Benjamen Benjamen v. State of Indiana ( 2013 )


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  • Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before
    any court except for the purpose of                          Jul 08 2013, 9:44 am
    establishing the defense of res judicata,
    collateral estoppel, or the law of the
    case.
    ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:
    MATTHEW D. ANGLEMEYER                            GREGORY F. ZOELLER
    Marion County Public Defender Agency             Attorney General of Indiana
    Indianapolis, Indiana
    IAN McLEAN
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    BENJAMEN BENJAMEN,                               )
    )
    Appellant-Defendant,                      )
    )
    vs.                                )      No. 49A04-1210-CR-524
    )
    STATE OF INDIANA,                                )
    )
    Appellee-Plaintiff.                       )
    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable Rebekah F. Pierson-Treacy, Judge
    Cause No. 49F19-1206-CM-43003
    July 8, 2013
    MEMORANDUM DECISION - NOT FOR PUBLICATION
    SULLIVAN, Senior Judge
    Benjamen Benjamen appeals his conviction for resisting law enforcement, a Class
    A misdemeanor. We affirm.
    In the early morning hours of June 24, 2012, Officer Stephanie Herr of the
    Indianapolis Metropolitan Police Department was at a parking lot in Indianapolis,
    directing people to move on. She saw an individual, later identified as Benjamen,
    walking through the parking lot toward an enclosure that contained a trash can.
    Benjamen had placed his hand on his zipper, and Herr surmised that he intended to
    urinate behind the trash can. Herr shined her flashlight on him and said, “[D]on’t do it,”
    but Benjamen did not respond and walked behind the trash can. Tr. pp. 19, 44.
    Herr walked over to the trash can and saw Benjamen zip up his pants. He said he
    was not out in public and started to walk away from the trash can. Herr told him to leave
    the parking lot, but Benjamen said he could not be arrested because he did not do
    anything wrong. Herr told him to leave the premises or he would be arrested for public
    indecency, but Benjamen shouted that he could not be arrested. At that point, Herr told
    him to put his hands behind his back. She grabbed his left arm and put one handcuff on
    him, but he turned around toward her “[t]rying to get away from the cuffs.” Id. at 21.
    Herr radioed for assistance and told Benjamen to turn around and put his hands
    behind his back. He refused and continued trying to turn around while saying he did not
    do anything wrong. Herr pushed Benjamen against a wall and put the other handcuff on
    him, but he continued trying to turn around. At that point, other officers arrived and put
    Benjamen on the ground. He moved around on the ground in an attempt to keep the
    officers from searching him. In addition, Benjamen told them that Herr was lying. The
    2
    officers stood him up and moved him toward a police car, but he kept struggling and
    shouting that he had done nothing wrong. Benjamen was eventually transported to jail.
    The State charged Benjamen with resisting law enforcement and with public
    nudity, a Class C misdemeanor. On June 24, 2012, Benjamen appeared before a master
    commissioner for an initial hearing. The commissioner entered a plea of not guilty and
    scheduled another hearing. The commissioner also provided Benjamen with a written
    advisement of rights, which Benjamen read and signed.             During the hearing, the
    commissioner advised Benjamen of the following:
    Do you know from the paper that you read that you have the right to be
    represented by an attorney? You should hire an attorney just as soon as you
    can to be able to be with you at your hearing and represent you to defend
    against the possibility of having to go to jail. If you try to hire an attorney
    and you’re not successful be prepared to explain that to the Judge, who you
    talked to, what they told you or why you weren’t able to hire one of those
    attorneys and that will help the Judge at the hearing decide if the Court
    should step in to assist you in acquiring counsel.
    Id. at 102. At the end of the hearing, the following discussion occurred:
    [BENJAMEN]:                 May I say something?
    [COMMISSIONER]:             It depends because one the of the things that
    you read about in the form was the right against
    self-incrimination so I advise people who are
    here like you are and don’t have an attorney
    here right now that you shouldn’t really say
    anything about the situation involved in your
    arrest or anything related to the facts of the case
    because you might think telling me something
    will help me understand but the risk you take is
    that whatever you say can be used against you
    and this is being recorded and the prosecutor
    could listen to it so I really don’t want you to
    volunteer any information.
    3
    [BENJAMEN]:                 All right.
    [COMMISSIONER]:             Until you’ve had a chance to talk to a lawyer.
    [BENJAMEN]:                 I mean I’m confident in saying that these
    charges are totally false and made up.
    [COMMISSIONER]:             I’m going to stop you right there.
    [BENJAMEN]:                 But I –
    [COMMISSIONER]:             Because I’m not the guy that needs to hear that.
    [BENJAMEN]:                 Uh huh.
    [COMMISSIONER]:             Your attorney is the person that needs to hear
    that. Say that to your attorney so your attorney
    can be ready to help you evaluate what to do
    about it.
    Id. at 103-04.
    On June 27, 2012, Benjamen appeared before the trial court with other defendants
    for a pretrial conference. The court placed Benjamen under oath. Next, the court asked
    Benjamen if he had ever been diagnosed with a physical or mental disability. Benjamen
    asserted that he had a ruptured disc and a pinched spinal nerve, but other than those
    conditions he did not identify any disabilities. The court advised him as follows:
    What we are going to do is set all of your cases for a review of counsel and
    by the time that you come back to Court Nineteen you will have decided
    whether you want to represent yourself, which you have a constitutional
    right to do. Whether you want to hire an attorney, which you also have a
    right to do. If you think that you qualify for a public assistance attorney,
    bring financial information. If you are working, what your paycheck stub
    is. If you are in school, how many credit hours you are taking. If you have
    any money in the bank, if you are not working or that you are looking for a
    job or what’s going on with that.
    4
    Id. at 111. Benjamen asked the trial court to move up the date of the next hearing,
    asserting “I’m trying just to get it over quickly. [‘]Cause like I said, these are all false
    charges.” Id. at 113. In the course of discussing possible dates, Benjamen said, “I don’t
    plan on gettin’ an attorney.” Id. The court responded, “Okay. I don’t want to hear all of
    those—that information. I want to know what day you are talking about.” Id. at 113-14.
    On July 6, 2012, Benjamen appeared before the trial court for another pretrial
    conference. The trial court again placed Benjamen under oath. Next, the court asked
    Benjamen whether he had any medical conditions, and he said he occasionally
    experienced seizures. The court questioned him about income, and he said he made $340
    every two weeks. Benjamen further stated he had no child support or other dependents,
    but he paid $75 in rent every two weeks to his mother and stepfather. Subsequently, the
    following discussion occurred:
    [COURT]:             Okay. And if you want a public defender, you qualify
    for one. If not you can represent yourself or hire your
    own attorney. What do you want to do?
    [BENJAMEN]:          Represent myself.
    [COURT]:             You don’t want a free public defender?
    [BENJAMEN]:          No, I do not.
    [COURT]:             Oh, I don’t know why I went through all that. Okay.
    You certainly have a right to do that. So, you need a
    Waiver of Attorney form. They will give that to you;
    fill it out and give it back to him. Walk around that
    way and when you are finished with it, again, give it
    back to him and we will deal with that.
    5
    Id. at 123. Benjamen wrote on the form that he was born in 1978, had completed three
    years of college, was of sound mind, and could read, write, and understand English. The
    form further provided, in relevant part:
    6.     I understand that I am entitled to have my rights explained to me and
    that I have the right to have any questions I may have answered for
    me.
    7.     I understand that I have the following rights; [sic]
    a.     the right to a public and speedy trial by jury. [sic]
    b.     the right to use the power of the Court to compel production
    of any evidence including the attendance of witnesses in my
    favor;
    c.     the right to see and hear all witnesses against me and to
    question them at trial: [sic]
    d.     the right to the assistance of an attorney at every stage of the
    proceedings against me: [sic] if I cannot afford to employ an
    attorney, the Court will provide an attorney for me in this
    case. I further understand that I have a right to have an
    attorney provided by the Court even if I am guilty of the
    offense charged. [sic]
    e.     the right to require the State to prove my guilt beyond a
    reasonable doubt at a trial at which I may not be compelled to
    testify against myself; and
    f.     the right to appeal any conviction in this Court to a higher
    Court.
    8.     A defendant who chooses to represent himself or herself will not be
    given special consideration and cannot later make claim of his lack
    of assistance of counsel. A person who represents himself or herself
    is held to the same rules of evidence and procedure as are trained
    counsel. An attorney has skills and expertise not possessed by a
    non-lawyer in preparing for and presenting a proper case. These
    include, among other things: (1) preparation of appropriate
    pleadings; (2) investigating and interrogating witnesses; (3)
    gathering appropriate documentary evidence; (4) obtaining favorable
    witnesses; (5) preparing and filing pre-trial motions; (6) presenting
    favorable opening and closing statements; (7) examining and cross-
    examining witnesses at trial; (8) preparing appropriate written
    6
    instructions for the jury; and (9) recognizing objectionable,
    prejudicial evidence and testimony and mak[ing] proper objections.
    9.     Further, an attorney is usually more experienced in plea negotiations,
    possibly bargaining for a reduced sentence or fewer counts, and
    better able to identify and evaluate any potential defenses and
    evidentiary or procedural problems in the prosecutor’s case. See
    Hopper v. State, 
    934 N.E.2d 1086
     (Ind. 2010). In addition, certain
    charges could be enhanced if you were to have future charges filed
    against you. This means that a future charge(s), if you were to have
    future charges filed against you, could become a higher level of
    charge and/or have a longer sentence due to this guilty plea: [sic] an
    attorney could fully instruct you on such issues.
    10.    If you choose to continue to represent yourself, the Court will not
    grant you a continuance during trial so that you may seek counsel.
    11.    The Court has advised me in representing and defending myself that,
    [sic] I:
    a.     Must follow proper and appropriate pretrial, trial, and post-
    trial procedures,
    b.     Must comply with all the rules of evidence and substantive
    law, and
    c.     Must proceed under and comply with the same rules as an
    attorney.
    12.    I declare that no person has made any promise or suggestion of any
    kind to me, or within my knowledge to anyone else, that I would
    receive any favors, special treatment or any other form of leniency if
    I would decide not to have an attorney defend me in this case. I
    declare that no person has made any threat of any kind to me, or
    within my knowledge to anyone else, to coerce me not to have an
    attorney defend me in this case. I declare that this Waiver is made
    and executed by me freely, knowingly, understandingly, and
    voluntarily.
    I believe and feel that I fully understand the proceedings in this case against
    me and I understand my right to be represented by an attorney.
    I DECLARE THAT I DO NOT WANT TO BE DEFENDED BY AN
    ATTORNEY IN THIS CASE.
    7
    It is my desire that the Court proceed with the trial of this case.
    The Court has further advised me that I will receive no special favors, and
    that, in the Court’s opinion, representing myself is not advisable.
    Appellant’s App. pp. 20-21. Benjamen signed and dated the form.
    After Benjamen had an opportunity to read the form, the court discussed with
    Benjamen the charges against him and the potential penalties and ensured that they were
    accurately set forth on the waiver of counsel form.          Then, the following colloquy
    occurred:
    [COURT]:              Okay, I wrote on this. Did you read this—I’m going to
    let you sign it, but did you read the whole document?
    [BENJAMEN]:           I read the document.
    [COURT]:              Okay. Give that to him please, to sign it. So do you
    have any questions about that document?
    [BENJAMEN]:           No.
    [COURT]:              Do you understand it?
    [BENJAMEN]:           Yes, Ma’am.
    [COURT]:              Okay. And you want to give up your right to an
    attorney and represent yourself?
    [BENJAMEN]:           Yes, Ma’am.
    [COURT]:              All right. I’m going to accept that as being done
    knowingly and intelligently and voluntarily. And you
    can read and write and understand the English
    language, correct?
    [BENJAMEN]:           Yes, Ma’am.
    [COURT]:              And you said you had college, a few years of college,
    right?
    8
    [BENJAMEN]:          Yes, Ma’am.
    Tr. p. 125. The court then scheduled the case for a bench trial.
    The parties appeared for trial on September 24, 2012. Benjamen, representing
    himself, began his opening statement as follows:
    [BENJAMEN]:          Okay. All right, yeah. I would first like to say that my
    representing myself is primarily due to my lack of
    financial means to attain—
    [COURT]:             No, no, no, no. No, stop right there.
    [BENJAMEN]:          All right.
    Id. at 7. The court then asked Benjamen about his current financial circumstances, and he
    reported that he was making less money than he had at the time of the previous hearing,
    about $300 per month. The following discussion then occurred:
    [COURT]:             And I wrote down on here that you refused the public
    defender fee. That’s fifty dollars for the whole case.
    [BENJAMEN]:          Your Honor, that—what I was trying to continue to
    say was that I—I was under the—I didn’t have the
    means to provide the (indiscernible) that I really felt.
    To passionately address and fight for my—again on
    my behalf for what I know the truth is of this matter.
    So as a means, knowing that it is important that not
    only justice is truly served but that the truth is told. I
    felt that that was the best route for me so I just wanted
    to express that it wasn’t a matter of me trying to be
    disrespectful to the courts or speakin’ badly about you
    know anybody else. It was just the matter of me
    feelin’ in my heart that this was the best way for the
    truth to be told on my behalf versus me just being told
    just accept the plea bargain. Because again, like I said,
    I was—
    [COURT]:             Did you talk to the public defender about this case?
    9
    [BENJAMEN]:   I talked to—I talked—I was approached—
    [COURT]:      It is a very simple question, on this particular case did
    you talk to the public defender?
    [BENJAMEN]:   No, I—no, I did not. No, I did not.
    ****
    [COURT]:      I want to get this clear, and you can say more if you
    want. You are refusing to take the public defender.
    [BENJAMEN]:   Um hm. (Affirmative answer)
    [COURT]:      Is that correct?
    [BENJAMEN]:   Refusing?
    [COURT]:      Yes.
    [BENJAMEN]:   I chose—I chose—I chose to defend myself. I didn’t
    refuse a public defender. I just—
    [COURT]:      Okay, let’s get this clear then. We are not moving on
    until we get this issue clear.
    [BENJAMEN]:   All right.
    [COURT]:      You can have a public defender for either fifty dollars
    or—
    [BENJAMEN]:   All right, which I didn’t have to afford (sic).
    [COURT]:      Well, you know we all make choices, but—or you can
    perform eight hours of community service work for
    their services.
    [BENJAMEN]:   For a public defender?
    [COURT]:      That’s what I just said.
    [BENJAMEN]:   I was not aware of that.
    10
    Id. at 11. The court then questioned Benjamen to establish that he did not have any
    physical disabilities that would prevent him from performing community service work.
    Finally, the following discussion occurred:
    [COURT]:             If you want a public defender, you can have them for
    either paying fifty dollars or performing eight hours of
    community service.
    [BENJAMEN]:          Okay, I—
    [COURT]:             And that is your choice.
    [BENJAMEN]:          I—and I—
    [COURT]              You are—you haven’t been—have you been
    diagnosed by a doctor a [sic] being mentally disabled.
    [BENJAMEN]:          I’m not mentally disabled at all.
    [COURT]:             Okay, so you can make your choice.
    [BENJAMEN]:          Right.
    [COURT]:             Knowingly.
    [BENJAMEN]:          Yes, I can.
    [COURT]:             What’s your choice?
    [BENJAMEN]:          And my choice is to still defend myself, Your Honor.
    [COURT]:             Okay, so refusing the public defender.
    [BENJAMEN]:          Yes.
    [COURT]:             And to represent yourself?
    [BENJAMEN]:          Yes, Ma’am.
    11
    Id. at 12-13. The bench trial proceeded. After the presentation of evidence and closing
    statements, the court found Benjamen not guilty of public nudity but guilty of resisting
    law enforcement. The court heard argument from the parties as to sentencing options and
    sentenced Benjamen to 365 days, with four days’ credit and the remainder to be served
    on non-reporting probation.       At Benjamen’s request, the court appointed appellate
    counsel for him, and this appeal followed.
    Benjamen raises one issue, which we restate as: whether Benjamen knowingly,
    voluntarily, and intelligently waived his right to counsel. The Sixth Amendment to the
    United States Constitution guarantees a criminal defendant the right to counsel. Jewell v.
    State, 
    957 N.E.2d 625
    , 628 (Ind. 2011). The Sixth Amendment also provides defendants
    with a right to proceed pro se. Henson v. State, 
    798 N.E.2d 540
    , 544 (Ind. Ct. App.
    2003), trans. denied. Before a defendant waives his right to counsel and proceeds pro se,
    the trial court must determine whether the defendant’s waiver of counsel is knowing,
    voluntary, and intelligent. 
    Id.
    Of all the rights that an accused person has, the right to be represented by counsel
    is by far the most pervasive because it affects his ability to assert any other rights he may
    have. Poynter v. State, 
    749 N.E.2d 1122
    , 1125-26 (Ind. 2001). Consequently, the law
    indulges every reasonable presumption against a waiver of the right to counsel. Henson,
    
    798 N.E.2d at 544
    . We review de novo a trial court’s determination that the defendant
    knowingly, voluntarily, and intelligently waived his right to counsel. 
    Id. at 547
    .
    Whether a waiver of the right to counsel and an exercise of the right to proceed
    pro se was knowing, voluntary, and intelligent will depend upon an array of case-specific
    12
    factors. Hopper v. State, 
    957 N.E.2d 613
    , 619 (Ind. 2011). These factors include: (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 618.
    In the current case, over the course of three hearings the trial court inquired as to
    Benjamen’s medical circumstances, including mental or physical disabilities. The court
    also asked Benjamen at the July 6, 2012 hearing about his ability to earn a living, his age,
    and his educational history. Furthermore, during that hearing the court ensured that
    Benjamen had reviewed and understood the advisements in the waiver of counsel form
    that Benjamen signed. Also, during the July 6, 2012 hearing and at trial, the court
    questioned Benjamen extensively to ensure that he was aware: (1) he was entitled to a
    public defender, and (2) arrangements could be made for Benjamen to pay the public
    defender fee through community service. These facts establish that the court carefully
    inquired into Benjamen’s decision to waive his right to counsel and exercise his right to
    proceed pro se.
    Turning to the next factor, there is other evidence that Benjamen understood the
    dangers of self-representation. At Benjamen’s initial hearing, the master commissioner
    advised him to “hire an attorney just as soon as you can to be able to be with you at the
    hearing and represent you to defend against the possibility of having to go to jail.” Tr. p.
    102. When Benjamen asserted that the charges against him were without merit, the
    commissioner further advised him that he should talk to an attorney about his case. In
    13
    addition, the waiver of attorney form, which Benjamen told the court under oath that he
    had read and understood, set forth a long list of trial-related tasks that an attorney has
    special skill in handling, including spotting weaknesses in the State’s case, questioning
    witnesses at trial, and making proper objections at trial. The document further advised
    Benjamen that he would be held to the same standards of performance as an attorney.
    Finally, the waiver form bluntly told Benjamen, “in the Court’s opinion, representing
    [your]self is not advisable.” Appellant’s App. p. 21. These facts show that Benjamen
    was made aware of the perils of representing himself, and “the warnings issued were
    sufficient to appraise the defendant of the dangers he is facing in the particular matter at
    hand.” Kubsch v. State, 
    866 N.E.2d 726
    , 736 (Ind. 2007).
    The third factor is the background and experience of the defendant. At the time of
    his trial, Benjamen was thirty-four years of age. He had attended three years of college.
    Although Benjamen had some medical conditions, he denied any mental disabilities. He
    maintained a residence, renting from his mother and stepfather. Furthermore, this was
    not Benjamen’s first experience with the legal system. He has two prior misdemeanor
    convictions, which apparently were resolved through alternative misdemeanor
    sentencing. Benjamen also admitted at trial that he had a felony conviction in connection
    with a stolen car. This evidence indicates that Benjamen was an educated person with an
    understanding of the risk he was taking by representing himself.
    Finally, we turn to the context of Benjamen’s decision to proceed pro se. A
    defendant who waives his right to counsel for strategic reasons tends to do so knowingly.
    Id. at 738. Here, Benjamen concedes that his “decision to represent himself was a
    14
    strategic one.” Appellant’s Br. p. 15. At trial, he told the court representing himself
    “was the best way for the truth to be told on my behalf versus me just being told just
    accept the plea bargain.” Tr. p. 9.
    Having considered the four factors identified by our Supreme Court, under the
    facts and circumstances of this case we conclude that the trial court correctly determined
    that Benjamen knowingly, voluntarily, and intelligently waived his right to counsel and
    chose to exercise his right to proceed pro se. See Taylor v. State, 
    944 N.E.2d 84
    , 91 (Ind.
    Ct. App. 2011) (determining the trial court sufficiently advised Taylor of the pitfalls of
    proceeding pro se because the court’s inquiry was “not superficial,” Taylor had past
    experience with the justice system, and Taylor was made aware of the advantages of
    having an attorney).
    Benjamen cites Spears v. State, 
    621 N.E.2d 366
     (Ind. Ct. App. 1993), to support
    his claim that he was insufficiently advised of the dangers of proceeding pro se. In that
    case, Spears told the court at his initial hearing that he wanted to represent himself. At a
    subsequent hearing that was not recorded, Spears signed two forms that discussed his
    right to proceed pro se and the perils of going forward without counsel. A panel of this
    Court concluded that the forms, standing alone, failed to establish that Spears made a
    fully informed decision to waive counsel, particularly because Spears noted on one of the
    forms that he could not read English.
    In Benjamen’s case, the trial court held a hearing on the record regarding
    Benjamen’s waiver of the right to counsel. During the hearing, the court took a recess to
    allow Benjamen to review the waiver of counsel form. After the recess, the court asked
    15
    Benjamen if he had read the form and understood it, and Benjamen said he had.
    Furthermore, Benjamen said he had no questions about the form and indicated that he
    could read English. Thus, unlike in Spears, Benjamen received a hearing on the record
    where he was informed of his right to counsel and the risks of proceeding pro se.
    Furthermore, unlike in Spears, at trial the court questioned Benjamen at length to ensure
    that he understood he had a right to court-appointed counsel and that he would not be
    denied counsel due to lack of funds. For these reasons, Spears does not compel reversal
    here.
    In a related argument, Benjamen claims his waiver of his right to counsel was
    invalid because the trial court did not explain the contents of the waiver of counsel form
    to him.     We disagree. Benjamen told the court, under oath, that he had read and
    understood the form, and he had no questions. Thus, further discussion of the form was
    not necessary. Benjamen points to no evidence that indicates that he was incorrect when
    he told the court he understood the form. Furthermore, the court was not obligated to
    assume that Benjamen actually did not understand the waiver of counsel form and discuss
    it with him at length.
    Finally, Benjamen argues that the court’s procedure was “inadequate” because the
    court did not discuss standby counsel with him or appoint such counsel. Appellant’s Br.
    p. 15.      We disagree.    He correctly notes that our Supreme Court has stated,
    “[A]ppointment of standby counsel is the recommended procedure to preserve [the]
    defendant’s rights when he elects to represent himself.” German v. State, 
    268 Ind. 67
    ,
    
    373 N.E.2d 880
    , 883 (1978). Furthermore, the United States Supreme Court has held that
    16
    a defendant’s Sixth Amendment rights are not violated when a trial court appoints
    standby counsel, even over the defendant’s objection, “to relieve the judge of the need to
    explain and enforce basic rules of courtroom protocol or to assist the defendant in
    overcoming routine obstacles that stand in the way of the defendant's achievement of his
    own clearly indicated goals.” McKaskle v. Wiggins, 
    465 U.S. 168
    , 184, 
    104 S. Ct. 944
    ,
    79 L. Ed. 2d. 122 (1984). However, we have found no case, and Benjamen cites to none,
    that holds that a trial court violates a pro se defendant’s rights under the Sixth
    Amendment by failing to sua sponte appoint standby counsel or by failing to discuss
    standby counsel with the defendant.
    For the reasons stated above, we affirm the judgment of the trial court.
    Affirmed.
    RILEY, J., and CRONE, J., concur.
    17
    

Document Info

Docket Number: 49A04-1210-CR-524

Filed Date: 7/8/2013

Precedential Status: Non-Precedential

Modified Date: 10/11/2015