Woman denied counsel gets new trial on marijuana charge

A woman whose request for appointed counsel was denied will receive a new trial on her misdemeanor marijuana conviction after the Indiana Court of Appeals determined her constitutional right to counsel was violated.

The appellate court issued the reversal Thursday in Christa M. Vonhoene v. State of Indiana, 20A-CR-328.

Christa Vonhoene was charged with Class B misdemeanor marijuana possession in February 2019, and the following May she told the Jackson Superior Court that she would forgo pretrial diversion and retain private counsel. She sought and received a continuance, and her case was set for a bench trial in August.

However, on the day her trial was set to begin, Vonhoene informed the court that she had not been able to afford an attorney and that she didn’t know how to request appointed counsel. She asked for another continuance, but the trial court denied her request and conducted the trial with Vonhoene proceeding pro se.

During the trial, Vonhoene did not lodge any objections, admitted that the contraband was marijuana, failed to meaningfully cross-examine the state’s only witness and elected to testify in her defense. She was then convicted and sentenced to 180 days suspended to probation, with the possibility of early termination if she completed a drug and alcohol program.

Vonhoene appealed, claiming her Sixth Amendment right to counsel was violated. The state, however, argued she had “waived” her right to counsel by her conduct.

Relying on Kowalskey v. State, 42 N.E.3d 97 (Ind. Ct. App. 2015), the appellate panel on Thursday found neither waiver nor forfeiture of Vonhoene’s right to counsel.

Vonhoene did not expressly or verbally waive that right, Judge Elizabeth Tavitas wrote, nor did her conduct lead to a forfeiture. Tavitas noted Vonhoene behaved “respectfully” and “did not display any qualifying obstreperous behavior or other serious misconduct.”

“The remaining possibility — that Vonhoene forfeited with knowledge her right to the assistance by counsel — is inapplicable under the instant facts for the following reasons: first, Vonhoene’s five-month delay in retaining counsel — while not insignificant — was not what we could character as ‘extremely dilatory …’’” Tavitas wrote. “Moreover, when Vonhoene first requested a continuance in May 2019, there was no indication that she was warned that she would lose her right to an attorney and be treated as impliedly requesting to proceed pro se if she was unable to retain counsel.

“Based on the foregoing, we find that the trial court erred in determining that Vonhoene ‘waived’ her right to the assistance of counsel. Vonhoene has successfully demonstrated that she was improperly denied her fundamental right to counsel,” Tavitas wrote. “To find otherwise, we would have to presume Vonhoene’s acquiescence in the loss of her right to the appointment of counsel; this we cannot do.”

Further, Vonhoene “signaled” to the trial court her desire for counsel, potential indigency and confusion on how to obtain appointed counsel. Thus, the court had a duty to inquire into Vonhoene’s desire for counsel and her finances and, assuming she was indigent, to appoint pauper counsel.

“Because the trial court erroneously concluded that Vonhoene ‘waived’ her right to the assistance of counsel, the court failed to deploy its ‘protecting duty’ to Vonhoene’s detriment as is evidenced by the silent record,” Tavitas wrote. “… Moreover, the denial of Vonhoene’s requested continuance under these circumstances is against the logic and effect of the facts and circumstances before the court and, therefore, constitutes and abuse of its discretion.”

“Confidently presum(ing)” that Vonhoene was prejudiced based on her conduct in her own defense, the COA reversed Vonhoene’s conviction and sentence and ordered the trial court on remand to determine whether she is indigent and eligible for the appointment of counsel, then proceed with a new trial.