Hotep-El v. State, No. 18A-CR-477, __ N.E.3d __ (Ind. Ct. App., Nov. 13, 2018).

Friedlander, Senior J.

Yusuf Hotep-El appeals the trial court’s termination of his self-representation.

We affirm.

In August 2016, Hotep-El was charged with possession of cocaine, a Level 5 felony; two counts of possession of a narcotic drug, both Level 5 felonies; possession of a controlled substance, a Level 6 felony; driving while suspended, a Class A misdemeanor; possession of marijuana, a Class B misdemeanor; and later he was also alleged to be an habitual offender.

At his initial hearing on these charges, Hotep-El was appointed counsel to represent him.  Subsequently, a motions hearing was held on February 15, 2017, at which Hotep-El, through counsel, requested permission to represent himself.  Following a proper inquiry by the court, his request was granted with appointed counsel remaining as standby counsel.

At a hearing in April, the court terminated Hotep-El’s self-representation.  The court stated that his abundant inappropriate filings as well as his statements and behavior in court caused it concern regarding his mental fitness.  The court then reappointed standby counsel for the purpose of determining whether a competency evaluation was warranted.

….

On the first morning of trial, defense counsel informed the court that Hotep-El was requesting to proceed pro se.  The court denied the request and proceeded with the trial.  The State dismissed the charge of driving while suspended, and the jury found Hotep-El guilty on all remaining charges and determined that he is an habitual offender.  The court sentenced Hotep-El to an aggregate sentence of ten years executed.  He now appeals.

Hotep-El contends the trial court improperly terminated his self-representation.  The Sixth Amendment guarantee of a defendant’s right to counsel encompasses the right of a defendant to represent himself.  Hopper v. State, 957 N.E.2d 613 (Ind. 2011) (citing Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)).  Yet, this right is not without limits.  The United States Supreme Court recognized that “[t]he right of self-representation is not a license to abuse the dignity of the courtroom.  Neither is it a license not to comply with relevant rules of procedural and substantive law.”  Faretta, 422 U.S. at 834 n.46.

While the trial court terminated Hotep-El’s right to proceed pro so at a hearing in April 2017, a timeline of events and background information prior to and following that hearing is helpful to our discussion.  At Hotep-El’s initial hearing, counsel was appointed to represent him.  Despite that, he sent numerous pro se documents to the court throughout January and February 2017.  Some of these documents were entitled “Averment of Jurisdiction – Quo Warranto,” “Affidavit of Fact – Writ of Discovery,” and “Affidavit of Error.”  Many of these documents contained the following, or a similar, heading:

THE MOORISH NATIONAL REPUBLIC FEDERAL

GOVERNMENT NORTHWEST AFRICA

THE MOORISH DIVINE AND NATIONAL MOVEMENT

OF THE WORLD.

Northwest Amexem/Northwest Africa/North America.

‘The North Gate’.

Societas Republicae Ea Al Maurikanos.

Aboriginal and Indigenous Natural Peoples of the Land.

The true and de jure Al Moroccans/Americans

In addition, several showed copies being sent to people or organizations such as the United Nations, the International Criminal Court, the International Court of Justice, Interpol, the President of the United States, the U.S. Department of State, and the U.S. Justice Department.  …

….

In March 2017, there was again a flurry of filings by Hotep-El with documents entitled “Affidavit of Fact,” “Writ of Mandamus,” “Legal Notice of Removal,” and “Averment of Jurisdiction – Quo Warranto.”  One such Writ of Mandamus states, in part:

COMES NOW, Yusuf Hotep-El, Natural Person, In Propria Persona Sui Juris (not to be confused with, nor substituted by, Pro Se by unauthorized hand of another).  I am Aboriginal Indigenous Moorish-American; possessing Free-hold by Inheritance and Primogeniture Status; standing squarely Affirmed, aligned and bound to the Zodiac Constitution, with all due respect and honors given to the Constitution for the United States Republic, North America.  Being a descendant of Moroccans and born in America, with the blood of the Ancient Moabites from the Land of Moab, who received permission from the Pharaohs of Egypt to settle and inhabit North-West Africa/North Gate.  … Our dominion and inhabitation extended from Northeast and Southwest Africa, across the Great Atlantis, even unto the present North South and Central America and the Adjoining Islands-bound squarely affirmed to THE TREATY OF PEACE AND FRIENDSHIP OF SEVENTEEN HUNDRED AND EIGHTY-SEVEN (1787) A.D. superseded by THE TREATY OF PEACE AND FRIENDSHIP OF EIGHTTEEN [sic] HUNDRED AND THIRTY-SIX (1836) A.D. between Morocco and the United States …

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The trial court should not grant a defendant’s request for self-representation unless it is satisfied that the defendant has the mental capacity to understand the proceedings.  Ellerman v. State, 786 N.E.2d 788 (Ind. Ct. App. 2003).  …

Moreover, “[a] trial judge may terminate self-representation by a defendant who deliberately engages in serious or obstructionist misconduct.”  German v. State, 268 Ind. 67, 73, 373 N.E.2d 880, 883 (1978) (citing Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970)).  Indeed, trial judges “‘confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.’”  Gilmore v. State, 953 N.E.2d 583, 592 (Ind. Ct. App. 2011) (quoting Allen, 397 U.S. at 343).

As the record here demonstrates, Hotep-El had submitted filings in violation of court orders, disrupted and impeded court proceedings with statements concerning irrelevant, nonsensical subjects, and had exhibited evasive/argumentative behavior such that the court had difficulty distinguishing between his genuine inability to understand the proceedings (i.e., competency to stand trial) and his intent to impede them (i.e., deliberate obstructionist behavior).  …

….

…  The court appointed Doctors Olive and Parker to evaluate Hotep-El.  Following his examination of Hotep-El, Dr. Olive concluded he was competent and possessed sufficient ability to consult with his attorney and understand the proceedings against him with a reasonable degree of rational understanding.  Dr. Parker, on the other hand, was unable to complete a formal evaluation because Hotep-El abruptly left the interview after only a few minutes.  Nevertheless, based on the brief interview and the available records, it was Dr. Parker’s opinion that Hotep-El was capable of understanding the nature and objectives of the proceedings against him and assisting his counsel, though he might not be willing to cooperate with either.  Dr. Parker noted that Hotep-El is a follower of a set of fringe political beliefs known as the sovereign citizen movement, which he described as using odd

interpretations of both federal and state laws and constitutions to conclude that they do not apply to these citizens.  He further characterized the followers of this movement as typically serving as their own counsel, filing unconventional motions in an attempt to frustrate the court proceedings, and generally competent to stand trial as they typically do not have a serious mental illness.

….

Throughout July, August, September, October, November, and December of 2017, and January and February of 2018, Hotep-El continued to file pro se documents with the court.  These filings are filled with illogical and nonsensical statements and alleged theories of law. …

We observe that recently, the Texas Court of Appeals dealt with a similar case of obstreperous conduct.  In Lewis v. Texas, 532 S.W.3d 423 (Crim. App. 2016), the defendant, who was being prosecuted for possession of cocaine, engaged in confrontational and obstructive behavior, raised the so-called defense of being a “sovereign citizen,” and made irrelevant references to the Uniform Commercial Code.  On appeal, the court held:

The record in this case indicates that appellant is one of a loosely formed group of citizens who believe that they are sovereign individuals, beyond the reach of any criminal court.  These so called “sovereign citizens” share a common vernacular and courtroom strategy.  Courts across the country have encountered their particular brand of obstinacy—not consenting to trial, arguing over the proper format and meaning of their names, raising nonsensical challenges to subject matter jurisdiction, making irrelevant references to the Uniform Commercial Code, and referring to themselves as trustees or security interest holders.  These calculated obstructions and delay tactics pose a unique challenge for trial courts considering Faretta motions. When a defendant asserts irrelevant or nonsensical arguments, it becomes difficult to discern whether he lacks a complete understanding of the proceedings or whether he is simply attempting to subvert them.  …  We hold, that in either case, the trial court may deny the defendant’s request to represent himself and insist on representation by appointed counsel.

Once the court was informed that Hotep-El was found competent, it was clear that his filings, statements, and behavior that disrupted and delayed the proceedings were not disruptions related to an inability to understand the proceedings or to self-representation without a legal education; rather, they were deliberate and calculated tactics.  Further, the trial court’s decisions were based, not on conjecture, but on firsthand observation of Hotep-El’s behavior each time he was present in court and with every filing.  We thus conclude that given these facts it was not improper for the trial court to decline to reinstate

Hotep-El’s pro se status when his deliberate obstructive behavior did and further threatened to undermine the proceedings and compromise the court’s ability to maintain order and efficiency of its courtroom and caseload.

….

We conclude, therefore, that the trial court did not err when it terminated Hotep-El’s self-representation in order to determine his competency to stand trial and subsequently when it did not reinstate his pro se status based on its conclusion that he sought to use the courtroom for deliberate disruption of the proceedings.

Judgment affirmed.

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