Pro se defendant must be advised of rights

The requirement to advise a defendant of the dangers of self-representation and the benefit of counsel applies equally regardless
of whether a pro se defendant is choosing to plead guilty or go to trial, the Indiana Court of Appeals decided today.

The appellate court declined to follow Sedberry v. State, 610 N.E.2d 284, 286 (Ind. Ct. App. 1993), Redington
v. State, 678 N.E.2d 114, 118 (Ind. Ct. App. 1997), and Greer v. State, 690 N.E.2d 1214, 1217 (Ind. Ct. App.
1998), in ruling on David Hopper v. State of Indiana, No. 13A01-1002-PC-41, because they seem to
establish two different standards for reviewing a wavier of counsel. Those cases apply a less demanding standard for defendants
who choose to plead guilty than those who want to go to trial. The state wanted the judges to follow Sedberry, which
held if a defendant waived his right to counsel and pleads guilty, there’s no need to advise the defendant about the
dangers of proceeding without counsel because the defendant isn’t going to trial.

“We posit that the direction Sedberry takes us diminishes plea negotiations and guilty plea hearings in importance.
We believe both are, indeed, critical stages of the proceeding where representation by a lawyer is crucial,” wrote Judge
Michael Barnes.

Hopper pleaded guilty to Class A misdemeanor operating while intoxicated after waiving his rights to counsel. He read a form
provided by the court, which stated if his case was serious enough, the judge would appoint a public defender. The judge also
explained if he couldn’t afford an attorney, one would be appointed, but the judge never explained the dangers of waiving
representation.

Hopper filed a petition for post-conviction relief several years later when he was represented by counsel, arguing he didn’t
knowingly or intelligently waive his right to counsel. He also stated he was a high school drop out and didn’t understand
some of the terminology in the form given to him.

“The right to counsel in a criminal case is not dependent upon the ‘seriousness’ of the case,” wrote
Judge Barnes. “If this form is still in use, we direct that the references to the ‘seriousness’ of the case
be deleted from the form’s discussion of the right to counsel.”

There’s no evidence the form advises defendants on the peril of proceeding without representation, the trial court
judge didn’t inform Hopper of those dangers, and there’s no evidence Hopper independently understood the disadvantages
of self-representation. Because his decision wasn’t knowingly or intelligently made, there’s no need to decide
whether he was prejudiced by a lack of representation, the appellate court concluded. The judges remanded the case for further
proceedings.