knowing and voluntary waiver in Indiana

2018Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 4 of 7 supreme court upheld the validity of the appellate waiver, stating that a “specific dialogue with the judge is not a necessary prerequisite to a valid waiver of appeal, if there is other evidence in the record demonstrating a knowing and voluntary waiver.” Id. at 76 (quoting United States v. Agee, 83 F.3d 882, 886 (7th Cir. 1996)).

2012In any event, “ ‘a specific dialogue with the judge is not a necessary prerequi *843 site to a valid waiver of appeal, if there is other evidence in the record demonstrating a knowing and voluntary waiver.’ ” Id. (quoting U.S. v. Agee, 83 F.3d 882, 886 (7th Cir.1996)).

2018Court of Appeals of Indiana | Memorandum Decision 43A03-1710-CR-2551| April 16, 2018 Page 4 of 7 supreme court upheld the validity of the appellate waiver, stating that a “specific dialogue with the judge is not a necessary prerequisite to a valid waiver of appeal, if there is other evidence in the record demonstrating a knowing and voluntary waiver.” Id. at 76 (quoting United States v. Agee, 83 F.3d 882, 886 (7th Cir. 1996)).

2017Id. at 77 (trial court advised the defendant at the close of the sentencing hearing that he retained the right to appeal which did not alter the defendant’s knowing and voluntary waiver at the time he changed his plea).

2017However, if the advisement comes before the defendant receives the benefit of his bargain and no one contradicts or corrects the misstatement, then “we may confidently say that the trial court accepted the plea agreement, and the prosecuting attorney, the defense attorney, and [the defendant] entered into the plea agreement with the understanding that [the defendant] retained the right to appeal his sentence.” Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct. App. 2008), trans. denied. [7] Here, the trial court advised Caroway he had the right to appeal the length of his sentence before Carow

2016Thus, in Ricci v. State, 894 N.E.2d 1089, 1093-94 (Ind. Ct. App. 2008), trans. denied, we held a waiver provision in a plea agreement was unenforceable where the trial court advised the defendant at his plea hearing that he had the right to appeal because he entered his plea with the understanding he retained the right to appeal his sentence.

2017We cannot say that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post- conviction court. 6 A panel of this Court has observed, “[a] signed plea agreement reciting that the defendant waives the right to a jury trial, the right to confront witnesses and the right against self-incrimination, is an adequate advisement to establish a knowing and voluntary waiver of rights.” Spencer v. State, 634 N.E.2d 500, 501 (Ind. Ct. App. 1993).

2016Further, “[a] signed plea agreement reciting that the defendant waives the right to a jury trial, the right to confront witnesses and the right against self-incrimination, is an adequate advisement to establish a knowing and voluntary waiver of rights.” Spencer v. State, 634 N.E.2d 500, 501 (Ind. Ct. App. 1993) (citing Von Hagel v. State, 568 N.E.2d 549, 550 (Ind. Ct. App. 1990), trans. denied).

2016Id. (citing Stroud v. State, 809 N.E.2d 274, 281 (Ind. 2004)).

2006Stroud v. State, 809 N.E.2d 274, 281 (Ind.2004).

2010See, e.g., Eaton v. State, 894 N.E.2d 213, 216-17 (Ind.Ct.App.2008) (holding that even though defendant admitted to probation violations, the trial court's mere advisement of the right to representation was insufficient to establish a knowing and voluntary waiver of the right to counsel; instead, defendant must have been advised of the nature, importance, and extent of the right and the consequences of waiver), trans. denied ; Bumbalough v. State, 873 N.E.2d 1099, 1102 (Ind.Ct.App.2007) (same).

2010See, e.g., Eaton v. State, 894 N.E.2d 213, 216-17 (Ind.Ct.App.2008) (holding that even though defendant admitted to probation violations, the trial court's mere advisement of the right to representation was insufficient to establish a knowing and voluntary waiver of the right to counsel; instead, defendant must have been advised of the nature, importance, and extent of the right and the consequences of waiver), trans. denied; Bumbalough v. State, 873 N.E.2d 1099, 1102 (Ind.Ct.App.2007) (same).

2010See, e.g., Eaton v. State, 894 N.E.2d 213, 216-17 (Ind.Ct.App.2008) (holding that even though defendant admitted to probation violations, the trial court's mere advisement of the right to representation was insufficient to establish a knowing and voluntary waiver of the right to counsel; instead, defendant must have been advised of the nature, importance, and extent of the right and the consequences of waiver), trans. denied ; Bumbalough v. State, 873 N.E.2d 1099, 1102 (Ind.Ct.App.2007) (same).

2010See, e.g., Eaton v. State, 894 N.E.2d 213, 216-17 (Ind.Ct.App.2008) (holding that even though defendant admitted to probation violations, the trial court's mere advisement of the right to representation was insufficient to establish a knowing and voluntary waiver of the right to counsel; instead, defendant must have been advised of the nature, importance, and extent of the right and the consequences of waiver), trans. denied; Bumbalough v. State, 873 N.E.2d 1099, 1102 (Ind.Ct.App.2007) (same).

2010Although there are no specific "talking points," our Supreme Court has adopted four factors to consider when determining whether a knowing and voluntary waiver occurred: "(1) the extent of the 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, (8) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se." Poynter v. State, 749 N.E.2d 1122, 1127-28 (Ind.2001) (quoting United States v. Hoskins 243 F.3d 407, 4

2010As noted above, our Supreme Court has explained that there are four factors to analyze in determining whether a knowing and voluntary waiver occurred: "(1) the extent of the 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, (8) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se." Poynter, 749 N.E.2d at 1127 -28 (quoting Hoskins, 243 F.3d at 410 ).

2010Although there are no specific "talking points," our Supreme Court has adopted four factors to consider when determining whether a knowing and voluntary waiver occurred: "(1) the extent of the 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, (8) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se." Poynter v. State, 749 N.E.2d 1122, 1127-28 (Ind.2001) (quoting United States v. Hoskins 243 F.3d 407, 4

2010As noted above, our Supreme Court has explained that there are four factors to analyze in determining whether a knowing and voluntary waiver occurred: "(1) the extent of the 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, (8) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se." Poynter, 749 N.E.2d at 1127 -28 (quoting Hoskins, 243 F.3d at 410 ).

2016Further, “[a] signed plea agreement reciting that the defendant waives the right to a jury trial, the right to confront witnesses and the right against self-incrimination, is an adequate advisement to establish a knowing and voluntary waiver of rights.” Spencer v. State, 634 N.E.2d 500, 501 (Ind. Ct. App. 1993) (citing Von Hagel v. State, 568 N.E.2d 549, 550 (Ind. Ct. App. 1990), trans. denied).

2016“The trial judge is not required personally to advise the defendant of the constitutional rights he is waiving if those rights are recited in the plea agreement.” Id. (citing Moriarty v. State, 490 N.E.2d 1106, 1108 (Ind. 1986)). [8] In the instant matter, the plea agreement that was signed by Goodman and accepted by the trial court recited the constitutional rights which must be included in a proper Boykin advisement.

2015Id. (citations and quotation marks omitted). 1 1 But “[w]here the trial court inaccurately advised the defendant at the guilty plea hearing regarding the right to appeal his sentence, we have found that the written waiver was unenforceable.” Bowling, 960 N.E.2d at 842 n.7 (emphasis supplied) (citing Bonilla v. State, 907 N.E.2d 586, 590 (Ind. Ct. App. 2009), trans. denied).

2011In Bonilla v. State, 907 N.E.2d 586 (Ind.Ct.App.2009), tram, denied, the State argued, as it does here, that Bonilla waived the right to appeal the appropriateness of his sentence because there was a waiver provision in his plea agreement.

2010In the context of juvenile adjudications, "the State bears a heightened burden in securing the juvenile's waiver of his or her right to counsel." R.W., 901 N.E.2d at 543 .

2010In the context of juvenile adjudications, "the State bears a heightened burden in securing the juvenile's waiver of his or her right to counsel." R.W., 901 N.E.2d at 543.

2005"The trial court may presume a defendant voluntarily, knowingly and intelligently waived his right to be present and try the defendant in absentia upon a showing that the defendant knew the scheduled trial date but failed to appear." Ellis v. State, 525 N.E.2d 610, 611-12 (Ind.Ct.App.1987); see also Maez v. State, 530 N.E.2d 1203, 1206 (Ind.Ct.App.1988) ("The continued absence of a defendant who knows of his obligation to be in court, when coupled with a failure to notify the court and provide it with an explanation, constitutes a knowing and voluntary waiver."), trans. denied.

1989Maez v. State (1988), Ind.App., 530 N.E.2d 1203 ; Brown v. State (1979), Ind.App., 390 N.E.2d 1058 ; Ramos v. State (1984), Ind., 467 N.E.2d 717 ; Fennell v. State (1986), Ind., 492 N.E.2d 297 .

2020See Matter of Adoption of C.J., 71 N.E.3d 436, 444 (Ind. Ct. App. 2017) (reversing where mother established a prima facie case that she was deprived of an essential right – the right to counsel – in violation of due process); In re Adoption of G.W.B., 776 N.E.2d at 954 (reversing where trial court did not advise father of his rights and did not impress upon him the serious consequences of self-representation); Taylor v. Scott, 570 N.E.2d 1333, 1335 (Ind. Ct. App. 1991) (reversing where father was not informed of his right to counsel, not warned that he might have to proceed without counsel if

2020Miller v. State, 789 N.E.2d 32, 38 (Ind. Ct. App. 2003).

2020See Matter of Adoption of C.J., 71 N.E.3d 436, 444 (Ind. Ct. App. 2017) (reversing where mother established a prima facie case that she was deprived of an essential right – the right to counsel – in violation of due process); In re Adoption of G.W.B., 776 N.E.2d at 954 (reversing where trial court did not advise father of his rights and did not impress upon him the serious consequences of self-representation); Taylor v. Scott, 570 N.E.2d 1333, 1335 (Ind. Ct. App. 1991) (reversing where father was not informed of his right to counsel, not warned that he might have to proceed without counsel if

2020See Matter of Adoption of C.J., 71 N.E.3d 436, 444 (Ind. Ct. App. 2017) (reversing where mother established a prima facie case that she was deprived of an essential right – the right to counsel – in violation of due process); In re Adoption of G.W.B., 776 N.E.2d at 954 (reversing where trial court did not advise father of his rights and did not impress upon him the serious consequences of self-representation); Taylor v. Scott, 570 N.E.2d 1333, 1335 (Ind. Ct. App. 1991) (reversing where father was not informed of his right to counsel, not warned that he might have to proceed without counsel if

2019“The jury trial right is a bedrock of our criminal justice system, guaranteed by both Article 1, Section 13 of the Indiana Constitution and the Sixth Amendment to the United States Constitution.” Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016).

2018Based on this record, we cannot say that Pierce made a knowing and voluntary waiver of the right to counsel. [14] Generally, “[t]he right to the assistance of counsel is so essential that prejudice is presumed when there is actual or [constructive] denial of the assistance of counsel; however, ‘denial of this constitutional right is subject to harmless error analysis unless the deprivation, by its very nature, cannot be harmless.’” Black v. State, 79 N.E.3d 965, 971 (Ind. Ct. App. 2017) (citing Hernandez v. State, 761 N.E.2d 845, 849 (Ind. 2002)), trans. denied.

2018See Hopper v. State , 957 N.E.2d 613 , 615 (Ind. 2011) (defendant waived right to counsel where he signed a waiver of attorney provision stating "I do not wish to be represented by an attorney in this case," "I understand that I have the right to an attorney," "I know that if I am without funds ... the Judge will appoint a Public Defender to represent me," and "I freely and voluntarily give up my right to be represented by an attorney").