Quincy D. Sullivan v. State of Indiana (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be FILED

regarded as precedent or cited before any

court except for the purpose of establishing Feb 21 2017, 9:29 am

the defense of res judicata, collateral CLERK

Indiana Supreme Court

estoppel, or the law of the case. Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Scott H. Duerring Curtis T. Hill, Jr.

South Bend, Indiana Attorney General of Indiana

Ian McLean

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Quincy D. Sullivan, February 21, 2017

Appellant-Defendant, Court of Appeals Case No.

20A03-1606-CR-1246

v. Appeal from the Elkhart Circuit

Court

State of Indiana, The Honorable Terry C.

Appellee-Plaintiff Shewmaker, Judge

Trial Court Cause No.

20C01-1504-FB-15

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017 Page 1 of 5

Quincy Sullivan appeals his convictions for two counts of Robbery, 1 a Class B

felony, five counts of Confinement,2 a class B felony, and one count of

Conspiracy to Commit Robbery,3 a class B felony. Sullivan argues that the trial

court committed fundamental error by allowing Sullivan’s co-defendant to

proceed pro se in the middle of trial and by neglecting to sever the two

defendants’ cases sua sponte. Finding no fundamental error, we affirm.

[1] On April 9, 2015, the State charged Sullivan and Albert Webb with two counts

of Class B felony robbery, five counts of Class B felony confinement, and one

count of Class B felony conspiracy to commit robbery. As the two cases dealt

with precisely the same set of alleged facts, the co-defendants’ joint jury trial

began on February 29, 2016. At the outset of the trial, Sullivan and Webb were

each represented by attorneys. Three days into the trial, Webb requested to

represent himself because he was dissatisfied with his attorney’s performance.

The trial court strongly discouraged Webb from doing so, advising him of the

dangers and disadvantages of self-representation, but Webb insisted on

representing himself. At the close of the trial, the jury found Webb and

Sullivan guilty as charged.

[2] Sullivan concedes that he did not object to Webb’s request to represent himself,

nor did he request that the cases be severed at the time Webb’s request was

1

Ind. Code § 35-42-5-1.

2

I.C. § 35-42-3-3.

3

Ind. Code § 35-41-5-2; I.C. § 35-42-5-1.

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017 Page 2 of 5

granted. Therefore, to succeed on appeal, he must meet the extremely high bar

of establishing fundamental error. E.g., Ryan v. State, 9 N.E.3d 663, 668 (Ind.

2014). To constitute fundamental error, the error must be a clearly blatant

violation of basic and elementary principles of due process and present an

undeniable and substantial potential for harm such that a fair trial was

impossible. E.g., id. Additionally, Sullivan must establish that the error was so

severe that it would have compelled any competent trial judge to immediately

intervene, regardless of the defendant’s decision not to object or request other

relief. Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014).

[3] With respect to Sullivan’s contention that the trial court should have severed

the two cases sua sponte, we note that it has long been the case that trial courts

do not “have a duty to order separate trials sua sponte.” Snider v. State, 274 Ind.

401, 403, 412 N.E.2d 230, 232 (1980). Consequently, he has not established

that any competent trial judge would have been compelled to intervene sua

sponte.

[4] With respect to Sullivan’s contention that the trial court committed

fundamental error by permitting Webb to proceed pro se, we note that the right

to representation is personal. E.g., Carter v. State, 512 N.E.2d 158, 162 (Ind.

1987) (observing that “[t]he policy supporting the right of self-representation is

personal autonomy,” noting that as the defendant is the one who must suffer

the consequences of his decision as to counsel, “he is entitled to choose his

advocate, a lawyer or himself”). Therefore, Sullivan may not challenge Webb’s

decision to proceed pro se, or the trial court’s ruling permitting Webb to do so.

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017 Page 3 of 5

Cf. Horton v. State, 51 N.E.3d 1154, 1159 (Ind. 2016) (holding that the choice to

exercise the personal right to a jury trial may not be exercised by proxy); Reed v.

State, 748 N.E.2d 381, 390 (Ind. 2001) (holding that defendant cannot exercise

State’s right to grant use immunity); Eaton v. State, 274 Ind. 73, 75, 408 N.E.2d

1281, 1283 (1980) (holding that a personal right against self-incrimination may

not be exercised by a third party). Sullivan continued to be represented by an

attorney, and he had no more ability to demand that Webb waive his right of

self-representation than Webb had to demand that Sullivan waive his right to be

represented by counsel.

[5] In any event, the trial court had discretion to grant or deny Webb’s request,

given that the request was made after the trial had begun. Koehler v. State, 499

N.E.2d 196, 198-99 (Ind. 1986). In this case, Webb did not request a delay in

the trial, nor had he engaged in any other conduct that would argue against

granting his motion. Webb asserted his fundamental right to represent himself,

even in the fact of the trial court’s advisement against it, and the trial court did

not commit fundamental error by granting Webb’s request.

[6] Furthermore, Sullivan has failed to establish that these rulings made a fair trial

impossible. Although he complains that he was “tied” to “every in-artfully

framed question, fumbling objection, or statement made by Webb,” he does not

explain how Webb’s conduct made a fair trial impossible. Appellant’s Br. p. 8.

The record reveals that both Webb and Sullivan’s attorney strenuously cross-

examined the remaining witnesses, pursued identical trial strategies, and raised

similar arguments to the jury. Under these circumstances, we cannot see how

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017 Page 4 of 5

Webb’s self-representation made a fair trial impossible for Sullivan. In sum,

Sullivan has not established that the trial court committed fundamental error by

neglecting to sever the cases sua sponte or by permitting Webb to proceed pro

se.

[7] The judgment of the trial court is affirmed.

Mathias, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017 Page 5 of 5