A.A.Q. v. State, No. 71A03-1105-JV-239, __ N.E.2d __ (Ind. Ct. App., Dec. 6, 2011).

BAKER, J.

            On December 28, 2010, the State filed a delinquency petition against A.A.Q. for trespass. A.A.Q. was also alleged to be a runaway under a separate cause number. On January 28, 2011, A.A.Q. and his parents met with an intern from the public defender’s office. That same day, at the initial hearing, A.A.Q., his mother, and his biological father, admitted that they had watched a video in the court house lobby concerning A.A.Q.’s constitutional rights, and none of them had any questions.

            During the initial hearing, the following exchange occurred between the juvenile court judge, A.A.Q., and his parents:

THE COURT: [A.A.Q.] I need to make sure that you and your family understand the rights that exist for you in this court, that you know what the charges are that have been filed and that you understand a bit about court procedure. Each of you by now should have probably watched the video in the lobby a couple of times. Any questions [A.A.Q.] about what the Judge talked about: Okay, you need to answer out loud [in] the microphone.

A.A.Q.: No.

THE COURT: Parents, questions at all?

MOTHER: No.

FATHER: No, sir.

THE COURT: And [A.A.Q.] you’re asking or somebody is asking that I appoint a Public Defender, is that correct?

A.A.Q.: Um, I don’t know.

THE COURT: Parents are?

MOTHER: Yes.

THE COURT: Alright, and you understand as parents that when we appoint a Public Defender it’s possible that later you could be required to pay back the county for the expense that is involved. You understand that?

MOTHER: Okay, um, are we admit or denial today?

THE COURT: Pardon me?

MOTHER: Um, I didn’t think we needed an attorney at all.

THE COURT: Well, that’s a choice you have to make. Somebody must have had you talk to Ms. Laux who is a public defender.

MS. LAUX: Well, it was—I had the Intern talking to them.

THE COURT: Okay. So you, can make a value judgment today to not have an attorney or you can make a value judgment to have an attorney and there are two options if you do want a lawyer, one it [sic] to hire a private attorney, other is to have the court appoint a public defender, a free attorney. However, when we appoint a “free attorney” it’s not totally free because the court could require parents to pay back the county for the cost of the public defender.

MOTHER: I understand.

THE COURT: And the father agrees?

FATHER: Um, yes, sir.

. . .

THE COURT: Okay, Ms. Laux we’ll show waiver of counsel. You agree with that choice by your mom?

A.A.Q.: Yeah.

THE COURT: Okay. Obviously, you can change your mind later.

MOTHER: Okay.

THE COURT: Either hire a lawyer or—

MOTHER: Okay.

THE COURT: Have the court appoint a public defender. Ms. Laux as a matter of preliminary information of the court, had there been some discussion with the Prosecutor on a plea offer?

MS. LAUX: Yes, they were willing to, if he admitted to the criminal trespass, that they would dismiss the runaway.

Tr. p. 3-6.

A.A.Q. then admitted to the criminal trespass charge in exchange for a plea deal with the State to dismiss the runaway allegation. The juvenile court dismissed the runaway allegation and released A.A.Q. to the custody of his mother, pending the final disposition of the case. At that time, A.A.Q. was ordered to comply with all academic requirements and home rules.

            On March 1, 2011, the juvenile court conducted a status hearing, at which time the court learned that A.A.Q. did not appear for a pre-dispositional report meeting. It was also determined that there were problems with A.A.Q. at home and at school.

            At A.A.Q.’s mother’s request, the juvenile court appointed a public defender for purposes of the dispositional hearing. Because of A.A.Q.’s misconduct, the juvenile court ordered him detained in the county juvenile facility pending disposition of the case.

            . . . .

            A.A.Q. argues that the delinquency finding must be set aside because there was not a valid waiver of the right to counsel. More particularly, A.A.Q. maintains that the trial court did not advise him of the hazards of proceeding pro se and the record fails to demonstrate that A.A.Q. and his parents understood their constitutional rights and knowingly and intelligently waived them.

            . . . .

            When examining the above exchange among the juvenile court, A.A.Q., and his parents, it certainly would have been the better practice to have advised A.A.Q. and his parents on the record of the various disadvantages of proceeding without counsel. Poynter v. State, 749 N.E.2d 1122, 1125-26 (Ind. 2001). And the juvenile court should and could have inquired more specifically into A.A.Q. and his parents’ understanding of the rights that they been advised of in the video presentation and might have better explained a parent’s potential obligation to reimburse the county for expenses involved with the appointment of counsel. See N.M., 791 N.E.2d at 806-07. 2

[2  As an aside, it has recently been reported that the juvenile court judge in Wayne Superior Court makes it a priority in every case to appoint an attorney for a juvenile as soon as the court learns that the child has been detained. Michael W. Hoskins, Improving a Child’s Access to Counsel, Indiana Lawyer, November 9-22, 2011, at 1, 20. Also, the Indiana State Bar Association has submitted a draft to the State’s judiciary rulemaking committee involving a juvenile’s right to counsel. That proposal puts in place a systematic requirement that youth have adequate attorney representation from the start of their experience in the juvenile justice system. The proposed rule provides for, among other things, the appointment of counsel before the detention hearing or initial hearing, whichever occurs first. And the child cannot waive the right to counsel without first engaging in a meaningful consultation with counsel. Id.

Such uniform procedures may, in some instances, expedite matters and save taxpayer dollars. And perhaps some of the right to counsel issues, like those presented today, might very well be avoided. Id. at 20. ]

            However, we do look to the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused to determine whether there has been an intelligent waiver of the right to counsel. Id. That said, the record in this case demonstrates that A.A.Q. and his parents had consulted with an intern at the public defender’s office before deciding to waive counsel at the initial hearing. Tr. p. 4. Moreover, it was the public defender who had secured a plea deal for A.A.Q. Id. Therefore, the record does, in fact, show that A.A.Q. was represented by counsel prior to, and at, the initial hearing. Put another way, it is apparent that counsel actually assisted A.A.Q. and his family in ultimately waiving his right to counsel at the initial hearing stage.

            Finally, the record reflects that A.A.Q. and his parents had already determined that A.A.Q. would admit to the criminal trespass allegation in exchange for the dismissal of the runaway allegation. Id. at 5-6. Therefore, under these facts and circumstances, we can reasonably conclude that A.A.Q. and his parents knowingly and intelligently waived his right to counsel, to the extent that the public defender may not have officially entered an appearance and represented A.A.Q. at the initial hearing. Therefore, we decline to set aside the finding of delinquency on this basis.

KIRSCH, J., concurs.

BROWN, J., concurs in result.

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