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Thursday, July 30, 2015

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decisions)

For publication opinions today (1):

In Gabriel Kowalskey v. State of Indiana , an 18-page opinion, Judge Brown writes:

Gabriel Kowalskey brings this interlocutory appeal from the decision of the trial court that he, by his conduct, waived his right to counsel. Kowalskey raises two issues which we revise and restate as whether the court erred in finding that, by his conduct, he waived or forfeited his right to counsel. We reverse and remand. * * *

The issue is whether the trial court erred in finding that Kowalskey, by his conduct, waived or forfeited his right to counsel. He contends that he was not advised of any of the pitfalls of self-representation or advantages of being represented by an attorney, that there was no voluntary, knowing, and intelligent waiver of his right to counsel, that the record does not establish obstreperous conduct on his part, and that there was insufficient evidence of antagonistic conduct to conclude that he forfeited his right to counsel. Kowalskey argues that the court advised him, at the time it appointed Oliver, that if he did not get along with his new attorney the court would at that time advise him of the dangers and risks of self-representation, and that the court never gave him the required Gilmore warnings. He argues that the court took no affirmative step to ensure he appreciated the dangers and disadvantages of self-representation, that there was no analysis of whether he had made a knowing and intelligent waiver of his right to counsel, and that there was no on-the-record evidentiary hearing where specific findings were made as required by Gilmore. Kowalskey maintains that many of the waiver-by-conduct cases involve defendants whose conduct appeared to constitute determined efforts to manipulate and obstruct the trial process, that the record here shows his earnest struggle to push the process forward and not thwart the State’s efforts to prosecute him, and that his actions were aimed at obtaining the evidence needed to challenge the State’s case.

The State asserts that, while there is no dispute that Kowalskey did not affirmatively waive his right to counsel, the trial court properly found that he forfeited or waived his right to counsel through his conduct. It argues that the court held a hearing as required by Gilmore and sufficiently warned Kowalskey of the consequences of his conduct to allow the court to subsequently determine that he had forfeited his right to counsel. * * *

Based upon the record, Gilmore, and Poynter, and mindful that the law indulges every reasonable presumption against a waiver of the fundamental right to counsel, we conclude that the trial court erred in finding that Kowalskey, by his conduct, waived his right to pauper counsel. See Poynter, 749 N.E.2d at 1124-1128; Gilmore, 953 N.E.2d at 589-593. Accordingly, we reverse the order of the trial court and remand for further proceedings.

NFP civil decisions today (0):

NFP criminal decisions today (5):

Jeremy Farris v. State of Indiana (mem. dec.)

Ashley L. Stapert v. State of Indiana (mem. dec.)

Walker Whatley v. State of Indiana (mem. dec.)

Ronald Moore v. State of Indiana (mem. dec.)

Tammie D. Wasson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 30, 2015 10:59 AM
Posted to Ind. App.Ct. Decisions