Gilmore contends that the trial court abused its discretion by reversing its previous determination of his indigency as there had been no substantial change in his financial status since he was charged with murder. . . . .
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At the August 26, 2010 hearing, during which the issue of Gilmore’s indigent status was revisited, Gilmore stated under oath that he was fifty-eight years old, lived alone, and that his thirty-six-year-old daughter did not depend on him for support. He acknowledged receiving roughly $1,000 per month in social security income benefits, having a ten-year-old mobile home sitting on property to which he has free and clear title, and owning a 1980 Blazer that was inoperable and a 1990 Chevy Lumina van that he inherited from his mother. In the trial court’s September 1, 2010 order, the trial court noted that the Jennings County Assessor valued Gilmore’s property at $54,000.00 as of March 1, 2010 and that his income from Social Security was in excess of Federal Poverty Guidelines. Appellant’s App. at 68. Standing alone, this finding may be sufficient upon which to base a determination that Gilmore was not indigent and, hence, did not qualify for court-appointed counsel. The trial court was familiar with attorney fees in criminal cases in Jennings County and specifically noted that the cost of the two experienced attorneys who represented Gilmore in his first trial was Twenty-one Thousand Dollars ($21,000.00), significantly less than the value of Gilmore’s property.
The trial court’s finding, however does not stand alone. The court also stated, without citing any authority, that “a Court must also consider a Defendant’s conduct and behavior when re-evaluating indigency.” Id. We find this statement troubling because it indicates that the trial court based its indigency determination in whole or in part on its assessment of Gilmore’s conduct, not his financial condition. We have found no such requirement with regard to an indigency status determination.
The State argues that Gilmore has provided us with an incomplete record upon which to make a determination whether the trial court abused its discretion in finding Gilmore no longer indigent. The State claims that in order for this court to examine the trial court’s determination for an abuse of discretion, Gilmore should have provided the transcripts from the initial hearing, and the 2009 indigency review hearing. The State contends that we cannot know the full extent of the trial court’s inquiry into the matter, or what information had changed without those transcripts. Although transcripts of the prior hearings would have supplied the complete background, we nonetheless find the record sufficient to allow us to make our decision.
The only change evident from the findings and conclusions is the trial court’s understandable irritation with Gilmore for his apparent attempts to frustrate the judicial system. Gilmore has been able to delay his retrial on the murder charges by insisting that his court-appointed counsel adhere to his defense theories, ultimately leading to a breakdown in the lawyer-client relationship on numerous occasions. The question, however, is Gilmore’s financial condition, not his behavior. The trial court found that Gilmore was indigent and entitled to appointed counsel. Thereafter, there was no substantial change in his financial status. Having found that Gilmore’s assets and income were insufficient for him to afford to hire his own counsel, the court cannot reverse its decision without finding a change in circumstances since its earlier decision or determining that its prior decision was in error. Here, the trial court did neither. Accordingly, we conclude that the trial court abused its discretion by finding that Gilmore was not indigent when he lacks the financial resources to hire an attorney without imposing substantial hardship on himself. The trial court retains the ability to order Gilmore to reimburse the costs of his defense to the extent he is able to do so.
II. Forfeiture or Waiver of Right to Counsel
Having found that Gilmore is indigent, and therefore, entitled to court-appointed counsel, we turn to the issue of whether Gilmore waived or forfeited that right by his conduct. Gilmore contends that the trial court erred by finding that he had waived his right to counsel by conduct. The trial court found that Gilmore had derailed his own prosecution because he was so obstreperous and difficult that no one could represent him. Appellant’s App. at 68. The trial court concluded that Gilmore had waived his right to counsel by his conduct. (“Although a Defendant has a right to competent, effective counsel, if indigent, he does not have the right to abuse it, in this case at the expense of the County.”) Id. at 69. The trial court reached this conclusion even though Gilmore consistently requested to be represented by counsel.
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In the present case, Gilmore engaged in behavior that led his court-appointed attorneys to withdraw from representation. Understandably, the trial court became dissatisfied with the delay seemingly caused by Gilmore in moving the case forward. This conduct was not of the kind often associated with a finding of forfeiture of the right to counsel. Nor does this conduct fit neatly into the category of cases in which waiver of the right to counsel is found, as Gilmore repeatedly requested representation by counsel. Instead, it appears to be more along the lines of a waiver by conduct or forfeiture with knowledge. As such, Gilmore was and is entitled to a hearing during which he should be warned that if his obstreperous behavior persists, the trial court will find that he has chosen self-representation by his own conduct. Then the inquiry turns to an analysis of whether Gilmore made a knowing and intelligent waiver of his right to counsel, which includes a warning of the dangers and disadvantages of self-representation established in an on-the-record evidentiary hearing where specific findings are made. While not condoning Gilmore’s apparent obstreperous conduct, because those warnings were not given to Gilmore, we conclude that the trial court erred by finding that Gilmore had waived his right to counsel. We, therefore, vacate the trial court’s order and remand for further proceedings consistent with this opinion.
VAIDIK, J., and MATHIAS, J., concur.