Major Wilson v. State of Indiana

FILED
Jan 30 2018, 9:11 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender Attorney General of Indiana
Richard Denning Angela N. Sanchez
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Major Wilson, January 30, 2018
Appellant-Petitioner, Court of Appeals Case No.
45A03-1707-PC-1466
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Diane R. Boswell,
Appellee-Respondent Judge
Trial Court Cause No.
45G03-1608-PC-6
Baker, Judge.
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[1] Major Wilson appeals the denial of his petition for post-conviction relief,
arguing that the post-conviction court erroneously determined that he did not
receive the ineffective assistance of appellate counsel. Finding that the post-
conviction court erred in its determination and that Wilson did receive the
ineffective assistance of appellate counsel, we reverse and remand for further
proceedings.
Facts
[2] On March 6, 2014, the State charged Wilson with ten counts of various crimes.
On March 12, 2014, a public defender entered an appearance on Wilson’s
behalf. On July 10, 2014, Wilson filed a pro se motion asking the trial court to
dismiss his public defender. A pre-trial hearing took place on July 30, 2014,
during which the following exchange took place:
Public Defender: . . . Judge, first thing, Mr. Wilson has asked
and has actually filed with the Court, to strike the appearance of
the Lake County Public Defender’s Office altogether from this
case.
His friends have retained a firm down in Indianapolis that will
not enter their appearance until our appearance is struck, so I’m
asking—
The Court: That’s denied. He’s set for trial.
Public Defender: I—
The Defendant: I’m ready for trial.
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The Court: Pardon?
The Defendant: I’m ready for trial, ma’am.
The Court: Okay. Then we’ll go to trial. If I—if I let you have
substitute counsel at this point—
The Defendant: Well, can I file for pro se then. I’ll do it myself.
I’ll represent myself.
The Court: No, no, you can’t do that.
The Defendant: It’s my right; right?
The Court: It’s my decision. No, you don’t have a right to
represent yourself.
The Defendant: Well, I will not have him represent me then.
The Court: You don’t have a right to represent yourself.
The Defendant: I won’t have him represent me. I’m ready for
trial.
The Court: You don’t—you don’t want [the public defender] to
represent you?
The Defendant: No, I’m ready for trial.
The Court: Why is that?
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The Defendant: I just don’t feel that he can give me reasonable
representation during the trial. . . .
***
The Court: Okay. All right. I can not require you to go forward
with [the public defender], but I can require you to go forward on
August 18th.
The Defendant: I’m ready.
The Court: So if you’re—well, you may be ready, but you need
to advise your people in Indianapolis that they got a trial set on
August 18th.
The Defendant: And if they’re not here, I’ll represent myself.
The Court: No, I’ve already decided you can’t represent
yourself.
The Defendant: I’m sorry, ma’am. That’s why I’m—I’m going
for it. I’m sorry, I mean, I have that right. I know I have that
right.
The Court: No, you don’t have that right to represent yourself.
The Defendant: Yes, I do, ma’am.
The Court: You do not. Where did somebody tell you that?
What right did you read? Where did you read that?
The Defendant: I have a right to represent myself; I know this.
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The Court: You don’t have that—see, that’s why you can’t
represent yourself, because you don’t know what rights you have.
Okay. [Public defender], we’ll strike your appearance. . . .
Appellant’s Ex. p. 18-22.
[3] A second pre-trial hearing took place on August 6, 2014, during which the
following exchange took place:
The Defendant: My friend has not been able to come to an
agreement on the lawyer fees.
The Court: Okay.
The Defendant: And they’re still working on it, but as of right
now, no—no agreement on my counsel, but I am still ready to go
to trial.
The Court: Okay. You’re ready to go to trial.
The Defendant: Yes, ma’am.
The Court: And I remember we had the discussion about your
ability to represent yourself at that trial.
The Defendant: Yeah, Judge.
The Court: I think my ruling was that I didn’t find you—that
that was in your best interest.
***
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The Court: . . . [Public defender]?
Public Defender: Yes, Judge.
The Court: Standby counsel?
Public Defender: I will assist the Court in any way, shape, or
form.
***
Public Defender: If Mr. Wilson needs standby counsel, I’d be
more than happy to stand in with him.
Id. at 4-6. The following exchange then took place at the bench:
Public Defender: Would you like me to be standby counsel for
the trial, Judge? . . .
The Court: He doesn’t need you.
Public Defender: I know that. I know that.
The State: But he doesn’t want anyone, Judge, other than this
alleged Indianapolis attorney . . . . He’s made that very clear that
he wants to go forward on the 18th.
The Court: What is—
The State: I think it’s very—I think it’s very—it would be very
difficult for him to not have anybody.
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The Court: I think so too.
The State: But he doesn’t want the—my understanding of Mr.
Wilson’s point of view is he absolutely doesn’t want [the public
defender] but he also doesn’t want anyone from the public
defender’s office . . . .
***
The State: So, I mean, I believe he needs to be made aware that
he will be held to the same standards that every lawyer is held to.
The Court: This man can’t present a cogent argument to me
about [an unavailable witness]. . . .
The State: I understand.
Public Defender: Judge, I just want to suggest to the Court is for
simply to inquire whether or not he would like to have standby
counsel appointed, give him the choice on the record and—
The Court: If he says “No,” then—
Public Defender: —and what will happen—
The Court: —are you suggesting that I let this man go to—
Public Defender: Judge.
The Court: —trial without—
Public Defender: The last—
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The Court: —lawyer?
***
Public Defender: . . . I’d be more than happy to be standby
counsel. I think he’s got a right to represent himself. Clearly—
The Court: Where does that say that?
The State: Can I—if I can get my—I had a case.
The Court: Oh, you looked it up, right?
Public Defender: He does. . . . I’ll be here. I’ll standby counsel.
The Court: Okay. Give me the cite.
Public Defender: Stroud.
The State: Stroud v. State of Indiana. . . . It’s from the Supreme
Court of Indiana, 2004, and in relevant part it says that the right
of self representation is implicit in the Sixth Amendment of the
constitution and in Article 1, Section 13 of the Indiana
constitution. However, a request to proceed pro se is a waiver of
your right to counsel, and there are several requirements to
invoke that right. The defendant’s request must be clear,
unequivocal, and must be made within a reasonable time before
the first day of trial.
***
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The State: Also his choice must be made on the record knowing,
intelligent, and voluntary.
Id. at 7-11. Following this discussion, the trial court told Wilson, “You may
represent yourself.” Id. at 11. The trial court then asked Wilson whether he
would like to have standby counsel. Wilson agreed, stating, “I’ll go by the
Court’s decision, go ahead let him [act] as standby.” Id. at 13.
[4] A jury trial took place on August 20, 2014; the jury found Wilson guilty as
charged. Wilson admitted to being an habitual offender. The trial court
entered judgment only for Wilson’s convictions of Class A felony criminal
deviate conduct and Class B felony burglary while armed with a deadly weapon
and found him to be an habitual offender. On November 5, 2014, the trial
court imposed an aggregate sentence of 100 years.
[5] On direct appeal, Wilson’s appellate counsel argued only that the State
presented insufficient evidence to support Wilson’s conviction for Class B
felony burglary. We affirmed in a memorandum decision. Wilson v. State, No.
45A03-1412-CR-425, 2015 WL 4740412, at *1 (Ind. Ct. App. Aug. 11, 2015).
[6] On August 18, 2016, Wilson filed a pro se petition for post-conviction relief.
On January 9, 2017, he filed, by counsel, an amended petition for post-
conviction relief. An evidentiary hearing took place on March 9, 2017.
Appellate counsel testified that she did not request transcripts from Wilson’s
pre-trial hearings in which his waiver of his right to counsel was discussed; she
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also testified that she thought she should have requested them. During the
hearing, the following exchange took place:
The Court: One moment, please. [Appellate counsel], you did
indicate that you had some correspondence with the petitioner,
with Mr. Wilson; is that correct?
Appellate Counsel: Yes.
The Court: Do you recall what the basic substance or nature of
the correspondence was?
Appellate Counsel: Well, I don’t want to—I’m concerned about
the attorney/client privilege.
The Court: It’s waived by virtue of you having been alleged
ineffective, and the case law is clear on that. So if you’d answer
the question, please.
Appellate Counsel: We discussed—he discussed problems that
he had with his appointed counsel. And he addressed some
issues that he considered for appeal, things that he wanted
discussed.
The Court: So problems with his appointed counsel, obviously
prior to representing himself; is that correct?
Appellate Counsel: Yes.
The Court: And then I’m sorry, what was the other?
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Appellate Counsel: Just that—things that he thought might be
pertinent for appeal.
The Court: All right. . . .
PCR Tr. p. 10-11. On June 15, 2017, the post-conviction court denied Wilson’s
petition, making the following conclusions of law:
10. There is no constitutional requirement for appellate counsel
to look beyond the trial record for issues on appeal, and it is
incumbent upon the trial counsel to inform appellate counsel of
any issues not preserved in the record. Stephenson v. State, 864
N.E.2d 1022 (Ind. 2007). In this case neither the Petitioner, who
acted as his own counsel, nor his standby counsel . . . informed
appellate counsel that there may be some question as to
Petitioner’s waiver of the right to counsel. Appellate counsel in
this case, after reviewing the trial record and after consulting with
the Petitioner chose to base her appeal on the insufficiency of the
State’s evidence with regard to the breaking element of the charge
of Burglary. This was a strategic decision made with full
knowledge that the Petitioner had proceeded pro se.
11. Appellate counsel’s reliance on the trial record and her
communications with the Petitioner in deciding to base her
appeal on a claim of insufficiency of evidence was reasonable.
There was nothing on the face of the record, nor any
communication from [standby counsel] or Wilson, to alert
appellate counsel to any potential issue concerning Wilson’s self-
representation. This court concludes that appellate counsel’s
performance did not fall below prevailing professional norms.
Her performance under these circumstances does not constitute
ineffective assistance of appellate counsel.
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12. . . . [I]t bears note that Wilson has failed to sustain his burden
of proof under post-conviction jurisprudence for other reasons as
well. This is not a direct appeal. Wilson collaterally appeals his
conviction. “The post-conviction process is open to prisoners to
correct injustice in convictions.” Lingler v. State, 644 N.E.2d 131,
133 (Ind. 1994). It seems to this court therefore, that in order to
show prejudice Wilson must prove that he was, in fact, unaware
of the risks and dangers of self-representation; that his waiver of
the right to counsel was actually not knowing, intelligent and
voluntary. . . . Wilson fails in this burden for the following
reasons. First, Wilson fails to articulate of what risks and
dangers he was ignorant. For example, if Wilson had claimed
that he did not know he could open the door to admission of his
prior criminal convictions by the way he posed questions at trial,
this court could review whether the record or transcript of the
jury trial supports his claim of ignorance and proves his
ignorance prejudiced him. This court would be in a position to
find that no prejudice resulted due to stand by counsel’s
assistance. . . . This leads us to the second reason Wilson fails to
prove prejudice. Wilson does not stand in the position of other
self-represented individuals because Wilson had the assistance of
counsel throughout his pre-trial and trial proceedings. Although
the trial court labeled [the public defender] “stand-by counsel” it
bears consideration that “a rose by any other name would smell
as sweet.” As discussed previously, [standby counsel] made
objections, argued motions, successfully, and provided
consultation and instruction to Wilson throughout the
proceedings. Therefore, Wilson had the assistance of an
attorney. What dangers or risks of self-representation did Wilson
actually suffer? Wilson does not tell us and the record does not
reveal it. In short, Wilson comes before this court claiming that
if his appellate attorney had raised a claim that the court failed to
advise him of the risks and dangers of self-representation, he
would have won the appeal. This is precisely the sort of framing
of a claim our supreme court rebuked in Lingler. Lingler v. State,
644 N.E.2d at 133. Wilson fails to prove that there is anything
unjust or invalid in his conviction.
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13. Wilson has failed to prove that appellate counsel performed
deficiently in failing to request transcription of the hearings at
which the court granted him permission to represent himself.
Even if counsel’s performance had been found to be deficient,
Wilson fails to prove that he was actually prejudiced—that his
waiver of counsel was not knowing, intelligent and voluntary and
that he suffered harm thereby.
Appellant’s App. Vol. II p. 72-75 (footnote omitted). Wilson now appeals.
Discussion and Decision
[7] Wilson argues that he received the ineffective assistance of appellate counsel
when his appellate counsel failed to review the complete record of his trial
proceedings and, as a result, failed to argue that Wilson’s waiver of counsel was
not knowing, voluntary, and intelligent.
I. Standard of Review
[8] The petitioner in a post-conviction proceeding bears the burden of establishing
grounds for relief by a preponderance of the evidence. Ind. Post-Conviction
Rule 1(5). When appealing from the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative judgment.
Shanabarger v. State, 846 N.E.2d 702, 707 (Ind. Ct. App. 2006). On review, we
will not reverse the judgment unless the evidence as a whole unerringly and
unmistakably leads to a conclusion opposite that reached by the post-conviction
court. Id.Court of Appeals of Indiana | Opinion 45A03-1707-PC-1466 | January 30, 2018 Page 13 of 25
[9] A claim of ineffective assistance of appellate counsel requires a showing that:
(1) counsel’s performance was deficient by falling below an objective standard
of reasonableness based on prevailing professional norms; and (2) counsel’s
performance prejudiced the defendant such that “‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444
(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A
reasonable probability arises when there is a ‘probability sufficient to undermine
confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.
2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two
prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.
Ct. App. 2012).
[10] We give great deference to appellate counsel’s decisions regarding which
arguments to raise on appeal, which is “one of the most important strategic
decisions of appellate counsel.” Hampton v. State, 961 N.E.2d 480, 491 (Ind.
2012) (citing Bieghler v. State, 690 N.E.2d 188, 193 (Ind. 1997)). Appellate
counsel’s performance, as to the selection and presentation of issues, will thus
be presumed adequate unless found unquestionably unreasonable considering
the information available in the trial record or otherwise known to the appellate
counsel. Id. at 491-92. To succeed on this claim, the petitioner must show that
the unraised issue was significant, obvious, and clearly stronger than the issue
that was raised. Bieghler, 690 N.E.2d at 194.
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II. Defendant’s Right to Self-Representation
[11] Before reaching the substance of this appeal, we are compelled to address the
trial court’s lack of knowledge of basic constitutional law. During Wilson’s pre-
trial hearings, the trial court repeatedly told Wilson that he did not have a right
to represent himself; stated that the trial court had decided that he could not
represent himself; and asked Wilson where he heard or read about the right to
represent himself. Appellant’s Ex. p. 18-22. During a discussion at the bench,
the trial court required a citation and case discussion from the State about a
defendant’s right to self-representation and how a defendant’s request to waive
his right to counsel must be made. In short, during Wilson’s pre-trial hearings,
the trial court appeared altogether uninformed about an individual’s right to
represent himself in court; about a trial court’s duty to ensure that a defendant’s
waiver of right to counsel is made knowingly, voluntarily, and intelligently; and
about a trial court’s duty to advise a defendant about the dangers and
disadvantages of self-representation. This egregious lack of knowledge presents
a serious risk to the rights of defendants and demands that we direct the trial
court to case law regarding a criminal defendant’s fundamental rights. We
advise the trial court to review this case law in depth and without delay.
[12] The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to counsel. E.g., Jones v. State, 783 N.E.2d 1132, 1138 (Ind.
2003). Implicit in the right to counsel is the right to self-representation. E.g.,
Drake v. State, 895 N.E.2d 389, 392 (Ind. Ct. App. 2008). Before a defendant
waives his right to counsel and proceeds pro se, the trial court must determine
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that the defendant’s waiver of counsel is knowing, voluntary, and intelligent.
E.g., Jones, 783 N.E.2d at 1138. “When a defendant asserts the right to self-
representation, the court should tell the defendant of the ‘dangers and
disadvantages of self-representation.’” Poynter v. State, 749 N.E.2d 1122, 1126
(Ind. 2001) (quoting Faretta v. California, 422 U.S. 806, 835 (1975)). Although a
trial court need not follow specific “talking points” when advising a defendant
of the dangers and disadvantages of proceeding without counsel, a trial court
must come to a “considered determination” that the defendant is making a
knowing, voluntary, and intelligent waiver of his right to counsel. Id.[13] To determine whether a knowing, voluntary, and intelligent waiver has
occurred, an appellate court considers these four factors: (1) the extent of the
trial 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.
E.g., id. at 1127-28. A lack of any advisement regarding the dangers and
disadvantages of self-representation “weighs heavily against finding a knowing
and intelligent waiver.” Id. at 1128. The “importance of the right to counsel
cautions that trial courts should at a minimum reasonably inform such
defendants of the dangers and disadvantages of proceeding without counsel.”
Id.
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III. Ineffective Assistance of Appellate Counsel
A. Counsel’s Performance
[14] In reviewing Wilson’s claim of ineffective assistance of appellate counsel, we
must first determine whether his appellate counsel’s performance was deficient
by not raising the issue of whether Wilson knowingly, voluntarily, and
intelligently waived his right to counsel.
[15] The post-conviction court stated that appellate counsel need not “look beyond
the trial record for issues on appeal, and it is incumbent upon the trial counsel
to inform appellate counsel of any issues not preserved in the record.”
Appellant’s App. Vol. II p. 72-73 (discussing Stephenson v. State, 864 N.E.2d
1022, 1041 (Ind. 2007)). More precisely, our Supreme Court has stated that it is
“incumbent upon trial counsel to communicate to appellate counsel any matters
outside the record that are appropriate for direct appeal.” Stephenson, 864 N.E.2d
at 1041 (emphasis added). The post-conviction court concluded that because
neither Wilson nor his standby counsel informed appellate counsel of a possible
issue with Wilson’s waiver of his right to counsel, appellate counsel’s review of
the trial record—which did not include a review of Wilson’s pre-trial hearings—
and decision to appeal a sufficiency issue was based on strategy.
[16] The inherent problem with the post-conviction court’s analysis is that it
assumes that the record from the actual trial is the only record an appellate
attorney need review, and a transcript from another hearing would be outside
the record. But a record on appeal includes “all proceedings before the trial
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court.” Ind. Appellate Rule 2(L) (emphasis added). Therefore, transcripts from
pre-trial hearings are part of the record on appeal. And because the pre-trial
hearings are part of the record, rather than outside the record, neither Wilson nor
his standby counsel was required to inform appellate counsel of the possible
issue of Wilson’s waiver of his right to counsel because it was preserved in the
record of the pre-trial hearings. Appellate counsel had a duty to thoroughly
review the entire record of Wilson’s proceedings, including the transcripts from
Wilson’s pre-trial hearings.1 See, e.g., Woods v. State, 701 N.E.2d 1208, 1221-22
(Ind. 1998).
[17] Accordingly, and contrary to the post-conviction court’s conclusion, appellate
counsel’s decision to raise a sufficiency issue and not raise the issue of Wilson’s
waiver of his right to counsel was not a strategic one. The transcripts from the
pre-trial hearings contained the only evidence to support a claim that Wilson
did not knowingly, voluntarily, and intelligently waive his right to counsel. She
did not raise the issue because she was not aware of it. See Harris v. State, 861
N.E.2d 1182, 1187 (Ind. 2007) (finding that, after appellate counsel testified
that he did not read the record of trial proceedings that preceded the defendant’s
pleading guilty, appellate counsel did not employ a strategy and performed
deficiently).
1
To appellate counsel’s credit, she conceded that she should have done so. We commend her for her candor.
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[18] To prove deficient performance, the unraised issue must be significant. The
issue of Wilson’s waiver of his right to counsel is not just significant but of
critical importance. “‘Of all the rights that an accused person has, the right to
be represented by counsel is by far the most pervasive for it affects his ability to
assert any other rights he may have.’” Poynter, 749 N.E.2d at 1125-26 (quoting
United States v. Cronic, 466 U.S. 648, 654 (1984)).
[19] The unraised issue must also be obvious. The post-conviction court concluded
and the State argued that appellate counsel’s performance was not deficient
because she consulted with Wilson—a pro se defendant whose knowledge of
and experience with the law is entirely unknown—and his standby counsel
about his case. The post-conviction court stated that there “was nothing on the
face of the record, nor any communication from [standby counsel] or Wilson,
to alert appellate counsel to any potential issue concerning Wilson’s self-
representation.” Appellant’s App. Vol. II. p. 73. We reject this conclusion.
[20] The trial court’s failure to ensure that Wilson’s waiver of his right to counsel
was knowing, voluntary, and intelligent was evident from a plain reading of the
transcripts from the pre-trial hearings. Indeed, not only did the trial court fail to
ask a single question to determine whether Wilson’s waiver of counsel was
knowing, voluntary, and intelligent,2 and not only did the trial court fail to offer
2
We acknowledge that the trial court briefly asked Wilson why he did not want his public defender to
represent him. However, considering the context in which this question was asked and the lack of follow-up
to Wilson’s answer, we can hardly say that the trial court asked it with the intent to determine whether
Wilson’s waiver of his right to counsel was knowing, voluntary, and intelligent.
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any advisement about the dangers and disadvantages of self-representation, but
the trial court seemed wholly unaware of either Wilson’s rights or its own
duties. See Reed v. State, 856 N.E.2d 1189, 1197 (Ind. 2006) (finding that the
failure to raise an issue where a plain reading of a statute demonstrated that the
defendant was entitled to relief was sufficient to demonstrate that the unraised
issue was significant and obvious from the face of the record).
[21] Moreover, although the State contends that “the record does not indicate that
[appellate counsel] had reason to” request and review the transcripts from the
pre-trial hearings, appellee’s br. p. 12, considering that Wilson proceeded pro se
and that the right to counsel is of critical importance to criminal defendants,
appellate counsel had every reason to request and review the transcripts from
the pre-trial hearings for this very issue.
[22] Further, the unraised issue was clearly stronger than the issue actually argued
on appeal. On direct appeal, appellate counsel raised one issue: that the State
did not present sufficient evidence to support Wilson’s conviction for Class B
felony burglary because the State failed to prove that Wilson “broke into [the
victim’s] apartment because no evidence was presented to establish how he
might have entered the apartment.” Wilson, slip op. at 2 (internal quotation
marks and citation omitted). Appellate counsel did not challenge the
sufficiency for Wilson’s conviction of criminal deviate conduct, thereby
conceding that Wilson was present in the apartment. The record showed that
the apartment was on the second floor, that the apartment door had been shut
and locked before Wilson entered the apartment, and that Wilson could not
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have entered through a window. Based on these facts, the jury could have
reasonably inferred that Wilson broke and entered the apartment. Burglary
occurs when a person breaks and enters the dwelling of another person. Ind.
Code § 35-43-2-1 (2014). Using even the slightest force to gain unauthorized
entry, which can include opening an unlocked door or pushing a door that is
slightly ajar, satisfies the breaking element of the crime. Davis v. State, 770
N.E.2d 319, 322 (Ind. 2002). Circumstantial evidence alone can prove the
occurrence of a breaking. Payne v. State, 777 N.E.2d 63, 66 (Ind. Ct. App.
2002). The governing statute did not require the State to prove how Wilson
broke and entered the apartment. There was, therefore, little to no chance of
prevailing on this claim.
[23] It is readily apparent to us that a claim based on whether a defendant’s waiver
of his right to counsel was knowing, voluntary, and intelligent, in light of the
trial court’s failure to make a single inquiry of the defendant and failure to
advise him as to the dangers and disadvantages of self-representation, is clearly
stronger than the issue appellate counsel raised on appeal. Failure to review the
transcripts and raise this issue on appeal falls below prevailing professional
norms and therefore satisfies the first prong of Strickland.
B. Prejudice
[24] Next, we must determine whether appellate counsel’s performance prejudiced
Wilson such that there is a reasonable probability that the result of his appeal
would have been different but for appellate counsel’s unprofessional error.
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[25] Wilson argues that had appellate counsel raised the issue that his waiver of his
right to counsel was not knowing, voluntary, and intelligent, his conviction
likely would have been reversed. We agree. Time after time, our State’s
appellate courts have reversed judgments against defendants when the facts and
circumstances did not establish that the defendants knowingly, voluntarily, and
intelligently waived their rights to counsel. E.g., Poynter, 749 N.E.2d at 1128-29
(reversing judgment against the defendant when nothing in the record indicated
that the trial court had advised him of the dangers and disadvantages of self-
representation or that he might have independently understood those dangers
and disadvantages); Hart v. State, 79 N.E.3d 936, 941 (Ind. Ct. App. 2017)
(reversing judgment against the defendant after finding that the defendant could
not have knowingly and intelligently waived his right to counsel absent an
advisement regarding the dangers and disadvantages of self-representation).
[26] Here, the transcript is clear on its face: the trial court did not advise Wilson of
the risks of self-representation, let alone ask even one question to ascertain
whether his waiver of his right to counsel was knowing, voluntary, and
intelligent. Had appellate counsel raised this issue on appeal, it is highly likely
that this Court would have reversed the judgment against Wilson and
remanded for a new trial.
[27] Although the post-conviction court noted that Wilson “was granted permission
to represent himself,” appellant’s app. vol. II p. 67, and “acted as his own
counsel,” id. at 72, the post-conviction court also wrote that
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Wilson does not stand in the position of other self-represented
individuals because Wilson had the assistance of counsel
throughout his pre-trial and trial proceedings. Although the trial
court labeled [the public defender] “stand-by counsel” it bears
consideration that “a rose by any other name would smell as
sweet.” As discussed previously, [standby counsel] made
objections, argued motions, successfully, and provided
consultation and instruction to Wilson throughout the
proceedings. Therefore, Wilson had the assistance of an
attorney. What dangers or risks of self-representation did Wilson
actually suffer? Wilson does not tell us and the record does not
reveal it.
Id. at 74. The post-conviction court seems to imply that, even though Wilson
represented himself (as the post-conviction court noted earlier in its order), he
could not have been prejudiced by the trial court’s failure to fulfill its duty to
ensure that he knowingly, voluntarily, and intelligently waived his right to
counsel because he had able, active standby counsel.
[28] But the presence of standby counsel does not mean that Wilson gave up his
right to represent himself or to control his case. Nor does the presence of
standby counsel mean that Wilson was represented by an attorney. Standby
counsel is not the same as, and does not confer the advantages of, full counsel
because, even with standby counsel, a pro se defendant retains control over his
case. See Hill v. State, 773 N.E.2d 336, 343 (Ind. Ct. App. 2002) (noting that a
pro se defendant’s right to control his case is eroded when standby counsel
interferes with his right to present his case in his own way); Jackson v. State, 441
N.E.2d 29, 33 (Ind. Ct. App. 1982) (“Appointment of stand-by counsel is an
appropriate prophylactic device when a defendant assumes the burden of
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conducting his own defense.”). In short, therefore, the presence of standby
counsel for a pro se defendant does not remove—or in any way affect—the trial
court’s affirmative duty to ensure that a defendant who waives his right to
counsel does so knowingly, voluntarily, and intelligently, and to ensure that the
defendant is advised of the dangers and disadvantages of self-representation.3
[29] In sum, there was a reasonable probability that, but for appellate counsel’s
error, the result of Wilson’s appeal would have been different. Wilson satisfied
the second prong of Strickland.
[30] Appellate counsel’s failure to review the pre-trial hearing transcripts and present
an argument about Wilson’s waiver of his right to counsel on direct appeal
amounted to ineffective assistance. The post-conviction court’s finding to the
3
The post-conviction court further states that “Wilson comes before this court claiming that if his appellate
attorney had raised a claim that the trial court failed to advise him of the risks and dangers of self-
representation, he would have won the appeal. This is precisely the sort of framing of a claim our supreme
court rebuked in” Lingler v. State, 644 N.E.2d 131 (Ind. 1994). Appellant’s App. Vol. II p. 74-75. In Lingler,
Lingler claimed that the prior convictions on which his habitual offender status was based were out of
sequence. The Court of Appeals had found that Lingler was entitled to relief from his status as an habitual
offender after he had presented his claim in terms of ineffective assistance of counsel. Our Supreme Court
reversed, finding that Lingler had offered no evidence to support his claim or show that there was “anything
unjust or untrue about the verdict” of his habitual offender status. Lingler, 644 N.E.2d at 133.
Lingler is simply irrelevant to determining whether Wilson suffered prejudice from his appellate counsel’s
deficient performance. Our Supreme Court stated that “the purpose of post-conviction relief is not simply to
relitigate claims that might have been litigated on direct appeal. . . . Th[e] redesigning of the claim will not
wash. The post-conviction process is open to prisoners to correct injustice in convictions.” Id. at 132-33.
Wilson’s claim in his petition for post-conviction relief of ineffective assistance of appellate counsel could not
have been brought on direct appeal; he did not “frame” or “redesign” his claim so that he could have another
bite at the apple. Rather, through his petition, he sought to correct an injustice in his conviction, which is the
very purpose of a petition for post-conviction relief.
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contrary leaves us with a definite and firm conviction that a mistake has been
made.
[31] The judgment of the post-conviction court is reversed and remanded for further
proceedings.
Riley, J., and Brown, J., concur.
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