Petition for Writ of Certiorari — Zachariah Brian Wright, Petitioner v. Indiana

Supreme Court briefOct 1, 2021

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No.

In the Supreme Court of the United States

ZACHARIAH BRIAN WRIGHT,

PETITIONER,

STATE OF INDIANA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE INDIANA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

DANIEL R. ORTIZ

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

SUPREME COURT

LITIGATION CLINIC

580 Massie Road

Charlottesville, VA

22903

(434) 924-3127

dro@virginia.edu

QUESTIONS PRESENTED

In Faretta v. California, this Court held that the

Sixth Amendment protects the “fundamental” right of

a criminal defendant to “conduct his own defense.” 422

U.S. 806, 817, 836 (1975). In order to exercise this

right, a defendant must “unequivocally” assert his

intention to represent himself and “knowingly and

intelligently forgo [the] traditional benefits associated

with the right to counsel.” Id. at 835 (internal

quotation omitted). This Court has emphasized that a

defendant’s lack of legal skill has “no bearing” on

whether he may represent himself. Godinez v. Moran,

509 U.S. 389, 400 (1993). Even if a defendant “may

conduct his own defense ultimately to his own

detriment, his choice must be honored.” Faretta, 422

U.S. at 834. State high courts and the federal courts of

appeals, however, have devised conflicting legal

standards for unequivocal invocation and intelligent

waiver.

The questions presented are:

1. Whether a defendant’s otherwise clear

invocation of his right to represent himself becomes

equivocal when he prefers representation by an

attorney who cannot or will not represent him.

2. Whether courts may override a defendant’s

right to represent himself in a high-penalty case out of

fear that he will be unable to represent himself well.

RELATED PROCEEDINGS

Indiana Supreme Court:

Wright v. State, 168 N.E.3d 244 (Ind. 2021)

Indiana Superior Court for Boone County:

State v. Wright, No. 06D01-1706-MR-1078 (Mar.

12, 2018, order denying relief upon notice to the

court) (Nov. 7, 2019, finding of guilt after bench

trial) (Jan. 3, 2020, sentence)

III

TABLE OF CONTENTS

Page

Questions Presented ............................................... I

Related Proceedings ............................................. II

Table Of Authorities ...........................................VII

Opinions Below ...................................................... 1

Jurisdiction ............................................................ 1

Relevant Constitutional Provision ........................ 1

Statement ............................................................... 2

A. State Trial Court Proceedings ......................... 2

B. Indiana Supreme Court Proceedings............... 6

Reasons For Granting The Petition .................... 12

I. The Decision Below Entrenches A Split

Among The Federal Courts Of Appeals And

State High Courts On Two Issues ................. 12

A. The Decision Below Expands A Conflict

Over Whether An Unequivocal Invocation

Of The Right To Self-Representation

Requires A Defendant To Prefer SelfRepresentation Over Even Unavailable

Alternatives ............................................... 13

1. The Indiana Supreme Court Holds

That

Request

For

SelfRepresentation Is Equivocal, And

Therefore Invalid, If A Defendant Has

An Acknowledged Preference For Even

Unavailable Options ............................ 14

TABLE OF CONTENTS

Page

2. The Supreme Courts Of Montana,

Pennsylvania, and Washington, Under

A Totality-Of-The-Circumstances Approach, Will Consider A Defendant’s

Preference For Alternatives, Regardless Of Their Availability, As

Supporting The Equivocal Nature Of A

Self-Representation Request ............... 15

3. Most

Jurisdictions

That

Have

Considered The Issue Do Not Require

That A Defendant’s Request For SelfRepresentation

Demonstrate

Preference For Self-Representation

Over Even Unavailable Alternatives

In Order To Be Unequivocal ............... 16

B. The Federal Circuits And State High

Courts Are Split Over Whether To

Override

The

Right

SelfRepresentation In High-Penalty Cases.... 18

1. Indiana, New Jersey, and Florida

Override

The

Right

SelfRepresentation In Cases With High

Penalties When They Fear Poor SelfRepresentation ..................................... 19

2. The Majority Position Respects A

Defendant's

Right

SelfRepresentation Without Considering

The Expected Quality Of Representation, Regardless Of The Penalty's

Severity ................................................ 23

TABLE OF CONTENTS

Page

II. The Decision Below Misunderstands Faretta

And Hollows Out The Right To SelfRepresentation ............................................... 26

A. A Preference For Unavailable Counsel

Does Not Make A Defendant's Express

Desire To Proceed Pro Se Equivocal ........ 28

B. Waiving The Right To Counsel “With Eyes

Open” Does Not Require Specialized

Legal Knowledge Even In High-Penalty

Cases .......................................................... 32

III. This Case Is An Ideal Vehicle To Address

This Important And Frequently Recurring

Question ........................................................ 35

Conclusion ............................................................ 37

Appendix:

Wright v. State, No. 20S-LW-260 (Ind. May 4,

2021) (opinion affirming trial court’s Finding

Of Guilt After Bench Trial and Sentence and

“remanding only for the court to correct a

minor oversight in its sentencing order”) ...... 1a

State v. Wright, No. 06D01-1706-MR-001078

(Ind. Super. Ct. Nov. 7, 2019) (Finding Of

Guilt After Bench Trial) ............................... 56a

State v. Wright, No. 06D01-1706-MR-001078

(Ind. Super. Ct. Jan. 3, 2020) (Sentence) .... 58a

TABLE OF CONTENTS

Page

State v. Wright, No. 06D01-1706-MR-001078

(Ind. Super. Ct. Mar. 12, 2018) (Order

Denying Relief Upon Notice To The Court)

(denying defendant’s motion to represent

himself) ......................................................... 77a

VII

TABLE OF AUTHORITIES

Page

Cases:

Adams v. United States ex rel. McCann, 317 U.S.

269 (1942) .......................................................... 31

Barnes v. State, 29 So. 3d 1010 (Fla.

2010)....................................................... 19, 20, 22

Batchelor v. Cain, 682 F.3d 400 (5th Cir. 2012) .... 17

Bishop v. State, 597 P.2d 273 (Nev. 1979) ............. 25

Brown v. State, 422 P.3d 155 (Okla. Crim. App.

2018)................................................................... 24

Buhl v. Cooksey, 233 F.3d 783 (3d Cir. 2000) .. 17, 18

Commonwealth v. Davido, 868 A.2d 431 (Pa.

2005)................................................................... 15

Commonwealth v. Davis, 388 A.2d 324 (Pa.

1978)................................................................... 25

Evans v. State, 725 So. 2d 613 (Miss. 1997) .......... 24

Ex parte Ford, 515 So. 2d 48 (Ala. 1987) ............... 25

Faretta v. California, 422 U.S. 806 (1975)..... passim

Finch v. State, 542 S.W.3d 143 (Ark. 2018) ........... 24

Freeman v. Pierce, 878 F.3d 580 (7th Cir.

2017)................................................. 17, 18, 24, 26

Gallego v. State, 23 P.3d 227 (Nev. 2001),

abrogated on other grounds, Nunnery v. State,

263 P.3d 235 (Nev. 2011) .................................. 17

Gideon v. Wainwright, 372 U.S. 335 (1963) .... 26, 30

Godinez v. Moran, 509 U.S. 389 (1993) ......... passim

VIII

TABLE OF AUTHORITIES

Page

Government of the Virgin Islands v. Charles, 72

F.3d 401 (3d Cir. 1995) ...................................... 25

Hamilton v. Groose, 28 F.3d 859 (8th Cir. 1994) ... 24

Hooks v. State, 286 So. 3d 163 (Fla. 2019) ............. 20

Illinois v. Allen, 397 U.S. 337 (1970) ..................... 27

Indiana v. Edwards, 554 U.S. 164 (2008)...... passim

King v. Commonwealth, 374 S.W.3d 281 (Ky.

2012)................................................................... 17

Leonard v. State, 579 N.E.2d 1294 (Ind. 1991) ..... 22

McKaskle v. Wiggins, 465 U.S. 168 (1984) ...... 27, 36

Martinez v. Court of Appeal, 528 U.S. 152

(2000) ..................................................... 26, 27, 36

Moore v. State, 999 S.W.2d 385 (Tex. Crim. App.

1999)................................................................... 25

Nunnery v. State, 263 P.3d 235 (Nev. 2011) .......... 17

Patterson v. Illinois, 487 U.S. 285 (1988) .............. 11

Pasha v. State, 39 So. 3d 1259 (Fla. 2010)....... 17, 29

People v. Butler, 219 P.3d 982 (Cal. 2009) ............. 24

People v. Coleman, 660 N.E.2d 919 (Ill.

1995)............................................................. 23, 25

People v. Haynes, 673 N.E.2d 318 (Ill. 1996) ......... 25

People v. Michaels, 49 P.3d 1032 (Cal. 2002)......... 17

Silagy v. Peters, 905 F.2d 986 (7th Cir.

1990)................................................. 23, 24, 25, 26

State v. Arguelles, 63 P.3d 731 (Utah 2003) .......... 25

TABLE OF AUTHORITIES

Page

State v. Bakalov, 979 P.2d 799 (Utah 1999) .......... 17

State v. Black, 223 S.W.3d 149 (Mo. 2007) ............ 24

State v. Cunningham, 474 S.E.2d 772 (N.C.

1996)................................................................... 17

State v. Curry, 423 P.3d 179 (Wash. 2018) ...... 15, 16

State v. Dann, 207 P.3d 604 (Ariz. 2009) ............... 25

State v. Gunther, 716 N.W.2d 691 (Neb. 2006)...... 24

State v. Hester, 324 S.W.3d 1 (Tenn. 2010) ........... 24

State v. Jones, 568 S.W.3d 101 (Tenn. 2019) ......... 23

State v. Jordan, 44 A.3d 794 (Conn. 2012) ............ 17

State v. Lankford, 781 P.2d 197 (Idaho 1989) ....... 25

State v. Lovelace, 90 P.3d 278 (Idaho 2003), on

reh’g, 90 P.3d 298 (2004) ................................... 25

State v. Reddish, 859 A.2d 1173 (N.J.

2004)....................................................... 19, 20, 22

State v. Rich, 484 S.E.2d 394 (N.C. 1997) ............. 25

State v. Richards, 456 N.W.2d 260 (Minn.

1990)....................................................... 17, 24, 25

State v. Stallings, 476 P.3d 905 (N.M. 2020) ......... 17

State v. Starnes, 698 S.E.2d 604 (S.C. 2010) ......... 25

State v. Stenson, 940 P.2d 1239 (Wash. 1997) ....... 15

State v. Swan, 10 P.3d 102 (Mont. 2000) ............... 15

State v. Taylor, 781 N.E.2d 72 (Ohio 2002) ..... 24, 25

TABLE OF AUTHORITIES

Page

Tamplin v. Muniz, 894 F.3d 1076 (9th Cir.

2018)....................................................... 17, 18, 29

Torres v. United States, 140 F.3d 392 (2d Cir.

1998)................................................................... 24

United States v. Barton, 712 F.3d 111 (2d Cir.

2013)................................................................... 29

United States v. Davis, 285 F.3d 378 (5th Cir.

2002)....................................................... 23, 24, 25

United States v. Erskine, 355 F.3d 1161 (9th Cir.

2004)................................................................... 29

United States v. Gonzalez-Arias, 946 F.3d 17

(1st Cir. 2019) .................................................... 17

United States v. Long, 597 F.3d 720 (5th Cir.

2010)................................................................... 29

United States v. Peppers, 302 F.3d 120 (3d Cir.

2002)................................................................... 24

United States v. Roof, 10 F.4th 314 (4th Cir.

2021)....................................................... 23, 24, 25

Weaver v. Massachusetts, 137 S. Ct. 1899

(2017) ................................................................. 36

Williams v. Bartlett, 44 F.3d 95 (2d Cir. 1994)...... 17

Wilson v. Walker, 204 F.3d 33 (2d Cir. 2000) ........ 17

Constitutional, Statutory, and Rule Provisions:

U.S. Const. amend. VI .............................................. 2

28 U.S.C. § 1257(a) ................................................... 1

Ind. Access to Ct. Recs. R. 5(B) ................................ 5

TABLE OF AUTHORITIES

Page

Ind. R. Crim. P. 24(B) ............................................... 3

Miscellaneous:

Akhil Reed Amar, Sixth Amendment First

Principles, 84 Geo. L.J. 641 (1996). .................. 30

OPINIONS BELOW

The opinion of the Indiana Supreme Court (App.,

infra, 1a) is reported at 168 N.E.3d 244 (2021). The

trial court’s Finding of Guilt After Bench Trial (App.,

infra, 56a), Sentence (App., infra, 58a), and Order

Denying Relief Upon Notice to the Court (App., infra,

77a) are unreported.

JURISDICTION

The Indiana Supreme Court issued its opinion on

May 4, 2021. This Court’s orders of March 19, 2020,

and July 19, 2021, have the effect of extending the

deadline for any certiorari petition to 150 days after

the date of the lower court’s judgment when the lower

court’s judgment issued after March 19, 2020 and

before July 19, 2021. These orders extend the deadline

for filing a certiorari petition in this case to October 1,

2021. This Court has jurisdiction under 28 U.S.C.

§ 1257(a).

RELEVANT CONSTITUTIONAL PROVISION

The Sixth Amendment to the United States

Constitution provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

U.S. Const. amend. VI.

STATEMENT

“[F]orcing a lawyer upon an unwilling defendant is

contrary to his basic right to defend himself.” Faretta

v. California, 422 U.S. 806, 817 (1975).

The rights to self-representation and to counsel

complement one another. The Founders “[n]ever * * *

imagined” that one was “inferior” to the other. Faretta,

422 U.S. at 832. But, because the exercise of one

necessarily forecloses the exercise of the other, a

defendant must both “unequivocally” invoke the right

self-representation

and

“knowingly

and

intelligently” waive the right to counsel. Id. at 835

(quotation omitted). To waive counsel, a defendant

must understand the right he is giving up but does not

himself need to “have the skill and experience of a

lawyer.” Ibid.

A. State Trial Court Proceedings

In 2017, Mr. Wright was charged with committing

a string of violent offenses. App., infra, 3a. After a

bench trial, the state court found him guilty of murder,

among other crimes and sentenced him to life in prison

without parole (LWOP) plus 18 years. App., infra, 7a.

At the commencement of proceedings against him,

Mr. Wright requested and received a court-appointed

attorney. App., infra, 4a. When the state decided to

seek the death-penalty,1 however, the court removed

his original counsel and appointed new, capitalqualified counsel.2 Ibid. Mr. Wright quickly became

dissatisfied with his capital-qualified counsel and

requested new counsel in November 2017. Ibid.

In January 2018, two years before trial, Mr. Wright

“notified the court of his preference to represent

himself.” App., infra, 4a. On multiple occasions, Mr.

Wright reminded the court in writing that he wanted

to fire his capital-qualified counsel and proceed pro se.

App., infra, 4a, 30a.

To ensure compliance with Faretta, the trial court

engaged in “an extended colloquy” with Mr. Wright in

February 2018. App., infra, 4a. In the exchange, Mr.

Wright explained his position to the court:

Q. Okay. So I guess I’m trying to understand what

your position is here. Are you asking to act as your

own attorney or—

A. —yes—

Q. —or is it something in the nature that you just

would like—

A. —I do not wish to have a State-appointed

attorney anymore at this time.

1 The state later withdrew its request for the death penalty and

requested LWOP. App., infra, 7a.

2 Under Indiana state law, an indigent defendant must be

represented by capital-qualified counsel in all cases in which the

state seeks the death penalty. State law details the required

qualifications for such an attorney. See Ind. R. Crim. P. 24(B).

Q. Is it these attorneys in particular or that you just

would like any other attorneys?

A. I would like no attorney.

Q. Okay. And so at the beginning of this case, you

got a full advisement of your rights and I explained

to you the right to an attorney.

A. Uh-huh, that’s correct.

Q. That if you couldn’t afford one, one would be

provided for you. I concluded you couldn’t afford an

attorney. I presume you can’t afford an attorney,

you don’t have the means; is that correct, to hire an

attorney?

A. That’s correct.

Q. So at that time you asked me to appoint an

attorney for you, and I did. I appointed Mr. Reid.

Do you remember Mr. Reid?

A. Yes.

Q. You got along okay with Mr. Reid didn’t you?

A. Yes.

Q. Okay. So what’s changed, then, since then? At

one point it seemed like you wanted to have an

attorney and then now it seems something seems

to be different.

A. What’s changed is I believe the attorneys’ [sic]

believed they were acting in my best interest,

which wasn’t my best interest because my only

interest was for a fast and speedy. And if I have an

attorney that refuses to give me what I want and is

violating my constitutional rights, I do not believe,

you know, I should have a State-appointed attorney

anymore. I was satisfied with Allan Reid’s work,

but you charged me with the death penalty, so he

could not be on my case anymore.

Q. So it’s not that you don’t want some other

attorney, because you understand—

A. —Well, I believe an attorney paid by the court is

not going to listen to anything I have to say and is

not going to give me what I want, because I do not

pay them.

Q. And what sort of information have you

developed since I had an attorney appointed for you

and have had attorneys appointed for you that’s

caused you to have this difference of conclusion?

What’s, what’s changed?

A. They refuse to give me access to my rights.

Q. Okay. And so do you want me to get you

somebody else or you—

A. —I wish to go pro se—

Q. —to handle it yourself?

A. Uh-huh.

App., infra, 51a-52a (Slaughter, J., dissenting).3

Under Indiana law, the transcript of the Faretta hearing is

sealed. See Ind. Access to Ct. Recs. R. 5(B). The complete

transcript has been filed in this Court as a separate appendix

under a motion to seal. See Suppl. Pet. App. Any portions the

petition itself quotes were published in the opinions below.

Afterward, the trial court held that Mr. Wright’s

waiver was knowing but was not unequivocal,

voluntary, or intelligent. App., infra, 6a. First, although the trial court found that Mr. Wright

“expressed wishes [to proceed pro se],” App., infra, 79a,

it held that his invocation was equivocal because he (1)

originally had asked the court to appoint him counsel

and (2) had speculated that a private lawyer would be

desirable but that he could not afford to hire one, App.,

infra, 6a. Second, it held that Mr. Wright’s invocation

was not voluntary because “‘his poverty’ precluded him

from retaining a private attorney, which he admittedly

preferred over court-appointed counsel.” Ibid. (citation

omitted). And third, the trial court held that Mr.

Wright’s waiver was knowingly but unintelligently

made. Ibid. It specifically found that his choice “arose

from a misunderstanding of his right to a fast and

speedy trial in a capital case and confusion over his

appointed-attorneys’ professional responsibilities.”

Ibid. (cleaned up).

B. Indiana Supreme Court Proceedings

Mr. Wright appealed his conviction to the Indiana

Supreme Court, arguing that he should have been

allowed to proceed pro se. App., infra, 7a.4 In a split

decision, the Indiana Supreme Court affirmed, holding

(1) that Mr. Wright’s invocation was equivocal and (2)

4 Mr. Wright also argued that his sentence warranted revision.

He does not seek certiorari on this question. See App., infra, 36a40a (upholding sentence as technically corrected).

that his waiver was voluntary and knowing but

unintelligent. App., infra, 28a.5

The Indiana Supreme Court first noted that, while

Faretta affirmed that the right to self-representation

is “fundamental,” App., infra, 10a, “Faretta and its

progeny ‘have made clear’ that this right ‘is not

absolute.’” App., infra, 16a (quoting Indiana v.

Edwards, 554 U.S. 164, 171 (2008)). Pointing to the

constitutional guarantee of appointed counsel for

indigent defendants and the increased availability of

counsel in general, App., infra, 14a-15a, the court

found “[t]he historical reasons for recognizing the right

to self-representation lack the same force today,” App.,

infra, 10a.

The Indiana Supreme Court then upheld the trial

court’s determination that Mr. Wright’s invocation

was equivocal. It conceded that “at the time of his

Faretta hearing, Wright seems to have abandoned his

desire for court-appointed counsel,” noting that

“[d]uring the colloquy, he insisted more than once that

he did not wish to have a State-appointed attorney

anymore at this time.” App., infra, 31a. The court

pointed, however, to Mr. Wright’s “acknowledged

preference for either private counsel or his original

attorney.” Ibid. This indicated “no strong autonomy

interest,” leading the court to conclude that there was

“little risk of violating his Sixth Amendment right” by

denying his request. Ibid.

5 The Indiana Supreme Court technically “remand[ed the case]

for the court to correct a minor oversight in its sentencing order.”

App., infra, 40a.

The Indiana Supreme Court next considered

whether Mr. Wright’s waiver of the right to counsel

was intelligent. It first argued that “[d]eath-penalty

and LWOP cases heighten the state’s interest in

ensuring compliance with constitutional guarantees of

fairness.” App., infra, 19a. In such cases, the trial

court must weigh the importance of the personal right

to self-representation against the state’s interests in

“the reliability and integrity” of the trial. App., infra,

21a. This “public interest,” it explained, “expands or

contracts in direct correlation with the severity of a

potential punishment a defendant faces at trial.” App.,

infra, 19a. And “[i]n capital cases and LWOP cases, a

trial court should frame its waiver inquiry with the

state’s heightened reliability interests in mind.” App.,

infra, 26a. “[T]he state’s heightened-reliability

interest” demands that the trial court “should focus its

[Faretta] inquiry on”: (1) “whether and to what extent

the defendant has prior experience with the legal

system”; (2) “the scope of the defendant’s knowledge of

criminal law, legal procedures, rules of evidence, and

sentencing”; and (3) defendant’s ability to “articulate

and present any possible defenses.” App., infra, 27a.

Applying these factors, the court expressed fear

that Wright would not represent himself well in his

capital-turned-LWOP trial. First, it found Mr.

Wright’s prior courtroom experience inadequate:

“[w]hile Mr. Wright had some prior experience with

the legal system” and had, in fact, represented himself

in a juvenile case, “he conceded to never having tried

a jury trial, never having picked a jury, never having

cross-examined a witness, and never having made a

closing argument.” App., infra, 32a. Second, “the scope

of Mr. Wright’s knowledge of the criminal law, legal

procedures, rules of evidence, and sentencing

appear[ed] limited at best.” App., infra, 32a-33a.

Third, “Wright articulated no specific defenses to his

crimes * * * or potentially useful mitigating evidence.”

App., infra, 33a. In sum, “[w]ith limited experience

navigating the legal system, with deficient knowledge

of criminal law and procedure, and with no apparent

defenses or trial strategy, Mr. Wright’s waiver of the

right to counsel * * * was not an intelligent one.” App.,

infra, 34a. “[T]hese factors,” the court noted, “may not

have led us to the same conclusion in a case with less

at stake, [but] the state has a much stronger interest

in ensuring a fair trial in this capital-turned-LWOP

case.” App., infra, 35a.

Justice Slaughter dissented. App., infra, 41a. He

began by articulating the values underpinning the

right to self-representation, namely “respect for the

individual” and “the nearly universal conviction that

forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself.” App., infra,

42a (quoting Edwards, 554 U.S. at 170 (cleaned up)).

He then found Mr. Wright’s waiver to be intelligent.

“Once the defendant understands the consequences of

waiving counsel and representing himself,” he explained, “the court must allow him to proceed pro se.”

App., infra, 43a. To him, the record showed that Mr.

Wright understood those consequences. App., infra,

44a. The trial court, he reasoned, had engaged in a

“lengthy,” “detailed,” and “thorough colloquy” with Mr.

Wright and had ensured after “extensive question[ing]” that he was “aware of the dangers and

disadvantages of self-representation.” App., infra, 43a45a. That court had explained the “myriad ways a

lawyer can assist a criminal defendant,” including “investigating criminal cases,” “gathering evidence,

“preparing and filing motions,” “responding to motions

filed by the State,” “evaluating the strengths and

weaknesses of the State’s case, advising whether

seeking a plea might be advantageous, and assisting

in negotiating a plea,” “pick[ing] a fair and impartial

jury,” “mak[ing] a favorable opening statement and

closing argument,” “object[ing] to inadmissible

evidence,” and “represent[ing] a capital defendant at

the sentencing phase.” App., infra, 45a-46a. Faretta,

he noted, “rejects” “[a]ny inquiry into a defendant’s

legal know-how.” App., infra, 48a (citing Faretta, 422

U.S. at 835). Since “an ‘intelligent’ waiver focuses only

on whether the defendant knows the dangers and

disadvantages of representing himself[,] ‘a defendant

need not himself have the skill and experience of a

lawyer in order competently and intelligently to choose

self-representation.’” Ibid. (quoting Faretta, 422 U.S.

at 835). Any such inquiry is “unwarranted.” Ibid.

Because the trial court had so thoroughly explained

those dangers and disadvantages, Justice Slaughter

concluded that Mr. Wright waived his right to counsel

with his “eyes open.” App., infra, 47a.

Justice Slaughter then argued that Mr. Wright

“unequivocal[ly]” invoked his right to represent

himself. App., infra, 48a. Justice Slaughter noted that

Mr. Wright “repeatedly emphasized his desire to

proceed pro se” in his colloquy and had done so even

more “emphatic[ally] and “decisive[ly]” than in past

cases where the court had found invocation

“unequivocal.” App., infra, 50a. That Mr. Wright may

have preferred representation by non-capital-qualified

or unaffordable private counsel made no difference to

Justice Slaughter. See App., infra, 48a-53a.

Justice Slaughter also criticized the court’s

“Faretta-plus test.” App., infra, 53a. “No Supreme

Court precedent,” he argued, “holds that the Faretta

analysis changes when a defendant’s decision could be

a matter of life or death. Indeed, the Supreme Court

has not once espoused today’s approach—despite

addressing Faretta in the context of capital cases a

number of times.” App., infra, 54a (citing Godinez v.

Moran, 509 U.S. 389, 400-401 (1993) and Patterson v.

Illinois, 487 U.S. 285, 297-298 (1988)). “The only issues here should be whether Wright invoked his right

to self-representation unequivocally and waived his

right to counsel knowingly, intelligently, and

voluntarily. Either he did, or he did not. These are binary questions not subject to tailoring.” Ibid.

Justice Massa concurred in the result. “It is hard to

quarrel,” he admitted, “with much of the dissenting

opinion.” App., infra, 41a. In particular, he agreed

with Justice Slaughter that Mr. Wright’s waiver was

knowing and intelligent. Justice Massa also criticized

the court for “till[ing] new constitutional soil in

suggesting the standard for waiving the right to

counsel varies depending on the seriousness of the

case” and for “weigh[ing] Zachariah Wright’s legal

skills in assessing the knowing and intelligent nature

of his waiver in a way explicitly rejected by * * *

Faretta.” Ibid. He agreed with the court, however, that

Mr. Wright’s invocation was equivocal because he preferred either to retain private counsel or to get back

his former, non-capital-qualified counsel. Ibid.

REASONS FOR GRANTING THE PETITION

I. The Decision Below Entrenches A Split

Among The Federal Courts Of Appeals And

State High Courts On Two Issues

The decision below entrenches a split among the

federal courts of appeals and state high courts on two

issues central to a defendant’s right to selfrepresentation. The first is whether a defendant’s

request to represent himself must reflect a preference

for self-representation over even unavailable

alternatives in order to be unequivocal. The second is

whether, how, and when a court should override a

defendant’s right to self-representation when he faces

the possibility of severe penalties, like death and

LWOP.

Where, as here, there is a split among the federal

courts of appeals and state high courts, only this

Court’s review can provide uniformity and clear

guidance.

A. The Decision Below Expands A Conflict

Over Whether An Unequivocal Invocation

Of The Right To Self-Representation

Requires A Defendant To Prefer SelfRepresentation Over Even Unavailable

Alternatives

The decision below expands a split among the

federal courts of appeals and state high courts as to

whether, in order to be unequivocal, a defendant’s

request to represent himself must reflect a preference

for self-representation over even unavailable

alternatives. The issue commonly arises when a

defendant who is dissatisfied with his appointed

counsel requests to represent himself in the

alternative to a request for substitute counsel.

Jurisdictions that have considered the issue have

taken three distinct approaches. Indiana holds that a

request for self-representation is equivocal, and

therefore invalid, if a defendant has an acknowledged

preference for other, unavailable options, such as noncapital-qualified counsel in a capital case. Montana,

Pennsylvania, and Washington hold that, under a

totality-of-the-circumstances approach, a defendant’s

preference for alternatives, even if they are potentially

unavailable, can support a finding that his selfrepresentation request is equivocal. Most jurisdictions

that have considered the issue, by contrast, have

concluded that a defendant’s request to represent

himself need not demonstrate a preference for selfrepresentation over even unavailable alternatives in

order to be unequivocal. These jurisdictions hold that

a defendant’s request for self-representation is not

equivocal merely because it is motivated by

dissatisfaction with existing counsel—rather than by

opposition to representation by counsel generally—or

because it is made in the alternative to a request for

different counsel.

1. The Indiana Supreme Court Holds That

A Request For Self-Representation Is

Equivocal, And Therefore Invalid, If A

Defendant Has An Acknowledged

Preference For Even Unavailable

Options

The Indiana Supreme Court holds that a

defendant’s request for self-representation is

equivocal, and therefore invalid, if a defendant has a

preference for other alternatives, even when those

other alternatives are unavailable or impossible. See

App., infra, 30a-31a (holding that petitioner’s express

request to represent himself was not an unequivocal

assertion of the right to self-representation because

petitioner had an “acknowledged preference for either

private counsel,” whom he could not afford, “or his

original attorney,” who was not capital-qualified).

The Supreme Court of Indiana justified its holding

on the basis that the Sixth Amendment’s right to selfrepresentation protects a defendant’s autonomy

interest. The court explained that petitioner’s

“acknowledged preference for either private counsel or

his original attorney indicate[d] no strong autonomy

interest” and therefore there was “little risk of

violating his Sixth Amendment right to selfrepresent.” See App., infra, 31a.

2. The Supreme Courts Of Montana,

Pennsylvania, and Washington, Under A

Totality-Of-The-Circumstances Approach,

Will Consider A Defendant’s Preference

For Alternatives, Regardless Of Their

Availability, As Supporting The Equivocal

Nature Of A Self-Representation Request

The Supreme Courts of Montana, Pennsylvania,

and Washington take a totality-of-the-circumstances

approach to determining whether a defendant’s

request for self-representation is unequivocal. These

courts have indicated that a defendant’s acknowledged

preference for other alternatives, regardless of the

availability of those alternatives, can weigh in favor of

finding that a request for self-representation is

equivocal. See State v. Swan, 10 P.3d 102, 104, 107

(Mont. 2000) (holding, after reviewing the record as a

whole, that defendant’s request to represent himself

was equivocal because defendant had admitted that he

actually wanted access to the law library and

substitute counsel); Commonwealth v. Davido, 868

A.2d 431, 440 (Pa. 2005) (similar); State v. Stenson,

940 P.2d 1239, 1275-1276 (Wash. 1997) (similar).

The Supreme Court of Washington has explained

that, because an unequivocal request for self-representation requires the court to be “reasonably certain that

the defendant wishes to represent himself,” the trial

court must determine both “whether a request for selfrepresentation was made at all and, if so, whether that

request reflected a desire to exercise the right to selfrepresentation.” State v. Curry, 423 P.3d 179, 186

(Wash. 2018). A court must examine the “nature of the

request itself ” and, although “whether the request was

made as an alternative to other, preferable options” is

“not dispositive,” it is a “[r]elevant consideration[ ] .” Id.

at 184-186. The Supreme Court of Washington has

also emphasized that trial courts must “indulge in

every reasonable presumption against a defendant’s

waiver” of the right to counsel before granting a defendant’s request to represent himself. Id. at 184

(cleaned up).

3. Most Jurisdictions That Have Considered

The Issue Do Not Require That A Defendant’s Request For Self-Representation

Demonstrate A Preference For SelfRepresentation Over Even Unavailable

Alternatives In Order To Be Unequivocal

Most jurisdictions that have considered the issue

have not required a defendant to demonstrate a

preference for self-representation over unavailable

alternatives for his request for self-representation to

be unequivocal.

The First, Second, and Ninth Circuits and the

Supreme Courts of California, Connecticut, Florida,

Minnesota, Nevada, New Mexico, North Carolina, and

Utah hold that a request for self-representation is not

equivocal merely because a defendant has an

acknowledged preference for unavailable counsel, such

as when a defendant requests to represent himself in

the alternative to a request for substitute counsel and

the request for substitute counsel is denied.6

The Second, Third, Fifth, and Seventh Circuits and

the Kentucky Supreme Court hold, moreover, that a

defendant’s request for self-representation is not

equivocal merely because it is motivated by

dissatisfaction with existing counsel rather than by

opposition to representation by counsel generally.7 A

defendant could, therefore, prefer some other counsel

whom the court would not appoint and still

unequivocally invoke his right to represent himself.

6 See United States v. Gonzalez-Arias, 946 F.3d 17, 38 (1st Cir.

2019) (holding that although self-representation was not

Gonzalez-Arias’ “first choice,” as recognized by the judge, his

response that it was “fine” to proceed pro se, after rejecting his

existing counsel, was “express and firm”); Williams v. Bartlett, 44

F.3d 95, 100 (2d Cir. 1994) (similar); Tamplin v. Muniz, 894 F.3d

1076, 1084 (9th Cir. 2018) (similar); People v. Michaels, 49 P.3d

1032, 1055 (Cal. 2002) (similar); State v. Jordan, 44 A.3d 794, 809

(Conn. 2012) (similar); Pasha v. State, 39 So. 3d 1259, 1262 (Fla.

2010) (similar); State v. Richards, 456 N.W.2d 260, 264 (Minn.

1990) (similar); Gallego v. State, 23 P.3d 227, 236 (Nev. 2001)

(similar), abrogated on other grounds, Nunnery v. State, 263 P.3d

235 (Nev. 2011); State v. Stallings, 476 P.3d 905, 918-919 (N.M.

2020) (similar); State v. Cunningham, 474 S.E.2d 772, 775-776

(N.C. 1996) (similar); State v. Bakalov, 979 P.2d 799, 810 (Utah

1999) (similar).

7 See Freeman v. Pierce, 878 F.3d 580, 588-589 (7th Cir. 2017)

(“Dissatisfaction with counsel does not make a selfrepresentation request equivocal, and again, Faretta forecloses

such an argument.”); Wilson v. Walker, 204 F.3d 33, 37 n.3 (2d

Cir. 2000) (similar); Buhl v. Cooksey, 233 F.3d 783, 794 (3d Cir.

2000) (similar); Batchelor v. Cain, 682 F.3d 400, 408 (5th Cir.

2012) (similar); King v. Commonwealth, 374 S.W.3d 281, 292 (Ky.

2012) (similar).

Courts have presented practical and doctrinal

justifications for holding that a defendant’s request for

self-representation need not demonstrate a preference

for self-representation over all other, even

unavailable, options to be unequivocal. The Third

Circuit, in Buhl v. Cooksey, for example, explained

that “[c]ommon sense suggests (and experience

confirms) that nearly every request to proceed pro se

will be based upon a defendant’s dissatisfaction with

counsel.” 233 F.3d at 794. The Seventh Circuit has

similarly noted that the “right of self-representation

would be virtually impossible to invoke if

dissatisfaction with counsel meant equivocation since

most requests to proceed pro se are premised on

precisely those grounds.” Freeman, 897 F.3d at 588589. The Ninth Circuit has emphasized that Faretta

requires the majority approach, as Faretta himself

“wanted to be represented” and “[h]is only objection

was to representation by a public defender.” Tamplin,

894 F.3d at 1084.

B. The Federal Circuits and State High

Courts Are Split Over Whether To

Override

The

Right

SelfRepresentation In High-Penalty Cases

The decision below also deepens an existing split on

whether to override the right to self-representation in

high-penalty cases when the court fears the quality of

representation will be inadequate. State high courts in

Indiana, New Jersey, and Florida reason that

heightened state interests in accuracy and reliability

in high-penalty cases require courts to evaluate

defendants’ quality of self-representation. Upon a

finding that the quality of representation has dropped

or will drop below the court’s standards, courts in

these states will override defendants’ right to selfrepresentation, either by denying it entirely or by

narrowing the extent to which pro se defendants are

allowed to control their own defense. The majority

position, by contrast, permits defendants to exercise

their right to self-representation regardless of the

severity of the potential penalties or defendants’

quality of self-representation.

1. Indiana, New Jersey, And Florida

Override The Right To Self-Representation In Cases With High Penalties

When

They

Fear

Poor

SelfRepresentation

The Indiana, New Jersey, and Florida Supreme

Courts agree that allowing defendants to selfrepresent in high-penalty cases poses a severe

constitutional challenge. The Faretta right can be

“difficult to square” with states’ interest in accuracy

and constitutional guarantees of fair trials and

individualized sentencing in capital cases. Barnes v.

State, 29 So. 3d 1010, 1024-1026 (Fla. 2010) (quoting

State v. Reddish, 859 A.2d 1173, 1204 (N.J. 2004). The

“tension” between these competing interests “reaches

its breaking point” in high penalty-cases, such as

“when a defendant faces death or life in prison without

the possibility of parole.” App., infra, 19a; see also

App., infra, 25a (“[W]ithout meaningful adversarial

testing by professionally trained counsel, there are

few, if any, safeguards to protect the state’s

heightened-reliability interest when a pro se

defendant proves unwilling or unable to present the

necessary mitigating evidence at trial.”). These states

therefore balance Faretta’s “autonomy interest” in

controlling one’s own defense against “the State’s

constitutionally-mandated need for reliability,”

holding that “the right to self-representation is not

absolute. There may be times * * * when the defendant

will be required to cede control of his defense to protect

the integrity of the State’s interest[s] in fair trials and

* * * reliability demanded by the Constitution.”

Reddish, 859 A.2d at 1192-1193. In high-penalty cases,

when a “defendant’s representation of himself falls

below minimal standards of acceptability,” courts in

these states may find that “[t]he right to a fair trial

* * * is paramount to the right of self-representation”

and thereby override the Faretta right. Id. at 1203.

Indiana takes an all-or-nothing approach to

restricting the right to self-representation in highpenalty cases, raising the standard for “knowing and

intelligent” waiver of the right to counsel so high that

defendants without demonstrated legal acumen or

without an articulated plan for presenting defenses

are

categorically

barred

from

representing

themselves. New Jersey and Florida, meanwhile,

allow all defendants to knowingly and intelligently

waive the right to counsel, see Reddish, 859 A.2d at

1196; Hooks v. State, 286 So. 3d 163, 168 (Fla. 2019),

but tailor self-representation to “correct” any expected

shortfalls in its quality. These states hold that in some

high-penalty cases standby counsel may override a pro

se defendant’s insufficiently planned trial strategy.

Reddish, 859 A.2d at 1204; Barnes, 29 So. 3d at 1024.

First, the court below restricted access to the right

to self-representation in high-penalty cases by raising

the bar for “knowing and intelligent” waiver of the

right to counsel so high that only defendants who can

demonstrate great legal acumen may self-represent.

Employing a “Faretta-plus test,” App., infra, 53a

(Slaughter, J., dissenting), the Indiana Supreme Court

held that even though Mr. Wright “understood” the

risks of proceeding pro se and “knowingly waived his

right to counsel,” App., infra, 29a, “his decision was not

made intelligently.” App., infra, 31a. As the court

noted, he had never “tried a jury trial,” “picked a jury,”

“cross-examined a witness,” or “made a closing

argument,” he had no formal legal training, he asked

the court for guidance in how to file the five motions

he had planned, and he could not—years before trial—

outline his intended defenses, mitigating evidence,

and trial strategy as part of his request for selfrepresentation. App., infra, 32a-34a. The Indiana

Supreme Court held his waiver of his right to counsel

unintelligent not because he did not make his choice

“with eyes open,” Faretta, 422 U.S. at 835, but because

his legal education, legal acumen, and planned trial

strategy were, to its eyes, inadequate.

The court explicitly imposed this higher standard

of intelligence on Mr. Wright because his case involved

the potential for a severe penalty. “[W]hile these

factors may not have led us to the same conclusion in

a case with less at stake,” it noted, “the state has a

much stronger interest in ensuring a fair trial in this

capital-turned-LWOP case.” App., infra, 34a-35a.

Indeed, in the non-capital, non-LWOP case Leonard v.

State, the Indiana Supreme Court held that

defendant’s waiver was “knowing and intelligent”

based on the sufficiency of the trial court’s colloquy

without ever evaluating the defendant’s education,

legal acumen, or planned trial strategy. 579 N.E.2d

1294, 1295-1296 (Ind. 1991).

Second, New Jersey and Florida override the right

of self-representation in high-penalty cases by

sometimes requiring the trial court to appoint standby counsel who can present mitigating evidence

against a defendant’s wishes and even take over the

defense. Reddish, 859 A.2d at 1204; Barnes, 29 So. 3d

at 1024 (“[W]e agree with the Supreme Court of New

Jersey in State v. Reddish.”). While Faretta expressly

holds that a defendant’s “technical legal knowledge” is

“not relevant to an assessment of his knowing exercise

of the right to defend himself,” 422 U.S. at 836, these

states will curtail that right “if it becomes apparent

that the defendant’s representation of himself falls

below minimal standards of acceptability,” Reddish,

859 A.2d at 1203. Recognizing that “a pro se defendant

is entitled to maintain control over his defense

strategy,” ibid., the New Jersey Supreme Court

nonetheless holds that the Eighth Amendment

requires the “active participation by standby counsel”

“over the pro se defendant’s objections” to ensure that

the sentencing jury can “make an individualized

judgment based on a fair presentation of mitigating

evidence.” Id. at 1203-1204; see also Barnes, 29 So. 3d

at 1026 (holding that a defendant’s “right to selfrepresentation [is] not violated” by the appointment of

mitigation counsel “to assist the court by presenting

mitigation evidence where [defendant] refuse[s] to do

so”).

2. The Majority Position Respects A

Defendant’s Right To Self-Representation Without Considering The

Expected Quality Of Representation,

Regardless Of The Penalty’s Severity

The majority position among federal courts of

appeals and state high courts does not adjust the

availability of the right to self-representation based on

the quality of representation—even in high-penalty

cases. Three federal courts of appeals and two state

high courts flatly reject the premise that in highpenalty cases, important state interests justify

curtailing the right to self-representation for

defendants who lack legal acumen.8 As the Fifth

Circuit explained, self-representation is a “personal

right” “at the very heart of the Sixth Amendment.”

United States v. Davis, 285 F.3d 378, 384 (2002).

Although the desire to protect defendants from poor

self-representation can be “noble,” ibid., it

“mischaracterizes the scope of the sixth amendment

right granted in Faretta.” Silagy v. Peters, 905 F.2d

8 See United States v. Roof, 10 F.4th

314, 357 (4th Cir. 2021);

United States v. Davis, 285 F.3d 378, 384 (5th Cir. 2002); Silagy

v. Peters, 905 F.2d 986, 1007 (7th Cir. 1990); State v. Jones, 568

S.W.3d 101, 126 (Tenn. 2019) (rejecting argument that selfrepresentation in capital trials is “never beneficial” and should be

unconstitutional); People v. Coleman, 660 N.E.2d 919, 937 (Ill.

1995) (“We are not persuaded by defendant's argument that the

heightened need for reliability in capital cases justifies forcing the

accused to accept representation by counsel”).

986, 1007 (7th Cir. 1990). It is “[t]he defendant, and

not his lawyer or the State, who will bear the personal

consequences of a conviction,” and who must therefore

be free to choose his own defense. Davis, 285 F.3d at

384 (citation omitted). Countervailing constitutional

considerations, like the Eighth Amendment, do not

“dilute the potency” of the Sixth Amendment. United

States v. Roof, 10 F.4th 314, 356-357 (2021) (noting

that the Eighth Amendment does not prohibit

defendants from waiving other important procedural

protections, like the right to appeal).

Even without specifically addressing Indiana’s

premise—that high-penalty cases implicate important

state interests which justify overriding defendants’

right to self-representation—four federal courts of

appeals and nine state high courts reject overriding

the right to self-representation in high-penalty cases

because a lawyer can better represent the defendant.9

In these jurisdictions, a defendant’s lack of “ability to

conduct his own defense” does not “invalidate[ ] a

knowing and intelligent waiver.” State v. Richards,

456 N.W.2d 260, 265 (Minn. 1990). To hold

9 See Torres v. United States, 140 F.3d 392, 402 (2d Cir. 1998);

United States v. Peppers, 302 F.3d 120, 134 (3d Cir. 2002);

Freeman v. Pierce, 878 F.3d 580, 585-586 (7th Cir. 2017);

Hamilton v. Groose, 28 F.3d 859, 862 n.3 (8th Cir. 1994); Finch v.

State, 542 S.W.3d 143, 146 (Ark. 2018); People v. Butler, 219 P.3d

982, 990-991 (Cal. 2009); State v. Richards, 456 N.W.2d 260, 264265 (Minn. 1990); Evans v. State, 725 So. 2d 613, 703 (Miss. 1997);

State v. Black, 223 S.W.3d 149, 155 (Mo. 2007); State v. Gunther,

716 N.W.2d 691, 702-703 (Neb. 2006); State v. Taylor, 781 N.E.2d

72, 82 (Ohio 2002); Brown v. State, 422 P.3d 155, 162-163 (Okla.

Crim. App. 2018); State v. Hester, 324 S.W.3d 1, 32 (Tenn. 2010).

otherwise—as Indiana does—“would undermine the

constitutional guarantee to self-representation

identified in Faretta.” State v. Taylor, 781 N.E.2d 72,

82 (Ohio 2002). Consistent with this result, various

other federal courts of appeals and state high courts

have found knowing and intelligent waiver in highpenalty cases without examining the defendant’s

ability to self-represent.10

Three federal courts of appeals and three state high

courts specifically disagree with the New Jersey and

Florida approach, holding that standby counsel may

not present evidence over defendants’ objections—

even in high-penalty cases where defendants are not

expected to skillfully self-represent.11 In these

jurisdictions, a self-represented defendant facing

severe charges is able to choose what case to present

to the jury, regardless of whether his choice is wise or

whether “society would benefit from having a different

presentation of the evidence.” Davis, 285 F.3d at 385.

10 E.g., Government of the Virgin Islands v. Charles, 72 F.3d 401,

409 (3d Cir. 1995); Ex parte Ford, 515 So. 2d 48, 50 (Ala. 1987);

State v. Dann, 207 P.3d 604, 613 (Ariz. 2009); State v. Lovelace,

90 P.3d 278, 289 (Idaho 2003), on reh’g, 90 P.3d 298 (Idaho 2004);

State v. Lankford, 781 P.2d 197, 202 (Idaho 1989); People v.

Haynes, 673 N.E.2d 318, 337 (Ill. 1996); State v. Rich, 484 S.E.2d

394, 402 (N.C. 1997); Commonwealth v. Davis, 388 A.2d 324, 328

(Pa. 1978); State v. Starnes, 698 S.E.2d 604, 610-611 (S.C. 2010);

Moore v. State, 999 S.W.2d 385, 396 (Tex. Crim. App. 1999).

11 See Roof, 10 F.4th at 356; Davis, 285 F.3d at 384; Silagy, 905

F.2d at 1007; Coleman, 660 N.E.2d at 937; Bishop v. State, 597

P.2d 273, 276 (Nev. 1979); State v. Arguelles, 63 P.3d 731, 753

(Utah 2003).

As a result of this conflict, Mr. Wright’s ability to

waive his right to counsel became contingent on the

jurisdiction in which he was charged. If Mr. Wright

had been charged in federal court rather than Indiana

state court, for example, his lack of legal acumen

would not have mattered. See Silagy, 905 F.2d at 1008;

Freeman, 878 F.3d at 584-587 (holding that a

defendant with an eighth-grade education and without

any legal experience knowingly and intelligently

waived the right to counsel and could represent

himself against charges of first-degree murder and

kidnapping).

II. The Decision Below Misunderstands Faretta

And Hollows Out The Right To SelfRepresentation

The Sixth Amendment guarantees every criminal

defendant the right to represent himself at trial.

Faretta v. California, 422 U.S. 806, 807 (1975). Even

though the amendment also promises the “assistance”

of a state-appointed attorney, see Gideon v.

Wainwright, 372 U.S. 335, 339 (1963), “thrust[ing]

counsel upon the accused, against his considered wish

* * * violates the logic of the [Sixth] Amendment.”

Faretta, 422 U.S. at 820. The weight of English and

colonial common law supports this “natural[ ]

read[ing]” of the text. Id. at 818-832; see also Martinez

v. Court of Appeal, 528 U.S. 152, 165 (2000) (Scalia, J.,

concurring in the judgment) (“I have no doubt that the

Framers of our Constitution * * * would not have

found acceptable the compulsory assignment of

counsel by the government to plead a criminal

defendant’s case.”).

This right protects the core constitutional value of

individual autonomy. Martinez, 528 U.S. at 160. It

embodies the “nearly universal conviction” that

“forcing a lawyer upon an unwilling defendant” is

contrary to the “fair administration of American

justice.” Faretta, 422 U.S. at 817-818. Because a

person’s life and liberty hinge on the outcome of a

criminal proceeding, a defendant facing trial has a

right to choose whether he will submit to the

representation of state-imposed counsel or plead his

own case. See McKaskle v. Wiggins, 465 U.S. 168, 174

(1984). The defendant, after all, not the state, will

“bear the personal consequences of a conviction. It is

the defendant, therefore, who must be free personally

to decide whether in his particular case counsel is to

his advantage.” Faretta, 422 U.S. at 834.

Even if a judge thinks that a defendant’s choice to

represent himself will probably hurt him, the judge

must honor it. Faretta, 422 U.S. at 834. The

defendant’s choice, not his likelihood of success, is

what matters. See Godinez v. Moran, 509 U.S. 389,

399-400 (1993). “[R]espect for the individual * * * is

the lifeblood of the law.” Faretta, 422 U.S. at 834

(quoting Illinois v. Allen, 397 U.S. 337, 351 (1970)

(Brennan, J., concurring)). “Our system of laws

generally presumes that the criminal defendant, after

being fully informed, knows his own best interests and

does not need them dictated by the State. Any other

approach is unworthy of a free people.” Martinez, 528

U.S. at 165 (Scalia, J., concurring in the judgment).

A defendant’s choice to proceed pro se involves two

important but simple components: invocation and

waiver. To invoke his right to self-representation, a

defendant must state his decision “unequivocally.” See

Faretta, 422 U.S. at 835. To waive his complementary

right to counsel, a defendant’s choice must be

“knowing[] and intelligent[ ] .” Ibid.

Yet the Indiana Supreme Court has misconstrued

both of these requirements. First, the court wrongly

held that a request for self-representation is not

“unequivocal” if it is motivated by a failure to obtain

unavailable counsel (either because defendant cannot

afford preferred private counsel or his preferred

publicly provided counsel is legally unqualified). App.,

infra, 31a. Second, the court refused to let petitioner

represent himself against eventual LWOP-charges

because he lacked sufficient legal skills and acumen,

App., infra, 31a-35a, a standard of intelligence that

this court has explicitly rejected, see Godinez, 509 U.S.

at 399-400. These two holdings flout this Court’s

precedent and impermissibly curtail petitioner’s Sixth

Amendment rights. Both constitute reversible error.

A. A Preference For Unavailable Counsel

Does Not Make A Defendant’s Express

Desire To Proceed Pro Se Equivocal

Petitioner’s preference for unaffordable private

counsel or particular counsel who was not capitalqualified and so could not represent him does not

obviate his alternative, unequivocal request to represent himself. While this Court has not considered the

clarity of a defendant’s request to proceed pro se, lower

courts routinely hold that a defendant’s invocation of

Sixth Amendment rights must be unequivocal to be

effective. See, e.g., United States v. Barton, 712 F.3d

111, 118 (2d Cir. 2013); United States v. Long, 597 F.3d

720, 724 (5th Cir. 2010); United States v. Erskine, 355

F.3d 1161, 1167 (9th Cir. 2004). This rule makes sense.

The court below did more, however, than require

clarity. It wrongly conceptualized petitioner’s choice as

a simple binary: either he wanted counsel or he did

not. See App., infra, 30a-31a. Thus, since he asserted

a preference for some attorney—even an attorney that

he could not have—he “indicat[ed]” that there was “no

strong autonomy interest” at stake, and there was

“little risk” of a forced appointment violating

petitioner’s rights. App., infra, 31a.

This misunderstands Faretta and its progeny. This

Court has always discussed the choice to self-represent

in terms of whether there was an invocation; it has not

scrutinized the set of preferences that led a defendant

to invoke his right. See Indiana v. Edwards, 554 U.S.

164, 169-172 (2008) (reviewing relevant precedents).

In none of this Court’s Sixth Amendment cases did a

preference for unavailable counsel affect whether the

right was properly invoked. See, e.g., Faretta 422 U.S.

at 834-835; Godinez, 509 U.S. at 401-402.

Indiana’s rule also ignores the complexities of a

criminal defendant’s choices. Defendants often choose

to represent themselves as a second or third choice,

perhaps because they did not see eye-to-eye with

previous attorneys or cannot afford their preferred

lawyer. See, e.g., Pasha v. State, 39 So. 3d 1259, 1262

(Fla. 2010); Barton, 712 F.3d at 119; Tamplin v.

Muniz, 894 F.3d 1076, 1084 (9th Cir. 2018). But a

second or third choice—provided it is the first choice

among the options truly available—is no less clear a

choice. A defendant is perfectly free to prefer no

counsel to those actually available to him. The Indiana

Supreme Court presumed, however, that if a

defendant has expressed a preference for a different,

unavailable attorney at any point, then he has

manifested a desire for any available counsel. App.,

infra, at 30a-31a.

That does not follow. If a defendant says that he

prefers unavailable counsel to self-representation but

expresses an even stronger preference for selfrepresentation

over

available

counsel,

unequivocally invokes his right to proceed pro se. Of

the real options before him, Mr. Wright clearly chose

to represent himself. See, e.g., App., infra, 4a-5a, 51a

(“I would like no attorney.”). Once it was clear in this

case that representation by his old counsel or private

counsel was off the table, petitioner never wavered in

his request to proceed pro se. See App., infra, at 4a-5a

(noting that he made an unconditional request to

represent himself two years before trial).

In holding that Mr. Wright did not unequivocally

invoke his right to self-representation, the Indiana

Supreme Court established a rule that harms indigent

defendants. For the poorest individuals, the choice in

a criminal trial is between state-appointed counsel and

no counsel at all. See Gideon, 372 U.S. at 344; Akhil

Reed Amar, Sixth Amendment First Principles, 84

Geo. L.J. 641, 707-708 (1996). But, under Indiana’s

rule, a defendant who admits a preference for

unavailable counsel over his present court-appointed

counsel can never unequivocally invoke his right to

represent himself given the alternatives actually

available.

Furthermore, when a trial court overrides a

defendant’s clear preference to represent himself, it

erodes the perception of procedural fairness. “To force

a lawyer on a defendant can only lead him to believe

that the law contrives against him.” Faretta, 422 U.S.

at 834. It is, as Justice Frankfurter wrote, to “imprison

a man in his privileges and call it the Constitution.”

Adams v. United States ex rel. McCann, 317 U.S. 269,

280 (1942). Not only does forced representation cause

a defendant to subjectively doubt the legitimacy of his

conviction, but it also undermines society’s belief in

the impartiality of the judicial process. It is “the

epitome of both actual and apparent unfairness for the

judge to say, I have heard your desire to proceed by

yourself and I’ve denied your request, so your attorney

will speak for you from now on.” Edwards, 554 U.S. at

187-188 (Scalia, J., dissenting) (cleaned up).

Indeed, the entire point of Faretta is to respect the

choices made by criminal defendants. Faretta, 422

U.S. at 834. The right to self-representation is rooted

in the “inestimable worth of free choice.” Ibid. There

are, of course, obvious limits to this principle. See

Edwards, 554 U.S. at 171. A defendant cannot

intentionally disrespect or obstruct the proceedings.

Faretta, 422 U.S. at 835 n.46 (noting there is no right

to “abuse the dignity of the courtroom”). Nor can a

defendant self-represent as a bad-faith dilatory tactic.

Ibid. But the simple fact that a defendant wants

counsel that he cannot have does not make his choice

to self-represent any less clear. When Mr. Wright

clearly insisted that he did “not wish to have a Stateappointed attorney anymore,” App., infra, at 5a, the

invocation inquiry should have ended. For the Indiana

Supreme Court to conclude otherwise cuts at the very

heart of the Sixth Amendment.

B. Waiving The Right To Counsel “With Eyes

Open” Does Not Require Specialized Legal

Knowledge Even In High-Penalty Cases

In the Faretta line of cases, this Court has

consistently held that defendants who wish to

represent themselves need no specialized legal

knowledge to intelligently waive their right to counsel.

Faretta, 422 U.S. at 835-836 (“[Faretta’s] technical

legal knowledge * * * was not relevant to an

assessment of his knowing exercise of the right to

defend himself.”). So long as a defendant understands

what he is giving up, he can intelligently waive his

right to counsel—whether or not he has sufficient legal

knowledge and skill to represent himself well. Id. at

835.

The court below flouted this rule. Because Mr.

Wright faced LWOP, it required him to demonstrate

that he could represent himself well rather than that

he understood how his defense might be harmed

without an attorney.

Looking to whether the defendant understands

what he is giving up, rather than to how well he can

perform in the courtroom, vindicates the principles of

personal autonomy and procedural fairness that

undergird the Sixth Amendment right to selfrepresentation. Doing the reverse would bar many

individuals from giving up a right they fully

understand, causing them to “believe that the law

contrives against [them].” Faretta, 422 U.S. at 834.

And, in fact, forcing an attorney onto an unwilling

defendant does not ensure the attorney’s legal training

will be valuable because, as this Court has recognized,

“where the defendant will not voluntarily accept

representation by counsel, the potential advantage of

a lawyer’s training and experience can be realized, if

at all, only imperfectly.” Ibid.

The “Faretta-plus test,” App., infra, 53a (Slaughter,

J., dissenting), the court applied here was not just

“heightened,” App., infra, 26a, which would have been

problem enough. Worse still, it transformed the

inquiry of whether there had been intelligent waiver

into one which tested the defendant’s legal knowledge

and skill. Because “the state has a much stronger

interest in ensuring a fair trial in this capital-turnedLWOP case,” App., infra, 35a, the court focused on

something other than Mr. Wright’s understanding of

what he was giving up: his capacity to perform in

court. But no defendant should have to be a “Perry

Mason” to defend himself—even in capital and LWOP

cases.

Godinez, another capital-turned-LWOP case,

makes this clear. There, this Court considered what

standard of competency applied to a defendant’s choice

to represent himself. It held that “while ‘[i]t is

undeniable that in most criminal prosecutions

defendants could better defend with counsel’s

guidance than by their own unskilled efforts,’ a

criminal defendant’s ability to represent himself has

no bearing upon his competence to choose selfrepresentation.” 509 U.S. at 400 (cleaned up) (quoting

Faretta, 422 U.S. at 834). It also laid out how

competence to waive the right to counsel differs from

intelligence to do so—the issue in this case. The Court

explained:

The focus of a competency inquiry is the

defendant’s mental capacity; the question is

whether he has the ability to understand the

proceedings. The purpose of the “knowing[, i.e.,

intelligent,] and voluntary” inquiry, by contrast, is

to determine whether the defendant actually does

understand the significance and consequences of a

particular decision and whether the decision is

uncoerced.

Id. at 401 n.12 (cleaned up). But a defendant’s

predicted courtroom performance has no more to do

with “whether [he] actually does understand the

significance and consequences” of giving up his right

to counsel than it does with whether he can

“understand the proceedings.” Ibid. Expected

courtroom performance bears the same relation to the

one inquiry as it does to the other—none at all.

The Indiana Supreme Court’s treatment of Mr.

Wright’s colloquy with the trial judge confirms its

mistaken focus on how well Mr. Wright would

represent himself. During questioning, Mr. Wright

“consistently responded that he understood” what

would be expected of him when he represented

himself. App., infra, 29a. However, because the court

determined he did not have a sufficient trial strategy

prepared coming into the colloquy—only a month after

he chose to represent himself and two years before the

trial, App., infra, 4a—and because he did not have a

sufficient “familiarity with legal procedures and rules

of evidence,” App., infra, 33a (citations omitted), it

deemed his waiver unintelligent, App., infra, 34a.

To make matters worse, the court below not only

improperly considered Mr. Wright’s technical legal

acumen, but condemned him for not having the legal

experience that even a seasoned attorney might lack.

The court lamented that Mr. Wright had never “tried

a jury trial,” “picked a jury,” “cross-examined a

witness,” or “made a closing argument,”12 and

dismissed the fact that he had previously represented

himself in a juvenile case because it was too dissimilar

from the case at bar. App., infra, 32a. Based on this

level of required legal expertise, it is not clear, other

than representing oneself in a prior criminal trial—or

perhaps even a prior capital or LWOP case—what

would satisfy the Indiana Supreme Court’s standard

for intelligent waiver. This misfocused standard would

indeed deny the right of self-representation to many

members of this Court.

III. This Case Is An Ideal Vehicle To Address This

Important

And

Frequently

Recurring

Question

The right to self-representation is as old as the

nation itself, Faretta v. California, 422 U.S. 806, 832

The Indiana Supreme Court’s focus on these specific

experiences is even more curious given that Mr. Wright waived

his right to a jury trial. App., infra, 7a.

(1975), and “is based on the * * * principle that a

defendant must be allowed to make his own choices

about the proper way to protect his own liberty.”

Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017).

Because this Court has recognized that the right is

“fundamental in nature,” Martinez v. Court of Appeal,

528 U.S. 152, 161 (2000) (quotation omitted), it “is

either respected or denied; its deprivation cannot be

harmless,” McKaskle v. Wiggins, 465 U.S. 168, 177 n.8

(1984). Courts have nevertheless increasingly

undermined this right by applying incorrect legal

standards for invocation and waiver.

By restricting the right at both ends, the Indiana

Supreme Court’s transformation of Faretta is the most

brazen. First, it imposes a high bar for invocation,

holding that a defendant has equivocated whenever he

has a preference for alternative counsel who are not

legally qualified or available to represent him.

Indigent defendants who wish to represent themselves

because they are unhappy with their appointed

counsel but would accept another, whom the court will

not appoint, will automatically fail this test. Second, in

capital and LWOP cases, the Indiana Supreme Court

holds that defendants can intelligently waive their

right to counsel only when they have considerable

courtroom experience and great legal know-how. Few

defendants—indigent or wealthy, uneducated or

highly educated—will be able to jump this hurdle.

These confused standards threaten both the

personal autonomy of defendants and the legitimacy of

the courts themselves. When the state forces an

attorney on an unwilling defendant, “the defense

presented is not the defense guaranteed him by the

Constitution, for, in a very real sense, it is not his

defense.” Faretta, 422 U.S. at 821. The defendant is

bound to believe that the criminal justice system is

engineering his defeat. Id. at 834. The government’s

overriding of defendant’s personal choices smacks of a

paternalism that can only undermine the public’s

belief in the legitimacy of the courts themselves.

This case provides an ideal vehicle for resolving

these important Sixth Amendment issues. It squarely

presents two separate issues dividing the lower courts,

both of which are central to the right to represent

oneself, and it involves no issues of fact—only pure

questions of law.

This Court’s review, moreover, would be outcomedeterminative. If a preference for unavailable counsel

does not render a request for self-representation

equivocal and if courts may not override the right to

self-representation in high-penalty cases when they

fear defendants will not represent themselves well,

Mr. Wright must have the right to proceed pro se.

The conflicting approaches of the federal courts of

appeals and state high courts on these two issues

reflect deep confusion. These issues are ripe for this

Court’s review and only this Court’s review can bring

uniformity and clarity.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

DANIEL R. ORTIZ

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

SUPREME COURT

LITIGATION CLINIC

580 Massie Road

Charlottesville, VA

22903

(434) 924-3127

dro@virginia.edu

OCTOBER 2021

APPENDIX

APPENDIX TABLE OF CONTENTS

Wright v. State, No. 20S-LW-260 (Ind. May 4,

2021) (opinion affirming trial court’s Finding

Of Guilt After Bench Trial and Sentence and

“remanding only for the court to correct a

minor oversight in its sentencing order”) ...... 1a

State v. Wright, No. 06D01-1706-MR-001078

(Ind. Super. Ct. Nov. 7, 2019) (Finding Of

Guilt After Bench Trial) ............................... 56a

State v. Wright, No. 06D01-1706-MR-001078

(Ind. Super. Ct. Jan. 3, 2020) (Sentence) .... 58a

State v. Wright, No. 06D01-1706-MR-001078

(Ind. Super. Ct. March 12, 2018) (Order

Denying Relief Upon Notice To The Court)

(denying defendant’s motion to represent

himself) ......................................................... 77a

FILED

May 4 2021, 3:26 pm

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Indiana Supreme Court

Supreme Court Case No. 20S-LW-260

Zachariah Brian Wright

Appellant (Defendant below)

-v-

State of Indiana

Appellee (Plaintiff below)

Argued: November 5, 2020  Decided: May 4, 2021

Direct Appeal from the Boone Superior Court

No. 06D01-1706-MR-1078

The Honorable Matthew C. Kincaid, Judge

_________________________________________________

Opinion by Justice J. Goff

Chief Justice Rush and Justice David concur.

Justice Massa concurs in result with separate opinion.

Justice Slaughter dissents with separate opinion.

Goff, Justice.

The Sixth Amendment right to counsel in a

criminal trial speaks “an obvious truth.” Gideon v.

Wainwright, 372 U.S. 335, 344 (1963). It marks the

very “foundation for our adversary system,” ensures

“fundamental human rights of life and liberty,” and

promotes our “universal sense of justice.” Martinez v.

Ryan, 566 U.S. 1, 12 (2012); Johnson v. Zerbst, 304

U.S. 458, 462 (1938); Betts v. Brady, 316 U.S. 455, 476

(1942) (Black, J., dissenting). But through the looking

glass of Gideon stands a corollary right—a

constitutional paradox—to waive the assistance of

counsel and “to conduct one’s own defense in propria

persona.” Faretta v. California, 422 U.S. 806, 816

(1975). Indeed, despite their common constitutional

foundation, the right to counsel and the right to selfrepresentation serve distinct and often conflicting

interests—the latter protecting a defendant’s personal

autonomy, the former guarding the integrity of our

criminal justice system. We confront this tension in

the case before us today.

The defendant here insists that the trial court

erred by denying his request to self-represent. We

agree that his waiver of the right to counsel was

knowing and voluntary. But because his waiver was

neither unequivocal nor intelligent, we hold that the

trial court properly denied his request to selfrepresent. And because neither his character nor the

nature of his offenses dictates otherwise, we hold that

the defendant’s sentence was not inappropriate. Thus,

we affirm the trial court’s decision on both grounds.

Facts and Procedural History

During the early morning hours of June 18, 2017,

Zachariah Wright, a nineteen-year-old on probation

for felony burglary, committed a string of offenses in

Lebanon, Indiana. The crime spree began with

Wright’s theft of a bike from the home of Darrin

Demaree. From there, Wright broke into the home of

Lynnetta Boice and Rick Barnard, where he stole

another bike, along with sundry items he found in the

garage and in a car parked in the home’s driveway.

Meanwhile, an elderly couple, Sonja and Max

Foster, lay asleep just a block away in the home they

had shared for nearly fifty years. Sometime just after

sunrise, Sonja awoke to find a tall, obscure figure—

later identified as Wright—standing in the doorway to

their bedroom. Before Sonja could react, Wright

walked quickly across the room, leaned over the bed,

and stabbed Max repeatedly. As Max struggled to

deflect the blade, Sonja retaliated, striking Wright on

the back with a baseball bat. Wright turned to Sonja

in response, slashing her across the face. In shock,

Sonja fled downstairs, bleeding profusely and unsure

of where to turn. Wright followed Sonja downstairs to

confront her. Sonja, having gathered her wits, escaped

through the front door after distracting her attacker.

But Wright caught up with her once again, pushing

her to the ground and attempting to set her clothes on

fire with a cigarette lighter. Unsuccessful, Wright fled

the scene, disposing of his boots in a nearby pond.

Sonja made her way to a neighbor’s house to call for

help. Max, however, succumbed to his wounds, having

been stabbed over thirty times.

The State charged Wright with, among other

things, murder, level-3 felony criminal confinement,

level-6 felony theft, level-5 felony burglary, and level2 felony attempted burglary.1 At his initial hearing in

late June 2017, Wright requested and received a

court-appointed attorney. When the State sought the

death penalty a few months later, the trial court

appointed new, capital-qualified counsel. See Ind.

Crim R. 24(B). Wright initially raised no objection to

his newly appointed lawyers. But in November 2017,

he wrote several letters and motions to the court

demanding a speedy trial, seeking to withdraw a

motion for continuance that his attorneys had filed,

and asking the court to appoint new counsel. In a pro

se “Application for Pauper Counsel,” Wright

demanded that his “new attorney” visit him

immediately and to refrain from filing motions

without his permission. The court denied each of these

requests.

In January 2018, Wright, by counsel, notified the

court of his preference to represent himself. At a

hearing the following month, the court engaged in an

extended colloquy with Wright. When asked to

explain his position, Wright expressed having had no

problem with his first appointed attorney, with whom

he admittedly “got along.” Tr. Vol. 4, p. 45. But his new

lawyers, he believed, “were [not] acting in [his] best

interest.” Id. According to Wright, they had “refused”

1 See Ind. Code § 35-42-1-1(1) (2017) (murder); I.C. § 35-42-3-3(a),

I.C. § 35-42-3-3(b)(2)(A) (criminal confinement); I.C. § 35-43-42(a) (theft); I.C. § 35-43-2-1 (burglary); I.C. § 35-43-2-1, I.C. § 3543-2-1(3)(A), I.C. § 35-41-5-1 (attempted burglary).

to request a “fast and speedy trial.” Id. at 43. When

asked to clarify, Wright stated that any “attorney paid

by the court is not going to listen to anything [he had]

to say.” Id. at 45.

The court, in turn, advised Wright that an attorney

“is trained by education” and possesses the skills

necessary to investigate a criminal case, to “pick a fair

and impartial jury,” to interrogate witnesses, to file

motions, to “properly present substantive defenses,” to

object to evidence, to preserve the record for appeal,

and to offer mitigating arguments at sentencing. Id.

at 46–49. What’s more, the court stated, “deathpenalty-qualified attorneys” have special training and

experience. Id. at 46. The court also warned Wright

that the prosecution had its own trained attorneys

and that, should Wright decide to represent himself,

he would not “receive any special treatment from the

court” and would be held “to the same standard” as a

practicing attorney. Id. at 49, 50. Proceeding without

professionally trained counsel, the court emphasized,

“to be blunt, can turn out to be a very bad decision in

many cases.” Id. at 50.

Wright responded repeatedly that he understood

each of these points. He acknowledged, however, that

attorneys “can be of some assistance in negotiating on

[his] behalf,” can “evaluate the strengths and

weaknesses of [his] case,” and can even give “expert

advice as to whether or not seeking a plea deal might

be advantageous.” Id. at 48. Still, he insisted, he met

“all the qualifications for going pro se,” and did “not

wish to have a State-appointed attorney anymore at

this time.” Id. at 43, 44.

The court then inquired about any “knowledge or

skill” Wright thought he could use to represent

himself. Id. at 51. In response, Wright cited his

independent study of law at the county jail and his

experience in the criminal and juvenile justice system.

Id. He admitted, however, to never having tried a jury

trial, never having picked a jury, never having crossexamined a witness, and never having made a closing

argument. Id. at 51–52. While insisting that his

“attorneys ha[d]n’t even challenged the death

penalty,” he agreed that it was “a little bit premature”

to conclude “whether the death penalty could be

challenged or not in this case.” Id. at 46–47. At the

conclusion of this colloquy, Wright referred to “five

motions” he had prepared and asked the court for

instructions on how to file them. Id. at 53.

The trial court denied the petition, explaining that

—based on “his request that the Court appoint him

counsel at the beginning of the case” and his

“speculation that a private lawyer would be

desirable”—Wright equivocated in his desire to selfrepresent. App. Vol. 2, p. 172. And while

acknowledging that Wright’s request was “knowingly

made,” the court concluded that it was “based upon a

misapprehended understanding of the law, not an

intelligent one.” Id. at 173. Specifically, the court

noted, Wright’s preference to self-represent arose

“from a misunderstanding of his right to a fast and

speedy trial in a capital case” and confusion over his

appointed-attorneys’ professional responsibilities. Id.

Finally, the court concluded that Wright’s desire to

represent himself wasn’t voluntary, as “his poverty”

precluded him from retaining a private attorney,

which he admittedly preferred over court-appointed

counsel. Id.

The State eventually withdrew its death-penalty

request, seeking instead a sentence of life in prison

without parole (or LWOP). In support of its LWOP

request, the State cited several aggravating factors:

(1) Wright’s probation status when committing

murder, (2) the commission of murder while

committing or attempting to commit burglary, and (3)

the commission of murder while committing or

attempting to commit rape. See I.C. § 35-50-29(b)(1)(B), (F); I.C. § 35-50-2-9(b)(9)(C).

Wright waived his right to a jury and the trial

court found him guilty of the offenses listed above,

sentencing him to an aggregate term of LWOP plus 18

years.2 In sentencing Wright, the trial court found the

State had established each of its proposed aggravating

factors. The court also noted the severity of the

murder and the number of crimes Wright had

committed. And while finding no statutory mitigators,

the court acknowledged Wright’s “very disadvantaged

childhood” and considered his young age and “hard

upbringing” as mitigating factors. App. Vol. 5, pp. 196,

205.

Wright, by counsel, sought direct appeal, arguing

(1) that the trial court erred by denying his request to

proceed pro se, and (2) that his sentence warrants

revision under Appellate Rule 7(B).

2 The trial court and the parties calculated Wright’s aggregate

sentence as LWOP plus 20.5 years. App. Vol. 5, p. 208; Appellant’s

Br. at 5; Appellee’s Br. at 5–6. But that result fails to account for

the sentencing split in Wright’s attempted-burglary conviction, a

portion of which the court ordered Wright to serve concurrent

with his 2.5-year sentence for burglary. See App. Vol. 5, p. 211.

We remand to the trial court only to correct this minor oversight.

Standards of Review

The trial court is uniquely situated to assess

whether a defendant has waived the right to counsel.

Poynter v. State, 749 N.E.2d 1122, 1128 (Ind. 2001)

(citation omitted). And when that court “has made the

proper inquiries and conveyed the proper

information,” and then “reaches a reasoned conclusion

about the defendant’s understanding of his rights and

voluntariness,” an appellate court, after a careful

review of the record, “will most likely uphold” the trial

court’s “decision to honor or deny the defendant’s

request to represent himself.” Id. (citation omitted).

A trial court’s sentencing decision likewise enjoys

general deference on appeal. Stephenson v. State, 29

N.E.3d 111, 122 (Ind. 2015). But this Court may,

under Indiana Appellate Rule 7(B), revise a sentence

if “compelling evidence” shows that it’s “inappropriate

in light of the nature of the offense and the character

of the offender.” Id.

Discussion and Decision

Our decision below proceeds in two parts. We first

consider Wright’s claim that the trial court erred by

denying his request to self-represent, ultimately

concluding that, because his waiver of the right to

counsel was neither unequivocal nor intelligent, the

trial court properly denied his request. We then

address Wright’s claim that his sentence warrants

revision under Appellate Rule 7(B). Our analysis of

Wright’s offenses and his character leads us to

conclude that his sentence was not inappropriate.

I. The trial court properly denied Wright’s

request to represent himself.

In reaching our conclusion on the first issue here,

we begin our discussion by analyzing a defendant’s

Sixth Amendment right to self-representation. See

infra Section I.A. Here, we survey the history and

scope of that right—from its colonial-era origins, to its

express recognition by the United States Supreme

Court, to its limitations under our modern

jurisprudence. See infra Sections I.A.1–2. With this

context in mind, we then examine the inherent

tensions between a defendant’s right to selfrepresentation and the state’s obligation to ensure a

fair and meaningful trial—a tension that often

reaches its breaking point when a defendant faces

death or life in prison without the possibility of parole.

See infra Section I.B.1. Recognizing the potential for

constitutional impasse, we offer guidance to trial

courts on how best to frame the self-representation

inquiry—one that acknowledges these competing

interests. See infra Section I.B.2. Finally, we apply

our analytical framework to resolve the issue here,

concluding that Wright failed to show that his desire

to proceed pro se was either unequivocal or intelligent.

See infra Section I.C.

A. The right to self-representation, though

deeply rooted in our legal system, is not

absolute.

Under Faretta v. California, the seminal case on

the right to self-representation, a state may not

“constitutionally hale a person into its criminal courts

and there force a lawyer upon him, even when he

insists that he wants to conduct his own defense.” 422

U.S. at 807. Respect for individual choice is the

10a

“lifeblood of the law,” the Court reasoned, and the

state must honor that choice, even if the accused “may

conduct his own defense ultimately to his own

detriment.” Id. at 834 (quotation marks omitted). Of

course, few people would disagree “that in most

criminal prosecutions defendants could better defend

with counsel’s guidance than by their own unskilled

efforts.” Wallace v. State, 172 Ind. App. 535, 540, 361

N.E.2d 159, 162 n.3 (1977). But unless the defendant

acquiesces to representation, any “advantage of a

lawyer’s training and experience can be realized, if at

all, only imperfectly.” Id. After all, to “force a lawyer

on a defendant can only lead him to believe that the

law contrives against him.” Id.

The right to self-representation, the Faretta Court

concluded, is a “fundamental” right, implicit in the

structure of the Sixth Amendment and supported by a

long history of customary practice and legal

protections. 422 U.S. at 817, 818, 831–32. But, while

deeply rooted in our legal culture, the right to selfrepresentation is not absolute.

1. The historical reasons for recognizing

the right to self-representation lack the

same force today.

The right to self-representation, as the Faretta

Court pointed out, emerged from a long line of legal

protections dating back to the nation’s founding. Id. at

812–17. During the colonial period, American settlers

“brought with them an appreciation of the virtues of

self-reliance and a traditional distrust of lawyers.” Id.

at 826. Independence from England did little to

moderate this anti-lawyer sentiment. Rather, “a

nearly universal conviction” emerged, “on the part of

our people as well as our courts, that forcing a lawyer

11a

upon an unwilling defendant is contrary to his basic

right to defend himself.” Id. at 817. To preserve this

sense of autonomy, lawmakers codified the right to

self-represent, “along with other rights basic to the

making of a defense,” in our nation’s earliest laws—

from state statutes and state constitutions, to the

federal Judiciary Act of 1789.3 Id. at 828–31.

Of course, the fledgling states would gradually

come to realize “the value of counsel in criminal

cases,” and some courts during the early national

period “allowed accused felons the aid of counsel for

their defense.” Id. at 827. But a lawyer’s advice

remained largely out of reach for most Americans.4 Id.

at 827-28 n.35. And so it was for the inhabitants of the

Indiana Territory at the turn of the nineteenth

century. Indeed, lawyers were so scarce that

territorial officials, in 1801, repealed a one-year

residency requirement for the practice of law. John D.

Barnhart & Dorothy L. Riker, Indiana to 1816: The

Colonial Period 323–24 (1971).

3 See Judiciary Act of 1789, ch. 20, § 35, 1 Stat. 73, 92 (1789)

(current version at 28 U.S.C.A. § 1654) (“In all courts of the

United States the parties may plead and conduct their own cases

personally or by counsel as, by the rules of such courts,

respectively, are permitted to manage and conduct causes

therein.”).

4 Citing mid- to late-eighteenth century court records from New

Jersey, one legal scholar estimates that lawyers represented

criminal defendants in only fifteen to twenty-five percent of cases,

suggesting “both a custom of self-representation and an economic

reality” that “most citizens could not afford the services of a

lawyer and no system existed for the state to pay legal fees for

indigent defendants.” George C. Thomas, III, History’s Lesson for

the Right to Counsel, 2004 U. Ill. L. Rev. 543, 573.

12a

Little changed in the years following statehood,

prompting efforts at expanding access to the law for

ordinary Hoosiers. During the late 1820s, Indiana

witnessed growing demands for a concise and uniform

system of law, aiming to “render justice plain and

accessible to all.” H. Journal, 12th Gen. Assemb., Reg.

Sess. 415 (1827) (statement of Rep. Stephen Stevens).

Delegates to the state constitutional convention at

mid-century expressed similar views as they debated

the “idea of making every man his own lawyer, by

simplifying the rules of practice.” 2 Report of the

Debates and Proceedings of the Convention for the

Revision of the Constitution of the State of Indiana

1754 (Ind. Hist. Coll. Reprint 1935) [hereinafter

Debates]. Such a proposed reform, of course, wouldn’t

fully “dispense with the services of the [legal]

profession.” Id. at 1749 (statement of Delegate

Borden). But “until the principles of the law” were

“collected in a systematic code” and “rendered in plain

language,” the delegates insisted, it would remain

impossible “for a person of only ordinary intelligence

to prepare himself to appear in Court, either as

plaintiff or defendant, in his own case.” Id. at 1748.

On the other side of this debate stood the

contemporary legal literati, among whom “there was

a feeling of disallowance toward” interference by

persons neither “learned in the profession” nor

“experienced in the administration of justice.” 1

Debates at 174 (statement of Mr. Biddle). But this

sentiment did little to discourage reformist-minded

delegates. The new Indiana Constitution entitled

“[e]very person of good moral character, being a voter,”

13a

to “admission to practice law in all courts of justice.”5

Ind. Const. art. 7, § 21 (repealed 1932). And to further

democratize the law, the constitution instructed that

“[e]very act and joint resolution shall be plainly

worded, avoiding as far as practicable, the use of

technical terms.” Ind. Const. art. 4, § 20.

While the state’s new fundamental law stopped

short of expressly guaranteeing a right to selfrepresentation,6 this Court has long respected a

person’s preference to proceed pro se. “As in a Court of

justice, so in a Legislative committee or assembly,” we

declared in 1863, “a person may, if permitted, appear

by himself or attorney to openly and fairly present the

facts and arguments upon which he relies.”

Coquillard’s Adm’r v. Bearss, 21 Ind. 479, 481–82

(1863). A party has the right to make a “full

appearance in propria persona,” we acknowledged just

over twenty years later. Pressley v. Lamb, 105 Ind.

171, 180, 4 N.E. 682, 688 (1886). This Court echoed a

similar refrain well into the twentieth century. “The

The county bar associations decided whether an applicant

possessed “good moral character.” S. Hugh Dillin, The Origin and

Development of the Indiana Bar Examination, 30 Ind. L. Rev. 391,

391 (1997). These applicants, however, consisted only of men, as

the phrase “being a voter” excluded women from admission to the

bar—that is, until this Court decided otherwise in 1893. See In re

Leach, 134 Ind. 665, 34 N.E. 641 (1893).

6 Article 1, section 13 of the Indiana Constitution guarantees to a

criminal defendant the opportunity “to be heard by himself and

counsel.” Ind. Const. art. 1, § 13 (emphasis added). While

recognizing that section 13 as a whole offers “broader rights than

the Sixth Amendment,” we’ve concluded that these rights neither

“addressed the right of self-representation” nor amounted to an

“unlimited right” for a pro se defendant “to conduct all trial

proceedings on his own.” Edwards v. State, 902 N.E.2d 821, 828,

829 (Ind. 2009).

14a

services of an attorney appointed by the court may not

be forced upon a pauper defendant,” we opined nearly

thirty years before Faretta, “but if the defendant

declines such services he must find some way to

employ counsel of his own selection or proceed in

propria persona.” Schuble v. Youngblood, 225 Ind.

169, 173, 73 N.E.2d 478, 47–80 (1947). Despite “the

burden and hazards incident to his position,” we noted

in yet another opinion, a “defendant may represent

himself if he so desires.” Blanton v. State, 229 Ind.

701, 703, 98 N.E.2d 186, 187 (1951).

The past, then, is replete with affirmations of the

right to legal self-representation. But many of the

historical reasons for recognizing this right lack the

same force today. To begin with, self-representation

for many during the nineteenth century (and well into

the twentieth) “was the only feasible alternative to

asserting no defense at all.” See Martinez v. Court of

Appeal of California, Fourth Appellate Dist., 528 U.S.

152, 156–57 (2000). Indeed, few Hoosiers had access

to legal counsel—whether competent or not. As one

constitutional delegate lamented, lawyers simply did

“not become generally known to the people of the

State.” 2 Debates at 1720 (statement of Mr. Dunn).

What’s more, despite long-standing efforts at

rendering “justice plain and accessible to all,” the law

became progressively more complex, and with more at

stake, especially for the criminal defendant—a change

due in no small part to the shifting maze of procedural

rules and ever-expanding (and often overlapping)

body of statutory offenses.7 See Wadle v. State, 151

7 Perhaps as a result of this increasing complexity, the state’s

liberal bar admission standards eventually fell into disfavor. But

despite numerous attempts at repealing article 7, section 21, the

15a

N.E.3d 227, 238 (Ind. 2020) (discussing this evolution

in the law). Finally, the U.S. Supreme Court has since

recognized an indigent criminal defendant’s

constitutional right to the assistance of counsel.

Gideon, 372 U.S. at 344–45.8 Today, then, “an

individual’s decision to represent himself is no longer

compelled by the necessity of choosing selfrepresentation over incompetent or nonexistent

representation.” Martinez, 528 U.S. at 158.

2. Faretta and its progeny expressly limit

the right to self-representation.

formidable amendment process under article 16, combined with

strict judicial interpretation of article 16’s ratification clause,

prevented repeal until 1932. Ryan T. Schwier, The Marshall

Constitution and the Jurisprudence of Article 16, 52 Ind. L. Rev.

79, 84, 92 (2019) (citing In re Todd, 193 N.E. 865, 875 (Ind. 1935)

(upholding the Lawyer’s Amendment on grounds that a plurality

of votes cast at the general election of 1932 constituted

ratification)).

8 Of course, more than a century before Gideon, this Court

recognized an indigent criminal defendant’s right to counsel at

public expense. See Webb v. Baird, 6 Ind. 13, 18 (1854) (“It is not

to be thought of, in a civilized community, for a moment, that any

citizen put in jeopardy of life or liberty, should be debarred of

counsel because he was too poor to employ such aid.”). But the

basis on which this decision stood was less than clear. The Court

cited section 21 of the Indiana Bill of Rights, but only as grounds

to compensate the attorney for his services. Id. at 15. Subsequent

case law clarified that, while a defendant may have a statutory

right to counsel at public expense, he “has no [such] right

guarant[e]ed to him by the constitution.” Houk v. Bd. of Comm’rs

of Montgomery Cty., 14 Ind. App. 662, 663, 41 N.E. 1068, 1068

(1895). And even a statutory right to counsel may have been

limited, depending on the court in which a defendant found

himself. See id. at 663–64, 41 N.E. at 1068–69 (construing statute

to exclude justice-of-the-peace courts from appointing pauper

counsel at public expense).

16a

Aside from the shifting historical precedent on

which the right to self-representation stands, Faretta

and its progeny “have made clear” that this right “is

not absolute.” Indiana v. Edwards, 554 U.S. 164, 171

(2008).

To begin with, a trial court need not inform a

defendant of his right to self-represent. Russell v.

State, 270 Ind. 55, 60, 383 N.E.2d 309, 313 (1978).

Whereas the right to counsel implements “the other

constitutional rights of the accused” and ensures “the

accuracy of trial outcome in our adversary system,”

the right to self-represent “may actually hinder such

interests.” Id. For this reason, the constitutional

standards governing waiver of the right to counsel

find no counterpart governing a defendant’s waiver of

the right of self-representation. Id. at 59, 383 N.E.2d

at 312–13. If a defendant proceeds to trial with

counsel “without ever having properly asserted the

right to self-representation,” a court will deem the

defendant to have voluntarily waived that right. Id. at

61, 383 N.E.2d at 313.

Once a defendant invokes the right to selfrepresent, that assertion triggers strict procedural

requirements for the trial court to ensure compliance

with basic constitutional guarantees of fairness. Prior

to Faretta, Indiana courts found it “reasonable to

presume” that a pro se defendant himself had weighed

“the implications and consequences” of his decision

before making “a conscious election to assume the

risks incident to a trial conducted without benefit of

counsel.” Placencia v. State, 256 Ind. 314, 317, 268

N.E.2d 613, 614 (1971). Today, by contrast, a trial

court must ensure the defendant “knows what he is

doing and his choice is made with eyes open.” Faretta,

17a

422 U.S. at 835. This requires an admonishment of

“the

dangers

and

disadvantages

selfrepresentation.” Hopper v. State, 957 N.E.2d 613, 618

(Ind. 2011). And, once informed of these risks, a pro se

defendant’s waiver of the right to counsel “must be

knowing, voluntary, and intelligent.” Iowa v. Tovar,

541 U.S. 77, 88 (2004) (citing Johnson v. Zerbst, 304

U.S. 458, 464 (1938)).

In addition to these requirements, this Court (as

with most others) recognizes an untimely request for

self-representation as “a proper limitation of the

right.” Russell, 270 Ind. at 61, 383 N.E.2d at 314. See

also Martinez, 528 U.S. at 162 (observing that “most

courts” require a timely request). By requiring a

defendant to assert his right “within a reasonable

time prior to the day on which the trial begins,” a trial

court can avoid a “rushed procedure,” thereby

decreasing “the chances that the case should be

reversed because some vital interest of the defendant

was not adequately protected.” Russell, 270 Ind. at 62,

383 N.E.2d at 314.

Indiana courts also require an “unequivocal”

assertion of the right to self-representation. An

“unequivocal” assertion is one that’s “sufficiently

clear” in that, when granted, “the defendant should

not be able to turn about and urge that he was

improperly denied counsel.” Id. at 61, 383 N.E.2d at

313. “Half-hearted expressions of dissatisfaction with

counsel and general references by the defendant to

self-representation” ultimately “fail to meet this

requisite.” Id. Absent this condition, trial courts

subject themselves to potential manipulation “by

defendants clever enough to record an equivocal

request to proceed without counsel in the expectation

18a

of a guaranteed error.” Id. at 61, 383 N.E.2d at 313–

14.

Beyond these limitations, there are case-specific

circumstances in which the government’s interest in

ensuring the integrity and efficiency of the trial at

times outweighs the defendant’s interest in acting as

his own lawyer.” Martinez, 528 U.S. at 162. To begin

with, the Faretta Court itself recognized that the

“right of self-representation is not a license to abuse

the dignity of the courtroom,” to engage in “serious

and obstructionist misconduct,” or to avoid

compliance with “relevant rules of procedural and

substantive law.” 422 U.S. at 834–35 n.46. States may

also insist on representation by counsel for persons

who, though competent to stand trial, “suffer from

severe mental illness to the point where they are not

competent to conduct trial proceedings by

themselves.” Edwards, 554 U.S. at 178. Trial courts

may also appoint stand-by counsel over a pro se

defendant’s objection, so long as counsel’s intrusions

aren’t “substantial or frequent enough to have

seriously undermined” the appearance of selfrepresentation. McKaskle v. Wiggins, 465 U.S. 168,

187 (1984).9 What’s more, a criminal defendant enjoys

no right to self-representation on direct appeal.

Martinez, 528 U.S. at 163. In that context, the

reasoning goes, the “autonomy interests that survive”

a conviction at trial are “less compelling” than a

The McKaskle Court added that a pro se defendant “must

generally accept any unsolicited help or hindrance that may come

from the judge who chooses to call and question witnesses, from

the prosecutor who faithfully exercises his duty to present

evidence favorable to the defense,” from counsel representing codefendants, “or from an amicus counsel appointed to assist the

court.” McKaskle v. Wiggins, 465 U.S. 168, 177 n.7 (1984).

19a

state’s continued “interest in the fair and efficient

administration of justice.” Id.

In short, while a defendant enjoys a right to selfrepresent, it “does not inevitably follow” that such

right precludes the appointment of counsel over the

defendant’s objection “to protect the public interest in

the fairness and integrity of the proceedings.” United

States v. Taylor, 569 F.2d 448, 452 (7th Cir. 1978).

And this public interest, we believe, expands or

contracts in direct correlation with the severity of a

potential punishment a defendant faces at trial.

B. Death-penalty and LWOP cases heighten

the state’s interest in ensuring compliance

with constitutional guarantees of fairness.

As the preceding discussion makes clear, a

defendant’s right to self-representation often stands

in tension with the state’s obligation to ensure a fair

and meaningful trial. See Sherwood v. State, 717

N.E.2d 131, 137 (Ind. 1999) (Selby, J., concurring). See

also Martinez, 528 U.S. at 164 (Breyer, J., concurring)

(observing that the right to self-representation often,

“though not always, conflicts squarely and inherently

with the right to a fair trial”). And this tension reaches

its breaking point when a defendant faces death or life

in prison without the possibility of parole.

1. Few procedural safeguards protect the

state’s heightened-reliability interest

against an ineffective pro se defendant.

In 1972, the U.S. Supreme Court declared several

state death-penalty statutes unconstitutional in

Furman v. Georgia, 408 U.S. 238 (1972). With no clear

sentencing standards, the Court concluded, the

arbitrary manner in which the states imposed the

20a

death penalty amounted to “cruel and unusual

punishment in violation of the Eighth and Fourteenth

Amendments.”10 Id. at 240. Four years later, the high

court endorsed “a system that provides for a

bifurcated proceeding” in which a defendant, after

having been found guilty, “is accorded substantial

latitude as to the types of evidence that he may

introduce” at sentencing. Gregg v. Georgia, 428 U.S.

153, 164, 195 (1976).

Indiana’s Death Penalty Act, adopted in its current

form in 1976, is a product of the General Assembly’s

response to these cases. See Frank Sullivan, Jr.,

Selected Developments in Indiana Criminal

Sentencing and Death Penalty Law (1993-2012), 49

Ind. L. Rev. 1349, 1366 (2016). Under the Act, a

capital-murder trial proceeds in two distinct stages: a

guilt phase (to determine innocence or guilt) and, if

necessary, a penalty phase (to determine the

appropriate punishment). I.C. § 35-50-2-9(d). Should

the trial reach the penalty phase of this bifurcated

proceeding, the judge (in a bench trial) or the jury (in

a jury trial) must, before imposing a death sentence,

find that at least one aggravating circumstance

outweighs any mitigating circumstances. I.C. § 35-502-9(l).

As a further safeguard against the arbitrary

imposition of punishment, we’ve held that, whether or

10 Although “Indiana’s statute was not among those challenged,”

one of our former colleagues on the bench has noted, “it was

sufficiently similar to those invalidated that there was no

question but that it was unconstitutional.” Frank Sullivan, Jr.,

Selected Developments in Indiana Criminal Sentencing and

Death Penalty Law (1993-2012), 49 Ind. L. Rev. 1349, 1366 &

n.147 (2016) (citing Adams v. State, 284 N.E.2d 757, 758 (1972)).

21a

not a defendant challenges her underlying conviction,

the Death Penalty Act “precludes any waiver of a

review of the sentencing in a death penalty case.”

Vandiver v. State, 480 N.E.2d 910, 911 (Ind. 1985).

This mandatory review, we’ve observed, reflects the

state’s interest in assuring “consistency, fairness, and

rationality in the evenhanded operation of the death

penalty statute.” Judy v. State, 275 Ind. 145, 169, 416

N.E.2d 95, 108 (1981) (citations and quotation marks

omitted).

It’s clear, then, that when society—by way of its

elected officials in office—seeks to impose the ultimate

form of punishment, it’s not simply the defendant’s

interests at stake. Rather, the state has a vested

interest in—indeed, a constitutional duty to ensure—

the reliability and integrity of a capital-murder trial.

See id. at 157–58, 416 N.E.2d at 102 (emphasizing

that a death sentence must comport with “principles

of our state and federal constitutions”); Lowrimore v.

State, 728 N.E.2d 860, 864 (Ind. 2000) (observing that

the death penalty “maximize[s]” the state’s already

“strong interest in the proper conduct of every trial”);

Smith v. State, 686 N.E.2d 1264, 1275 (Ind. 1997)

(“Society does have an interest in executing only those

who meet the statutory requirements and in not

allowing the death penalty statute to be used as a

means of state-assisted suicide.”).

Today, this heightened-reliability interest extends

to LWOP sentences.11 See Pub. L. 158-1994, § 7, 1994

11 Although often deemed “qualitatively different from the death

penalty, the punishment of life imprisonment without hope of

release has been regarded by many as equally severe.” Smith v.

State, 686 N.E.2d 1264, 1273 (Ind. 1997) (citations and quotations

marks omitted). Indeed, when “a person is doomed to spend his

22a

Ind. Acts 1849, 1854 (amending the Death Penalty Act

to authorize an LWOP sentence in lieu of capital

punishment) (codified at I.C. § 35-50-2-9(e)). At trial,

these sentences are subject to the same statutory

standards and the same evidentiary requirements as

death sentences.12 Conley v. State, 972 N.E.2d 864,

871 (Ind. 2012). And, as with capital punishment, this

Court exercises mandatory and exclusive jurisdiction

over all criminal appeals from an LWOP sentence.

App. R. 4(A)(1)(a).

The effectiveness of these legal safeguards

depends largely—if not entirely—on meaningful

adversarial testing by professionally trained counsel.

The appearance of a pro se defendant—potentially

unwilling or unable to investigate, let alone present,

the mitigating evidence necessary to ensure an

appropriate punishment—threatens to undermine the

state’s heightened-reliability interests.13 See Mills v.

Maryland, 486 U.S. 367, 375 (1988) (quoting Eddings

final years imprisoned, with no (or few) prospects of release,” one

may reasonably “argue that the oppressive confines of a prison

constitute as great an infringement of his basic human rights as

a death sentence.” Id. (citations and quotation marks omitted).

12 While these standards apply to both the death penalty and

LWOP, only the death penalty triggers the appointment of

specially qualified counsel, along with “adequate funds for

investigative, expert, and other services necessary to prepare and

present an adequate defense at every stage of the proceeding,

including the sentencing phase.” Ind. Crim. Rule 24(B), (C)(2).

13 The investigation of mitigating evidence “should comprise

efforts to discover all reasonably available mitigating evidence,”

including, among other things, “medical history, educational

history, employment and training history, family and social

history, prior adult and juvenile correctional experience, and

religious and cultural influences.” Wiggins v. Smith, 539 U.S. 510,

524 (2003) (cleaned up).

23a

v. Oklahoma, 455 U.S. 104, 117 n. (1982)) (O’Connor,

J., concurring) (the “[sentencer’s] failure to consider

all of the mitigating evidence risks erroneous

imposition of the death sentence”) (emphasis added).

And this destabilization, in turn, threatens to

diminish public confidence in the integrity of the

judicial system. After all, criminal “proceedings must

not only be fair, they must appear fair to all who

observe them.” Edwards, 554 U.S. at 177 (citation and

quotation marks omitted). Accord Crider v. State, 984

N.E.2d 618, 624 (Ind. 2013) (acknowledging that, to

permit defendants “to waive appeal of any and every

sentence imposed in violation of law would invite

disrespect for the integrity of the courts”) (cleaned up).

To be sure, this Court has consistently

acknowledged a defendant’s right to self-represent,

“even in a capital case.” Sherwood, 717 N.E.2d at 135.

See also Hopper, 957 N.E.2d at 618 (recognizing a

defendant’s right to proceed pro se in a trial for capital

murder). And the public interest in these cases, we’ve

noted, “need not vitiate the defendant’s personal

rights to represent himself and determine the

objectives of his representation.” Smith, 686 N.E.2d at

1275. But if “experience has taught us that a pro se

defense is usually a bad defense,” Martinez, 528 U.S.

at 161 (quotation marks omitted), how do we protect

the heightened standards of reliability when deciding

whether someone is worthy of death or prison with no

possibility of parole?

Of course, the bifurcation of proceedings ensures

that the “penalty issue is not presented to the jury

until after they have found the defendant guilty of the

charged crime or crimes.” Judy, 275 Ind. at 164, 416

N.E.2d at 105–06. But the Death Penalty Act imposes

24a

no mandatory obligation on the defendant to produce

mitigating evidence at trial; it merely gives him “the

opportunity to offer such additional evidence.” Smith,

686 N.E.2d at 1276. What’s more, a pro se defendant’s

lackluster performance at the guilt phase of trial may

very well undermine any mitigation strategy at the

penalty phase. The judge or jury, after all, may

consider at the sentencing hearing “all the evidence

introduced at the trial stage of the proceedings.” I.C. §

35-50-2-9(d). And this evidence alone may suffice in

proving the existence of an aggravating circumstance

in support of death or LWOP. See Smith v. State, 475

N.E.2d 1139, 1141–42 (Ind. 1985); Judy, 275 Ind. at

164, 416 N.E.2d at 106 (noting that the “prosecution

may stand on the evidence presented at the trial

phase” to prove an aggravating factor).

A pre-sentence investigation report (or PSI report),

prepared for the trial court by the probation

department,

may

reveal

certain

mitigating

circumstances when a pro se defendant proves

unwilling or unable to present them independently.

See Smith, 686 N.E.2d at 1276. Among other data, a

PSI report includes information on the defendant’s

“history of delinquency or criminality, social history,

employment history, family situation, economic

status, education, and personal habits.” I.C. § 35-381-9(b)(2). But whatever mitigating benefit this

information imparts, relying on these sources alone to

ensure heightened reliability in sentencing presents

several problems. To begin with, a PSI report lacks the

adversarial acumen of defense counsel and may even

include information harmful to the defendant. After

all, the probation officer who compiles a PSI report

enjoys “wide discretion to include any matters he or

she deems relevant to a determination of a sentence.”

25a

Allen v. State, 720 N.E.2d 707, 714 (Ind. 1999). What’s

more, a PSI report, while available to the trial court

judge, “may not be introduced into evidence and given

to the jury.” Jarrett v. State, 580 N.E.2d 245, 254 (Ind.

Ct. App. 1991). See I.C. § 35-38-1-13 (governing

confidentiality of PSI reports). This restriction

“divorces mitigation from the trial context, rather

than structuring the presentation in light of the

nature of the crime and the conduct of the accused.”

Jules Epstein, Mandatory Mitigation: An Eighth

Amendment Mandate to Require Presentation of

Mitigation Evidence, Even When the Sentencing Trial

Defendant Wishes to Die, 21 Temp. Pol. & Civ. Rts. L.

Rev. 1, 34 (2011). Finally, we’ve held that a deficient

PSI report—i.e., one that fails to “fully address the

social history of the defendant, his employment

history, his family situation, his economic status, and

his personal habits”—violates no constitutional right

to due process, absent the defendant’s objections and

absent his offer of supplemental evidence at trial.

Woodcox v. State, 591 N.E.2d 1019, 1024 (Ind. 1992).

In short, without meaningful adversarial testing

by professionally trained counsel, there are few, if

any, safeguards to protect the state’s heightenedreliability interest when a pro se defendant proves

unwilling or unable to present the necessary

mitigating evidence at trial. And for this reason, a

trial court exercising jurisdiction over LWOP and

death-penalty cases must tailor its self-representation

inquiry to reflect “the state’s interest in preserving the

orderly processes of criminal justice.” Russell, 270 Ind.

at 59, 383 N.E.2d at 312. Accord Latta v. State, 743

N.E.2d 1121, 1130 (Ind. 2001) (concluding that trial

courts, when deciding whether to reject a defendant’s

waiver of the Sixth Amendment right to conflict-free

26a

counsel in the joint-representation context, may

consider the “institutional interest in a fair

proceeding” to justify overriding the defendant’s right

to counsel of her choice). What this inquiry looks like

is a question we turn to next.

2. In capital cases and LWOP cases, a trial court

should frame its waiver inquiry with the

state’s heightened reliability interests in

mind.

A “defendant who is competent to stand trial and

who knowingly, intelligently and voluntarily makes a

timely and unequivocal waiver of counsel is entitled to

exercise the right of self-representation, even in a

capital case.” Sherwood, 717 N.E.2d at 135. When

deciding whether a defendant meets these standards,

a trial court should inquire, on the record, whether the

defendant clearly understands (1) the nature of the

charges against her, including any possible defenses;

(2) the dangers and disadvantages of proceeding pro

se and the fact that she’s held to the same standards

as a professional attorney; and (3) that a trained

attorney possesses the necessary skills for preparing

for and presenting a defense. Jones v. State, 783

N.E.2d 1132, 1138 (Ind. 2003).

We emphasize that, among these general

directives, no single guideline controls. In fact, when

deciding whether a defendant properly waives the

right to counsel, both this Court and the U.S. Supreme

Court “have deliberately eschewed any attempt to

formulate a rigid list of required warnings, talismanic

language, or formulaic checklist.” Hopper, 957 N.E.2d

at 619 (citing Tovar, 541 U.S. at 88). Rather, “the

extent and depth” of a trial court’s warnings will often

“depend upon an array of case-specific factors.” Id.

27a

The severity of a potential punishment, we believe,

presents one such factor. So, when a defendant asks

to proceed without counsel in a death-penalty or

LWOP case, the court—while mindful of the state’s

heightened-reliability interest—should focus its

inquiry on

• whether and to what extent the defendant has

prior experience with the legal system;

• the scope of the defendant’s knowledge of

criminal law, legal procedures, rules of

evidence, and sentencing; and

• whether and to what extent the defendant can

articulate and present any possible defenses,

including

lesser-included

offenses

and

mitigating evidence.

See Von Moltke v. Gillies, 332 U.S. 708, 724 (1948);

Kubsch v. State, 866 N.E.2d 726, 737–38 (Ind. 2007);

Jones, 783 N.E.2d at 1138; Sherwood, 717 N.E.2d. at

134.

In considering these factors, a court should

“indulge in every reasonable presumption against

waiver” of the right to counsel. Brewer v. Williams,

430 U.S. 387, 404 (1977) (emphasis added). If,

however, after carefully assessing the factors outlined

above, a court permits a pro se defense, we strongly

urge that court to appoint stand-by counsel to assist

the defendant in reaching his “clearly indicated

goals.” McKaskle, 465 U.S. at 184. See also Leonard v.

State, 579 N.E.2d 1294, 1295 (Ind. 1991); German v.

State, 268 Ind. 67, 73, 373 N.E.2d 880, 883 (1978). And

when a pro se defendant fails to present mitigating

evidence, a trial court may appoint amicus counsel to

28a

compile and argue that evidence.14 See McKaskle, 465

U.S. at 177 n.7. So long as appointed counsel doesn’t

interfere with the defendant’s personal defense,

nothing in Faretta prohibits such a course of action.

See id. at 187. See also McCoy v. Louisiana, 138 S. Ct.

1500, 1505 (2018) (observing that the Sixth

Amendment guarantees “the defendant’s prerogative,

not counsel’s, to decide on the objective of his

defense”).

With this analytical framework in mind, we now

turn to Wright’s claim that the trial court erred by

denying his request to self-represent.

C. Wright’s waiver of the right to counsel—

while knowing and voluntary—was made

neither unequivocally nor intelligently.

Because Wright “answered affirmatively that he

understood all of the questions asked by the court,” he

In Smith, this Court interpreted Faretta as establishing a

defendant’s right to waive the presentation of mitigating evidence

in a capital case and to enter a guilty plea agreeing to the death

penalty. 686 N.E.2d at 1274–76. We question, though, the

accuracy of that interpretation, as Faretta recognized a

defendant’s constitutional “right to make his defense,” not to

relinquish one. See 422 U.S. at 819. See also McKaskle, 465 U.S.

at 177 (observing that Faretta “dealt with the defendant’s

affirmative right to participate” at trial) (emphasis added). In

any case, nothing in Faretta, or Smith for that matter, precludes

the presentation of mitigating evidence at trial by parties other

than the defendant. See id. at 176, 177 n.7 (“noting that Faretta

imposed ‘no absolute bar on standby counsel’s unsolicited

participation’ and observing that a “pro se defendant must

generally accept any unsolicited help” from, among others,

“amicus counsel appointed to assist the court”); Smith, 686

N.E.2d at 1276 (recognizing, without rejecting, argument by

amicus curiae “that special counsel should have been appointed

[at trial] to argue mitigating evidence in lieu of Smith”).

29a

insists that “he has shown that his desire to represent

himself is unequivocal, knowing, intelligent, and

voluntary.” Appellant’s Br. at 21.

We agree with Wright that his decision was

knowing. The trial court informed Wright that, unlike

a pro se defendant, an attorney “is trained by

education” and possesses the skills necessary to

investigate a criminal case, to “pick a fair and

impartial jury,” to interrogate witnesses, to file

motions, to “properly present substantive defenses,” to

object to evidence, to preserve the record for appeal,

and to offer mitigating arguments at sentencing. Tr.

Vol. 4, pp. 46–49. And, after pointing out that “deathpenalty-qualified attorneys” have special training and

experience, the court warned Wright that the

prosecution had its own experienced lawyers and that,

should Wright decide to proceed without counsel, he

would not “receive any special treatment from the

court” and would be held “to the same standard” as a

practicing attorney. Id. at 46, 49–50. Wright

consistently responded that he understood each of

these points. We have no doubt that Wright knowingly

waived his right to counsel.

We likewise agree with Wright that his decision

was voluntary. The trial court concluded otherwise,

reasoning that Wright’s poverty forced him into

accepting a court-appointed attorney. To be sure,

Wright opined that “an attorney paid by the court”

was “not going to listen to anything [he had] to say”

and wasn’t going to give him “what [he] want[ed]”

since he did “not pay them.” Id. at 45. But Wright also

stated that his “first attorney,” who was courtappointed, “wanted to give [him] what [he] want[ed]”

30a

and he made no intimation that a private attorney

would necessarily fare any better. Id. at 53.

At this point in our waiver analysis, we part ways

with Wright’s conclusion.

To begin with, we find that Wright equivocated in

his decision at trial. His shift in preference for counsel

between his initial hearing and the appointment of

capital-qualified attorneys five months later reveals

his early wavering on the issue. In a self-described

“motion” to the trial court in early December 2017,

Wright insisted that he had “declared several times”

his status as a “pro se” defendant. App. Vol. 2, p. 126.

But in an accompanying “lawsuit” against the court

for “deny[ing him] the right to go pro se,” Wright

expressly “motion[ed] for new coun[s]el.” Id. at 128.

This clear request for representation directly conflicts

with any autonomy interest Wright may have held

before trial.15

A trial court need not focus its waiver inquiry only on the

colloquy conducted at the Faretta hearing. This Court has

emphasized more than once that, when deciding whether a

defendant has properly waived the right to counsel, a court must

consider “other evidence in the record that establishes

whether the defendant understood the dangers and

disadvantages of self-representation,” “the background and

experience of the defendant,” as well as “the context of the

defendant’s decision to proceed pro se.” Hopper v. State, 957

N.E.2d 613, 618 (Ind. 2011) (citing United States v. Hoskins, 243

F.3d 407 (7th Cir. 2001)) (emphasis added). See also Kubsch v.

State, 866 N.E.2d 726, 736 (Ind. 2007) (same). To be sure, these

analytical factors apply to the question of whether a defendant

waived counsel “voluntarily and intelligently.” Hopper, 957

N.E.2d at 618. But, in our view, it makes little sense to limit the

trial court to testimony presented at the Faretta hearing when

assessing one factor (equivocalness) while permitting the trial

court to look beyond the Faretta hearing when assessing other

31a

To be sure, at the time of his Faretta hearing,

Wright seems to have abandoned his desire for courtappointed counsel. During the colloquy, he insisted

more than once that he did “not wish to have a Stateappointed attorney anymore at this time.” Tr. Vol. 4,

pp. 43, 44. Still, Wright seems to have wavered

between dissatisfaction with his capital-qualified

counsel and court-appointed counsel in general. While

acknowledging that he “got along” with his first

lawyer, he repeatedly expressed dissatisfaction with

his current attorneys. Id. at 45. And an expression of

discontent with court-appointed counsel is not an

unequivocal assertion of the right to selfrepresentation. Dobbins v. State, 721 N.E.2d 867, 872

(Ind. 1999) (“Defendant’s declaration that he could not

afford an attorney, when already represented by a

court-appointed attorney, does not constitute a clear

assertion of his right to self-representation.”). What’s

more, Wright’s acknowledged preference for either

private counsel or his original attorney indicates no

strong autonomy interest, leading us to conclude that

there’s little risk of violating his Sixth Amendment

right to self-represent.

Even if we were to conclude that Wright

unequivocally waived the right to counsel, his decision

was not made intelligently. The “information a

defendant must have to waive counsel intelligently

will depend, in each case, upon the particular facts

factors (voluntariness and intelligence). And, so far as our

research has uncovered, the U.S. Supreme Court has never

imposed such a limitation. What’s more, this Court has broadly

stated that “waiver must be viewed in light of all facts and

circumstances,” Kubsch, 866 N.E.2d at 737, suggesting that the

inquiry as a whole may focus on evidence outside the Faretta

hearing.

32a

and circumstances surrounding that case.” Tovar, 541

U.S. at 92 (quotation marks omitted). Case-specific

factors we may consider include “the defendant’s

education or sophistication, the complex or easily

grasped nature of the charge, and the stage of the

proceeding.” Id. at 88.

Here, the frustrations Wright held toward his

current lawyers clearly seem to have rested on a

mistaken understanding of their professional

obligations. See Lowrimore, 728 N.E.2d at 865 (noting

that “the tighter Criminal Rule 4 schedules must yield

to the exigencies created by the injection of the death

penalty”). And while Wright represented to the court

that he possessed the requisite “knowledge or skill”

and “all the qualifications” to represent himself, Tr.

Vol. 4, pp. 43, 51, this clearly was not the case.

First, while Wright had some prior experience with

the legal system, he conceded to never having tried a

jury trial, never having picked a jury, never having

cross-examined a witness, and never having made a

closing argument. Cf. Kubsch, 866 N.E.2d at 738

(finding adequate waiver where defendant “obviously

knew from his own experience of his right to call

witnesses, present other evidence, and propose

mitigating factors”). And while Wright had allegedly

represented himself in a prior juvenile case, a

delinquency proceeding simply doesn’t implicate the

same “formalities, procedural complexities, and

inflexible aspects” as a criminal trial. A.M. v. State,

134 N.E.3d 361, 366 (Ind. 2019) (citations and

quotations omitted).

Second, despite his independent studies while

incarcerated, the scope of Wright’s knowledge of the

criminal law, legal procedures, rules of evidence, and

33a

sentencing appears limited at best. While insisting

that his “attorneys ha[d]n’t even challenged the death

penalty,” he conceded, when prompted by the trial

court, that it was “premature” to conclude “whether

the death penalty could be challenged or not in this

case.” Tr. Vol. 4, pp. 46–47. What’s more, at the

conclusion of the colloquy, Wright informed the court

of “five motions” he wanted to file, and then proceeded

to ask the court how to go about filing them,

demonstrating a lack of knowledge of the most basic

procedural rules. Id. at 53. See Ind. Trial Rule 5(F)

(enumerating several methods by which a party may

file “pleadings, motions, and other papers with the

court”). To be sure, a pro se “defendant need not

possess technical legal knowledge” when exercising

her right to self-represent. Sherwood, 717 N.E.2d at

134 (citing Faretta, 422 U.S. at 836). But even with

incomplete knowledge of the law, a defendant should

demonstrate at least some “familiarity with legal

procedures and rules of evidence” as well as a basic

“understanding of the sentencing process.” Jones, 783

N.E.2d at 1138; Kubsch, 866 N.E.2d at 738. Wright,

for his part, failed to show a rudimentary

understanding of either. Cf. United States v. Steele,

2000 WL 796191, at *3, 221 F.3d 1340 (7th Cir. 2000)

(unpublished) (finding a knowing and intelligent

waiver where defendant had taken “three paralegal

courses and received certificates in legal research and

civil procedure,” successfully “obtained a settlement

from the State of Indiana” in a previous pro se suit,

and explained that his choice to self-represent was “a

matter of trial strategy”).

Finally, Wright articulated no specific defenses to

his crimes (let alone any lesser-included offenses) or

potentially useful mitigating evidence. To the

34a

contrary, he simply insisted that it was best that he

was “just in control of [his] case,” with no indication of

proceeding pro se as a matter of trial strategy. While

never inquiring about a specific defense, the trial

judge offered Wright ample opportunity to inform the

court of “anything else” he had in mind. Tr. Vol. 4, pp.

53, 54. And when Wright declined, the court made

sure that he had “fully expressed [his] views on this

subject.” Id. at 54. With limited experience navigating

the legal system, with deficient knowledge of criminal

law and procedure, and with no apparent defenses or

trial strategy, Wright’s waiver of the right to counsel,

we conclude, was not an intelligent one.16 And while

16 According to the dissent (with which the concurrence-in-result

ostensibly agrees), “whether a waiver of counsel is ‘intelligent’”

turns simply on the question of “whether ‘the defendant knows

what he is doing and his choice is made with eyes open.’” Post, at

3 (quoting Iowa v. Tovar, 541 U.S. 77, 88 (2004)). We acknowledge

that the U.S. Supreme Court has been less than clear in

distinguishing “intelligent” from “knowing.” See, e.g., United

States v. Ruiz, 536 U.S. 622, 629 (2002) (suggesting that the “law

ordinarily considers a waiver knowing, intelligent, and

sufficiently aware if the defendant fully understands the

nature of the right and how it would likely apply in general in the

circumstances”) (emphasis added). But even if those two terms—

intelligent and knowing—go hand in hand, it’s clear to us that the

courts have required something more than just asking whether a

defendant “knew the dangers and disadvantages” of selfrepresentation. See, e.g., Tovar, 541 U.S. at 88 (citing “the

defendant’s education or sophistication, the complex or easily

grasped nature of the charge, and the stage of the proceeding” as

non-exclusive factors for deciding whether a defendant

intelligently waived the right to counsel); United States v.

Sandles, 23 F.3d 1121, 1128 (7th Cir. 1994) (whether a defendant

waived his right to counsel depends in part on his “background

and experience,” which “includes educational achievements, prior

experience with the legal system (including prior pro se

representation), and performance at trial in the case at bar”);

35a

these factors may not have led us to the same

conclusion in a case with less at stake, the state has a

much stronger interest in ensuring a fair trial in this

capital-turned-LWOP case.

At the end of the day, the trial court here, after

making “the proper inquiries” of Wright and

conveying to him “the proper information,” made “a

reasoned conclusion” about Wright’s understanding of

his rights, ultimately denying his request for selfrepresentation. See Poynter, 749 N.E.2d at 1128. After

a careful review of the record on direct appeal, we

affirm that ruling by holding that Wright equivocated

in his decision to proceed pro se and that he lacked the

requisite intelligence to properly waive the right to

counsel.

II. Wright’s

LWOP

inappropriate.

sentence

was

not

Under Indiana Appellate Rule 7(B), this “Court

may revise a sentence authorized by statute, if, after

due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light

of the nature of the offense and the character of the

offender.” Sentencing review turns on “the culpability

of the defendant, the severity of the crime, the damage

done to others, and myriad other factors that come to

light in a given case.” Cardwell v. State, 895 N.E.2d

1219, 1224 (Ind. 2008). In the end, “the length of the

aggregate sentence and how it is to be served are the

issues that matter.” Id.

Kubsch, 866 N.E.2d at 737 (citing Sandles for the same

proposition).

36a

A. The nature of Wright’s offenses justifies

his sentence.

Wright argues that he’s “not the worst of the worst

for whom the maximum sentence of life without the

possibility of parole is appropriate.” Appellant’s Br. at

21. But, while insisting that the goal of Rule 7(B) is

“‘to impose similar sentences on perpetrators

committing the same acts who have similar

background,’” id. at 22 (quoting Serino v. State, 752

N.E.2d 852, 856 (Ind. 2003)), Wright offers no

precedent for this Court to make such a

determination. And, even if he had, Wright did not

receive the maximum sentence for murder with

aggravating circumstances, which—as the State

originally proposed—would have been the death

penalty. See I.C. § 35-50-2-9.

Wright also contends that the murder he

committed “was not premeditated,” and that there’s

“no evidence” he intended “to commit any offense

other than burglary or theft.” Appellant’s Br. at 28.

But even if Wright had no plans to kill Max until after

he arrived at the Fosters’ home, his conduct, once

inside, supports an inference of premeditation.

Indeed, Wright stood in the doorway of the Fosters’

bedroom eyeing his victims with knife in hand. At that

point, he could have turned around and walked away.

He chose not to. Instead, he entered the room, walked

toward the bed, leaned over Sonja, and stabbed Max

repeatedly to death. Whether at the moment he

entered the Fosters’ home, or when he paused at the

bedroom door, however briefly, the “time span

between formation of an intent to kill and the killing

itself need not be appreciable to constitute

37a

premeditation.”17 Currin v. State, 497 N.E.2d 1045,

1047 (Ind. 1986). See also Knapp v. State, 9 N.E.3d

1274, 1292 (Ind. 2014) (finding LWOP appropriate

where the “nature of the offense was calculated,

premeditated, and brutal”).

Finally, Wright didn’t just commit a single crime

against a single victim at a single location. Rather, he

committed multiple offenses—murder, criminal

confinement, theft, burglary—as part of a larger crime

spree that involved multiple victims and multiple

locations. And by disposing of his boots after fleeing

the crime scene, Wright attempted to conceal evidence

of his crime. See Rogers v. State, 878 N.E.2d 269, 275

(Ind. Ct. App. 2007) (citing defendant’s “attempt to

conceal evidence” as one factor for concluding that the

sentence was not inappropriate).

For these reasons, the nature of Wright’s offenses

justifies his sentence.

B. Wright’s character likewise offers no

relief.

17 Some of our earliest precedent follows this understanding of

premeditation. See, e.g., Koerner v. State, 98 Ind. 7, 10 (1884) (“It

is as much premeditation, if it be entered into the mind of the

guilty agent a moment before the act, as if it entered ten years

before.”) There are, to be sure, some cases that come to the

contrary conclusion. See, e.g., Barker v. State, 238 Ind. 271, 279,

150 N.E.2d 680, 684 (1958) (finding it “difficult to conceive that”

premeditation may be practically simultaneous with the act of

killing”) (citing cases). In any event, our murder statute no longer

requires premeditation. Compare I.C. § 35-13-4-1 (Burns 1975)

(repealed 1976) (defining murder as a killing done “purposely and

with premeditate malice”), with I.C. 35-42-1-1 (defining murder

as the knowing or intentional killing of another human being).

38a

Having been exposed to alcohol, drugs, and

domestic violence, “repeatedly neglected, abandoned

and mentally and physically abused,” “sexually

molested by relatives,” and constantly subjected to

poverty and instability, Wright argues that his

“childhood was horrific beyond belief.” Appellant’s Br.

at 28. And while acknowledging that the “crimes for

which [he] was convicted were heinous,” he faults the

trial court for giving “little or no weight to the

horrendous environment in which [he] had to survive

since early childhood.” Id. at 22.

On occasion, this Court has considered a

defendant’s traumatic youth in reducing a sentence.

See, e.g., Mullins v. State, 148 N.E.3d 986, 987–88

(Ind. 2020) (per curiam) (citing defendant’s “relatively

young” age of 21 years, along with a “difficult”

childhood of drug exposure and physical and sexual

abuse, in support of reducing her 24.5-year aggregate

term for two felony meth dealing convictions to an

aggregate sentence of 18 years). But more often than

not, we have “held that evidence of a difficult

childhood is entitled to little, if any, mitigating

weight.” Bethea v. State, 983 N.E.2d 1134, 1141 (Ind.

2013) (citing cases). And we see no reason to do

otherwise here.

While Wright’s troubled childhood certainly elicits

some sympathy, his own delinquent behavior

disrupted any potentially positive change in his youth.

See Appellant’s Br. at 28 (acknowledging that his

theft from his foster parents landed him back in

youth-detention

center).

What’s

more,

the

“horrendous environment” of his childhood didn’t stop

him from attempting to better himself as a young

adult (nor did it compel his siblings, who presumably

39a

experienced a similar childhood, to commit heinous

crimes). After graduating high school, Wright enrolled

in an on-line university and, at the time of his arrest,

he worked full time at a restaurant. The mitigation

specialist’s report also noted that Wright dreamed of

majoring in business and becoming an entrepreneur.

And during his placement at the IU Methodist

Children’s Home between 2013 and 2015, Wright

apparently made several good friends and was “very

respectful” to the adults there. App. Vol. 3, p. 219. In

short, to the extent Wright’s childhood warranted

consideration at sentencing, his own selfimprovement as a young adult undermines his

argument here.

Still, while admitting to his criminal record,

Wright emphasizes that it consists only of four

misdemeanors (two thefts, institutional criminal

mischief, and public intoxication) and a single felony

(burglary)—all of which occurred within a two-year

period. But even if these crimes amounted to low-level

offenses, several of them (theft and burglary, if not

criminal mischief) involved the same conduct that

escalated to murder here. See Rice v. State, 6 N.E.3d

940, 947 (Ind. 2014) (noting that defendant’s two

previous misdemeanor convictions involved “the same

criminal conduct that in this case escalated to felony

murder”). What’s more, Wright was on probation for

his earlier crimes at the time he embarked on his

crime spree in June 2017, giving us even less of a

reason to find his sentence inappropriate. See Knapp,

9 N.E.3d at 1292 (citing defendant’s probation status

at the time he committed the crimes as one factor in

declining to find LWOP inappropriate).

40a

In short, Wright’s character, as with the nature of

his offenses, warrants no revision of his sentence. See

Houser v. State, 823 N.E.2d 693, 700 (Ind. 2005)

(holding LWOP sentence was not inappropriate where

the aggravating circumstance of committing burglary

during the commission of murder outweighed the

mitigating circumstance of defendant’s emotionally

abusive childhood).

Conclusion

Because Wright’s request to self-represent was

neither unequivocal nor intelligent, we hold that the

trial court properly denied his request to selfrepresent. And because neither the nature of Wright’s

offenses nor his character dictate otherwise, we hold

that Wright’s sentence was not inappropriate. We

thus affirm the decision of the trial court on both

grounds, remanding only for the court to correct a

minor oversight in its sentencing order. See supra, n.2.

Rush, C.J., and David, J., concur.

Massa, J., concurs in result with separate opinion.

Slaughter, J., dissents with separate opinion.

ATTORNEY FOR APPELLANT

Michael D. Gross

Lebanon, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

41a

Massa, J., concurring in result.

It is hard to quarrel with much of the dissenting

opinion. The Court today tills new constitutional soil

in suggesting the standard for waiving the right to

counsel varies depending on the seriousness of the

case. And it weighs Zachariah Wright’s legal skills in

assessing the knowing and intelligent nature of his

waiver in a way explicitly rejected by the Supreme

Court of the United States in its seminal decision,

Faretta v. California, 422 U.S. 806, 835–36 (1975). I

thus cannot join much of the Court’s opinion for

reasons sufficiently explained by the dissent.

However, I am convinced that the trial court sifted

through all of Wright’s various assertions—both

written and oral—on more than one occasion, and

concluded that what he ultimately wanted was to hire

his own private counsel, or at least have his old

counsel back. His waiver, therefore, was not

unequivocal, and the trial court should be affirmed.

Slaughter, J., dissenting.

The Sixth Amendment’s right to counsel includes

the right to proceed without counsel. Here, Zachariah

Wright faced the death penalty after being charged

with multiple felonies, including murder. He initially

sought, and was given, court-appointed counsel. But

almost two years before trial, he told the court he

wanted to represent himself. The court held a hearing

on Wright’s request and explained the advantages of

having a lawyer and the disadvantages of

representing himself. Wright, though, persisted in

wanting to lead his own defense. The court denied his

request and, after a bench trial, found him guilty.

Wright now claims the trial court violated his

42a

constitutional right to represent himself. Despite the

horrific nature of Wright’s crimes, I am constrained by

the record below and Supreme Court precedent to

conclude that Wright was denied his right of selfrepresentation and thus is entitled to a new trial.

The Sixth Amendment protects a defendant’s right

to the assistance of counsel in “all criminal

prosecutions”. U.S. Const. amend VI. This right, along

with other Sixth Amendment rights, is essential to a

fair trial and includes the right to proceed without

counsel. “The Sixth Amendment does not provide

merely that a defense shall be made for the accused;

it grants to the accused personally the right to make

his defense.” Faretta v. California, 422 U.S. 806, 819

(1975).

The right to proceed without counsel derives from

several values, including (1) “respect for the

individual” and (2) the “nearly universal conviction

. . . that forcing a lawyer upon an unwilling defendant

is contrary to his basic right to defend himself if he

truly wants to do so”. Indiana v. Edwards, 554 U.S.

164, 170 (2008) (cleaned up). When properly invoked,

the right of self-representation means the State

cannot, consistent with the Constitution, “hale a

person into its criminal courts and there force a

lawyer upon him, even when he insists that he wants

to conduct his own defense.” Faretta, 422 U.S. at 807.

This right would mean little if a defendant had to

“accept a lawyer he does not want.” Id. at 833. The

right thus serves as “an aid to a willing defendant—

not an organ of the State interposed between an

unwilling defendant and his right to defend himself

personally.” Id. at 820.

43a

Invoking the right of self-representation requires

waiving the assistance of counsel. For the waiver to be

valid, the defendant must “be made aware of the

dangers and disadvantages of self-representation”,

and the record must “establish that ‘he knows what he

is doing and his choice is made with eyes open.’” Id. at

835 (quoting Adams v. United States ex rel. McCann,

317 U.S. 269, 279 (1942)). Once the defendant

understands the consequences of waiving counsel and

representing himself, the court must allow him to

proceed pro se. Here, after initially seeking the

appointment of counsel, which the trial court granted,

Wright had a change of heart and sought to represent

himself. In a detailed colloquy almost two years before

trial, the judge asked extensive questions probing

whether Wright understood the “dangers and

disadvantages” of representing himself. The court

ultimately found he did not and denied his request.

On appeal, Wright argues that the trial court erred

in denying his request to proceed pro se. The Court

agrees that Wright’s waiver was both knowing and

voluntary. But it holds his waiver was neither

intelligent nor unequivocal and thus not sufficient to

invoke his right of self-representation. I part ways

with the Court on two grounds. First, the controlling

Faretta test and its state-law supplement compel the

opposite result of today’s holding—they show that

Wright’s waiver of counsel was intelligent and that he

invoked his right to self-representation unequivocally.

Second, the Constitution does not allow states to use

a “tailoring” approach to erect a higher bar for

defendants who want to represent themselves.

44a

For two reasons, I cannot join the Court’s

conclusion that Wright’s waiver of counsel was

insufficient. First, under governing law, a waiver is

intelligent if the defendant is aware of the risks of

proceeding pro se, Faretta, 422 U.S. at 835—i.e., “the

defendant ‘knows what he is doing and his choice is

made with eyes open.’” Iowa v. Tovar, 541 U.S. 77, 88

(2004) (quoting Adams, 317 U.S. at 279). I would find

that the trial court’s lengthy colloquy detailing the

risks of proceeding pro se “opened” Wright’s eyes and

made his waiver intelligent. Second, I would find that

Wright’s repeated requests to proceed without counsel

underscore that his invocation of the right of selfrepresentation was unequivocal. Given these

conclusions, there is but one suitable remedy: Wright

is entitled to a new trial. “The right [of selfrepresentation] is either respected or denied; its

deprivation cannot be harmless.” McKaskle v.

Wiggins, 465 U.S. 168, 177 n.8 (1984).

Under Supreme Court precedent, whether a

waiver of counsel is “intelligent” does not turn on the

defendant’s IQ but on whether “the defendant ‘knows

what he is doing and his choice is made with eyes

open.’” Tovar, 541 U.S. at 88 (quoting Adams, 317 U.S.

at 279). Essentially, the defendant “should be made

aware of the dangers and disadvantages of selfrepresentation”. Faretta, 422 U.S. at 835. We consider

a waiver intelligent when the defendant “fully

understands the nature of the right and how it would

likely apply in general in the circumstances—even

though the defendant may not know the specific

detailed consequences of invoking it.” United States v.

Ruiz, 536 U.S. 622, 629 (2002) (emphasis omitted).

45a

Based on these considerations, the record establishes

that Wright’s waiver was intelligent. And, consistent

with Faretta, the relevant time for determining

waiver is during the waiver hearing. See, e.g., Faretta,

422 U.S. at 835 (focusing on defendant’s words and

deeds during waiver hearing).

The record shows that the trial court made Wright

aware of the dangers and disadvantages of selfrepresentation during the waiver hearing. The court’s

thorough colloquy raised both the benefits of having a

lawyer and the detriments of going it alone. One set of

advisements explained that Wright was then (during

the Faretta hearing) facing the death penalty if

convicted. [Tr. Vol. 4, p. 46.] The court explained the

myriad ways a lawyer can assist a criminal defendant

before trial. Lawyers, it explained, are trained in:

• investigating criminal cases, finding favorable

witnesses, and securing their testimony [id. at

47];

• gathering evidence, including documents, and

using them to the defendant’s advantage [ibid.];

• preparing and filing motions, framing issues,

and responding to motions filed by the State [id.

at 47–48];

• evaluating the strengths and weaknesses of the

State’s case, advising whether seeking a plea

might be advantageous, and assisting in

negotiating a plea [id. at 48].

In addition, the court explained that if the case goes

to trial, lawyers know how to:

• pick a fair and impartial jury [id. at 49];

46a

• make a favorable opening statement and

closing argument [ibid.];

• object to inadmissible evidence [id. at 48];

• examine

witnesses—eliciting

favorable

testimony from defense witnesses and crossexamining the State’s witnesses [id. at 47].

Also, after the guilt phase, lawyers can:

• represent a capital defendant at the sentencing

phase, make arguments in mitigation, which

might help to spare the defendant’s life [id. at

49];

• preserve a record for appeal and prosecute an

appeal [id. at 48–49].

The court further emphasized that if Wright were

to proceed without counsel:

• he would be held to the same standards and

would have to follow the same rules as a

licensed lawyer [id. at 49–50];

• the court could not advise or assist him [id. at

50];

• he would forfeit an ineffective-counsel claim

[ibid.];

• he would be on an uneven field, as the State

would be represented by an attorney and have

all the advantages of a trained attorney [ibid.].

The court also opined that going pro se is a “very bad

decision in many cases”, and that it is almost always

a good idea to be represented by counsel in a criminal

case. [Ibid.] And the court noted that even lawyers

47a

charged with crimes often get other lawyers to

represent them. [Id. at 51.]

After each advisement, the court asked if Wright

understood what a lawyer could do for him and his

defense. Wright responded that he did. [Id. at 46–51.]

Taken together, these advisements informed Wright

of the risks of going pro se and underscored he was

making his decision with eyes open.

Despite Wright’s multiple, repeated statements

that he wished to proceed on his own behalf, the trial

court pressed on—undeterred by Wright’s insistence

that he wanted to represent himself—and changed its

line of questioning. It went from asking Wright if he

understood the risks of representing himself to

whether he had the legal ability to do so. It asked

Wright:

• what knowledge or skill he thought he had that

he could use to represent himself;

• whether he had any experience in the study of

law, in particular criminal law;

• whether he had ever tried a jury trial, picked a

jury, cross-examined a witness, or made a

closing argument.

[Id. at 51.] Wright acknowledged no formal training in

the law but explained that he had “been charged with

a number of crimes” and been “through this [legal]

process many times”. [Ibid.] And he answered “no” to

the set of questions about his experience trying a case.

[Ibid.]

The Court focuses on three aspects of Wright’s

responses in concluding that his waiver was not

intelligent: his “limited experience navigating the

48a

legal system”, his “deficient knowledge of criminal law

and procedure”, and his lack of “apparent defenses or

trial strategy”. Ante, at 25–26. But Faretta rejects

such an approach and holds that an “intelligent”

waiver focuses only on whether the defendant knows

the dangers and disadvantages of representing

himself: “a defendant need not himself have the skill

and experience of a lawyer in order competently and

intelligently to choose self-representation”. 422 U.S.

at 835. Any inquiry into a defendant’s legal know-how,

Faretta holds, is unwarranted.

We need make no assessment of how well or

poorly Faretta had mastered the intricacies of the

hearsay rule and the California code provisions

that govern challenges of prospective jurors on voir

dire. For his technical legal knowledge, as such,

was not relevant to an assessment of his knowing

exercise of the right to defend himself.

Id. at 836 (footnote omitted).

For these reasons, I would find that Wright’s

waiver of counsel was intelligent.

The Court also holds that Wright did not

unequivocally invoke his right of self-representation.

I cannot join this holding because our case law and the

record below show that Wright’s invocation was

unequivocal. As discussed above, Faretta is the

foundational case on the right of self-representation.

The Supreme Court has not said what a defendant

must do to trigger this right, but we have. In Anderson

v. State, we announced “what is necessary to

constitute an assertion”, 267 Ind. 289, 294, 370 N.E.2d

318, 320 (1977), of the right of self-representation: a

49a

defendant must make a “clear and unequivocal

request”—one “sufficiently clear that if it is granted

the defendant should not be able to turn about and

urge that he was improperly denied counsel.” Id.

(cleaned up); Hopper v. State, 957 N.E.2d 613, 621

(Ind. 2011) (cleaned up).

In determining what constitutes an unequivocal

request, we have two guideposts: Anderson stakes out

what does not constitute a clear and unequivocal

request, 370 N.E.2d at 321; and Russell v. State stakes

out what does. 270 Ind. 55, 61, 383 N.E.2d 309, 314

(1978). Comparing the colloquies in Anderson and

Russell to Wright’s, we see that Wright’s repeated

assertions that he wanted to proceed pro se go well

beyond what we have found unequivocal.

In Anderson, we held that the defendant had not

clearly and unequivocally asserted the right to

proceed pro se, and we did so by focusing on the backand-forth between the court and the defendant. 370

N.E.2d at 319–21. There, the defendant said in

passing that he wanted a private lawyer but would

rather go pro se if he “can’t get no lawyer.” Id. at 320.

Observing that this was the “only mention of selfrepresentation” and that the matter “was never raised

again”, id., we rejected the defendant’s Faretta

argument and held that this bare statement did not

amount to a clear and unequivocal assertion of the

right to proceed pro se. Id. at 321.

In Russell, we again focused on the colloquy

between the court and the defendant and found that

the defendant’s statements “met the Anderson

standard of a clear and unequivocal assertion of the

self-representation right.” 383 N.E.2d at 314. There,

the defendant’s lawyer, on the day of trial, informed

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the court that the defendant wanted to conduct his

own defense. Id. at 311. The defendant pushed for pro

se representation, stating:

• “Your Honor, I feel that, under the

circumstances of the case, I have more knowledge

of the case, that I would be more competent in my

behalf to conduct the trial myself.”

• “If a person is competent, I believe I am

competent to take and defend myself.”

Id. On appeal, we rejected the defendant’s day-of-trial

attempt to invoke his right of self-representation

because it was untimely—not because it was unclear

or equivocal. Id. at 314–15.

Here, Wright’s statements to the trial judge are

even more emphatic than those in Russell, which we

held were unequivocal, and more decisive than the

defendant’s lone, wishy-washy statement in

Anderson. Wright, during his colloquy, repeatedly

emphasized his desire to proceed pro se:

A. I asked both my attorneys to filed [sic] for a fast

and speedy trial and both attorneys refused, which

is a violation of my constitutional rights. And I’ve

asked many times and both attorneys have both

told me no and they refused. And I qualify for all

the qualifications for going pro se.

Q. Say it again, sir?

A. I qualify for all the qualifications for going pro

se.

51a

Q. Okay. So I guess I’m trying to understand what

our position is here. Are you asking to act as your

own attorney or—

A. —yes—

Q. —or is it something in the nature that you just

would like—

A. —I do not wish to have a State-appointed

attorney anymore at this time.

Q. Is it these attorneys in particular or that you

just would like any other attorneys?

A. I would like no attorney.

Q. Okay. And so at the beginning of this case, you

got a full advisement of your rights and I explained

to you the right to an attorney.

A. Uh-huh, that’s correct.

Q. That if you couldn’t afford one, one would be

provided for you. I concluded you couldn’t afford

an attorney. I presume you can’t afford an

attorney, you don’t have the means; is that correct,

to hire an attorney?

A. That’s correct.

Q. So at that time you asked me to appoint an

attorney for you, and I did. I appointed Mr. Reid.

Do you remember Mr. Reid?

A. Yes.

Q. You got along okay with Mr. Reid didn’t you?

A. Yes.

Q. Okay. So what’s changed, then, since then? At

one point it seemed like you wanted to have an

52a

attorney and then now it seems something seems

to be different.

A. What’s changed is I believe the attorneys’ [sic]

believed they were acting in my best interest,

which wasn’t my best interest because my only

interest was for a fast and speedy. And if I have

an attorney that refuses to give me what I want

and is violating my constitutional rights, I do not

believe, you know, I should have a State-appointed

attorney anymore. I was satisfied with Allan

Reid’s work, but you charged me with the death

penalty, so he could not be on my case anymore.

Q. So it’s not that you don’t want some other

attorney, because you understand—

A. —Well, I believe any attorney paid by the court

is not going to listen to anything I have to say and

is not going to give me what I want, because I do

not pay them.

Q. And what sort of information have you

developed since I had an attorney appointed for

you and have had attorneys appointed for you

that’s caused you to have this difference of

conclusion? What’s, what’s changed?

A. They refuse to give me access to my rights.

Q. Okay. And so do you want me to get you

somebody else or you A. - I wish to go pro se Q. - to handle it yourself?

A. Uh-huh.

[Tr. Vol. 4, p. 43–45.]

53a

These assertions amply satisfy Anderson’s

standard of an unequivocal request. And if these clear

statements were somehow not enough, here is another

exchange showing that Wright wanted to “control” his

case:

Q. It’s just puzzling to me where this comes

from, because at the beginning of the case you

wanted an attorney, had an attorney, were happy

with your attorney, and then the circumstances

change. Now, all of a sudden, you don’t think you

want an attorney. Help me understand.

A. Uh-huh. Well, as I said, I experienced, you

know, having an attorney and I realize that I am

better off without an attorney, because, like I said,

an attorney is not going to give me what I want.

My first attorney wanted to give me what I want,

but these new attorneys do no [sic]. I think it’s

better if I’m just in control of the—of my case.

[Id. at 53.] These statements underscore that Wright

invoked his right of self-representation clearly and

unequivocally. Thus, I cannot join today’s opinion

holding otherwise.

The other reason for my dissent is that today’s

opinion creates a new test for analyzing a defendant’s

assertion of the right to proceed pro se—a Faretta-plus

test.

The Court adds the need to “tailor” an

application of Faretta’s factors based on the State’s

interest in ensuring a fair and reliable criminal

process in a capital case. Ante, at 19–20. Based on its

enhanced test, the Court holds that the defendant’s

right of self-representation yields to the State’s

competing interest in ensuring a criminal trial’s

54a

integrity and efficiency.

But Supreme Court

precedent does not support such “tailoring” of

competing interest when the defendant timely asserts

the right to proceed pro se. The only issues here

should be whether Wright invoked his right to selfrepresentation unequivocally and waived his right to

counsel knowingly, intelligently, and voluntarily. See

Anderson, 370 N.E.2d at 320; Tovar, 541 U.S. at 88.

Either he did, or he did not. These are binary

questions not subject to tailoring.

No Supreme Court precedent holds that the

Faretta analysis changes when a defendant’s decision

could be a matter of life or death. Indeed, the Supreme

Court has not once espoused today’s approach—

despite addressing Faretta in the context of capital

cases a number of times. See, e.g., Godinez v. Moran,

509 U.S. 389, 400–01 (1993) (not mentioning the

state’s interests and reasoning that the only

“heightened standard” necessary in a death-penalty

case was to find that the waiver of counsel was

“knowing and voluntary”); Patterson v. Illinois, 487

U.S. 285, 297–98 (1988) (not mentioning the state’s

interests and explaining that waiving right to counsel

under Sixth Amendment in a death-penalty case is not

categorically “more difficult” than waiving the right

under the Fifth Amendment). Today’s test instead is

based on an overly broad reading of a few discrete

cases and narrow holdings where the Supreme Court

merely recognized that a defendant’s right of selfrepresentation is not absolute. For instance, a trial

court can curtail the right if a pro se defendant

obstructs proceedings. See Illinois v. Allen, 397 U.S.

337, 346–47 (1970). Courts also may insist on a timely

assertion of the right to proceed pro se, Martinez v.

Court of Appeal of California, 528 U.S. 152, 162

55a

(2000), and a defendant must be competent to execute

a valid waiver. Godinez, 509 U.S. at 396. These

examples show that this right, even if validly invoked,

can later be curtailed.

To be sure, a defendant’s waiver may be illadvised. But, as the Supreme Court observes,

“[p]ersonal liberties are not rooted in the law of

averages”, but in the law’s “respect for the individual”.

Faretta, 422 U.S. at 834 (cleaned up). A right premised

on respect for individual freedom must include the

freedom to make mistakes—even those with dire

consequences. It is when the stakes for the criminal

defendant are most grave that the law’s “respect for

the individual” should be at its highest. Yet today’s

opinion finds that the facts here “may not have led us

to the same conclusion in a case with less at stake”.

Ante, at 26. That is because, the Court holds, “the

state has a much stronger interest in ensuring fair

trial in this capital-turned-LWOP case.” Ibid. But the

Supreme Court does not require that a valid waiver of

counsel turns on the severity of the State’s sanction.

An intelligent waiver is no less intelligent when the

stakes are grave. Indeed, our own precedent permits

a capital defendant to plead guilty under a plea

agreement calling for the death penalty. Smith v.

State, 686 N.E.2d 1264, 1265 (In

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