Volume 37 Issue 9 March 26, 2010

Kiplinger v. State, No. 62S00-0809-CR-486, __ N.E.2d __ (Mar. 22, 2010)

Life without parole sentence could not be imposed when jury made no express finding the alleged aggravating circumstance had been proven beyond a reasonable doubt and the jury returned no sentencing recommendation.

State v. Schlecty, No. 38S04-0905-CR-246, __ N.E.2d __ (Ind., Mar. 24, 2010)

Fourth Amendment permits a reasonably conducted warrantless search of a probationer’s property supported by a probation search term and a reasonable suspicion of criminal activity.

Rieth-Riley Construction Co. v. Gibson, No. 64A04-0908-CV-445, __ N.E.2d __ (Ind. Ct. App., Mar. 25, 2010)

“Discovery rule” for tolling statute of limitations does not apply when plaintiff knew of injury but did not discover identity of tortfeasor until limitations period had run.

A.S. v. State, No. 10A04-0911-JV-630, __ N.E.2d __ (Ind. Ct. App., Mar. 25, 2010)

Deliquency waiver of counsel was invalid when court made no inquiry about waiver, gave no advice about dangers of self-representation, and made no record of meaningful consultation about the waiver.



Kiplinger v. State, No. 62S00-0809-CR-486, __ N.E.2d __ (Mar. 22, 2010)

SULLIVAN, J.

The trial court imposed a sentence of life without the possibility of parole on Defendant after the jury was unable to reach a unanimous decision regarding a sentencing recommendation. The Sixth Amendment to the United States Constitution prohibits a judge from imposing a sentence of life without parole in such circumstances unless the jury has determined that each qualifying aggravating circumstance has been proven beyond a reasonable doubt. Bostick v. State, 773 N.E.2d 266, 273 (Ind. 2002) (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).

Defendant contends that the jury did not make the requisite determination that the sole charged aggravating circumstance, intentionally killing while committing or attempting to commit rape, had been proven beyond a reasonable doubt. The State responds that the jury’s findings were adequate for this purpose.

The record contains no specific written finding that the jury concluded beyond a reasonable doubt that Defendant intentionally killed Braunecker while committing or attempting to commit rape. Defendant bolsters his argument by pointing to language in the Indiana sentencing statute, Indiana Code section 35-50-2-9(d), that he says requires such findings to be in writing on a special verdict form:

The court shall instruct the jury that, in order for the jury to recommend to the court that . . . life imprisonment without parole should be imposed, the jury must find at least one (1) aggravating circumstance beyond a reasonable doubt as described in subsection (k) and shall provide a special verdict form for each aggravating circumstance alleged.

The State responds that the jury determined that the State had proved the charged aggravating circumstance outweighed the mitigating circumstances on a “special verdict form.” This determination, the State maintains, was sufficient to demonstrate that the jury had found an aggravating circumstance beyond a reasonable doubt.

We have decided a number of cases where the jury unanimously recommended a sentence of life without parole (or death) without making an explicit finding that the State had proved a charged aggravating circumstance beyond a reasonable doubt. In such cases, we have held that a jury’s guilt phase verdict established the existence of the requisite aggravating circumstances to meet the requirements of the Sixth Amendment enunciated in Apprendi. See, e.g., Clark v. State, 808 N.E.2d 1183, 1196 (Ind. 2004); Williams v. State, 793 N.E.2d 1019, 1028 (Ind. 2003); Brown v. State, 783 N.E.2d 1121, 1126 (Ind. 2003). But our decisions never turned on the argument the State makes here.

. . . [T]he jury in this case was unable to reach a unanimous recommendation on the life sentence, and the jury’s guilt phase verdicts do not necessarily establish that the aggravating circumstance was proved beyond a reasonable doubt. The jury found Defendant guilty of (1) knowing or intentional murder and (2) felony murder where rape or attempted rape was the predicate felony. The charging statement employed the disjunctive “or” – knowingly “or” intentionally – killed another human being. The jury could have rendered these guilty verdicts without finding that Defendant intentionally killed Braunecker while committing or attempting to commit rape. Thus, the guilt phase verdicts in this case do not establish the charged aggravating circumstance of an intentional killing while committing or attempting to commit rape.

The jury found that the State had proved the charged aggravating circumstance outweighed the mitigating circumstances. We acknowledge that it would be permissible to infer that the jury unanimously found the existence of the charged aggravating circumstance from this finding. We are unable, however, to infer that the jury found beyond a reasonable doubt that the State had proved the aggravating circumstance. The most plausible inference may well be that the jury did not unanimously find beyond a reasonable doubt that the State had proven that Defendant intentionally killed Braunecker while committing or attempting to commit rape. After all, the jury had been correctly instructed that if it did not unanimously find beyond a reasonable doubt that Defendant intentionally killed Braunecker while committing or attempting to commit rape, it must recommend against the life without parole sentence. The jury did not recommend a sentence of either life without parole or a term of years.

. . . .

Defendant’s sentence to life without parole pursuant to Indiana Code section 35-50-2-9 was based on facts extending the sentence beyond the maximum authorized by the jury’s verdict finding him guilty of murder.  [Footnote omitted.]  The Sixth Amendment required the jury to find those facts to exist beyond a reasonable doubt. Ring v. Arizona, 536 U.S. 584, 609 (2002); Apprendi, 530 U.S. at 490. For the reasons set forth above, we conclude that the jury made no such finding. Nor did the jury’s verdicts in the guilt phase necessarily establish that the jury found the aggravating circumstance beyond a reasonable doubt.

When a jury is unable to reach a unanimous decision as to the existence of an aggravating circumstance and the Sixth Amendment prohibits the trial judge from imposing a sentence of life without possibility of parole under subsection 9(f)6 of the sentencing statute, a new penalty phase trial is required. State v. Barker, 809 N.E.2d 312, 316 (Ind. 2004) (citing Bostick, 773 N.E.2d at 273-74). We vacate the trial court’s sentence of life without parole and remand for resentencing. If the State elects to dismiss its request for a life sentence, the trial court may resentence the defendant to a term of years as authorized by Indiana Code section 35-50-2-3(a). Otherwise, the trial court shall convene a new penalty phase jury and conduct further proceedings pursuant to Indiana Code section 35-50-2-9.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.

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State v. Schlecty, No. 38S04-0905-CR-246, __ N.E.2d __ (Ind., Mar. 24, 2010)

RUCKER, J.

We conclude that a warrantless search of a probationer‟s property that is conducted reasonably, supported by a probation search term and reasonable suspicion of criminal activity, complies with the dictates of the Fourth Amendment.

Facts and Procedural History

On September 20, 2005, Allan M. Schlechty was convicted of burglary as a Class B felony. The trial court sentenced Schlechty to eight years imprisonment with six years suspended to probation, two conditions of which were that he “shall behave well” and not “commit any other criminal offense.” Tr. Ex. 1. As an additional condition of probation, Schlechty agreed to submit to “reasonable warrantless searches” of his person and/or property by his probation officer in conjunction with other law enforcement officers. Id.

Responding to a report . . . that Schlechty was driving his car around a neighborhood: attempting to “pick up” a thirteen-year-old girl as she was on her way to a school bus stop, Tr. at 5; that he was “trying to make contact with her waiving [sic] at her[,]” Tr. at 6; that he had told the young girl “to get into a car[,]” Tr. at 55; that the frightened young girl ran away and called her mother and grandmother by cell phone as Schelchty told her to “come here or come back here[,]” Tr. at 59; and that the day before on June 9, 2009, the young girl had observed Schlechty and “she was extremely scared, [and] nervous about someone trying to get her into the car[,]” Tr. at 54, Jay County Probation Officer Ron May with the assistance of State Trooper Jeremy Woods and Portland Police Officer James Baughman confronted Schelchty and conducted a warrantless search of his car. The search revealed a green leafy substance, later identified as marijuana, along with drug paraphernalia. Tr. at 43. In consequence, the State charged Schlechty with possession of marijuana as a Class A misdemeanor. There is no indication in the record whether Schelchty was also charged with a probation violation.

Schlechty filed a pre-trial motion to suppress the evidence contending that the items taken from his vehicle were illegally seized. Schelchty did not challenge the validity of his terms of probation regarding his submission to reasonable and warrantless searches of his person and/or property; rather he argued the search itself was unreasonable. After a hearing and declaring that the “State has the burden of proving that a warrantless search of a probationer was a probation search and not an investigatory search” (citing Allen v. State, 743 N.E.2d 1222 (Ind. Ct. App. 2001), trans. denied) the trial court granted the motion concluding in part:

While the authorities were conducting an investigation into the Defendant’s possible inappropriate interaction with a minor female child, there was no evidence that the child ever entered the Defendant’ vehicle or that any property of the female child was likely to be found in the vehicle. The Court thus concludes that even after applying the lower standard applicable to a probation search, the State of Indiana has not presented any specific and articulable facts from which it could be concluded that there was reasonable suspicion that a search of the Defendant’s vehicle was necessary under the regulatory scheme of probation enforcement.

Appellant’s Br. at 20. The State appealed. And in an unpublished memorandum decision a divided panel of the Court of Appeals affirmed the judgment of the trial court.  . . . Having previously granted transfer, we now reverse the trial court‟s judgment.

Discussion

Citing Griffin v. Wisconsin, 483 U.S. 868 (1987) the State argues, “[t]he probation officer had sufficient information to search Defendant’s car.”  . . . Schlechty counters “the instant case is easily distinguishable from Griffin.”  . . . In this case neither party tells us whether it is advancing a federal or state constitutional claim. However, because both sides rely heavily on Griffin, we address the facts here under federal Fourth Amendment jurisprudence only and express no opinion on whether the result would be the same under Article I, § 11 of the Indiana Constitution.

In Griffin, the United States Supreme Court upheld the constitutionality of a warrantless search performed by a probation officer pursuant to a state regulation that authorized such searches on the basis of reasonable suspicion and articulated factors to be considered in determining the existence of reasonable suspicion. See 483 U.S. at 872-80. The Court concluded that the “special needs” of the probationary system, particularly the need to supervise probationers closely, justified warrantless searches based on reasonable suspicion rather than probable cause. See id. at 875 (noting “[s]upervision, then, is a ‘special need’ of the State permitting a degree of impingement upon privacy that would not be constitutional if applied to the public at large.”). Accordingly, the Court determined that the search of the probationer’s residence was reasonable within the meaning of the Fourth Amendment because it was conducted pursuant to a valid regulation governing probationers. Id. at 880.

Although the search in Griffin was executed as part of a state regulatory scheme, a number of federal circuits have held that “reasonableness” can also be established by narrowly tailored restrictions included within a probation agreement. See, e.g., United States v. Wryn, 952 F.2d 1122, 1124 (9th Cir. 1991) (“[H]ad the warrantless search of the probationer Wryn’s home been authorized by either Montana state law or by Wryn’s probation agreement we would consider the search ‘reasonable’ under the [F]ourth amendment.”); United States v. Giannetta, 909 F.2d 571, 575 (1st Cir. 1990) (noting, “we do not read Griffin as approving only probation searches conducted pursuant to a legislative or administrative framework[] [and that] [s]imilar guidance and constraints . . . are provided where . . . a sentencing judge narrowly tailors the need for and scope of any probation search conditions to the circumstances of an individual case.”); United States v. Schoenrock, 868 F.2d 289, 293 (8th Cir. 1989) (remarking that “[u]nlike the general search terms approved in Griffin, a sentencing judge is able to narrowly tailor probation terms to fit the needs of a particular individual.”) (citation omitted). We agree with this view and conclude that the condition of Schlechty’s probation that he submit to reasonable warrantless searches of his person and/or property by the probation officer in conjunction with law enforcement officers, represents a reasonable and valid restriction upon Schlechty’s liberty. In addition we also observe that Griffin has grounded much of this jurisdiction’s understanding of federal jurisprudence in this area.  . . . .

However, in United States v. Knights, 534 U.S. 112 (2001) the United States Supreme Court expanded its holding in Griffin by declaring that searches performed in compliance with a search provision contained within a valid probation agreement may be constitutional even if they were not “conducted by a probation officer monitoring whether the probationer is complying with probation restrictions.” Id. at 117. In Knights, the defendant was a probationer who challenged the constitutionality of the search of his home without a warrant.  [Footnote omitted.]  As a condition of probation, the defendant had signed a document that provided for police access to his “person, property, place of residence, vehicle, personal effects, to search at anytime, with or without a search warrant, warrant for arrest or reasonable cause by any probation officer or law enforcement officer.” Id. at 114. The defendant argued that the search was unconstitutional because police did not have a “special need” beyond normal law enforcement to support the warrantless search. Id. at 117-18. In essence the defendant argued the search was invalid because it was conducted for “investigatory” rather than “probationary” purposes. Id. at 116. A unanimous Court rejected this argument and concluded that the probationer’s acceptance of a clear and unambiguous search condition “significantly diminished [the probationer’s] reasonable expectation of privacy.” Id. at 119-20. The Knights court expressly declined to reach the question of whether “acceptance of the search condition constituted consent in the Schneckloth v. Bustamonte, 412 U.S. 218 (1973)] [footnote omitted] sense of a complete waiver of his Fourth Amendment rights . . . .” Knights, 534 U.S. at 118. Instead, the Court concluded that the search was reasonable under its general Fourth Amendment approach of examining the totality of the circumstances “with the probation search condition being a salient circumstance.” Id. Ultimately the Court determined that the warrantless search of the probationer’s home was reasonable within the meaning of the Fourth Amendment because it was authorized by a condition of probation and supported by reasonable suspicion. Specifically the Court held “[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.” Id. at 121.  [Footnote omitted.]

Knights and Griffin represent different ways in which a probation search may be analyzed. See United States v. Herndon, 501 F.3d 683, 688 (6th Cir. 2007) (noting that “Griffin and Knights represent two distinct analytical approaches under which a warrantless probationer search may be excused.”) (citation omitted); United States v. Freeman, 479 F.3d 743, 746 (10th Cir. 2007) (observing that Griffin and Knights are “two exceptions to the Fourth Amendment‟s warrant requirement in the context of [probationer] searches.”);  . . .  In sum, a warrantless probation search under Griffin may be justified on the basis of reasonable suspicion to believe a probation violation has occurred because, among other things, supervision of probationers is necessary to ensure that probation restrictions are in fact observed, and that the community is not harmed by the probationer being at large. Griffin, 483 U.S. at 873-75. By contrast, under Knights, even if there is no probationary purpose at stake, a warrantless search may be justified on the basis of reasonable suspicion to believe that the probationer has engaged in criminal activity and that a search condition is one of the terms of probation. Knights, 534 U.S. at 122.

Turning to the facts in the case before us, we first observe that whether the warrantless search of Schlechty’s car was permissible under the Griffin reasoning and line of authority is at least a close call. For example the trial court noted that it had “serious reservations about whether or not this was a probationary search, in other words, was it done as a part of the regulatory scheme of probation enforcement as opposed to a substitut[e] for the officers obtaining a warrant to search the defendant’s vehicle.” Tr. at 82. This is a respectable position under Griffin. But as previously discussed, Knights puts this distinction to rest. The questions are whether the officers had reasonable suspicion to believe that Schlechty was engaged in criminal activity and whether there was a search condition included in his terms of probation.  As for the search condition the record is clear. Schlechty signed an “Order On Probation,” the terms and conditions of which included paragraph 10, which reads in pertinent part, “[y]ou shall permit the Probation Officer, in conjunction with other law enforcement officers, to visit you at reasonable times at your home or elsewhere, and to make reasonable inquiry into your activities while under probation supervision, and you shall submit to reasonable warrantless searches of your person and/or property by such officers.” (emphasis added). Tr. Ex. 1. Schlechty acknowledged that he read the order and had been furnished a copy. Id. However, the trial court determined that apart from whether the search of Schlechty’s car was investigatory rather than probationary, it was nonetheless unreasonable because the State presented no specific articulable facts from which it could be concluded there was reasonable suspicion that the search was necessary. See Appellant‟s Br. at 20.

It appears to us that the trial court may have conflated two different concepts: the “reasonableness” of the search under the Fourth Amendment on the one hand, versus “reasonable suspicion” to support the search on the other. As to the former, we agree that all government searches, whether or not conducted pursuant to voluntary consent, must be “reasonable.” For example the Fourth Amendment would not condone the indiscriminate ransacking of a probationer’s home at all hours, or the pumping of his or her stomach, simply because a probation term included a search condition.  . . . But here, we disagree there was anything unreasonable about the search of Schlechty’s car. It was apparently used or attempted to be used as an instrument to lure a young girl. And at the time of the search, Schlechty was not present in the car. Thus our inquiry focuses on the “reasonable suspicion” to believe Schlechty engaged in criminal activity thereby supporting the warrantless search.

Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, but it still requires at least a minimal level of objective justification and more than an inchoate and unparticularized suspicion or “hunch” of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000). In this case, Probation Officer May’s decision to search Schlechty’s car, with the assistance of Trooper Woods and Officer Baughman, was based on a provision in Schlechty’s terms of probation to “behave well.” Indeed when specifically asked if he thought Schlechty “possibly committed a criminal offense” Probation Officer May responded “I don’t know if he committed a criminal offense” but “[b]ehaving well is part of the rules of the Jay Circuit Court.” Tr. at 30.[6]

The United States Supreme Court has consistently determined that an officer’s subjective motivation for a search is measured against an objective standard of reasonableness.  . . . The record shows that as reported by the thirteen-year old alleged and potential victim, Schlechty‟s conduct implicated at least two possible criminal offenses: stalking, [footnote omitted] and attempted confinement.  [Footnote omitted.]  Thus, viewed objectively, the officers had reasonable suspicion to believe criminal activity had occurred even though their subjective states of mind may have suggested otherwise.

Conclusion

The warrantless search of Schlechty’s car was supported both by reasonable suspicion to believe that Schlechty engaged in criminal activity and a search condition contained in his terms of probation. Also, the search itself was not conducted unreasonably. We therefore conclude that the search comported with the dictates of the Fourth Amendment. The trial court thus erred in suppressing the evidence seized thereby.  . . . .

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.


[6] A requirement that the probationer “behave well” apparently has its roots in the predecessors to our current probation statute. See, e.g., Ind. Code § 35-7-1-1 (West 1976) (granting trial court authority to suspend a defendan’s sentence “for such offense if he or she shall thereafter behave well . . . .”); Acts 1907, ch. 236 § 1 at 447-448 (outlining the trial court’s authority to order suspended sentences and declaring in part the order “shall only be effective and operate during the good behavior of such person . . . .”). Although no such language has appeared in the probation statute since it was recodified in 1977, “good behavior” or “behave well” has continued to survive as a condition of probation imposed by many of this State’s trial courts. But we have long held that “good behavior” as a term or condition of probation is equivalent to “lawful conduct.” Hoffa v. State, 267 Ind. 133, 368 N.E.2d 250, 252 (1977); see also Ashley v. State, 717 N.E.2d 927, 928 (Ind. Ct. App. 1999) (declaring defendant violated the terms and conditions of his probation to behave well by “committing the new criminal offenses.”). In this case, the inclusion of “good behavior” – or more precisely a probation condition that Schlechty “behave well”– along with the provision that he not “commit any other criminal offense” was redundant and unnecessary.

 

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Rieth-Riley Construction Co. v. Gibson, No. 64A04-0908-CV-445, __ N.E.2d __ (Ind. Ct. App., Mar. 25, 2010)

BARTEAU, S.J.

. . . Gibson was injured as a result of his collision with Schroeder on September 27, 2006. On July 15, 2008, Gibson filed suit against Schroeder, alleging that, as a result of Schroeder‟s negligence, Gibson had sustained injury. Thereafter, on September 3, 2008, Gibson submitted discovery requests to Schroeder, to which Schroeder responded on March 5, 2009. Information within these discovery responses indicated that, at the time of the accident, Schroeder was employed by Rieth-Riley. On March 18, 2009, Gibson filed his motion with the trial court for leave to file an amended complaint to add Rieth-Riley as a defendant in this cause of action. The trial court granted Gibson’s motion. Rieth-Riley then filed a motion to dismiss asserting that Gibson’s complaint against it was barred by the statute of limitation. In support of its motion to dismiss, Rieth-Riley filed the affidavit of its risk manager which stated that prior to March 30, 2009, Rieth-Riley had no knowledge that Gibson and Schroeder had been involved in an accident on September 27, 2006, that Gibson had any potential claim against Rieth-Riley, or that a complaint had been filed by Gibson on July 15, 2008. In response, Gibson argued that under the discovery rule, the two-year statute of limitation for personal injury claims did not begin to run until March 2009 when he first discovered the identity of Rieth-Riley as a possible defendant in this action.

Indiana’s discovery rule “is based on the reasoning that it is inconsistent with our system of jurisprudence to require a claimant to bring his cause of action in a limited period in which, even with due diligence, he could not be aware a cause of action exists.” Barnes v. A.H. Robins Co., Inc., 476 N.E.2d 84, 86 (Ind. 1985). In a typical personal injury claim, such as in the present case, the injury occurs at the time the negligent act is done, and the claimant is either aware of the injury or the cause of the injury. In fact, Gibson concedes that he was aware he sustained an injury due to the tortious actions of Schroeder; it was merely Schroeder’s employment with Rieth-Riley of which Gibson was unaware.  . . . Stated another way, Gibson was aware of both his injury and the cause of his injury in September 2006, but he argues that the discovery rule should apply to his case to toll the statute of limitation because he did not know, and could not know in the exercise of ordinary diligence, that Rieth-Riley was also potentially liable as Schroeder’s employer.

Applying Gibson’s argument in a practical manner leads to the discovery rule tolling the statute of limitation in personal injury cases until a plaintiff discovers every defendant who might be legally liable for his or her injury. In analyzing Gibson’s assertions, we are mindful that the claimant of an action bears the burden of bringing suit against the proper party within the statute of limitation. Beineke v. Chemical Waste Management of Indiana, LLC, 868 N.E.2d 534, 539-40 (Ind. Ct. App. 2007). The discovery rule is not intended to toll the limitation period until optimal litigation conditions can be established. Rather, as we stated previously, the purpose of the discovery rule is to limit the injustice that would arise by requiring a plaintiff to bring his or her claim within the limitation period during which, even with due diligence, he or she could not be aware a cause of action exists. Therefore, we decline to extend the discovery rule to apply to cases like this one where the indeterminate fact is not the existence of an injury, but rather the identity of a tortfeasor.

BAILEY, J., and BRADFORD, J., concur.

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A.S. v. State, No. 10A04-0911-JV-630, __ N.E.2d __ (Ind. Ct. App., Mar. 25, 2010)

BAKER, C.J.

A juvenile facing charges of delinquency and her mother were given a form apprising them of the rights, but not waiving those rights. They signed the form. They never retained an attorney during the delinquency proceedings. The trial court never inquired into their ostensible decision to proceed pro se, nor did it advise them regarding the perils of self-representation. Indeed, there are no discussions in the record whatsoever regarding the right to an attorney, the advantages of retaining one, or their ability to represent themselves. Under these circumstances, we find that A.S. and her mother did not knowingly and voluntarily waive their right to counsel.

. . . Prior to the May 28, 2008, initial hearing, A.S. and her mother (Mother) were presented with a document entitled “Advisement of Rights for Juvenile Hearing” (Advisement), which reads, in pertinent part, as follows:

I understand that I have the following rights: to know the nature of the allegation(s) against the juvenile; to be represented by an attorney; to a speedy trial; to confront all witnesses; to subpoena witnesses; to introduce evidence on my own behalf; to refrain from testifying against myself; and to have the State of Indiana prove that I committed the offense by a preponderance of the evidence if a petition to modify or to prove that I committed the offense beyond a reasonable doubt if a delinquency petition.

I understand that I may hire an attorney of my own choice, waive my right to an attorney, or ask the Court to appoint an attorney to represent me.

. . . .  Both A.S. and her mother signed the Advisement.

At the initial hearing, the trial court confirmed that A.S. and Mother had signed the Advisement but did not ask A.S. if she wanted legal representation, inquire as to whether she desired appointed counsel, or advise her as to the hazards of proceeding pro se.  . . . .

. . . .

Prior to the May 28, 2008, initial hearing, A.S. and her mother (Mother) were presented with a document entitled “Advisement of Rights for Juvenile Hearing” (Advisement), which reads, in pertinent part, as follows:

I understand that I have the following rights: to know the nature of the allegation(s) against the juvenile; to be represented by an attorney; to a speedy trial; to confront all witnesses; to subpoena witnesses; to introduce evidence on my own behalf; to refrain from testifying against myself; and to have the State of Indiana prove that I committed the offense by a preponderance of the evidence if a petition to modify or to prove that I committed the offense beyond a reasonable doubt if a delinquency petition.

I understand that I may hire an attorney of my own choice, waive my right to an attorney, or ask the Court to appoint an attorney to represent me.

. . . .  Both A.S. and her mother signed the Advisement.

At the initial hearing, the trial court confirmed that A.S. and Mother had signed the Advisement but did not ask A.S. if she wanted legal representation, inquire as to whether she desired appointed counsel, or advise her as to the hazards of proceeding pro se.  . . . .

. . . .

In the context of adult criminal proceedings, the right to counsel is essential to the fairness of those proceedings. Drake v. State, 895 N.E.2d 389, 392-93 (Ind. Ct. App. 2008). Because a defendant gives up many benefits when the right to counsel is waived, the accused must knowingly and intelligently waive that right. Id. When a defendant asserts his right to self-representation, the trial court should advise the defendant of the dangers and disadvantages of self-representation. Id. Although there are no specific “talking points,” our Supreme Court has adopted four factors to consider when determining whether a knowing and voluntary waiver occurred:

“(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.”

Poynter v. State, 749 N.E.2d 1122, 1127-28 (Ind. 2001) (quoting United States v. Hoskins, 243 F.3d 407, 410 (7th Cir. 2001)).

In the context of juvenile adjudications, “the State bears a heightened burden in securing the juvenile’s waiver of his or her right to counsel.” R.W., 901 N.E.2d at 543. Pursuant to Indiana Code section 31-32-5-1(2), a parent can waive a juvenile’s right to an attorney only if:

(A) [the parent] knowingly and voluntarily waives the right;

(B) [the parent] has no interest adverse to the child;

(C) meaningful consultation has occurred between [the parent] and the child; and

(D) the child knowingly and voluntarily joins with the waiver[.]

Our Supreme Court has held that “[t]he meaningful consultation requirement of the statute is a matter peculiar to juvenile waivers; it is a safeguard additional to those requirements common to adult waivers—that they be knowingly, voluntarily, and intelligently made.” Cherrone v. State, 726 N.E.2d 251, 254 (Ind. 2000) (emphasis in original) (quotations omitted). In other words, in a juvenile context, the threshold inquiry is whether the parent and juvenile both made knowing and voluntary waivers in accordance with constitutional jurisprudence; if it is found that they did so, the next inquiry is whether there was an opportunity for meaningful consultation.  . . . .

First, therefore, we must determine whether Mother and A.S. knowingly and voluntarily waived the right to counsel as guaranteed by the Indiana and United States Constitutions. As noted above, our Supreme Court has explained that there are four factors to analyze in determining whether a knowing and voluntary waiver occurred:

“(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.”

Poynter, 749 N.E.2d at 1127-28 (quoting Hoskins, 243 F.3d at 410).

Here, the trial court made no inquiry whatsoever into the ostensible decision of A.S. and her Mother to proceed pro se. Although they signed the Advisement, which explained their rights, including the right to be represented by an attorney, nowhere in the record do they state affirmatively that they intended and wished to proceed without representation.  [Footnote omitted.]   Similarly, there is no evidence in the record that A.S. and Mother understood the dangers and disadvantages of self-representation. In fact, the undisputed evidence in the record establishes that A.S. “did not know I would be representing myself or what the implications of that were.”  . . . Furthermore, A.S. was not advised “that I had a valid self defense claim and an attorney could have investigated and presented that claim for me.”   . . . Likewise, there is no evidence in the record establishing the background and experience of either A.S. or Mother, and the conversation that Mother had with the trial court at the initial hearing suggests that she was confused about the procedures to be followed. Finally, there is little or no context to A.S. and Mother’s ostensible decision to proceed pro se, inasmuch as there was no discussion whatsoever about the issue on the record.

. . . .

Given this record, we simply cannot find any evidence establishing that Mother and A.S. knowingly and voluntarily waived the right to counsel. Similarly, there is no evidence that they were advised of that right and the dangers of proceeding pro se and had a subsequent opportunity for a meaningful consultation on the issue. Indeed, nowhere in the record do they actually express a desire to proceed pro se. Under these circumstances, therefore, we find that A.S.‟s adjudications are void and, consequently, she is entitled to relief from judgment.

The judgment of the trial court is reversed.

DARDEN, J., and CRONE, J., concur.

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