Jeremiah Barnaby Ricks v. State of Indiana (mem. dec.)

FILED
MEMORANDUM DECISION Jul 08 2016, 8:20 am
Pursuant to Ind. Appellate Rule 65(D), this CLERK
Indiana Supreme Court
Memorandum Decision shall not be regarded as Court of Appeals
and Tax Court
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremiah Barnaby Ricks, July 8, 2016
Appellant-Defendant, Court of Appeals Case No.
35A05-1602-CR-342
v. Appeal from the Huntington
Superior Court
State of Indiana, The Hon. Jeffrey R. Heffelfinger,
Judge
Appellee-Plaintiff.
Trial Court Cause No. 35D01-1511-
F6-250
Bradford, Judge.
Case Summary
[1] On October 11, 2015, Appellant-Defendant Jeremiah Ricks violently attacked
Jeremy Voland while both were incarcerated in Huntington County. Ricks
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punched Voland several times in the face, breaking Voland’s nose and causing
him to require stitches. The State charged Ricks with Level 6 felony battery,
and Ricks waived his right to counsel, choosing to represent himself. A jury
ultimately convicted Ricks of Level 6 felony battery, and the trial court
sentenced him to two-and-one-half years of incarceration. Ricks contends that
his waiver of trial counsel was invalid and that his sentence in inappropriately
harsh. Concluding that Ricks’s arguments lack merit, we affirm.
Facts and Procedural History
[2] On October 11, 2015, Ricks, Voland, and Taz Dowdy were inmates in the
Huntington County Jail. At around midday, Ricks was “hanging out” with
Dowdy in the cell shared by Dowdy and Voland. Tr. p. 101. Voland, who was
nearby, observed Ricks going through his things, which he kept in a box. When
Voland confronted Ricks and took back his box, Ricks began punching him in
the face with a closed fist. Ricks hit Voland approximately nine times, and,
although Voland did turn away and cover his face, he did not attempt to hit
Ricks. Voland received nine stitches for a cut on his forehead and suffered a
broken nose, which he reset himself, causing “excruciating” pain. Tr. p. 106.
Voland has suffered severe headaches since the incident, which he did not suffer
before. Approximately a week-and-a-half before trial, Voland encountered
Ricks, who told Voland that he “better just say that I was swinging on him,
too.” Tr. p. 109.
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[3] On November 18, 2015, the State charged Ricks with Level 6 felony battery.
On November 24, 2015, at the initial hearing, the trial court advised Ricks of
his right to counsel: “You are advised that you have the absolute right to hire
an attorney at all critical stages of these proceedings.” Tr. p. 17. At a hearing
on December 1, 2015, Ricks indicated that he desired to represent himself.
Although Ricks indicated that he had never represented himself before, he also
indicated that he had experience with the legal system, experience with
discovery, experience with cross-examination, and had earned his GED. The
trial court then advised Ricks as follows:
THE COURT: Okay. Do you understand the Court is
advising you that you may [be] at a disadvantage [in]
representing yourself. The Court will not give you any assistance
with regard to filing any Motions, with regard to legal advice on
how to proceed, and if it proceeds to trial the court will not give
you any assistance in jury selection, in making opening
statements, in conducting any of your examination and in
making closing statements, in preparing and submitting written
jury instructions. You are on your own on those. Do you
understand that?
DEFENDANT: Yes, your Honor.
Tr. p. 29.
[4] On February 2, 2016, the State moved to amend its charging information to
include a charge of Class A misdemeanor battery. Jury trial was held on
February 4, 2016, after which the jury found Ricks guilty of Level 6 felony
battery. That day, the trial court conducted a sentencing hearing. The State
noted Ricks’s prior convictions for two felonies and several misdemeanors and
that Ricks had committed two offenses since being incarcerated in the
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Huntington County Jail since March of 2015: possession of marijuana and the
instant battery. The State also noted that Ricks had a pending theft case in
Adams County. The trial court cited Ricks’s criminal history, the offenses
committed while incarcerated in Huntington County Jail, the severity of
Voland’s injuries, Ricks’s pending felony charge, and the videotape of the
incident indicated which that “[he] and Mr. Dowdy gave a fist to fist”
afterwards. Tr. p. 199. The trial court sentenced Ricks to two-and-one-half
years of incarceration.
Discussion and Decision
I. Waiver of Counsel
[5] Ricks contends that his waiver of counsel was not made voluntarily and
intelligently.
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
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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).
Courts determining whether a waiver of counsel for trial was
made voluntarily and intelligently must consider (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. We have
drawn these factors from case law in the Seventh Circuit, see
United States v. Hoskins, 243 F.3d 407 (7th Cir. 2001), and applied
them in situations as diverse as trial for battery, Poynter v. State,
749 N.E.2d 1122 (Ind. 2001), and for capital murder, Kubsch v.
State, 866 N.E.2d 726 (Ind. 2007).
Hopper v. State, 957 N.E.2d 613, 617-18 (Ind. 2011).
[6] The trial court thoroughly informed Ricks of the perils of self-representation,
advising him that he may be at a disadvantage representing himself. The trial
court also advised Ricks that it would not give him legal advice on how to
proceed or any assistance with filing motions, jury selection, making opening
statements, witness examination, making closing statements, or preparing and
submitting written jury instructions. The trial court made it clear to Ricks that
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“[y]ou are on your own on those.” Tr. p. 29. Ricks has not established that the
trial court failed to adequately advise him of the perils of self-representation.
[7] The trial court also inquired into Ricks’s background and education. Ricks
indicated that he had previous experience in the legal system, as his somewhat
extensive criminal history would indicate.1 Ricks also indicated that he has
experience with discovery and cross-examining witnesses in depositions. The
record supports a finding that he might be better prepared than most to
represent himself in a criminal proceeding. Following the trial court’s
advisements and inquiries, Ricks reaffirmed his decision to represent himself.
[8] Finally, the context in which Ricks’s decision was made does not indicate any
lack of understanding or voluntariness on his part. There is no hint of coercion
or exertion of pressure by the State, the trial court, or anyone else. Ricks
indicated early in the process that he wished to represent himself, and never
wavered until he lost. Overall, application of the factors identified by the
Indiana Supreme Court leads us to conclude with little hesitation that Ricks’s
waiver of his right to counsel was knowing, intelligent, and voluntary. See, e.g.,
Jackson v. State, 992 N.E.2d 926, 933 (Ind. Ct. App. 2013) (concluding that
waiver of counsel was valid where trial court advised defendant of perils of self-
representation, defendant had little formal education but ample experience with
1
Ricks’s familiarity with the criminal justice system is demonstrated when, at the hearing where he
expressed his desire to represent himself, he also requested a suppression hearing, a deposition, and a “fast
and speedy” trial. Tr. p. 30.
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criminal justice system, defendant seemed to have reasonable tactical reason to
represent himself as he believed public defender had conflict of interest, and
there was no indication of coercion), trans. denied.
II. Whether Ricks’s Sentence is Inappropriate
[9] We “may revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Ind.
Appellate Rule 7(B). “Although appellate review of sentences must give due
consideration to the trial court’s sentence because of the special expertise of the
trial bench in making sentencing decisions, Appellate Rule 7(B) is an
authorization to revise sentences when certain broad conditions are satisfied.”
Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations
and quotation marks omitted). “The defendant has the burden of persuading us
that his sentence is inappropriate.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct.
App. 2008).
[10] The principal role of Rule 7(B) review “should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
2008). We “should focus on the forest—the aggregate sentence—rather than
the trees—consecutive or concurrent, number of counts, or length of the
sentence on any individual count.” Id. Whether a sentence is inappropriate
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ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and myriad other factors that come to light in a
given case. Id. at 1224. Here, Ricks received a two-and-one-half year sentence,
which is the maximum sentence he could have received for Level 6 felony
battery. See Ind. Code § 35-50-2-7(b) (“A person who commits a Level 6 felony
(for a crime committed after June 30, 2014) shall be imprisoned for a fixed term
of between six (6) months and two and one-half (2 ½ ) years, with the advisory
sentence being one (1) year.”).
[11] The nature of Ricks’s offense justifies an enhanced sentence. For no apparent
reason, Ricks viciously attacked Voland, punching him in the face
approximately nine times. Moreover, Ricks’s actions could very easily have
supported a more serious battery charge. Serious bodily injury, which Indiana
Code section 35-31.5-2-292 defines as bodily injury that causes “extreme
pain[,]” can support a charge of Level 5 felony battery. Voland, who made no
attempt to fight back against Ricks, suffered a cut requiring ten stitches and a
broken nose. Voland’s broken nose caused him “excruciating” pain when reset.
Additionally, Voland now suffers headaches severe enough to have caused him
to seek hospitalization on three to four occasions since the attack. Voland’s
injuries could easily have supported a conviction for Level 5 felony battery, and
fully justify Ricks’s enhanced sentence for Level 6 felony battery.
[12] Ricks’s character also justifies a fully-enhanced sentence. Ricks’s extensive
criminal history reflects very poorly on his character, including prior
convictions for Class B felony robbery; Level 6 felony theft; Class A
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misdemeanors operating a vehicle while intoxicated and operating a vehicle
never having had a license; Class B misdemeanor marijuana possession; and
Class C misdemeanors minor consuming alcohol, criminal trespass, false
informing, and three counts of operating a vehicle never having had a license.
The probation imposed following Ricks’s robbery conviction was revoked,
resulting in the execution of two previously-suspended years of his sentence. At
the time of his trial in this matter, Ricks had a pending charge for Level 6 felony
theft in Adams County. Ricks, who was born on October 7, 1984, has been
incarcerated or on probation most of the time since 2003. Despite Ricks’s
frequent convictions, incarcerations, and other contacts with the criminal
justice system, Ricks has not chosen to conform his behavior to the norms of
society. Ricks has not established that his two-and-one-half-year sentence for
Level 6 felony battery is inappropriate in light of the nature of his offense and
his character.
[13] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
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