Sedberry v. State

¶1dissenting.

¶2While I might agree with the majority that there was a sufficient factual basis to support Sedberry's guilty plea, I would reverse because the majority ignores established precedent in finding that Sedberry knowingly, voluntarily, and intelligently waived his right to counsel. In Sedberry's case, the facts are not in dispute. The court made no attempt to explain any of the pitfalls and hazards of proceeding pro se or the benefits of having counsel when he pled guilty. The record shows only the following question at the hearing:

Q. (The Court): All right. You're representing yourself at your own free will, willingly and voluntarily and intelligently?

A. (By Sedberry): At this time, yes.

¶3R. 85.

¶4The brief colloquy above is not sufficient to establish a knowing, voluntary and intelligent waiver of Sedberry's fundamental right to counsel at every critical stage of the proceedings against him.

¶5In Martin v. State (1992), Ind.App., 588 N.E.2d 1291, we addressed this issue and noted that a "defendant has the right to counsel at all critical stages of the proceedings against him." Id. at 1293 citing Williams v. State (1990), Ind., 555 N.E.2d 133. A proceeding is a "critical stage" if "the defendant is confronted with the intricacies of the law or the advocacy of the public prosecutor or prosecuting authorities." Id. It seems to me that there can *288be no more critical stage of a criminal proceeding than the decision to plead guilty and waive one's right to a trial by the court or a jury. Apparently, our legislature agrees since there is an entire statute devoted to guilty pleas-I.C. 85-85-1-1 et seq. However, the majority, in effect, holds that Sedberry was entitled to a warning of the perils of proceeding to trial without counsel but was not entitled to such advisement if he chose to plead guilty.

¶6Sentencing is considered a "critical stage" of the proceedings and thus a defendant is entitled to assistance of counsel at this stage. Martin, supra; Guajardo v. State (1989), Ind.App., 544 N.E.2d 174.

¶7In Martin, the defendant had pled guilty. At the sentencing hearing, he appeared with counsel and stated he wished to: (1) replace his counsel; and (2) withdraw his guilty plea. The trial court allowed counsel to withdraw, set a hearing on the guilty plea withdrawal motion, and refused to appoint pauper counsel because Martin was uncooperative-he refused to tell the trial court where he was living. At the hearing on Martin's motion to withdraw his guilty plea, Martin appeared without counsel. Nevertheless, the hearing went forward. Martin's motion was denied and the sentencing hearing commenced. In reversing the denial of Martin's PCR petition, Judge Barteau explained:

"The right to counsel can only be relinquished by a knowing, voluntary, and intelligent waiver of the right." Dowell v. State (1990), Ind.App., 557 N.E.2d 1063. Whenever a defendant proceeds pro se, it is incumbent upon the trial court to determine if the waiver of the right to counsel is made knowingly and voluntarily. Kirkham v. State (1987), Ind.App., 509 N.E.2d 890, 892. To make such a determination, the trial court must conduct a hearing to determine the defendant's competency to represent himself and also to establish a record of the waiver. Dowell, supra (emphasis added). The record must show that the defendant was made aware of the "nature, extent, and importance" of the right to counsel and the necessary consequences of waiving such a right. Kirk ham, supra. "Merely making the defendant aware of his constitutional right is insufficient." Id. "[The trial court should inquire into the educational background of the defendant, the defendant's familiarity with legal procedures and rules of evidence, and additionally, into the defendant's mental capacity if there is any question as to the defendant's mental state."1Dowell, supra. However, the trial court need not specifically inquire into each of the guidelines enunciated in Dowell. It is sufficient if the record reveals that, after being appraised of the advantages of representation by counsel and the pitfalls of self representation, a defendant voluntarily, knowingly, and intelligently chooses self-representation. Leonard v. State (1991), Ind., 579 N.E.2d 1294.

¶8Martin, supra, at 1293.

¶9The record in this case does not show a voluntary, knowing, and intelligent waiver of the right to counsel at all critical stages of the proceedings. I would reverse.