Charles D. Grays v. State of Indiana (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                    FILED
    this Memorandum Decision shall not be
    Apr 25 2019, 6:29 am
    regarded as precedent or cited before any
    court except for the purpose of establishing                              CLERK
    Indiana Supreme Court
    the defense of res judicata, collateral                                  Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Marielena Duerring                                       Curtis T. Hill, Jr.
    South Bend, Indiana                                      Attorney General of Indiana
    Laura R. Anderson
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Charles D. Grays,                                        April 25, 2019
    Appellant-Defendant,                                     Court of Appeals Case No.
    18A-CR-1994
    v.                                               Appeal from the Elkhart Superior
    Court
    State of Indiana,                                        The Honorable Teresa L. Cataldo,
    Appellee-Plaintiff.                                      Judge
    Trial Court Cause No.
    20C01-1708-F2-29
    Robb, Judge.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019                Page 1 of 21
    Case Summary and Issues
    [1]   Following a traffic stop, Charles Grays was charged with dealing in cocaine,
    unlawful possession of a firearm, resisting law enforcement, and operating a
    vehicle with a suspended license. At the pre-trial hearing, ten days before trial,
    Grays asked to waive counsel and proceed pro se. After Grays completed a
    waiver of attorney form, the trial court held a hearing on his request, which it
    ultimately denied. The case proceeded to trial and Grays was convicted of all
    charges. Grays now presents two issues for our review which we restate as: (1)
    whether Grays’ request to proceed pro se was timely, and (2) whether the trial
    court deprived Grays of his right to self-representation. Concluding that Grays’
    request was timely and the trial court denied Grays the right to represent
    himself, we reverse the trial court’s judgment and remand for a new trial.
    Facts and Procedural History
    [2]   Around 1:32 a.m. on August 5, 2017, Corporal Travis Hamlin of the Elkhart
    Police Department was patrolling when he observed a white Chevy Impala near
    the intersection of Chester Avenue and Chapman Avenue. As Corporal
    Hamlin approached, the Impala quickly turned on its signal and turned right
    onto Chapman Avenue. Noting that the driver of the Impala failed to signal
    200 feet prior to turning, Corporal Hamlin followed the vehicle, which “quickly
    pulled off to the right side of the road” and the driver, later identified as Grays,
    opened the door and exited the vehicle. Appellant’s Appendix, Volume 2 at 5.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 2 of 21
    Corporal Hamlin activated his overhead lights and advised Grays to stand by
    the rear bumper of the Impala.
    [3]   Corporal Hamlin explained to Grays why he stopped him and Grays stated that
    “there was something going on with his engine[.]” Transcript, Volume II at
    197. Grays returned to the driver’s seat of his vehicle and pressed the
    accelerator to demonstrate his car troubles. As Corporal Hamlin was standing
    near the Impala, he observed a “small, white, rock-like substance that [he]
    recognized to be crack cocaine” inside the driver’s door of the Impala. 
    Id. at 198.
    Corporal Hamlin asked Grays if he had anything on his person that he
    needed to know about and Grays responded “no.” 
    Id. at 199.
    Corporal
    Hamlin then asked whether there was anything in Grays’ car he needed to
    know about and Grays “took off running[.]” 
    Id. Grays was
    later arrested and
    police discovered cocaine and a handgun during an inventory search of Grays’
    vehicle. See 
    id. at 248-49.
    [4]   On August 8, 2017, the State charged Grays with the following: Count I,
    dealing in cocaine, a Level 2 felony; Count II, unlawful possession of a firearm
    by a serious violent felon, a Level 4 felony; Count III, resisting law
    enforcement, a Class A misdemeanor; and Count IV, operating while license
    suspended, a Class A misdemeanor. At the initial hearing, the trial court found
    Grays indigent and appointed a public defender. A jury trial commenced on
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 3 of 21
    March 5, 2018, but a mistrial was declared.1 The trial was rescheduled for June
    25, 2018.
    [5]   At the final pretrial conference on June 14, 2018, in front of a senior judge,
    Grays requested to proceed pro se:
    [Grays]:          I wish to waive counsel. I wish for him to remove
    hisself [sic] from my case. I’ll go pro se. I’ll go pro
    se.
    [Court]:          If you want to proceed pro se, that is your right;
    however, you should understand that there are a
    number of disadvantages to proceeding pro se. First
    of all, you can’t evaluate your case objectively since
    you’re a party to it. Secondly, you can’t investigate
    your case while incarcerated . . . with the same
    ability as the public defender is able to investigate
    the case. [Number three], if you are – if you
    proceed pro se, you will be held to the same
    standards and rules that a practicing attorney would
    have to abide by. In other words, if you make an
    objection, it has to be based upon a proper legal
    ground. If you choose a jury and say things that
    you shouldn’t say during the voir dire portion of the
    trial, you’ll be stopped and admonished. I can tell
    you that I have been a practicing lawyer since 1973.
    I was a deputy prosecutor for 20 years. . . . I was a
    public defender for two years. I was a superior
    court judge in this very court for 18 years. I know a
    lot about Indiana criminal law, I would venture to
    1
    The jury was selected and sworn and the trial court adjourned for the evening. The next day, the trial court
    became aware of a conflict and the presiding judge was unable to preside in the case. Thus, the case was
    transferred to a special judge pursuant to Local Rules.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019                    Page 4 of 21
    say a lot more than you do. But if I were charged
    with a serious crime, I would hire a lawyer to
    represent me. I would not attempt to represent
    myself. You say you want to represent yourself;
    that isn’t going to change the trial date.
    [Grays]:         I’m fine with that.
    Tr., Vol. II at 85-86.
    [6]   The senior judge then asked Grays to sign a waiver of attorney form but did not
    rule on the request. Grays initialed next to each paragraph of the waiver and
    signed the form, which was filed with the court on June 20. After learning of
    Grays’ request to proceed pro se, the trial court judge scheduled an additional
    hearing on its own motion for June 21 to “insure that Gray[s] was indeed
    intending on proceeding pro se.” Appellant’s App., Vol. 2 at 79. At the
    hearing, the trial court engaged Grays in the following colloquy:
    [Court]:         Mr. Grays, it’s my understanding you met my
    predecessor, Judge Biddlecome, when I was not
    here last week; and from the notes that he left me, it
    indicated that you wanted to proceed pro se in the
    jury trial that commences on Monday. Is that
    correct?
    [Grays]:         Yes.
    ***
    [Court]:         Mr. Grays, I’m not sure what . . . Judge Biddlecome
    informed you about proceeding pro se, and I have
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 5 of 21
    my own little spiel that I do that I’m going to give
    you the benefit of. So even though you have this
    filed – and I read the letter attached with that signed
    motion and it seems that we are going over the
    same things, . . . first of all, your suppression
    hearing has already taken place. That was ruled on
    by Judge Christofeno; and your – I’ll give you an
    opportunity to speak in a moment. So, in addition,
    Mr. Grays, what legal training have you had, if any?
    [Grays]:         Well, I can read the material and I understand.
    [Court]:         Okay. That’s not what I asked you.
    [Grays]:         I have no legal training.
    [Court]:         Okay. You have no legal training.
    [Grays]:         No.
    [Court]:         Do you understand what a motion in limine is?
    [Grays]:         Yes.
    [Court]:         Okay. Please explain to the court what your version
    of a motion in limine is.
    [Grays]:         A motion in limine is something when the State files
    something saying that something cannot be spoken
    of, whatever the subject is, at trial.
    [Court]:         So it’s your understanding that the State can only
    file a motion in limine?
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 6 of 21
    [Grays]:         Well, I guess, my attorney can file a motion in
    limine[.]
    [Court]:         Okay. But if you’re acting on [sic] your own
    attorney[,] . . . which is what you desire to do –
    [Grays]:         Yes.
    [Court]:         -- correct?
    [Grays]:         Yes.
    [Court]:         So do you . . . think that this case is ripe for a
    motion in limine? Do you think a motion in limine
    should be filed? Do you know what the deadlines
    are to file a motion in limine?
    [Grays]:         Well, if I’m provided the legal material, I can –
    [Court]:         We’re going to trial on Monday, which is, what,
    four days from now?
    [Grays]:         Yes.
    [Court]:         Four days.
    [Grays]:         Yes. I understand that.
    [Court]:         So you’re asking this court to allow you to proceed
    pro se on Monday?
    [Grays]:         Yes.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 7 of 21
    ***
    [Court]:         . . . Do you know the Indiana Rules of Evidence?
    [Grays]:         I get the book, yes. . . . I’ll know what it is.
    [Court]:         Okay. I cannot provide you with any
    documentation. So how do you plan on obtaining
    that book?
    ***
    [Court]:         . . . So, Mr. Grays, how do you feel that you will be
    prepared to represent yourself at trial? Do you
    know anything about jury selection?
    [Grays]:         I’ll know Monday. . . .
    [Court]:         We’re making a decision right now.
    [Grays]:         And I said I’ll know Monday.
    [Court]:         . . . Right now as it stands, I am denying your
    motion to proceed pro se based on the fact that you
    are not equipped to represent yourself at a jury
    trial[.]
    Tr., Vol. II at 90, 92-93, 102, 104.
    [7]   After orally denying Grays’ motion, the trial court filed a written order on the
    morning of his jury trial. In its order, the trial court explained that it was clear
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 8 of 21
    that “Grays does not have a clear grasp of the legal ramifications of proceeding
    pro se even after [the court] has attempted to explain them to him and that
    Grays repeatedly interjects his version of the law and misstates legal concepts.”
    Appellant’s App., Vol. 2 at 84. Citing Grays’ lack of legal training and inability
    to “comport himself in a manor [sic] that complies with relevant rules of
    procedure and substantive law[,]” the trial court concluded that Grays did not
    make a knowing, intelligent, voluntary, or timely waiver of counsel. 
    Id. at 86.
    Ultimately, it found that Grays “did not present a clear and unequivocal request
    to proceed pro se, and it was not presented to the [c]ourt within a reasonable
    time prior to jury trial[.]” 
    Id. At trial,
    Grays objected to the trial court’s denial
    of his motion. The jury found Grays guilty on all counts. Grays now appeals.
    Discussion and Decision
    I. Standard of Review
    [8]   Grays asserts that the trial court denied him the right to self-representation and
    he is therefore entitled to a new trial. The Sixth Amendment to the United
    States Constitution and Article 1, Section 13 of the Indiana Constitution
    guarantee a defendant the right to be represented by counsel. Kowalskey v. State,
    
    42 N.E.3d 97
    , 102 (Ind. Ct. App. 2015). “The purpose of the constitutional
    guaranty of a right to counsel is to protect an accused from conviction resulting
    from his own ignorance of his legal and constitutional rights[.]” Johnson v.
    Zerbst, 
    304 U.S. 458
    , 465 (1938). And a defendant’s right to self-representation
    is implicit in the Sixth Amendment right to counsel. Faretta v. California, 422
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 9 of 
    21 U.S. 806
    , 819-20 (1975) (“[T]he right to self-representation – to make one’s own
    defense personally – is thus necessarily implied by the structure of the [Sixth]
    Amendment. The right to defend is given directly to the accused; for it is he
    who suffers the consequences if the defense fails.”) “[F]orcing a lawyer upon
    an unwilling defendant is contrary to his basic right to defend himself if he truly
    wants to do so.” 
    Id. at 817.
    [9]    The right to counsel may be waived by a knowing, voluntary, and intelligent
    waiver. 
    Kowalskey, 42 N.E.3d at 102
    . We note that although a defendant need
    not have the skill and experience of an attorney, he or she must be competent to
    stand trial. Osborne v. State, 
    754 N.E.2d 916
    , 921 (Ind. 2001) (citing Godinez v.
    Moran, 
    509 U.S. 389
    , 400 (1993)). Whether the trial court violated a
    defendant’s constitutional right to self-representation is a question of law which
    we review de novo. Hill v. State, 
    773 N.E.2d 336
    , 342 (Ind. Ct. App. 2002),
    trans. denied, cert. denied, 
    540 U.S. 832
    (2003). Before claiming that his right to
    self-representation has been denied, a defendant must timely, clearly, and
    unequivocally assert that right. 
    Osborne, 754 N.E.2d at 921
    . When a defendant
    has been deprived of the right to self-representation, “a new trial is warranted
    because this right is not subject to harmless error analysis.” 
    Id. II. Waiver
    of Counsel
    [10]   In determining whether a defendant voluntarily and intelligently waived
    counsel, we look to the “particular facts and circumstances surrounding that
    case, including the background, experience, and conduct of the accused.”
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 10 of 21
    Poynter v. State, 
    749 N.E.2d 1122
    , 1127 (Ind. 2001) (quoting 
    Zerbst, 304 U.S. at 464
    ). There are no “prescribed talking points” that a trial court is required to
    include when advising a defendant. 
    Id. at 1126.
    Instead, a trial court need only
    determine that the defendant is making a voluntary, knowing, and intelligent
    waiver of counsel. 
    Id. And the
    law indulges every reasonable presumption
    against a waiver of this fundamental right. 
    Id. To determine
    whether a
    defendant’s waiver is knowing and intelligent, we employ a four-factor test:
    (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.
    
    Id. at 1127-28;
    Hopper v. State, 
    957 N.E.2d 613
    , 618 (Ind. 2011). When applying
    these factors, we acknowledge that the trial court “is in the best position to
    assess whether a defendant has knowingly and intelligently waived counsel[.]”
    
    Poynter, 749 N.E.2d at 1128
    . In addition,
    we will most likely uphold the trial judge’s decision to honor or
    deny the defendant’s request to represent himself where the judge
    has made the proper inquiries and conveyed the proper
    information, and reached a reasoned conclusion about the
    defendant’s understanding of his rights and voluntariness of his
    decision.
    
    Id. We have
    provided several guidelines for what a court should advise the
    defendant when he considers self-representation, including:
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 11 of 21
    The defendant should know of the nature of the charges against
    him, the possibility that there may be lesser included offenses
    within these charges, and the possibility of defenses and
    mitigating circumstances surrounding the charges. The
    defendant should be aware that self-representation is almost
    always unwise, that the defendant may conduct a defense which
    is to his own detriment, that the defendant will receive no special
    indulgence from the court and will have to abide by the same
    standards as an attorney as to the law and procedure, and that
    the State will be represented by experienced professional legal
    counsel.
    Dowell v. State, 
    557 N.E.2d 1063
    , 1066-67 (Ind. Ct. App. 1990), cert. denied, 
    502 U.S. 861
    (1991); see also Jones v. State, 
    783 N.E.2d 1132
    , 1138 (Ind. 2003).
    However, these guidelines “do not constitute a rigid mandate setting forth
    specific inquiries that a trial court is required to make before determining
    whether a defendant’s waiver of right to counsel is knowing, intelligent, and
    voluntary.” 
    Jones, 783 N.E.2d at 1138
    (internal quotation omitted).
    A. Timeliness of Request
    [11]   The State focuses its argument on the timing of Grays’ request to proceed pro
    se. The right to self-representation must be asserted within a reasonable time
    prior to the day of trial. Russell v. State, 
    270 Ind. 55
    , 62, 
    383 N.E.2d 309
    , 314
    (1978). A “reasonable” time before trial depends on the facts of each case. 
    Id. at 63-64,
    383 N.E.2d at 315.
    Respect must be accorded to the defendant’s constitutional right
    of self-representation in the construction of this requisite. By
    requiring a “reasonable” time before day of trial, we intend only
    to prohibit those assertions of the self-representation right by
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 12 of 21
    which the defendant merely seeks delay for its own sake. This
    can best be judged with reference to the type of trial at hand, and
    the nature and involvement of the pre-trial proceedings. The
    more complicated the case, and the more involved the pre-trial
    proceedings, the earlier a “reasonable” assertion will naturally
    be, and vice-versa.
    
    Id. [12] The
    trial court found that Grays’ request to proceed pro se was untimely. The
    State argues that the trial court “properly viewed [Grays’] request as a
    spontaneous offer once he realized he would not be appointed replacement
    counsel as he had requested[.]” Brief of Appellee at 24. In Burton v. Collins, the
    Fifth Circuit affirmed the trial court’s denial of a defendant’s request to proceed
    pro se as it was a “spontaneous response offered at a point when [he] realized
    he was not going to get a new lawyer.” 
    937 F.2d 131
    , 133 (5th Cir. 1991), cert.
    denied, 
    502 U.S. 1006
    (1991).
    [13]   However, Burton is distinguishable from the case at hand because there, the
    defendant’s request came after voir dire. 
    Id. at 132-33.
    Here, Grays requested
    to proceed pro se ten days before trial after expressing dissatisfaction and
    conflict with his attorney. It does not appear that Grays requested to proceed
    pro se “merely seek[ing] delay for its own sake.” 
    Russell, 270 Ind. at 64
    , 383
    N.E.2d at 315. Indeed, Grays repeatedly affirmed that he would proceed to
    trial as planned and we view the trial court’s decision to hold a separate hearing
    on his request as support that Grays made a timely request.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 13 of 21
    B. Poynter Factors
    [14]   Having determined that Grays made his request within a reasonable amount of
    time before trial, we turn to whether Grays knowingly, voluntarily, and
    intelligently waived his right to counsel. In so doing, we apply the four Poynter
    factors:
    (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. 749 N.E.2d at 1127-28
    .
    [15]   The State argues that the trial court properly denied Grays’ request because he
    did not make a knowing and intelligent waiver of counsel “given that [Grays]
    only made his request when he learned that he would not get replacement
    counsel as he had requested, that he lacked legal expertise, and that he refused
    to listen to warnings given regarding the dangers of self-representation.” Br. of
    Appellee at 14.
    [16]   The first two Poynter factors focus on whether the defendant had sufficient
    information about the dangers and disadvantages of self-representation, one
    through the trial court’s inquiry, and the other through any other evidence in
    the record. Drake v. State, 
    895 N.E.2d 389
    , 393 (Ind. Ct. App. 2008). In its
    order denying Grays’ request, the trial court analyzed these two factors and
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 14 of 21
    explained that it appeared that Grays’ decision to proceed pro se was based on
    his belief that his counsel would not attempt to relitigate his motion to suppress
    that was previously decided by the trial court. It also concluded that Grays
    “does not have . . . a clear grasp of the legal ramifications of proceeding pro se
    even after [the judge] has attempted to explain them to him and that Grays
    repeatedly interjects his version of the law and misstates legal concepts.”
    Appellant’s App., Vol. 2 at 84.
    [17]   At the June 14 hearing, in response to Grays’ request to proceed pro se, the trial
    court warned Grays of a “number of disadvantages” of self-representation,
    including the inability to objectively evaluate the case, difficulty investigating
    the case while incarcerated, and that he would be held to the same standards as
    a licensed attorney. Tr., Vol. II at 85-86. The trial court judge further
    explained to Grays that although he had been a practicing attorney since 1973,
    he would hire a lawyer if charged with a serious crime. Grays was also advised
    that if he proceeded pro se, his trial date would not change.
    [18]   Similarly, the waiver of counsel form initialed and signed by Grays cautioned
    that “it is rarely in a defendant’s best interest to represent himself or herself in a
    criminal case . . . [and a defendant] will be held to the same procedural and
    substantive stand[ard]s that apply to licensed attorneys[.]” Appellant’s App.,
    Vol. 2 at 78. At the hearing on Grays’ request to proceed pro se, the trial court
    further advised Grays that if he represented himself, he could not come back on
    a post-conviction relief and claim ineffective assistance of counsel. See Tr., Vol.
    II at 96.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 15 of 21
    [19]   Notably, the competency reports filed with the trial court before Grays made
    his request indicated that “Mr. Grays makes it clear that he is at odds with his
    attorney who he feels is not representing him properly.” Appellant’s App., Vol.
    2 at 68. “He appears to have a decent understanding of the charges against
    him, their seriousness, and also has a decent understanding of the judicial
    process[.]” 
    Id. at 69.
    For these reasons, we conclude that the first two factors
    weigh in favor of a finding that Grays knowingly, intelligently, and voluntarily
    waived his right to counsel.
    [20]   We now turn to the remaining Poynter factors. The third factor concerns
    whether the defendant has the background and experience necessary to make a
    voluntary, knowing, and intelligent waiver of his or her right to counsel. 
    Drake, 895 N.E.2d at 394
    . The State asserts that Grays “lacked the understanding of
    nearly every legal issue he attempted to argue.” Br. of Appellee at 23. In its
    written order, the trial court addressed this factor and concluded only that
    Grays lacked legal training. Citing excerpts from the hearing on Grays’ request,
    the trial court concluded that Grays “does not have a clear grasp of the legal
    ramifications of proceeding pro se even after [the trial court judge] has
    attempted to explain them to him and that Grays repeatedly interjects his
    version of the law and misstates legal concepts.” Appellant’s App., Vol. 2 at
    84.
    [21]   The record reveals that the only specific inquiry by the trial court into Grays’
    background was whether he had any legal training, including the extent of his
    knowledge of a motion in limine and the Indiana Rules of Evidence. However,
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 16 of 21
    Grays indicated on his waiver of attorney form that he had an eleventh-grade
    education, he had earned his G.E.D., and acknowledged that he “can read,
    write, and understand English.” 
    Id. at 77.
    Furthermore, the presentence
    investigation report confirms that Grays completed the eleventh grade and
    earned his G.E.D, and also reveals he attended Brown Mackie College for one
    semester before the school closed. 
    Id. at 148,
    155. Grays’ adult criminal
    history is comprised of one misdemeanor conviction and five felony
    convictions. Thus, Grays “was no stranger to the criminal justice system.”
    Taylor v. State, 
    944 N.E.2d 84
    , 91 (Ind. Ct. App. 2011). We also note that
    Grays was determined to be competent to stand trial based on two competency
    evaluations filed with the court. See Tr., Vol. II at 80; Appellant’s App., Vol. 2
    at 68-73.
    [22]   The evidence in the record illustrates that Grays had the requisite background,
    education, and experience to make a knowing, voluntary, and intelligent waiver
    of counsel. Instead, the trial court focused solely on Grays’ lack of legal
    training. It is improper for a trial court to deny a defendant’s request for self-
    representation due to the defendant’s lack of legal knowledge. See Faretta, 
    422 U.S. 806
    at 836 (holding that a defendant’s “technical legal knowledge” was
    irrelevant in assessing whether he knowingly exercised the right to defend
    himself). Thus, this factor also weighs in favor of a knowing, voluntary, and
    intelligent waiver of counsel.
    [23]   Finally, we evaluate the context of Grays’ decision to represent himself. If a
    defendant’s decision to proceed without counsel appears tactical, then this
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 17 of 21
    factor weighs in favor of finding a knowing and intelligent waiver. 
    Drake, 895 N.E.2d at 395
    . It appears that at the June 14 pretrial hearing, the trial court
    found Grays competent to stand trial based on several reports. Grays stated he
    was not ready to proceed to trial because he had not discussed a strategy with
    his attorney, “there’s [been] a lot of conflict going on between” him and his
    attorney, and he tried to file for replacement counsel. Tr., Vol. II at 81. Grays’
    counsel stated that Grays wanted him to file an interlocutory appeal regarding
    the motion to suppress, which would not be necessary and explained that was a
    “[t]actical decision by defense.” 
    Id. at 85.
    After the State notified the court it
    was prepared for trial, the trial court asked Grays if there was anything else he
    would like to say, to which he responded he would like to waive counsel. It
    appears that Grays was dissatisfied with his attorney and likely believed he
    would be better off representing himself. Thus, this factor also weighs in favor
    of a knowing and voluntary waiver.
    [24]   We again acknowledge our standard of review and the presumption against
    waiver of counsel; however, we conclude all four Poynter factors weigh in favor
    of a knowing, intelligent, and voluntary waiver of counsel. Grays was an
    experienced criminal litigant and had been sufficiently informed of the dangers
    and disadvantages of representing himself at the hearings and in the waiver of
    attorney form. He was competent and possessed the requisite education,
    experience, and background to enable him to knowingly, intelligently, and
    voluntarily waive counsel. Although the State and trial court pointed to Grays’
    flawed arguments, misunderstanding of the law, and lack of preparation for
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 18 of 21
    trial, “[i]t is the defendant . . . who must be free personally to decide whether in
    his particular case counsel is to his advantage. And although he may conduct
    his own defense ultimately to his own detriment, his choice must be honored
    out of that respect for the individual which is the lifeblood of the law.” 
    Faretta, 422 U.S. at 834
    (quotation omitted). Based on our evaluation of the Poynter
    factors, we conclude Grays made a knowing, intelligent, and voluntary waiver
    of counsel and the trial court improperly denied his request to proceed pro se.
    And because Grays was denied the fundamental right to self-representation, he
    is entitled to a new trial. See 
    Osborne, 754 N.E.2d at 921
    .
    Conclusion
    [25]   For the reasons set forth above, we conclude that Grays’ request to proceed pro
    se was timely and he knowingly, voluntarily, and intelligently waived his right
    to counsel. Because the trial court denied Grays’ fundamental right to represent
    himself, we reverse the judgment of the trial court and remand for a new trial.
    [26]   Reversed and remanded.
    Kirsch, J., concurs.
    Riley, J., dissents with separate opinion.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 19 of 21
    IN THE
    COURT OF APPEALS OF INDIANA
    Charles D. Grays,                                        Court of Appeals Case No.
    18A-CR-1994
    Appellant-Defendant,
    v.
    State of Indiana,
    Appellee-Plaintiff.
    Riley, Judge dissenting.
    [27]   I respectfully dissent from the majority’s conclusion that the trial court deprived
    Grays of his right to self-representation. The trial court concluded that Grays
    had not made a timely, unequivocal request to proceed pro se, Grays did not
    understand the legal consequences of proceeding pro se, and Grays was unable
    to proceed in a manner consistent with the rules of trial procedure and
    substantive law. In light of these circumstances, the trial court concluded that
    Grays had not knowingly, intelligently, and voluntarily waived his right to
    counsel.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019       Page 20 of 21
    [28]   As acknowledged by the majority, we review a trial court’s decision on the
    waiver of the fundamental right to counsel with deference, as the trial court is in
    the best position to make those determinations. 
    Poynter, 749 N.E.2d at 1128
    .
    We also indulge every reasonable presumption against the waiver of the right to
    counsel. 
    Id. at 1126.
    Given our standard of review, the presumption against
    the waiver of counsel, and the facts and circumstances of this case, I would
    affirm the trial court’s determination. For these reasons, I respectfully dissent.
    Court of Appeals of Indiana | Memorandum Decision 18A-CR-1994 | April 25, 2019   Page 21 of 21