concluding that Kowalskey had not waived his right to counsel through his conduct because there were no findings regarding whether the trial court had given Kowalskey the required “warnings regarding the dangers and disadvantages of self-representation”
How later courts described this case
- concluding that Kowalskey had not waived his right to counsel through his conduct because there were no findings regarding whether the trial court had given Kowalskey the required “warnings regarding the dangers and disadvantages of self-representation”
Written by the judges who cited it.
The opinion
Jul 30 2015, 6:42 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Paula M. Sauer Gregory F. Zoeller
Danville, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gabriel Kowalskey, July 30, 2015
Appellant-Defendant, Court of Appeals Case No.
32A01-1503-CR-99
v. Appeal from the Hendricks Superior
Court
State of Indiana, The Honorable Rhett M. Stuard,
Judge
Appellee-Plaintiff. Cause No. 32D02-1406-FB-39
Cause No. 32D02-1409-F6-142
Brown, Judge.
Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015 Page 1 of 18
[1] 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.
Facts and Procedural History
[2] On June 9, 2014, the State charged Kowalskey with possession of cocaine and
possession of marijuana as class B felonies under cause number 32D02-1406-
FB-39 (“Cause No. 39”), and on that day Herb Witham was appointed as
Kowalskey’s pauper counsel. The State later amended the information under
Cause No. 39 to add counts charging Kowalskey with carrying a handgun
without a license as a class A misdemeanor, carrying a handgun without a
license as a class C felony, and unlawful possession of a firearm by a serious
violent felon as a class B felony. On July 23, 2014, Witham filed a motion to
withdraw appearance and appoint alternate counsel “due to a conflict in regard
to his continued representation of the defendant.” Appellant’s Appendix at 39.
The same day, the court granted Witham’s motion and appointed Tyler Starkey
as counsel for Kowalskey.
[3] On September 2, 2014, the State charged Kowalskey with battery of a public
safety official as a level 6 felony under cause number 32D-1409-F6-142 (“Cause
No. 142”), and the court appointed Starkey as pauper counsel for him.
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[4] On December 2, 2014, Starkey filed a motion to withdraw appearance in Cause
No. 39 and Cause No. 142 “for the reason that there has been a breakdown in
the attorney-client relationship.” Id. at 77, 123. On the following day, the court
granted Starkey’s motion and, in its order stated “Def. given 10 days to obtain
counsel.” Id. at 78, 124.
[5] On December 15, 2014, the State filed a motion for attorney status hearing in
Cause Nos. 39 and 142 stating that the court had previously appointed two
attorneys to represent Kowalskey, both of whom withdrew their appearances,
and asking the court to inform Kowalskey of the advisements required by
Gilmore v. State, 953 N.E.2d 583 (Ind. Ct. App. 2011). The following day, the
court issued an order scheduling an attorney status hearing for January 6, 2015,
and stating that, at the hearing, Kowalskey would be warned that if his
obstreperous behavior persists the court would find that he has chosen self-
representation by his own conduct and that he would be warned of the dangers
and disadvantages of self-representation.
[6] On January 6, 2015, the court held a hearing on the State’s motion. The court
asked Kowalskey “do you want to go out for a court-appointed lawyer or . . .
where are we on this,” and Kowalskey stated “there’s some things that I don’t
understand about the way the process goes here.” Transcript at 7. He stated
that Witham was his attorney up to his omnibus date and that that was the first
time Witham visited him. The court stated that it did not matter and that what
mattered was that the case kept moving along and Kowalskey’s rights were
protected. The following exchange then occurred:
Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015 Page 3 of 18
The Court: You have . . . had two attorneys; you couldn’t . . . for
whatever reason couldn’t work with either of those. I mean we could
try one more time and appoint you a lawyer and if you want to see if
you can work with somebody that’s fine; I have no problem with that
and we can do that or if you don’t think you can work with anybody
then – then we can have you waive your right to a lawyer and you can
try to represent yourself, you know, we’ll have to talk about that but as
we sit here right now, uh, I need to know how you want to proceed in
this case.
Gabriel Kowalskey: I need a lawyer.
Id. at 8.
[7] After questioning Kowalskey about his finances and finding that he qualified
for a court-appointed lawyer, the court appointed Eric Oliver as his counsel in
Cause Nos. 39 and 142. The following exchange then occurred:
The Court: . . . . Uh, now, Mr. Kowalskey, uh, that Gilmer [sic] case .
. . what it tells us is that, uh, if you keep having problems with lawyers
over and over and over . . . the Court can enter just on its own that
you’ve decided to represent yourself, okay. I can enter a motion that
says by your own conduct, uh, you have decided to represent yourself.
Uh, you know . . . and since you’ve chosen to hire court-appointed –
have court-appointed counsel today we’re not going to go into that but
if we get to that point, you know, they’ll have to inform you of, uh,
you know, the dangers of self-representation and the risks that are
involved in it. The short story is, uh, you would be held to the same
standard as this attorney sitting right here who’s been to law school,
okay.
Gabriel Kowalskey: Yeah.
The Court: And – and so, uh, obviously that’s a risk that you – you,
you know, you may not want to take. So I’m going to have Mr. Oliver
come see you, okay. . . .
*****
Gabriel Kowalskey: . . . [T]here was one more thing that I wanted to
- I don’t know if it’s maybe I should do it but I was speaking to it with
Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015 Page 4 of 18
him but when I did have Tyler Starkey, my former attorney, I went to
a video court for Battery, the liquid thrown on – water thrown on the
staff. I went to video court and then after that I had a visit with Tyler
Starkey.
The Court: Okay.
Gabriel Kowalskey: I asked him for a fast and speedy to get this over
with since I’ve done five, six months -
The Court: Okay.
Gabriel Kowalskey: -- in here already; let’s get this done with, you
know, maybe even sign a plea today but he failed to do that. I wrote
him letters after letters and that’s where our relationship really -
The Court: Okay.
Gabriel Kowalskey: -- deteriorated because of that subject and, uh,
surveillance camera subject which is on the other case but I have the
copy right here, the letters that I sent to him asking for a fast and
speedy and I haven’t been to court one time and it’s been over three
months since I’ve been to that video court. And I didn’t and just for
the record I didn’t have any problem with Tyler Starkey. You know, I
thought he was working real well for me until the very end, the last
two months where he refused to - or failed to contact me. I wrote him
over seven letters with the same, you know, literature inside.
*****
The Court: Okay, let’s show for the record that [Kowalskey] requests
a fast and speedy on [Cause No. 142]. . . .
Gabriel Kowalskey: Thank you.
Id. at 9-10, 12-13.
[8] On February 4, 2015, the court held a pretrial conference, at which Kowalskey
appeared with Oliver. On February 5, 2015, the court received a letter from
Kowalskey in Cause No. 39. In the letter, Kowalskey stated his concerns about
“the prosecution, all three of [his] current and former lawyers, and the three
arresting officers’ inability to produce dash-cam footage or CVS’s surveillance
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footage from the night of the incident . . . .” Appellant’s Appendix at 91. He
stated “I know for a fact that all three officers had their emergency lights
activated,” that “I also know for a fact that CVS has an archive surveillance
system,” that “the officers deny ever having activated their lights, as if they
never even pulled up on me and made a stop,” and that “[t]herefore, I began to
pursue the CVS’s surveillance cameras to prove that they did, in fact, make an
investigatory stop.” Id. He further stated that “after 8 months and three
different lawyers I get advised by Eric Oliver at a court hearing on 2-4-15 that
the prosecution does not have the CVS footage,” that “[w]hen asked why, Mr.
Oliver claimed that [it] had been deleted by CVS,” that “I then asked Mr.
Oliver how he obtained the message that the footage had been deleted to which
he admitted that he made up that statement,” that “[h]e then admitted that the
only information the prosecution offered was that they did not have CVS’s
footage in their possession,” and that, “[l]astly, he admitted that he never put
forth effort in contacting CVS for the footage personally.” Id. at 91-92.
Kowalskey stated, “I am scheduled for a suppression hearing and without
footage from the scene or an honest account from at least one of the officers I
cannot ‘definitely’ prove the arresting officer made an Invalid Investigatory
Stop – they claim a stop was never made.” Id. at 92. Kowalskey also said “I’m
not asking to fire [] Oliver. That is by no means not my intentions of this letter”
and that “[a]ll that I’m hoping with this letter is that you, Your Honor, . . .
demand that the prosecution produce or pursue obtaining either one of the three
officer’s dash-cam or footage from CVS . . . .” Id. The court’s chronological
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case summary for Cause No. 39 contains an entry indicating that the clerk was
to provide a copy of the letter to the State and Oliver.
[9] On February 6, 2015, Oliver filed a motion to withdraw appearance in Cause
No. 39 and Cause No. 142 stating that he “received a letter on or about
February 5, 2015 from Mr. Kowalskey containing information that prohibits
[him] from representing [Kowalskey] further.” Id. at 93, 130.
[10] On February 9, 2015, the court held a hearing under both causes at which
Kowalskey appeared with Oliver. The following exchange occurred:
The Court: [T]he Court got one letter from you which I forwarded on
to the State and Mr. Oliver indicating that you felt like he was lying to
you and, uh, quite possibly violating your due process rights. Uh, Mr.
Kowalskey, we were here in Court back in January; do you remember
that?
Gabriel Kowalskey: Yes, I absolutely do.
The Court: And, uh, that was on January 6, 2015 and you and I had a
discussion sitting right here about the fact that if I was going to appoint
you another attorney and that if you couldn’t get along with that
attorney and did something to cause him to withdraw that you’re
going to proceed on your own; do you remember that?
Gabriel Kowalskey: Yeah, I remember.
The Court: And now it appears to me that you have accused your
attorney of some kind of misconduct, at least not representing you to
the best of his ability, that’s caused him to file this Motion to
Withdraw of Appearance.
Gabriel Kowalskey: Right. . . . Your Honor, I don’t want you to or
Eric Oliver to be under the impression that, uh, I don’t want him as a
lawyer just like all of the rest of my lawyers, I just wanted to inform
someone because I was trying to actually speak to you and tell you
about some things before I left court that day.
The Court: Um um (affirmative response).
Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015 Page 7 of 18
Gabriel Kowalskey: And it was going to be the same issues. . . . I’m
feeling that although I do believe that Eric Oliver is a – probably a
fabulous lawyer, it’s just I told him some things that he should have
reacted in a certain way and . . . didn’t and that gives me the, uh,
understanding that he might not be doing exactly what I need to do for
my case. And I was just hoping that you could set things right; that’s
why I wrote you the letter and maybe influence or persuade, I don’t
know which one, my lawyer or even the prosecutor but more so my
lawyer to – to work diligently or sincerely. That’s the only reason that
I wrote you that letter.
The Court: I don’t have any control over your lawyer’s, uh,
relationship with you. . . . Oliver has been in practice . . . [s]even
years. . . . Mr. Starkey has been a lawyer for ten years . . . . Mr.
Witham . . . has been in practice for twenty years and been a public
defender right here in this court for probably fifteen years and you
can’t get along with any of those people. . . . And I warned you last
time you were here that we couldn’t tolerate that anymore.
*****
Gabriel Kowalskey: . . . I have no type of, you know, harsh feeling
toward [] Oliver or actually any of the other, uh, lawyers that I had.
That is not what I’m to do and I don’t want a different lawyer; I don’t
have time to have a different lawyer. The reason why I’m so stressed
and writing all these letters is because the fact that in a week . . . I will
be having a suppression. I’m – I’m fighting for my life. . . .
The Court: . . . [T]he bottom line is is due to your obstreperous
conduct, the conduct that you keep demonstrating towards attorneys,
uh, you know, this Court can find that you have waived by your
conduct your right, uh, to have a lawyer. . . .
Eric Oliver: [T]here’s been nothing that’s changed and the reason
being is my concern is the effective assistance. . . . He wants to have
the best of both worlds and have the lawyer but dictate to the lawyer
how they handle the case and that just doesn’t make a feasible
solution. . . .
Transcript at 25-30. The court granted Oliver’s motion to withdraw his
appearance. The court appointed appellate counsel for the purpose of this
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interlocutory appeal and certified its orders in Cause No. 39 and Cause No. 142
that Kowalskey waived his right to the appointment of pauper counsel for
interlocutory appeal.
Discussion
[11] 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
Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015 Page 9 of 18
prosecute him, and that his actions were aimed at obtaining the evidence
needed to challenge the State’s case.
[12] 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. The State points to the court’s
statement at the January 6, 2015 hearing that it would “try one more time” and
the court’s warning that, if Kowalskey kept having problems with his attorneys,
the court could decide that he had chosen to represent himself. The State
argues that, although the court could have and perhaps ideally would have
given a more expansive warning, the warnings given were sufficient to place
Kowalskey on notice of the consequences of continuing to make it impossible
for any attorney to represent him. The State also contends that the court
sufficiently warned Kowalskey of the disadvantages of proceeding without
counsel, that this was not a situation where a defendant was expressing a desire
to represent himself because he felt he could do better than an attorney, and
instead the record shows Kowalskey understood it was not in his best interest to
proceed pro se.
[13] The right to be represented by counsel is protected by both the Federal and
Indiana Constitutions. U.S. CONST. amend. VI; IND. CONST. art. 1, § 13. The
right to counsel can be waived by a knowing, voluntary, and intelligent waiver.
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Gilmore, 953 N.E.2d at 589 (citing Jones v. State, 783 N.E.2d 1132, 1138 (Ind.
2003)). Waiver of assistance of counsel may be established based upon the
particular facts and circumstances surrounding the case, including the
background, experience, and conduct of the accused. Id. (citing Jackson v. State,
441 N.E.2d 29, 32 (Ind. Ct. App. 1982)). “Of all the rights that an accused
person has, the right to be represented by counsel is by far the most pervasive
for it affects his ability to assert any other rights he may have.” Poynter v. State,
749 N.E.2d 1122, 1125-1126 (Ind. 2001) (citation omitted).
[14] In Gilmore v. State, this court addressed the waiver or forfeiture of a defendant’s
right to counsel due to the defendant’s conduct. 953 N.E.2d at 589. Gilmore
had five court-appointed attorneys, all of whom withdrew from representing
him due to a breakdown of the attorney-client relationship. Id. at 585-586. The
trial court found in part that Gilmore had waived his right to counsel by his
obstreperous conduct. Id. at 585. On appeal, this court first set forth portions
of the opinion of the United States Court of Appeals, Third Circuit, in United
States v. Goldberg:
A waiver is an intentional and voluntary relinquishment of a known
right. The most commonly understood method of “waiving” a
constitutional right is by an affirmative, verbal request. Typical of
such waivers under the Sixth Amendment are the requests to proceed
pro se and requests to plead guilty. . . . The High Court has
emphasized the importance of an affirmative, on-the-record waiver,
noting that it indulges every reasonable presumption against waiver of
fundamental constitutional rights.
*****
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At the other end of the spectrum is the concept of forfeiture. Unlike
waiver, which requires a knowing and intentional relinquishment of a
known right, forfeiture results in the loss of a right regardless of the
defendant’s knowledge thereof and irrespective of whether the
defendant intended to relinquish the right. . . . In United States v.
McLeod, 53 F.3d 322 (11th Cir. 1995), . . . the Eleventh Circuit
concluded that a defendant who is abusive toward his attorney may
forfeit his right to counsel.
*****
Finally, there is a hybrid situation (“waiver by conduct”) that
combines elements of waiver and forfeiture. Once a defendant has
been warned that he will lose his attorney if he engages in dilatory
tactics, any misconduct thereafter may be treated as an implied request
to proceed pro se and thus, as a waiver of the right to counsel. . . .
Thus, instead of “waiver by conduct,” this situation more
appropriately might be termed “forfeiture with knowledge.”
*****
[F]orfeiture would appear to require extremely dilatory conduct. On
the other hand, a “waiver by conduct” could be based on conduct less
severe than that sufficient to warrant a forfeiture. This makes sense
since a “waiver by conduct” requires that a defendant be warned about
the consequences of his conduct, including the risks of proceeding pro
se. . . . [A] true forfeiture can result regardless of whether the
defendant has been advised of the risks of proceeding pro se. . . .
Id. at 589-590 (citing United States v. Goldberg, 67 F.3d 1092, 1099-1101 (3rd Cir.
1995)). The court in Gilmore then reviewed several opinions which examined
the concepts of forfeiture and waiver by conduct, including the Indiana
Supreme Court opinion in Poynter v. State, 749 N.E.2d 1122 (Ind. 2001).
[15] In Poynter, the defendant indicated that he would retain his own counsel, but
after continuances were granted so that he could secure private counsel, a bench
trial was held and neither the trial court nor the parties commented regarding
Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015 Page 12 of 18
the absence of an attorney for the defendant. Poynter, 749 N.E.2d 1126. The
trial court found the defendant guilty, and on appeal the defendant maintained
that the court had a duty to advise him of the advantages of representation by
counsel and the dangers of self-representation and that the lack of advisement
negated any finding of a voluntary, knowing, and intelligent waiver of his right
to the assistance of counsel. Id. at 1124-1125.
[16] In its opinion, the Indiana Supreme Court initially stated that, “[w]hen a
defendant asserts the right to self-representation, the court should tell the
defendant of the ‘dangers and disadvantages of self-representation,’” Poynter,
749 N.E.2d at 1126 (citing Faretta v. California, 422 U.S. 806, 835, 95 S. Ct.
2525, 2541 (1975)), and that “[t]here are no prescribed ‘talking points’ the court
is required to include in its advisement to the defendant; it need only come to a
considered determination that the defendant is making a voluntary, knowing,
and intelligent waiver.” Id. (citing Leonard v. State, 579 N.E.2d 1294, 1296 (Ind.
1991)). The Court noted “[t]his determination must be made with the
awareness that the law indulges every reasonable presumption against a waiver
of this fundamental right.” Id.
[17] The Court then observed that several courts have held that a verbal waiver of
the right to counsel may not be necessary and that “so long as the . . . court has
given a defendant sufficient opportunity to retain the assistance of . . . counsel,
defendant’s actions which have the effect of depriving himself of . . . counsel
will establish a knowing and intentional choice.” Id. (citing United States v.
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Hoskins, 243 F.3d 407, 410 (7th Cir. 2001) (finding the defendant’s conduct to
be sufficient to imply waiver and that the trial court’s inquiry was sufficient and
provided explicit warning of consequences of continued conduct); United States
v. Irorere, 228 F.3d 816, 828 (7th Cir. 2000) (holding that the defendant waived
the right to counsel by his conduct where the court appointed four separate
lawyers all of whom either requested to withdraw or were fired by the
defendant and the defendant had been advised of the dangers and disadvantages
of self-representation pursuant to Faretta)). The Court also observed that, “[i]n
each of these waiver-by-conduct cases, . . . the courts recognized that, just like
an express verbal waiver, an implied waiver is not valid absent a finding under
the totality of the circumstances that the waiver is knowing and intelligent” and
that “this finding invariably included evidence of an admonition to the
defendant on the dangers and disadvantages of self-representation.” Id. (citing
Hoskins, 243 F.3d at 411; Irorere, 228 F.3d at 828).
[18] The Court in Poynter then noted that, in United States v. Hoskins, the Seventh
Circuit Court of Appeals, in analyzing the defendant’s waiver of his right to
counsel, relied upon the following considerations: (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; (3) the background and experience of the defendant; and (4)
the context of the defendant’s decision to proceed pro se. Id. at 1127-1128
(citing Hoskins, 243 F.3d at 411). The Court found that, “[c]onsidering these
factors within the circumstances of the present case we find that the trial court,
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while it did determine that the defendant was advised of his trial rights and did
tell the defendant of the procedural outcome if he failed to secure counsel, did
not at any time advise the defendant on the dangers and disadvantages of self-
representation” and that “[t]his lack of any advisement weighs heavily against
finding a knowing and intelligent waiver.” Id. at 1128. The Court also noted
that, while there is evidence that the defendant chose to work and sleep rather
than take the time to hire an attorney, his conduct did not result in gross delays
or clearly appear to intend manipulation of the process. Id.
[19] In Gilmore, after reviewing Poynter and other cases, this court addressed whether
Gilmore, by his conduct, had waived or forfeited his right to counsel and
concluded:
In the present case, Gilmore engaged in behavior that led his court-
appointed attorneys to withdraw from representation.
Understandably, the trial court became dissatisfied with the delay
seemingly caused by Gilmore in moving the case forward. This
conduct was not of the kind often associated with a finding of
forfeiture of the right to counsel. Nor does this conduct fit neatly into
the category of cases in which waiver of the right to counsel is found,
as Gilmore repeatedly requested representation by counsel. Instead, it
appears to be more along the lines of a waiver by conduct or forfeiture
with knowledge. As such, Gilmore was and is entitled to a hearing during
which he should be warned that if his obstreperous behavior persists, the trial
court will find that he has chosen self-representation by his own conduct. Then
the inquiry turns to an analysis of whether Gilmore made a knowing and
intelligent waiver of his right to counsel, which includes a warning of the
dangers and disadvantages of self-representation established in an on-the-record
evidentiary hearing where specific findings are made. While not condoning
Gilmore’s apparent obstreperous conduct, because those warnings
were not given to Gilmore, we conclude that the trial court erred by
finding that Gilmore had waived his right to counsel. We, therefore,
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vacate the trial court’s order and remand for further proceedings
consistent with this opinion.
Gilmore, 953 N.E.2d at 592-593 (emphasis added).
[20] In this case, Kowalskey specifically stated at the January 6, 2015 hearing that
he needed a lawyer and at the February 9, 2015 hearing that his letter was sent
to influence his lawyer to work diligently or sincerely, that he did not wish to
have a different lawyer, that he did not “have time to have a different lawyer,”
and that he was stressed because the suppression hearing was scheduled for a
week later. Transcript at 30. Thus, Kowalskey did not expressly and verbally
waive his right to counsel, and we must determine whether a waiver by conduct
or forfeiture with knowledge occurred.
[21] Oliver indicated that Kowalskey’s February 5, 2015 letter prompted his request
to withdraw appearance. In the letter, Kowalskey stated that he was scheduled
for a suppression hearing, that the police had denied making an investigatory
stop, that he knew the police had activated their emergency lights and thus that
there had been an investigatory stop, that Oliver had not attempted to contact
CVS for its surveillance system footage, that without footage he could not prove
the arresting officer did not make a valid investigatory stop, and that he was not
asking to fire Oliver but was hoping the court would demand the prosecutor to
produce or obtain the officers’ dash-cam footage or the CVS footage. At the
February 9, 2015 hearing, Kowalskey stated that he did not want a different
lawyer, that he did not have time to have a different lawyer, and that he was
stressed and wrote the letter because his suppression hearing was scheduled for
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a week later. The record does not establish that Kowalskey, in sending his
letter to the court, engaged in obstreperous conduct or behavior. The court did
not make specific findings supporting the conclusion that Kowalskey, by his
letter or otherwise, engaged in obstreperous conduct.
[22] Moreover, similar to Poynter, while the trial court may have informed
Kowalskey at the January 6, 2015 hearing that, if he kept having problems with
lawyers, it could determine that he had decided to represent himself and that “if
we get to that point, . . . they’ll have to inform you of . . . the dangers of self-
representation and the risks that are involved in it,” the court did not at that time
or later advise Kowalskey of the dangers and disadvantages of self-
representation. Transcript at 10 (emphases added). The court’s sole statement
at the January 6, 2015 hearing that “[t]he short story is [Kowalskey] would be
held to the same standard as this attorney sitting right here who’s been to law
school” was not an adequate advisement of the dangers and disadvantages of
self-representation under the circumstances. Id. at 10. Like in Poynter, this lack
of an adequate advisement of the dangers and disadvantages of self-
representation “weighs heavily against finding a knowing and intelligent
waiver.” See Poynter, 749 N.E.2d at 1128.
[23] Additionally, the court did not enter specific findings, addressing the factors
outlined in Hoskins and adopted in Poynter or otherwise, regarding whether it
had given Kowalskey the required warnings regarding the dangers and
disadvantages of self-representation, the extent to which Kowalskey’s behavior
related to his attorneys’ requests to withdraw their appearances, his background
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and experience, the context of Oliver’s request to withdraw appearance and
Kowalskey’s January 5, 2015 letter regarding his approaching suppression
hearing, or whether Kowalskey had made a knowing and intelligent waiver of
his right to counsel under the circumstances as required by Gilmore. The trial
court did not undertake an analysis of whether, or make specific findings
supporting the conclusion that, Kowalskey demonstrated obstreperous conduct
after being warned that such conduct could result in the waiver of his right to
counsel or made a knowing and intelligent waiver of his right to counsel which
included a warning of the dangers and disadvantages of self-representation.
[24] 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.
Conclusion
[25] For the foregoing reasons, we reverse the orders of the trial court in Cause No.
39 and Cause No. 142 finding that Kowalskey by his conduct waived his right
to counsel and remand for further proceedings consistent with this opinion.
[26] Reversed and remanded.
Crone, J., and Pyle, J., concur.
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