some, I mean, I’m not concerned with that. I know what I need to do.
THE COURT: I don’t think you do. Maybe you should call one of those.
[CLAYWELL]: I am. I have. So, I will.
THE COURT: They’re not going to take your case or what’s the situation?
[CLAYWELL]: I’ll deal with that.
THE COURT: No. I’m going to deal with this right now, because I’m not going to have you drag this on[] forever. [The public defender] has been--
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 11 of 21 [CLAYWELL]: --He’s been awesome.
THE COURT: He has been and he also has a lot of other clients that he could devote a lot of time and effort to if you’re going to hire someone, I’m going to let you get on with that. I’m going to set [t]rial dates and they’re going to be ready and if they’re not ready, that’s on them.
(Tr. Vol. II, pp. 25-26).
[14] On December 8, 2016, the parties convened for a pre-trial conference, during
which the issue of self-representation was again raised.
[PUBLIC DEFENDER]: Judge, just to cover my bases. At some point during representation, at points in representation, [Claywell] has indicated that she would rather represent herself. It keeps coming up. So, my, to cover my file.
THE COURT: He’s an attorney. Would you like to speak with him? Go [a]head. You can hire an attorney at any point in time. You’re free to do that. [The public defender] has been working with you. [The public defender] is familiar with your case. He’s the one that’s setting depositions, that’s doing research and investigating on your behalf. I will tell you this. If you want to hire someone and you bring them in a week before your [t]rial date, they better be up to speed after all the months of prep that this attorney has done on your behalf. I will not give a continuance. It will go and that’s how it is. Got it?
[CLAYWELL]: INAUDIBLE.
THE COURT: Wow. I tell you. You have not learned much since day one when you have come in here about how to address the [c]ourt, how to talk in a professional manner to your attorney
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 12 of 21 who is working his ta[il] off on your behalf. You cannot see that? That concerns me greatly. I mean, that really concerns me. Your inability to recognize the amount of work that he has done so far for you and if you’re inability [sic] to recognize that, you are really clouded in your judgment. His job is not to sit here and blow sunshine every day. His job is to represent you, make sure your rights are protective [sic] and to make sure that you understand [the] proceedings and you understand all of your options. You may not like some of the options, but if he doesn’t tell you each option that is available to you, he’s not doing his job and he’s being ineffective. He’s being very [e]ffective. He’s going quite frankly, he’s going, from what I’m hearing about some of these discovery issues that he is tackling, he’s doing the things he’s supposed to be doing. Now, the delay is no cause of his. The delay is because there was a witness that was unavailable. That is why there was a delay.
[CLAYWELL]: I’m not questioning the delay.
THE COURT: Ok, and I’m going to reset it and when we reset it, unless there’s some sort of issue with a witness that might be unavailable or maybe you need more time to gather more information, I will gladly give it, but what I’m telling you is I’m not going to play games with lawyers coming in here. If you want to hire an attorney, you need to go hire a lawyer and you need to do it very quickly, because we are not bumping this out because you want to bring someone in here at the last minute. I want you to be aware of that. You need to have realistic expectations that this is how the process will move. So we’re going to set it February 17th.
(Tr. Vol. II, pp. 31-33).
[15] On February 17, 2017, the trial court conducted a bench trial, during which
Claywell was represented by her public defender. Pursuant to an agreement
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 13 of 21 with Claywell, the State, at the beginning of the trial, moved to dismiss the
habitual vehicular substance offender enhancement. At the close of the
evidence, the trial court found Claywell guilty of both Counts of operating
while intoxicated—one as a Class A misdemeanor and the other as a Class C
misdemeanor. However, the trial court entered a judgment of conviction only
as to Count I, the Class A misdemeanor—vacating Count II under double
jeopardy principles. Proceeding directly to sentencing, the trial court imposed a
sentence of one year, with ten days executed and the remainder suspended to
probation. In addition, the trial court ordered Claywell to complete a substance
evaluation and treatment as a condition of probation.
[16] Claywell now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[17] Claywell claims that the trial court denied her Sixth Amendment right to self-
representation. The Sixth Amendment to the United States Constitution
stipulates that, in all criminal prosecutions, a defendant “shall enjoy the right . .
. to have the Assistance of Counsel for his defen[s]e.” U.S. CONST. amend. VI.
The United States Supreme Court has held that, implicit in this Sixth
Amendment right, is a corollary right of self-representation. Faretta v. California,
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 14 of 21 422 U.S. 806, 821 (1975). 1 “A request to proceed pro se is a waiver of the right
to counsel, and consequently, there are several requirements to invoking the
right of self-representation successfully.” Stroud v. State, 809 N.E.2d 274, 279
(Ind. 2004). Specifically, a defendant’s “request must be clear and unequivocal,
and it must be [made] within a reasonable time prior to the first day of trial.”
Id. (alteration in original).
[18] Once a defendant asserts a desire to proceed without the assistance of counsel,
the trial court must ensure that any Sixth Amendment waiver is “‘knowing,
intelligent, and voluntary.’” Id. “Waiver of the right to assistance of counsel
may be established based upon the particular facts and circumstances
surrounding the case, including the background, experience, and conduct of the
accused.” Taylor v. State, 944 N.E.2d 84, 89 (Ind. Ct. App. 2011). Factors to
consider when determining whether a defendant has knowingly, intelligently,
and voluntarily waived her right to counsel include: “(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.”
Id. at 90 (quoting Poynter v. State, 749 N.E.2d 1122, 1127-28 (Ind. 2001)). A
trial court “is in the best position to assess whether a defendant has knowingly
1 Article 1, Section 13 of the Indiana Constitution also guarantees a criminal defendant’s right to self- representation; however, in the present case, Claywell has raised only a claim under the federal Constitution.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 15 of 21 and intelligently waived counsel.” Id. On appeal, this court “will most likely
uphold the trial judge’s decision to honor or deny the defendant’s request to
represent [herself] where the [trial court] has made the proper inquiries and
conveyed the proper information, and reaches a reasoned conclusion about the
defendant’s understanding of his rights and voluntariness of his decision.” Id.
II. Claywell’s Pro Se Requests
[19] In this case, Claywell indicated that she desired to proceed pro se on three
occasions: at the August 17, 2016 pre-trial hearing (which had previously been
scheduled as a refusal hearing); at the October 12, 2016 refusal hearing; and at
the December 8, 2016 pre-trial conference. In each instance, the trial court
briefly discussed the issue with Claywell but never formally ruled on her
requests. Claywell now requests that we reverse her conviction and remand for
a new trial.
[20] The State, however, claims that Claywell waived her right to self-representation
because she failed to clearly, unequivocally, and timely request it. A request to
proceed pro se
must be “sufficiently clear that if it is granted, the defendant should not be able to turn about and urge that he was improperly denied counsel.” If the rule were otherwise, trial courts would be in a position to be manipulated by defendants “clever enough to record an equivocal request to proceed without counsel in the expectation of a guaranteed error no matter which way the trial court rules.”
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 16 of 21 Dobbins v. State, 721 N.E.2d 867, 871 (Ind. 1999) (internal citations omitted).
As to timeliness, defendants must assert requests for self-representation “within
a reasonable time prior to the first day of trial”—more specifically, “morning-
of-trial requests are per se untimely.” Moore v. State, 557 N.E.2d 665, 669 (Ind.
1990).
[21] Claywell points out that her first request was made eight months prior to trial;
her second request was made four months before trial; and her final request was
lodged eight weeks before trial. We agree with Claywell that her requests were
made within a reasonable time prior to trial. See Russell v. State, 383 N.E.2d
309, 314 (Ind. 1978) (indicating that the Faretta Court found a request made
“weeks before trial” to be timely and adding that “we do not think that the right
must be asserted at that early a time to be realized”). Nevertheless, the State
suggests that Claywell’s first request, i.e., on August 17, 2016, was untimely
because it was made after the refusal hearing had been rescheduled to a pre-trial
conference. Assuming arguendo that there is any merit to the State’s assertion
that Claywell’s “request to represent herself at her refusal hearing did not also
convey to the court that she wanted to represent herself at her trial,” Claywell’s
third request, i.e., on December 8, 2016, clearly related to her representation at
trial and was made within a reasonable time beforehand. (State’s Br. p. 13).
[22] The State also contends that Claywell’s last two requests to proceed pro se were
unclear and equivocal. Our courts have previously held that a defendant’s
general questions about the right to proceed pro se, “half-hearted expressions of
dissatisfaction with counsel,” and “offer[s]” to proceed pro se (i.e., offering to
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 17 of 21 proceed pro se to obtain a speedy trial) fail to constitute “a clear assertion of a
right.” Dobbins, 721 N.E.2d at 872. In this case, however, Claywell explicitly
and repeatedly stated that she wanted to represent herself. During the first
instance, at the August 17, 2016 pre-trial conference, Claywell stated, “I came
to represent myself” and asked that her public defender be permitted to
withdraw. (Supp. Tr. p. 7). When the trial court and her public defender
indicated that there were procedural hurdles to withdrawal, she stated that she
was “going to [50] South Meridian” and she concluded, “I’ll represent myself.”
(Supp. Tr. p. 8). On the next occasion, at the conclusion of the refusal hearing
of October 12, 2016, Claywell stated to the trial court that it had “been my
desire since the last hearing” to proceed pro se. (Tr. Vol. II, p. 22). The trial
court questioned Claywell’s motive and dissatisfaction with her attorney, but
when Claywell’s response lacked clarity and proper legalese, the trial court
stated, “Wow. You need a lawyer and you need one bad.” (Tr. Vol. II, p. 23).
Nevertheless, Claywell’s request was unequivocal enough for the trial court to
briefly question whether Claywell understood the dangers of self-representation.
Claywell described that she had worked as a paralegal and “kn[e]w what [she]
need[ed] to do.” (Tr. Vol. II, p. 26). Yet, instead of making a determination as
to Claywell’s ability to proceed pro se, the trial court pursued a discussion as to
why Claywell had not asked one of her prior employers (criminal defense
attorneys) to represent her and then simply proceeded with scheduling the next
hearing without any further discussion of Claywell’s waiver. Finally, two
months before the trial on December 8, 2016, Claywell’s public defender
conveyed that Claywell had requested to proceed pro se. From there, the trial Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 18 of 21 court did not allow Claywell an opportunity to speak but rather chastised her
(albeit in response to a perceived display of disrespect to the court) for failing to
appreciate the work done by her public defender and discussed her hiring of
private counsel.
[23] We find that Claywell’s statements were sufficiently clear, unequivocal, and
timely so as to trigger the trial court’s duty “to hold a hearing to determine the
defendant’s competency to represent [herself] and to establish a record of [her]
waiver of [her] right to counsel.” Dowell v. State, 557 N.E.2d 1063, 1066 (Ind.
Ct. App. 1990), trans. denied; cert. denied, 502 U.S. 861 (1991). Each time
Claywell asserted her wish to proceed pro se, the trial court, instead of directly
addressing the request, either challenged Claywell’s reasoning and capacity to
represent herself, scolded her for failing to appreciate the services of her public
defender, advised her to retain private counsel, or changed the subject entirely.
[24] The State maintains that Claywell vacillated between proceeding pro se and
utilizing her public defender, but the State relies on statements made by the
public defender to the court about Claywell’s inconsistent desire to represent
herself—i.e., the public defender informed the court that Claywell had discussed
representing herself “[o]n and off through the past couple of weeks.” (State’s
Br. p. 13; Tr. Vol. II, p. 21). Claywell herself never wavered when given the
opportunity to speak. 2 The State also argues that Claywell acquiesced to her
2 Contrary to the State’s assertion, we do not find that Claywell’s acknowledgement that her public defender had been “awesome” negated her desire, or her right, to present her own defense. (Tr. Vol. II, p. 26).
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 19 of 21 public defender’s presence at trial. Our court has previously stated that a clear
and unequivocal request “is made when a defendant objects to a court’s order
appointing counsel and does not acquiesce in the court-appointed counsel’s
presentation of the defense.” Jenkins v. State, 809 N.E.2d 362, 367 (Ind. Ct.
App. 2004), trans. denied. Here, Claywell expressly asserted her desire to
proceed pro se at multiple hearings. However, her public defender specifically
indicated that he could not withdraw until Claywell actually filed to appear pro
se, and the trial court ignored Claywell’s attempts for permission to do so. The
record demonstrates that the various interjections by the trial court during each
of the three hearings effectively stifled Claywell, but she should have received
the opportunity to make a knowing, intelligent, and voluntary waiver of her
right to counsel. See Stroud, 809 N.E.2d at 282 (despite ultimately finding that
the defendant vacillated between representation and proceeding pro se, noting
that a trial court should not “be dismissive of a defendant’s requests to proceed
without a lawyer. It would be much easier to evaluate these claims on appeal if
trial courts would err on the side of being cautious and hold a hearing to
determine whether a defendant is waiving the right to counsel, even if such a
hearing may not strictly be required because a defendant’s request is not clear
and unequivocal”). Because the violation of a defendant’s right to self-
representation is not subject to harmless error analysis, “a new trial is
warranted.” Osborne v. State, 754 N.E.2d 916, 921 (Ind. 2001).
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 20 of 21 CONCLUSION [25] Based on the foregoing, we conclude that Claywell was denied her Sixth
Amendment right of self-representation and is entitled to a new trial.
[26] Reversed and remanded.
[27] Robb, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 21 of 21