Leonard v. State
573 N.E.2d 463
Ind. Ct. App.
1991
Check Treatment

*1 LEONARD, Appellant Royal

(Defendant Below), Indiana, Appellee

STATE Below). (Plaintiff

No. 55A01-9012-CR-498. Indiana, Appeals of

Court

First District. 17, 1991.

While incarcerated at a federal institu- tion in diagnosed was schizophrenic." "alcoholic and His doctors determined that "mentally ill apparently and deteriorating slowly with regard to his mental pre- status." liminary stages present prosecution, the trial court psychiatrists two to determine competence Leonard's trial. reports stand Both doctors' indicated that Leonard was legally and/or responsible at the alleged time of the of- fenses. No regard was held with competence to stand trial. 13, 1990, On Leonard wrote a letter to the trial court which read as follows: I my have asked attorney to have a reli- able witness Victory like Mrs. for [sic] they when tape. make another They are doing My this. attorney has lied to Fairman, David D. Indianapolis, ap- for me several times. When I asked to with- pellant. my guilty plea draw you he told me that said if I withdrew it I that would have to Linley Pearson, Gen., E. Atty. Gary Da- jury take a so from here I will Secrest, Gen., mon Deputy Atty. Office of my handle own defense. All I need is for Gen., Atty. Indianapolis, appellee. get Ann to those witnesses for Ime. do replace not wish to him because it would ROBERTSON, Judge. long. take too It has taken long to [sic] Royal appeals his convictions of already. (2) counts of molesting child as a Class 13, 1990, Also on June Leonard's court- B and a felony Class C for which he re appointed attorney moved to withdraw his twenty (20) year ceived a sentence. Leon appearance and the trial court held a hear- proceeded pro ard se at his bench trial. He inquire into asserts he right was denied his to counsel proceed pro se. 1) because he did clearly and unequivo Additional supplied facts are as neces- cally assert self-representation; sary. 2) did not knowing, make a voluntary, intelligent waiver of his to coun DECISION sel. We reverse because the trial court agree and the State that our failed to inquiries make sufficient to estab year decision last in Dowell v. State knowing, lish a voluntary, intelligent Ind.App., denied, 557 N.E.2d trans waiver of the to counsel under the represents a clear break in the law from guidelines promulgated in Dowell v. State precedents earlier in this area. Leonard (1990), Ind.App., trans. and the State appear also would denied. that-if applies Dowell case-its mandates that we re

FACTS verse Leonard's convictions and remand light The facts in the most favorable to this case for a new trial. judgment indicate that Leonard com- State that we should not apply Dow- ell in the mitted two molesting case because Dowell was acts of child in Janu- ary of 1986. He charged for these handed down after Leonard's trial and be April crimes in of 1990. sentencing. fore his competency must ascertain trial court I. knowing to make the defendant right to counsel. intelligent waiver of Amendment The Sixth experience, If to a guarantees States Constitution United clearly do not defendant conduct of the the right to *3 criminal defendant intelli- knowing, voluntary, and a indicate v. Cali Faretta if he so chooses. himself waiver, make an trial court must gent the 806, 95 S.Ct. (1975), 422 U.S. following spe- fornia the inquiry with reference to Dowell, 562; N.E.2d 45 L.Ed.2d Dowell, id: guidelines promulgated cific the of to the assertion prerequisite As a of the know defendant should [tlhe must be there self-representation, right of him, the charges against of the nature proceed request unequivocal clear and a in- may lesser that there be possibility Id. pro se. charges, these offenses within cluded trial court that the asserts Leonard first miti- of defenses and possibility and the clear and make a he did not because erred surrounding the cireumstances gation We pro se. request proceed unequivocal aware defendant should be charges. The hearing transcript of the the have reviewed always is almost self-representation testi- matter. on this held below may conduct unwise, defendant that the only at best is during this mony detriment, his own is to which a defense coherent, and less clear much marginally special no receive defendant will that the consist- unequivocal. and will have the court indulgence from when responses affirmative ently gave as an standards by the same to abide represent he wished questioned procedure, whether law and attorney as to the of this purposes for represented himself. be the State will and that that Leonard will conclude opinion, legal we counsel. professional experienced request unequivocal clear and made a defendant should the Specifically, pro se. proceed skills and attorney has that an instructed presenting and for expertise preparing he did asserts that next by the possessed proper defense a intelligently voluntarily and knowingly, include, among other These defendant. the counsel because right his waive interrogat- (1) investigating and things: conse to him the fully explain did not witnesses; (2) gathering appropriate ing right The self-representation. quences of evidence; (8) obtaining fa- documentary a relinquished by only can to counsel witnesses; (4) preparing defense vorable intelligent waiver voluntary, and knowing, motions; (5)preparing filing pre-trial and Dowell, the id. When right. of that for the instructions appropriate written asserted properly is self-representation of opening favorable (6) presenting jury; request before unequivocal by a clear and statements; (7) examining closing and hearing to must hold the trial court trial; at cross-examining witnesses and competency to the defendant's determine preju- objectionable, (8) recognizing a record to establish himself and making testimony and dicial evidence Id. right to counsel. of the his waiver of thereto. objections proper advised of must be pro se defendant inquire should trial court Finally, the AId. self-representation. dangers of the of the background educational into the assistance to the waiver familiarity defendant, defendant's the a silent inferred from not be will counsel of evi- legal procedures Id. record. the defen- additionally, into dence, and the assistance of The waiver any is capacity if there mental dant's partic upon may be established mental defendant's to the question as surrounding and circumstances ular facts state. experi case, including 1066, 1067. N.E.2d at If the accused. ence, and conduct the defendant's question as to any is there withdrawing at- by his much advice competency, or mental mental torney judge during the trial hear- 565; State Jackson held on Ind.App., State 441 N.E.2d 29. explained se. Leonard's counsel to him However, we must conclude that that the pre-trial investigation he undertakes trial court failed to make all of the in- clients, investigation an which quiries required by Dowell. In we would represented be denied Leonard if he held that if the trial court were on notice himself. Counsel made sure that Leonard that the defendant had exhibited unstable understood that he had not been to law behavior that might against militate school, attorney, was not an and had little conclusion that he could knowingly and in- experience in a court. explained Counsel telligently counsel, waive the knowledge experience would lead court has duty to ascertain compe- him to different decisions than would Leon- tency of the defendant to make a knowing *4 ard's. Leonard was advised that he would intelligent waiver of his to coun- own, sink or swim on his and that he would sel on the record. Leonard had a well- not be able to blame counsel. The trial history documented of mental illness/psy- judge explained represents that one who chosis of which the trial court was aware. himself has a fool for a client and that it The issue of whether Leonard compe- was was not to Leonard's benefit to be his own tent to stand proceed let alone in his attorney. The judge trial also warned defense, own was raised before trial but Leonard that his questioning might own never explored. In the hearing held on open the door to otherwise inadmissible Leonard's proceed se, pro evidence which attorney an could exclude. trial court made inquiry no into The Leonard's judge trial advised Leonard that he competence. Moreover, mental should trust attorney who could decide nearly presentation incoherent what action at appropriate, is this hear- which attor- ing and at the ney trial in could not do if this matter militate were to act as against attorney. his own conclusion The that judge trial Leonard could warned knowingly intelligently waive the Leonard that he would by have to abide all the rules as would expected counsel. of an attor- ney. Finally, Leonard's explained above, As stated Leonard had a doe he, counsel, to Leonard that would not be history umented of mental illness/psycho- able to representation take over in the mid- sis. Obviously, experi- dle of the case. Leonard acknowledged all ence, and conduct do not clearly indicate a of the advice him and nevertheless knowing, voluntary, intelligent waiver. indicated that he proceed wished to on his The trial court's advisements to Leonard own. The trial permitted Leonard to regard with his decision represent himself, permitted Leonard's at- se-which fail to delve into all the inquiries torney withdraw, the at- listed in guidelines promulgated in torney as stand-by counsel. Dowell-are insufficient to establish a The urges State that the above advise- knowing, voluntary intelligent waiver ments were sufficient to effect a knowing, of to counsel. if Dow- voluntary, and intelligent waiver of the applies ell in we must right to counsel under the law as it existed reverse and remand for a new trial. before agree id. We with the State that the trial court made a heroic IL. effort-without the benefit of Dowell-to RETROSPECTIVE APPLICATION properly advise Leonard. We also OF DOWELL that the advisements Leonard received dur question in The State regarding the Dowell perils of self-representation would applied should not have in the case been sufficient under the law as it existed because tried before before Dowell. (1988), Kindred v. handed down. State The State concedes Ind., 320; that Indiana approach follows the 521 N.E.2d of recent Jenkins v. State (1988), Ind., 666; Nation v. federal regard decisions with to the retro

467 appellate de concerning the retroac- federal take application of rection it will spective opposed to federal law." tivity of State is, pending on direct cases That cisions. rule apply a different urges us retrospec The State enjoy yet final will appeal or not of a application regarding the retroactive deci appellate of federal tive do for fed- opinion than we appellate governing rules new which announce sions urges us opinions. The State appellate eral v. State procedure. Wilson criminal methodology employed apply the classic Ind., N.E.2d 282. review. pending cases on collateral not review will on collateral pending cases retrospective application enjoy necessarily illogical to it would be We believe v. Daniels State appellate decisions. regarding the apply approaches different pend A case 561 N.E.2d 487. gov retrospective application of new enjoy the review will ing on collateral erning ap procedure criminal announced new rule application of a retrospective depending upon whether pellate decisions by a federal announced procedure criminal by new rule a federal was announced into one of unless it falls appellate decision appellate appellate court or an Indiana exceptions.1 Id. recognized Moreover, the rationale court. we believe 708, 314, if 107 S.Ct. Griffith, U.S. (1987)479 U.S. Kentucky, In Griffith controlling, in this matter. compelling is L.Ed.2d 107 S.Ct. applies equal rationale held that Supreme Court United States Griffith *5 to those of force to our own decisions as for the con a new rule when it announced Supreme Court. We the United States rule prosecutions, that new duct of criminal newly- apply that the failure to a cases, retroactively to all applied be would to criminal constitutional rule declared federal, pending direct review or on violates ba pending on direct review cases holding, the court final. In so yet or not adjudication. norms of constitutional sic (related the rule to an earlier abandoned integrity judicial re agree that the We by the State methodology advanced classic all apply new rules to requires us to view 1) that excluded in footnote and mentioned We pending on direct review. cases similar of a new rule retrospective application the application of new selective agree that represented a clear break with that treating sim principle rules violates that court noted past. Griffith the same. defendants ilarly situated apply newly a declared consti the failure to pending on cases tutional rule to criminal proceeded of consti violates norms generated direct review basic county that same se in the 1063, The court noted adjudication. Id. approxi tutional case Dowell, N.E.2d 557 agree with We mately year a new rule has been earlier. further that once a illogical and judicial review that it would integrity of adopted, the Griffith judicial rule to all apply that of our requires courts integrity impair would different apply if were on direct review and review we pending cases similar appeals the direct in procedure a new rule vio of criminal application of the selective similarly situ treating similarly situ of Leonard principle of lates the defendants. ated criminal the same. ated defendants give conclusion, as we new just "Indiana has not In asserts that The State announced procedure indicate the di- criminal the occasion to rules of yet had integrity reliability of the opinion with a discus- this decision and 1. We will not burden Rowley v. State finding process. "recognized exceptions" in which fact sion of the qualify retro- review for the not on collateral we need cases appellate application deci- spective of federal exceptions" "recognized test examine either employ Actually, us to 487, the State sions. Daniels, or the "clas- N.E.2d 561 set out in "classic method- characterizes as the what it Rowley, 483 methodology" in described sic particular ology" a case determine whether 1078, be discussed will N.E.2d because-as application retrospective of an qualifies for the espoused principles hold above-we methodology" appellate (1987) U.S. "classic decision. The 107 Kentucky, Griffith ap- "recognized exceptions" to the is related pending on cases L.Ed.2d S.Ct. complex prong three test proach involves a yet Dow- mandate that final or direct review or incidental designed examine the direct application in the retrospective given ell be purpose new relationship of the between present case. appellate promulgated in the rule constitutional appellate federal applica- majority courts retroactive demands. On the basis of the pending tion in cases on direct review or certainly record it would not have found final, yet give we hold we must our Thus, incompetent. under Faret- procedure own new rules of criminal retro- it could not have refused him the pending active in cases on direct counsel, without reality, or in yet review or not final. The counsel,. Griffith only standby Nothing was to apply court's rationale mandates that we gained by the additional burden the ma- in the case. we jority impose. seeks to must reverse and remand for a new trial. Judgment reversed. I believe that both the court and Leon- ard's engaged thorough C.J., RATLIFF, concurs. extensive effort to advise him perils GARRARD, J., separate dissents with in the course choosing. he was He volun- opinion. tarily, intelligently knowingly chose to GARRARD, Judge, dissenting. represent himself. I believe no more was respectfully I dissent. While acknowl required. edging that the advisements I would affirm. were sufficient under the decisions of our court, supreme majority concludes that

they were nevertheless insufficient under

the well-intentioned but overbroad state ments contained in Dowell v. State Ind.App., 557 N.E.2d 1063. SAYEED, Lutz, Asif David American that, It by asserting does so "The issue Health Care Providers American d/b/a of whether HMO, Joshi, Appellants *6 and Ramesh stand let alone in his own (Defendants Third-Party Plaintiffs defense, was raised before trial but never Below), explored." Additionally, it characterizes presentation at the hearing con- petition ducted on his proceed pro se as DILLON, III, Liquidator John J. "nearly incoherent." I find the latter as- Physicians Choice of Northwest gross sertion a overstatement. As to the (Plaintiff Indiana, Inc., Appellee Be former, Leonard's suggested by low), motion the possibility of Leonard's incom- petence, and the psy- did, chiatrists They to examine him. and Department of Insurance of the State of each filed a comprehensive rather report in by Dillon, III, Indiana John J. and in which he concluded that Leonard was com- capacity as Commissioner petent when he committed the offense and Department of Insurance of the State to stand trial and assist Indiana, Rehabilitator, Appel and as counsel. No suggestion further of incom- Below). (Third-Party lees Defendants

petence was raised before trial. To me this case is but another illustra

tion of the tensions created Faretta v. No. 49A02-9004-CV-00233.1 422 U.S. 95 S.Ct. California 2525, 45 By L.Ed.2d 562. this I do not Indiana, Appeals Court of suggest disagree Faretta, that I or an First District. accused's self-representation, how foolhardy may ever be. But at some 1991. point individuals responsi should bear the bility of their own actions. After extensive

inquiry Leonard chose to himself. Suppose the court inquiry had made the reassigned

1. May This case was to this office on