Brianna Simmons v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 23 2020, 9:27 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office and Attorney General of Indiana
Cass County Public Defender
George P. Sherman
Logansport, Indiana Supervising Deputy
Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brianna Simmons, January 23, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1944
v. Appeal from the Cass Superior
Court
State of Indiana, The Honorable Richard A.
Appellee-Plaintiff Maughmer, Judge
Trial Court Cause No.
09D02-1903-CM-180
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1944 | January 23, 2020 Page 1 of 3
[1] On March 12, 2019, the State charged Simmons with Class A misdemeanor
theft. At the initial hearing, Simmons told the trial court that she planned to
hire an attorney. At a subsequent pretrial hearing, Simmons stated that her
boyfriend was working on hiring an attorney for her; the trial court noted that
her trial was scheduled for May 6 and that if she appeared without an attorney,
the prosecutor would likely object to a continuance.
[2] Simmons’s trial took place on May 6, 2019. The trial court asked if she had
retained an attorney and Simmons indicated that she had not; the trial court
immediately indicated that she would proceed pro se. Tr. Vol. II p. 13.
Simmons asked for more time to get an attorney, explaining that she had lost
her job in the process of trying to hire one and that court staff had told her to
explain her situation to the trial court on the date of her trial. Id. at 14. The
trial court did not respond to Simmons. Instead, it turned to the prosecutor,
stating, “if you want to proceed with your case, you may.” Id. at 15. At no
point did the trial court advise Simmons about the dangers of self-
representation. Ultimately, the trial court found Simmons guilty and sentenced
her to one year of incarceration.
[3] Before a defendant may waive her right to counsel and proceed pro se, the trial
court must determine that the defendant’s waiver of counsel is knowing,
voluntary, and intelligent. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). As
part of that process, the trial court is required to advise the defendant of the
dangers and disadvantages of self-representation. Poynter v. State, 749 N.E.2d
1122, 1128 (Ind. 2001) (holding that record did not show a knowing, voluntary,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1944 | January 23, 2020 Page 2 of 3
and intelligent waiver where defendant appeared at trial without an attorney
after previously stating he would hire an attorney).
[4] Here, the trial court refused to even engage in a conversation with Simmons
about her lack of counsel. It took no steps to ensure that she was waiving
counsel—and ignored the fact that she explicitly stated that she wanted an
attorney. The trial court uttered not one sentence in an attempt to advise
Simmons of the dangers and disadvantages of self-representation. Pursuant to
Poynter, we can only conclude that Simmons’s “waiver” of counsel was not
knowing, voluntary, and intelligent. The State concedes as much, agreeing that
Simmons’s conviction should be vacated and the matter remanded for a new
trial.
[5] The judgment of the trial court is reversed and remanded for further
proceedings.
Riley, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1944 | January 23, 2020 Page 3 of 3