State of Indiana v. Christopher Vickers ( 2012 )

FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
GREGORY F. ZOELLER BART M. BETTEAU
Attorney General of Indiana New Albany, Indiana
CYNTHIA L. PLOUGHE
FILED
Deputy Attorney General
Indianapolis, Indiana
Feb 21 2012, 9:23 am
CLERK
of the supreme court,
court of appeals and
IN THE tax court
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Respondent, )
)
vs. ) No. 88A05-1106-PC-317
)
CHRITOPHER VICKERS, )
)
Appellee-Petitioner. )
APPEAL FROM THE WASHINGTON SUPERIOR COURT
The Honorable Frank Newkirk, Jr.
Cause No. 88D01-1101-PC-48
February 21, 2012
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Respondent, State of Indiana (State), appeals the post-conviction court’s
grant of post-conviction relief to Appellee-Petitioner, Christopher Vickers (Vickers).
We reverse.
ISSUE
The State raises a single issue for our review which we restate as: Whether the
post-conviction court erred by concluding that Vickers had not knowingly waived his
right to counsel.
FACTS AND PROCEDURAL HISTORY
On October 27, 2003, following his arrest two days before, Vickers appeared at his
initial hearing along with a group of other defendants. The trial court advised the
defendants of their rights, including the right to be represented by an attorney, the risk of
proceeding without an attorney, and the availability of appointed counsel. After
confirming his name, personal information, and reviewing the potential penalties facing
him, the trial court asked Vickers if he wanted an attorney. Vickers replied that he
needed to speak with his family. The trial court asked one of Vickers’ family members
about the possibility of retaining an attorney and the family member agreed to try to find
an attorney. The trial court requested that the family member let him know “right away”
so that Vickers would have time to request appointment of public counsel. (Transcript p.
21). Vickers was nineteen years old.
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On October 28, 2003, the State filed an Information charging Vickers with
operating a vehicle with a specified blood or breath alcohol level or a controlled
substance or its metabolite in his body, as a Class C misdemeanor, Ind. Code § 9-30-5-
1(a); illegal possession of alcohol as a Class C misdemeanor, I.C. § 7.1-5-7-7(a)(2); and
operating a vehicle while intoxicated causing endangerment as a Class A misdemeanor,
I.C. § 9-30-5-2(b).
On November 24, 2003, Vickers appeared for a pretrial hearing and met with the
prosecutor. The prosecutor gave Vickers a plea agreement form with all pertinent
information regarding the offenses, sentence, and court fees completed. Vickers signed
and initialed each item in the plea agreement. Vickers also signed a waiver of attorney
form prepared by the prosecutor. The bottom of the form contained the following words
in all capital letters, underlined and in bold font: “I DECLARE THAT I DO NOT
WANT TO BE DEFENDED BY AN ATTORNEY IN THIS CASE.” (Appellant’s App.
p. 18). The form had a place for Vickers to insert his last year of schooling, but this was
left blank. Vickers also wrote his name in the caption of the Order to Accept Waiver of
Attorney. However, the order was unsigned by the trial court and did not have the name
of the prosecutor or the date completed. That same day, Vickers pled guilty to operating
a vehicle while intoxicated causing endangerment, as a Class A misdemeanor.1 The
chronological case summary on that day records, in relevant part, that “[p]arties appear;
1
The record does not contain a copy of the transcript of the guilty plea hearing.
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plea agreement filed. Judgment of [c]onviction and [s]entence entered.” (Appellant’s
App. p. 1).
On January 21, 2011, Vickers filed his Verified Petition for Post-Conviction
Relief alleging that his guilty plea was invalid because he had not knowingly or
voluntarily waived his right to counsel and because his plea negotiations were tainted
because he had not validly waived his right to counsel. The Petition requested specific
findings of fact and conclusions of law under Ind. Trial Rule 52 and Ind. Post-Conviction
Rule 1, § 6. Vickers also served discovery on the State, including requests for
admissions. On February 16, 2011, the State filed its Answer, but did not otherwise
respond to Vickers’ discovery requests. On April 19, 2011, a hearing was held on
Vickers’ Petition. On June 6, 2011, the post-conviction court issued its Order Granting
Defendant’s Petition for Post-Conviction Relief, which contained the following relevant
Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
***
8. At his initial hearing:
a. [Vickers] was advised that he was at a disadvantage without a
lawyer because he did not know the laws or rules that apply in
[c]ourt and was not trained in how to negotiate or argue his case.
b. It was recommended that [Vickers] have a lawyer to represent
him and that he talk with a lawyer within 10 days.
c. [Vickers] was told that there were deadlines for the filing of
motions and if he waited too long to see a lawyer, he might not
give his lawyer enough time to investigate the case and
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determine what should be filed on his behalf in time to meet the
deadlines.
d. [Vickers] was informed that he could make it harder for his
lawyer to help by waiting too long to hire an attorney.
e. [Vickers] was asked if he had any questions and he did not.
f. The [c]ourt was told that [Vickers’] family was going to try to
hire a lawyer to represent him.
g. The [c]ourt advised that if the family was unable to hire an
attorney, [Vickers] should be notified by the family “right away.”
9. [Vickers] signed a waiver of attorney form and entered into a plea
[agreement] on [November 24, 2003].
10. The [c]ourt was unable to locate any recording of the plea hearing,
although it is always the intention and the policy of the [c]ourt to record
every hearing.
11. Because there is no record of [Vickers’] waiver of his right to counsel,
the [c]ourt must find that it is impossible to find that he knowingly waived
his right to counsel.
CONCLUSIONS OF LAW
***
3. [Ind.] Code [§] 35-35-1-1 states: “A plea of guilty shall not be accepted
from a defendant unrepresented by counsel who has not freely and
knowingly waived his right to counsel.”
***
(Appellant’s App. pp. 50-51).
The State appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
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Here, the State has appealed the grant of post-conviction relief to Vickers. Our
supreme court has explained the standard of review applicable in such case.
When the State appeals a judgment granting post-conviction relief,
we review using the standard in [T.R.] 52(A):
On appeal of claims tried by the court without a jury or with an
advisory jury, at law or in equity, the court of appeal shall not set
aside the findings or judgment unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.
Clearly erroneous review is a review for sufficiency of evidence.
[…]. We neither reweigh the evidence nor determine the credibility of
witnesses. Rather, we consider only the evidence that supports the
judgment and the reasonable inferences that can be drawn from it. We will
reverse only on a showing of clear error.
State v. Cooper, 935 N.E.2d 146, 149 (Ind. 2010). A showing of clear error is “that
which leaves us with a definite and firm conviction that a mistake has been made.” State
v. Dye, 784 N.E.2d 469, 471 (Ind. 2003). When the State claims that the post-conviction
court erred in granting relief, “the inquiry is essentially whether there is any way the trial
court could have reached its decision.” Id.II. Waiver of Right to Counsel
The State argues that, contrary to the trial court’s decision, the record
demonstrates that Vickers knowingly and voluntarily waived his right to counsel prior to
or at his guilty plea hearing.
The Sixth Amendment, made applicable to the states through the Fourteenth
Amendment, guarantees the right to counsel and concomitant right to self-representation
to an accused. Hopper v. State, 957 N.E.2d 613, 617 (Ind. 2011). These rights arise “at
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any point during a criminal proceeding in which the absence of counsel would erode the
defendant’s right to a fair trial.” Id. “[T]he entry of a guilty plea is a critical stage and a
valid waiver of counsel is required for a defendant proceeding [pro se].” Id. at 616; see
I.C. § 35-35-1-1 (trial court may not accept a guilty plea “from a defendant unrepresented
by counsel who has not freely and knowingly waived his right to counsel.”).
A defendant may, however, waive the right to counsel and proceed pro se
provided that the waiver is made knowingly, voluntarily, and intelligently. Butler v.
State, 951 N.E.2d 255, 259 (Ind. Ct. App. 2011). The particular facts and circumstances
of the case may establish a valid waiver of the right to counsel, including the background,
experience, and conduct of the accused. Hopper, 957 N.E.2d at 618. A request to
proceed pro se must be clear and unequivocal. Id. at 621. Finally, the record must reflect
the trial court’s determination that the waiver was validly made. I.C. § 35-35-1-1; Butler,
951 N.E.2d at 259.
Here, the record does not contain the trial court’s determination that Vickers
waived his right to counsel or unequivocally asserted his right to proceed pro se. In its
Order, the post-conviction court found that “[i]t is the intent and policy of this court to
record all guilty plea hearings.” (Appellant’s App. p. 50). Next, it found that “[n]o
record of the guilty plea exists.” (Appellant’s App. p. 50). The post-conviction court
thus concluded that “it is impossible to find that [Vickers] knowingly waived his right to
counsel.” (Appellant’s App. p. 51). We note that, apart from the foregoing, the post-
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conviction court’s Order contains no other findings as to the validity of Vickers’ waiver
or his unequivocal assertion to proceed pro se.
The State argues that the lack of a recording from the guilty plea hearing does not
in and of itself afford a basis to conclude that a defendant did not knowingly and
voluntarily waive his right to counsel. In Hall v. State, our supreme court concluded that
Hall failed to meet his burden of proof that the trial court did not advise him of his Boykin
rights by relying exclusively upon the absence of a record of his guilty plea hearing. Hall
v. State, 849 N.E.2d 466, 472 (Ind. 2006). 2 The supreme court reasoned that “[t]he fact
that the record of a guilty plea hearing can neither be found nor reconstructed does not of
itself require granting post-conviction relief.” Id. at 470. Instead, the burden remains on
the petitioner to prove his claim by a preponderance of the evidence. Id. Thus, the lack
of a record showing that the trial court determined a waiver to be valid does not mean
that it did not make such determination. See id. at 472.3 Thus, in light of this supreme
court precedent, to the extent the post-conviction court’s grant of relief rests upon the
lack of a record, this was error. See Mansfield v. State, 850 N.E.2d 921, 925 (Ind. Ct.
App. 2006), trans. denied. Accordingly, we must look to other evidence in the record
2
The Boykin rights are “three specific federal constitutional rights:” “the privilege against self
incrimination, right to trial by jury, and the right to confront one’s accusers.” Hall, 849 N.E.2d at 469
(citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)). The record must contain evidence that the
defendant was informed of and waived such rights. Id. Waiver cannot be presumed from a silent record.
Id.3
Vickers cites to a number of cases for the proposition that a record silent on a defendant’s waiver does
not permit an inference that the defendant waived his rights. We find these cases inapposite in light of the
supreme court’s reasoning in Hall. Moreover, these cases involve either a direct appeal or lack of an
initial hearing, and yet do not involve a missing transcript. None of these circumstances are relevant here.
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supporting the judgment to determine whether Vickers met his burden of proof
establishing that he did not waive his right to counsel or did not unequivocally assert his
right to proceed pro se.
Even considering only evidence favorable to the judgment, we are unable to find
that Vickers met his burden of proof. Aside from the unsigned order on the waiver of
right to counsel form and Vickers’ admittedly hazy recollection of events, Vickers put
forth scant evidence demonstrating that he did not waive his right to counsel or did not
assert his right to proceed pro se. Vickers testified that he wanted an attorney at all times
and did not recall telling the trial court that he did not want an attorney. He testified that
he could not recall reading the waiver of attorney form and that he did not understand the
waiver form or the plea agreement. Finally, Vickers points to incomplete portions of the
waiver and its accompanying unsigned order.
We note that “[i]f the record establishes that the defendant can read, the
defendant’s signing a written advisement can be sufficient to inform a defendant of his
rights discussed in the advisement and to establish that the defendant waived those
rights.” Belmares-Bautista v. State, 938 N.E.2d 1229, 1231 (Ind. Ct. App. 2010).
Further, “the defendant bears the burden of showing that he could not read the
advisements or that [his] signature was produced by coercion or misapprehension.” Id.Vickers testified that he could read, had graduated from high school, and had signed not
only the waiver of attorney form but reviewed the plea agreement with the prosecutor and
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initialed it. Thus, at best, Vickers' testimony establishes only that he does not know
whether he waived his right to counsel or asserted his right of self-representation.
Absent a clear requirement that all waivers of counsel be supported by an audio
recording, we are unable to conclude that Vickers met his burden of proof to establish
that he did not validly waived his right to counsel or that he asserted his right to self-
representation. Accordingly, the State has shown that the post-conviction court
committed clear error by granting Vickers post-conviction relief.
Vickers raises two additional issues to justify the trial court’s grant of relief. First,
Vickers points to his plea bargaining negotiations. Vickers arrived for his pretrial hearing
without counsel and met with the prosecutor off the record. Vickers then signed both a
guilty plea and a waiver of right to counsel. Vickers argues that his plea was “tainted” by
negotiating with the prosecutor without the benefit of counsel and a full understanding of
his rights. In support, Vickers cites to Hood v. State, 546 N.E.2d 847, 849 (Ind. Ct. App.
1989). Hood involved a prosecutor’s offer to “forego filing a habitual offender count”
against a jailed defendant if he would plead guilty without counsel. Id. at 848. We note
that substantially the same argument has already been decided adversely to Vickers. See
Hopper, 957 N.E.2d at 616-17. In Hopper, the supreme court distinguished Hood and
declared that it did not support the proposition that “the plea bargain phase is a critical
state requiring a separate warning.” Id. at 617. Thus, we do not find Hood persuasive.
Second, Vickers argues that the post-conviction court erred by refusing to grant
summary disposition or to deem portions of the State’s Answer as judicial admissions.
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After filing his Petition, Vickers sent combined requests for admissions, interrogatories,
and production of documents to the State. The State responded with its Answer alone
and did not provide a separate response to Vickers’ discovery requests. Instead of
addressing the allegations contained in the Petition, however, the State’s Answer appears
to have addressed Vickers’ discovery requests only. Vickers sought summary disposition
and a default judgment arguing that because the State had failed to submit an Answer it
had therefore admitted to the allegations in his Petition. The State responded that “while
organizationally unsound […] the State did respond in substance to” Vickers’ Petition by
denying its allegations. (Tr. pp. 35-36). The State also responded that its Answer was
“actually answering” both Vickers’ Petition and his discovery requests. (Tr. p. 32). The
post-conviction court took the matter under advisement, but issued no ruling.
Under P.C.R. 1, § 4(a) the State must “respond by answer stating the reasons, if
any, why the [post-conviction petition] relief prayed for should not be granted.” Failure
by the State to do so results in only the admission of “facts alleged in the petition for
post-conviction relief,” and not the legal conclusions contained therein. Williams v.
State, 489 N.E.2d 594, 601, n.15 (Ind. Ct. App. 1986). The facts contained in Vickers’
Petition include his address, the date of his guilty plea, his meeting with the prosecutor
prior to entry of his guilty plea, and lack of filing appeals and post-conviction petitions.
The balance of his allegations concerns the validity of his waiver of the right to counsel
and deprivation of his constitutional rights, “questions of law which are not deemed
admitted.” Id.11
Similarly, Vickers’ alternative argument that the State’s Answer amounts to a
judicial admission of those legal conclusions raised in his discovery requests fails for the
same reason. Conclusively establishing that Vickers’ waiver did not occur based on the
State’s simple failure to properly label its Answer simply elevates form over substance.
Accordingly, we find no error by the post-conviction court in denying Vickers’ motions
for summary disposition or judicial admission.
CONCLUSION
Based on the foregoing, we find that the trial court erred in granting post-
conviction relief to Vickers. We reverse the judgment of the post-conviction court and
direct that the conviction be reinstated.
Reversed.
FRIEDLANDER, J. and MATHIAS, J. concur
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