Antonio L. Ware v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Oct 26 2016, 9:31 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kay A. Beehler Gregory F. Zoeller
Terre Haute, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio L. Ware, October 26, 2016
Appellant-Defendant, Court of Appeals Case No.
68A01-1604-CR-754
v. Appeal from the Randolph Circuit
Court
State of Indiana, The Honorable Jay L. Toney,
Appellee-Plaintiff Judge
Trial Court Cause No.
68C01-1410-F5-564
Baker, Judge.
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[1] Antonio Ware appeals his conviction for Theft,1 a Level 5 felony. Ware argues
that the trial court erred by granting Ware’s request to represent himself at his
trial. Ware also contends that the trial court abused its discretion by ordering
Ware to make restitution to his victim’s insurer. Finding no error, we affirm.
Facts
[2] During the relevant period of time, Ware was employed by D & H Logistics as
a driver doing pick-up and delivery of certain packages. On October 13, 2014, a
package belonging to a business called Silvertowne went missing. The package
contained gold coins worth $69,245. Video security footage led law
enforcement to suspect Ware of the theft, and on October 24, 2014, the State
charged Ware with one count of Level 5 felony theft.
[3] Initially, Ware retained private attorneys, but on January 26, 2015, those
attorneys withdrew. On January 27, 2015, Ware requested that a public
defender be appointed to represent him, and the trial court granted the request,
appointing Attorney Ronald Moore. On April 9, 2015, about two weeks before
Ware’s jury trial was scheduled to begin, Attorney Moore moved to withdraw.
At the hearing on the motion, Ware complained that he did not like Attorney
Moore’s attitude, that counsel was being accusatory, and that Attorney Moore
was disrespectful of Ware. The trial court granted the motion to withdraw.
1
Ind. Code § 35-43-4-2(a)(2).
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[4] The same day, April 9, 2015, the trial court appointed Attorney James Fry to
represent Ware. Attorney Fry requested a continuance of the trial given that he
was new to the case, which the trial court granted, resetting the trial for July 20,
2015. On June 24, 2015, Attorney Fry moved to withdraw, stating that there
were “increasing personal and communication difficulties between Defendant
and counsel” and that Ware had indicated he no longer wished to be
represented by Fry. Appellant’s App. Vol. II p. 73. At the hearing on Fry’s
motion, Fry and Ware initially stated that they had resolved their differences,
but Ware later asked to have Attorney Fry replaced. Ware complained that
Attorney Fry had only begun practicing law in 2013 and his inexperience was
causing problems. Ware stated, “If the courts can’t assign me another lawyer I
will represent myself.” Id. at 82. Attorney Fry stated that there was a conflict
of interest between his duty to Ware and his duty to refrain from conduct that
would be criminal or fraudulent, given the lines of argument that Ware was
insisting his attorney pursue.
[5] The trial court did not rule on Attorney Fry’s motion at that time. At another
hearing on July 8, 2015, the trial court explained that it had not heard anything
warranting Attorney Fry’s removal. The trial court addressed Ware’s statement
that he would represent himself: “Now I will warn you that if you represent
yourself you are held to the same standards as an attorney would be held with
regard to objections, any presentation of evidence, and essentially any matters
related to the trial itself.” Tr. Vol. II p. 49. Ware replied that he understood.
The trial court stated that if Ware wished to proceed pro se, Attorney Fry
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would remain as stand-by counsel to offer advice and answer questions. Ware
replied that he wanted to represent himself “so that you won’t have to keep on
assigning me lawyers, me not agreeing with them or keep on having lawyers
withdraw.” Id. at 49-50. Ware stated that he did not want Attorney Fry to be
his stand-by counsel “because I really don’t feel comfortable with Mr. Fry
having anything to do with my case,” and indicated he might seek to hire his
own stand-by counsel. Id. at 53. Ware further stated, “I don’t really feel
comfortable representing myself, but I feel like I have no choice.” Id. The trial
court granted Ware’s request to represent himself, appointed Attorney Fry as
stand-by counsel, and confirmed the July 20, 2015, trial date.
[6] On July 8, 2015, Ware filed a pro se motion to continue the trial, alleging that
the change to self-representation had deprived him of time to prepare. The trial
court granted the motion, rescheduling the trial to September 21, 2015.
[7] Approximately one week later, Ware asked for Attorney Fry’s appearance to be
withdrawn altogether because Ware had lodged a disciplinary complaint
against him. The trial court granted the request and removed Attorney Fry
entirely from Ware’s case.
[8] On July 28, 2015, Ware requested to have a new public defender appointed to
represent him because “[i]f I represent myself in this case at trial I can not
present my case with the same standards as a lawyer . . . .” Appellant’s App.
Vol. II p. 90. The trial court granted the motion and appointed Attorney Mark
Cox to represent Ware. Attorney Cox moved to continue the trial date so that
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he would have sufficient time to prepare. The trial court granted the motion
and rescheduled the trial to January 11, 2016.
[9] On December 14, 2015, Ware filed a motion to remove Attorney Cox from his
case, alleging that Cox was “too busy to prepare evidence” and that “I am
better off preparing my own case.” Id. at 104. Ware noted that he was willing
to accept Attorney Cox as stand-by counsel. Ware also asked that the trial be
continued again so that he would have time to prepare his own defense.
Attorney Cox filed a motion to withdraw on the same day, alleging that Ware’s
communication was “overbearing with requests and demands” and that their
relationship had deteriorated to a point that Cox was no longer able to function
as counsel. Id. at 109. At the hearing on the motions, Attorney Cox stated that
Ware had sent him over 100 emails and “it seems like every time I look at my
phone I am getting something from Mr. Ware . . . .” Tr. Vol. II p. 70-71. The
trial court denied the motions to remove Attorney Cox but reset the jury trial to
February 29, 2016.
[10] On February 2, 2016, Attorney Cox again moved to withdraw from Ware’s
case, stating that his relationship with Ware had not improved and that Ware
continued to ask that Cox withdraw. At the hearing on the motion to
withdraw, Attorney Cox told the trial court that Ware insisted that he wished to
represent himself. The trial court then addressed Ware as follows:
Mr. Ware you do have, as Mr. Cox stated, the constitutional
right to represent yourself. However, if you are representing
yourself in Court you will be held to the same standards as an
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attorney. In other words if there are objections for example, that
need to be made at trial the Court can not make those for you.
The Court can not advise you as to what objections or other
actions to take during a trial. You will be responsible for calling
witnesses, questioning any witnesses, cross examining
witnesses . . . [b]y the State just to give you a few examples of
what your obligations would be in representing yourself.
Tr. Vol. II p. 81. The trial court asked if Ware still wanted to proceed pro se,
and Ware responded that he did. The trial court granted the motion and
designated Attorney Cox as Ware’s stand-by counsel, emphasizing again to
Ware that he would be held to a high standard:
Again you are going to be held to the same standards that an
attorney who regularly practices law would be held to. . . . Now
I have talked with you here this morning Mr. Ware about what
goes on during the trial, but obviously if you are representing
yourself then you have the same obligations as an attorney would
to prepare for the trial. Do you understand that?
Id. at 82. Ware responded affirmatively. Ware asked for another continuance
so that he could have more time to prepare. The trial court denied the motion.
[11] On February 8, 2016, Ware filed a motion alleging that he was incompetent to
stand trial, and on February 9, 2016, Ware filed a notice of his intent to raise a
defense of mental disease or defect. The trial court denied both motions. On
February 10, 2016, Ware filed a motion asking that an attorney be appointed to
represent him, claiming that mental illness had caused him to discharge his
previous attorneys. At the hearing on the motion, Ware explained that he did
not believe he would be able to present his case well to the jury. The trial court
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agreed, reminding Ware that he had told him more than once that it is very
difficult to proceed pro se: “[t]he Court tried to provide you with the best
representation possible through the attorneys that were appointed and that
simply didn’t work out. You didn’t seem to be able to get along with any of
them.” Tr. Vol. II p. 108-10. Subsequently, the following discussion occurred:
COURT: . . . Mr. Ware what is it you want me to do? I have
done everything that you have asked since this case
started. I have appointed you three different
attorneys and you could not get along with any of
them.
***
WARE: I can’t represent myself.
COURT: Are you asking for Mr. Cox to be put back on your
case?
WARE: If he’s the only choice that I have, yes . . . .
COURT: Well there is no way any other attorney could
prepare for the case that would not be possible.
WARE: Well he would have to do. I would just have to roll
the dice with him . . . . But yeah I would like Mr.
Cox. I would have to speak with him and we have
to come to an understanding, I guess, cause I can’t
go representing myself.
***
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COURT: Alright. The idea Mr. Ware is to give you the best
representation possible. I agree with you having
Mr. Cox on your case as an attorney with trial
experience puts you in a better position than if you
do not have an attorney. . . .
***
COURT: Alright. Well although I think it is somewhat unfair
to Mr. Cox what this is really about is what I can do
to be most fair to you. Based upon your request . . .
***
COURT: . . . Well again its [sic] not something I am sure Mr.
Cox is going to be in favor of, but I am going to
have court staff advise him that he is to act as your
counsel in this case just as though he had not been
placed to be merely stand-by counsel and he will be
advised of that as soon as we can reach him. . . .
Id. at 111-14. The trial court then told Ware to wait while the court tried to
locate Attorney Cox, who was likely elsewhere in the building in a different
courtroom. Subsequently, the trial court went back on the record, noting that
while court staff was speaking with Attorney Cox on the phone, Ware had
approached the trial court and stated that he had changed his mind again and
wanted to represent himself:
COURT: In fact the Court Reporter was on the phone with
Mr. Cox and I got word Mr. Ware that you do wish
to represent yourself correct?
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WARE: [Inaudible]
COURT: Alright. That will be the ruling of the Court. Its
[sic] thirteen days before trial. There will not be any
reversal of that. You have made your decision on
two different days to represent yourself. That will
be the ruling of the Court. Your request to
represent yourself will be granted. Mr. Cox will still
be required to be here [as] stand-by counsel.
Id. at 120.
[12] Ware’s jury trial began on February 29, 2016. At the close of the trial, the jury
found him guilty as charged. Ware’s sentencing hearing took place on March
28, 2016. The trial court sentenced him to four years, with two years suspended
to probation. At the sentencing hearing, evidence was presented establishing
that the value of the coins Ware had stolen totaled $69,245; an insurance
company had paid Silvertowne $68,245 to cover the loss; and a carrier had paid
the policy’s $1,000 deductible directly to Silvertowne. The trial court entered a
restitution order requiring Ware to pay $68,245 to the insurance company.
Ware now appeals.
Discussion and Decision
I. Proceeding Pro Se
[13] First, Ware contends that the trial court committed fundamental error by
permitting him to represent himself at and before trial. Our Supreme Court has
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explained the contours of a defendant’s rights to be represented by counsel and
to represent himself as follows:
The Sixth Amendment, applicable to the states through the
Fourteenth Amendment, guarantees a criminal defendant the
right to counsel before he may be tried, convicted, and punished.
Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975). This protection also encompasses an affirmative
right for a defendant to represent himself in a criminal case. Id.However, “[i]t is undeniable that in most criminal prosecutions
defendants could better defend with counsel’s guidance than by
their own unskilled efforts.” Id. at 834, 95 S.Ct. 2525. Because
the defendant who waives his right to counsel and proceeds to
trial unrepresented is forgoing “many of the traditional benefits
associated with the right to counsel . . . the accused must
‘knowingly and intelligently’ forgo those relinquished benefits.”
Id. “[H]e should be made aware of the dangers and
disadvantages of self-representation, so that that the record will
establish that ‘he knows what he is doing and his choice is made
with eyes open.’” Id. at 835, 95 S.Ct. 2525 (quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87
L.Ed. 268 (1942)).
There is no particular formula or script that must be read to the
defendant. The information that must be given “will depend on
a range of case-specific factors, including the defendant’s
education or sophistication, the complex or easily grasped nature
of the charge, and the stage of the proceeding.” Iowa v. Tovar,
541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).
Hopper v. State, 957 N.E.2d 613, 617-18 (Ind. 2011). To determine whether a
waiver of counsel was made voluntarily and intelligently, courts must consider
four factors: (1) the extent of the trial court’s inquiry into the defendant’s
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decision; (2) other evidence in the record establishing 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 without an attorney. Id. at 618.
[14] Initially, Ware claims that he did not demand to exercise his right to self-
representation pursuant to the above authority. Reply Br. p. 5. Instead, he
contends that he acted as his own attorney because he had no other choice.
The record belies this contention. The trial court, acting with significant
patience and understanding, afforded Ware the opportunity to be represented
by three different public defenders, repeatedly delaying his jury trial as a result.
The trial court did not deny Ware the right to representation; it bent over
backwards to try to help him find an attorney with whom he could work. That
Ware was unable or unwilling to accept the services of three different court-
appointed attorneys does not mean that he had no choice but to represent
himself. Therefore, we will analyze this case under the rubric established for
defendants who demand the right to represent themselves at trial, as that is
precisely what Ware did in this case.2
[15] First, we consider the extent of the trial court’s inquiry into Ware’s decision to
represent himself. The trial court engaged in conversation with Ware about this
2
Although Ware purports to make an argument under the Indiana Constitution as well as the United States
Constitution, he provides no separate authority, argument, or analysis under the Indiana Constitution.
Consequently, we decline to address his argument with respect to our state Constitution.
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issue in no less than five hearings over the course of nearly one year. Each
occasion featured significant, lengthy conversations with Ware about the
reasons for his decision as well as the challenges and disadvantages of self-
representation. Indeed, the trial court repeatedly and forcefully counseled Ware
that proceeding pro se would be extremely difficult. But Ware was not
persuaded. In each conversation, he expressed dissatisfaction with his attorney
at the time based on, in the State’s words, his “desire for what he thought was a
perfect attorney who showed proper deference; attended to and answered every
communication and demand; prepared the case Ware wanted; and would obey
Ware’s instructions even if they meant presenting irrelevant matters or engaging
in criminal or fraudulent conduct.” Appellee’s Br. p. 23. In the end, we find
that the trial court conducted a sufficient inquiry into Ware’s decision to
proceed pro se.
[16] Second, as to whether Ware understood the dangers and disadvantages of self-
representation, we again note that the trial court repeatedly, over the course of
multiple hearings and nearly one year, cautioned Ware that proceeding pro se
was not a wise course of action. Indeed, after Ware had been representing
himself for some time during the pretrial proceedings, Ware returned to the trial
court and asked for an attorney, explaining that he understood he would not be
able to present his case to a jury as well as an attorney would. The trial court
agreed, but while court staff was on the phone with Attorney Cox explaining
that he had been re-appointed to Ware’s case, Ware changed his mind yet again
and stated that he wanted to proceed pro se after all. So Ware was well aware
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of the disadvantages of representing himself but chose to proceed without
counsel anyway.
[17] Third, as to Ware’s background and experience, the record reveals he was
thirty-three years old, had graduated from high school and attended college,
and had earned a Paralegal Associates Degree in 2008. He was the subject of
criminal prosecutions for theft in 2001; felony assault with a deadly weapon in
2002; weapons possession and possession of criminal tools in 2005; possession
of marijuana in 2006; disorderly conduct in 2007; and strangulation, domestic
battery, and battery resulting in bodily injury in 2010. He had discussed the
instant case with three experienced attorneys. We find that this record does not
suggest that Ware was unfamiliar with legal proceedings or that he lacked the
education and experience to understand his options and the effect of his
decisions.
[18] Finally, as to the context of Ware’s decision to represent himself, we note again
that he had three different court-appointed public defenders at different points
in his case. He was unable or unwilling to get along with any of them, refusing
to listen to their advice that much of what he wished to argue at trial was
irrelevant and confusing. The trial court did not give Ware an ultimatum; it did
not unilaterally decree that he had waived his right to counsel by expressing
displeasure with appointed counsel. Indeed, the trial court agreed to re-appoint
Attorney Cox on the eve of trial, and was on the phone with counsel to inform
him of the change in circumstances, when Ware changed his mind yet again
and insisted he wished to proceed pro se. It is apparent that Ware carefully
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considered, and reconsidered, his option to represent himself; that he was aware
of the challenges of self-representation; and that he ultimately decided that only
he could present the case as he wished. Under these circumstances, we find
that Ware’s waiver of counsel was knowing and intelligent. We decline to
reverse on this basis.
II. Restitution Order
[19] Next, Ware contends that the trial court erred in ordering him to pay restitution
to Silvertowne’s insurer. A trial court may order restitution to a victim as part
of a defendant’s probation or sentence. Edsall v. State, 983 N.E.2d 200, 208
(Ind. Ct. App. 2013). The “victim” is one who has “suffered injury, harm or
loss as a direct and immediate result of the criminal acts of a defendant.” Sickels
v. State, 982 N.E.2d 1010, 1013 (Ind. 2013); see also Lang v. State, 911 N.E.2d
131, 136 (Ind. Ct. App. 2009) (noting that “victim” includes insurers who have
paid money to insureds as a result of harm or injury caused by a crime). We
will reverse the restitution order only if no evidence or reasonable inferences
support the decision or if the trial court has misinterpreted or misapplied the
law. Edsall, 983 N.E.2d at 208.
[20] At the sentencing hearing, the trial court was provided with an affidavit from
Silvertowne’s Vice President and General Manager. The affidavit stated that
the value of the stolen coins was $69,245, that the amount had been covered in
full by Silvertowne’s insurer, and that a $1,000 deductible had been paid by a
carrier. Appellant’s App. Vol. IV p. 12. Ware did not object to this affidavit or
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dispute its contents. The trial court entered an order requiring Ware to pay
restitution in the amount of $68,245 to Silvertowne’s insurer. Ware directs our
attention to other evidence in the record that he claims undercuts the trial
court’s order, but this amounts to a request that we reweigh evidence—a
request we decline. The affidavit constitutes sufficient evidence to support the
trial court’s restitution order, and we find no error on this basis.
[21] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
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