On October 27, 2003, following his arrest two days before, Vickers appeared at his initial hearing along with a group of other defendants. The trial court advised the defendants of their rights, including the right to be represented by an attorney, the risk of proceeding without an attorney, and the availability of appointed counsel. After confirming his name, personal information, and reviewing the potential penalties facing him, the trial court asked Vickers if he wanted an attorney. Vickers replied that he needed to speak with his family. The trial court asked one of Vickers’ family members about the possibility of retaining an attorney and the family member agreed to try to find an attorney. The trial court requested that the family member let him know “right away” so that Vickers would have time to request appointment of public counsel. (Transcript p. 21). Vickers was nineteen years old.
On October 28, 2003, the State filed an Information charging Vickers with operating a vehicle with a specified blood or breath alcohol level or a controlled substance or its metabolite in his body, as a Class C misdemeanor, Ind. Code § 9-30-5-1(a); illegal possession of alcohol as a Class C misdemeanor, I.C. § 7.1-5-7-7(a)(2); and operating a vehicle while intoxicated causing endangerment as a Class A misdemeanor, I.C. § 9-30-5-2(b).
On November 24, 2003, Vickers appeared for a pretrial hearing and met with the prosecutor. The prosecutor gave Vickers a plea agreement form with all pertinent information regarding the offenses, sentence, and court fees completed. Vickers signed and initialed each item in the plea agreement. Vickers also signed a waiver of attorney form prepared by the prosecutor. The bottom of the form contained the following words in all capital letters, underlined and in bold font: “I DECLARE THAT I DO NOT WANT TO BE DEFENDED BY AN ATTORNEY IN THIS CASE.” (Appellant’s App. p. 18). The form had a place for Vickers to insert his last year of schooling, but this was left blank. Vickers also wrote his name in the caption of the Order to Accept Waiver of Attorney. However, the order was unsigned by the trial court and did not have the name of the prosecutor or the date completed. That same day, Vickers pled guilty to operating a vehicle while intoxicated causing endangerment, as a Class A misdemeanor. [Footnote omitted.] The chronological case summary on that day records, in relevant part, that “[p]arties appear; plea agreement filed. Judgment of [c]onviction and [s]entence entered.” (Appellant’s App. p. 1).
On January 21, 2011, Vickers filed his Verified Petition for Post-Conviction Relief alleging that his guilty plea was invalid because he had not knowingly or voluntarily waived his right to counsel and because his plea negotiations were tainted because he had not validly waived his right to counsel. The Petition requested specific findings of fact and conclusions of law under Ind. Trial Rule 52 and Ind. Post-Conviction Rule 1, § 6. Vickers also served discovery on the State, including requests for admissions. On February 16, 2011, the State filed its Answer, but did not otherwise respond to Vickers’ discovery requests. On April 19, 2011, a hearing was held on Vickers’ Petition. On June 6, 2011, the post-conviction court issued its Order Granting Defendant’s Petition for Post-Conviction Relief . . . .
. . . .
Here, the record does not contain the trial court’s determination that Vickers waived his right to counsel or unequivocally asserted his right to proceed pro se. In its Order, the post-conviction court found that “[i]t is the intent and policy of this court to record all guilty plea hearings.” (Appellant’s App. p. 50). Next, it found that “[n]o record of the guilty plea exists.” (Appellant’s App. p. 50). The post-conviction court thus concluded that “it is impossible to find that [Vickers] knowingly waived his right to counsel.” (Appellant’s App. p. 51). We note that, apart from the foregoing, the post-conviction court’s Order contains no other findings as to the validity of Vickers’ waiver or his unequivocal assertion to proceed pro se.
The State argues that the lack of a recording from the guilty plea hearing does not in and of itself afford a basis to conclude that a defendant did not knowingly and voluntarily waive his right to counsel. In Hall v. State, our supreme court concluded that Hall failed to meet his burden of proof that the trial court did not advise him of his Boykin rights by relying exclusively upon the absence of a record of his guilty plea hearing. Hall v. State, 849 N.E.2d 466, 472 (Ind. 2006). [Footnote omitted.] The supreme court reasoned that “[t]he fact that the record of a guilty plea hearing can neither be found nor reconstructed does not of itself require granting post-conviction relief.” Id. at 470. Instead, the burden remains on the petitioner to prove his claim by a preponderance of the evidence. Id. Thus, the lack of a record showing that the trial court determined a waiver to be valid does not mean that it did not make such determination. See id. at 472. [Footnote omitted.] Thus, in light of this supreme court precedent, to the extent the post-conviction court’s grant of relief rests upon the lack of a record, this was error. See Mansfield v. State, 850 N.E.2d 921, 925 (Ind. Ct. App. 2006), trans. denied. Accordingly, we must look to other evidence in the record supporting the judgment to determine whether Vickers met his burden of proof establishing that he did not waive his right to counsel or did not unequivocally assert his right to proceed pro se.
Even considering only evidence favorable to the judgment, we are unable to find that Vickers met his burden of proof. Aside from the unsigned order on the waiver of right to counsel form and Vickers’ admittedly hazy recollection of events, Vickers put forth scant evidence demonstrating that he did not waive his right to counsel or did not assert his right to proceed pro se. Vickers testified that he wanted an attorney at all times and did not recall telling the trial court that he did not want an attorney. He testified that he could not recall reading the waiver of attorney form and that he did not understand the waiver form or the plea agreement. Finally, Vickers points to incomplete portions of the waiver and its accompanying unsigned order.
We note that “[i]f the record establishes that the defendant can read, the defendant’s signing a written advisement can be sufficient to inform a defendant of his rights discussed in the advisement and to establish that the defendant waived those rights.” Belmares-Bautista v. State, 938 N.E.2d 1229, 1231 (Ind. Ct. App. 2010). Further, “the defendant bears the burden of showing that he could not read the advisements or that [his] signature was produced by coercion or misapprehension.” Id. Vickers testified that he could read, had graduated from high school, and had signed not only the waiver of attorney form but reviewed the plea agreement with the prosecutor and initialed it. Thus, at best, Vickers’ testimony establishes only that he does not know whether he waived his right to counsel or asserted his right of self-representation.
Absent a clear requirement that all waivers of counsel be supported by an audio recording, we are unable to conclude that Vickers met his burden of proof to establish that he did not validly waived his right to counsel or that he asserted his right to self-representation. Accordingly, the State has shown that the post-conviction court committed clear error by granting Vickers post-conviction relief.
FRIEDLANDER, J. and MATHIAS, J. concur.