ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICIA CARESS McMATH STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
ANDREW A. KOBE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
CHARLES R. STAMPER, )
vs. ) No. 37A04-0311-CR-574
STATE OF INDIANA, )
APPEAL FROM THE JASPER SUPERIOR COURT
The Honorable J. Philip McGraw, Judge
Cause No. 37D01-0308-FD-120
May 24, 2004
OPINION - FOR PUBLICATION
Appellant, Charles Stamper, pleaded guilty to Receiving Stolen Property as a Class D
felony. Upon appeal, Stamper claims, and the State agrees, that the trial
court erred in denying Stampers request for counsel to represent him at his
We reverse and remand.
After stealing a van they found in West Virginia, Stamper and a friend
drove the van toward Chicago until it ran out of fuel on I-65
in Jasper County. Stamper and his friend then began to walk north
on the highway until picked up by Indiana State Police. Stamper was
charged on August 20, 2003 with one count of Receiving Stolen Property as
a Class D felony. That same day, Stamper appeared pro se at
an initial hearing. The trial court advised Stamper of his right to
counsel, but Stamper declined and pleaded guilty. The trial court set
a sentencing hearing for September 17, 2003.
On September 8, 2003, Stamper sent a handwritten note to the trial court
requesting to withdraw his plea of guilty and have a public defender appointed
to represent him. The trial court scheduled a hearing date of September
17, 2003 to address Stampers request. For reasons not apparent in the
record, the trial court held the sentencing hearing on September 15, 2003.
At the sentencing hearing, the trial court addressed Stampers request for a public
defender by reminding Stamper that he had been advised of his rights at
the initial hearing. The trial court noted that Stamper was no stranger
to criminal proceedings and asked Stamper if there were any errors in the
presentence investigation report. Stamper said that there were no errors that he
knew of. The trial court then proceeded to sentence Stamper to three
years incarceration, the maximum sentence for a Class D felony. See Ind.
Code § 35-50-2-7(a) (Burns Code Ed. Supp. 2003).
On September 19, 2003, Stamper sent the trial court another note requesting appointment
of counsel to help him appeal his conviction. The trial court held
a hearing on this request on September 24, 2003, and granted Stampers request
to appoint appellate counsel. Stamper filed his Notice of Appeal on October
Upon appeal, Stamper claims that he was denied the Sixth Amendment right to
counsel at the sentencing hearing only and brings no claim regarding the validity
of his guilty plea.
See footnote A criminal defendant has the right to counsel
at all critical stages of the proceedings against him, including a sentencing hearing.
Adams v. State, 693 N.E.2d 107, 109 (Ind. Ct. App. 1998).
Here, Stamper told the trial court at the guilty plea hearing that he
did not want counsel to be appointed for him. Without regard to
whether this was a knowing, intelligent, and voluntary waiver, the question before us
is whether the trial court properly denied Stampers request to have counsel appointed
before the sentencing hearing. In other words, should Stamper have been allowed
to change his mind with regard to his decision to proceed pro se?
A somewhat similar situation was before our Supeme Court in Koehler v. State,
499 N.E.2d 196 (Ind. 1986), wherein the defendant proceeded pro se, but with
standby counsel, before a jury against a battery charge. After the jury
returned a verdict of guilty, Koehler informed the trial court that he could
not adequately represent himself at the habitual offender phase of the proceedings and
requested that his standby counsel be allowed to represent him. The trial
court denied this request. Our Supreme Court described Koehler as a jailhouse
lawyer who realized his folly in electing self-representation but was prevented from correcting
his mistake. Id. at 197. The Court held that trial courts
have discretion to determine whether a defendant may abandon pro se representation and
reassert the right to counsel. Id. at 198-99.
Quoting People v. Elliott, 139 Cal.Rptr. 205, 211 (Cal. Ct. App. 1977), the
Koehler Court wrote that certain relevant factors must be considered by a trial
court in order for it to exercise meaningful discretion in ruling on a
defendants request to change from self-representation to representation by counsel. 499 N.E.2d
at 199. These factors are: (1) the defendants prior history in the
substitution of counsel and in the desire to change from self-representation to counsel-representation,
(2) the reasons set forth in the defendants request, (3) the length and
stage of the trial proceedings, (4) any disruption or delay in the trial
proceedings which might be expected to ensue if the request is granted, and
(5) the likelihood of the defendants effectiveness in defending against the charges if
required to continue to act as his own attorney. Id. Upon
making a request to change representation, a defendant is entitled to consideration of
these factors. Goble v. State, 766 N.E.2d 1, 5 (Ind. Ct. App.
In applying these factors, the Koehler Court held that the trial court had
abused its discretion in denying Koehlers request to allow standby counsel to represent
him at the habitual offender proceedings. 499 N.E.2d at 199-200. The
While Koehler had fired two attorneys, he made the decision to proceed pro
se before trial and did not change his mind until trial on the
battery charge had concluded. Koehlers stated reasons for requesting counsel at this
late stage were legitimate; he acknowledged that he was unfamiliar with the legal
intricacies of an habitual offender hearing and thus could not adequately defend himself.
His poor performance during the battery trial supported his statement. Furthermore,
Koehlers request came at an opportune moment between trial on the battery charge
and the habitual offender proceeding. The State does not allege the appointment
of counsel would have created any delay. No continuance would have been
necessary because standby counsel was familiar with the case. Lastly, Koehler had
failed miserably as defense counsel during the battery trial and there was no
reason to believe he would have fared any better during the habitual proceeding.
Id. at 199.
The Court further observed that [i]t would be illogical to bar all opportunity
for reasserting ones right to counsel once a defendant realizes his mistake in
proceeding pro se. Id.
In the case at bar, we first note that there is no indication
in the record that the trial court considered the Koehler factors. This
alone supports reversal. See Dowell v. State, 557 N.E.2d 1063, 1068 (Ind.
Ct. App. 1990) (holding that trial court abused its discretion in summarily denying
defendants request to have standby counsel conduct his closing argument), trans. denied, cert.
denied, 502 U.S. 861 (1991). Moreover, applying the relevant factors to the
facts before the trial court, we conclude that Stampers request should have been
First, this appears to be the only time that Stamper had changed his
mind regarding representation, whereas in Koehler, the defendant had already fired two attorneys.
499 N.E.2d at 199. It does not appear that Stamper every
fully explained his reasons for wanting counsel, but in the note to the
trial court requesting to withdraw his guilty plea and requesting counsel, Stamper wrote,
I didnt realize what could happen to me at this time. Appendix
at 13. Although this may not be terribly compelling, there also appears
to have been no ulterior motive for Stampers request. Also, Stampers request
came at a natural break in the proceedingsafter his plea, but before the
sentencing hearing. See Koehler, 499 N.E.2d at 200.
We recognize that the Koehler Court limited its holding to situations where standby
counsel was ready to take over representation under circumstances which do not disadvantage
any of the other participants in the trial.See footnote However, we do not
view the fact that Stamper did not have standby counsel to be fatal.
Instead, we view it as a component of the fourth Koehler factor,
i.e., disruption or delay in proceedings which might be expected to ensue were
the request granted. Here, there is no allegation that appointing counsel would
have excessively delayed the proceedings. Stampers request was made nine days before
the scheduled sentencing hearing.
Lastly, the record does not indicate a high likelihood that Stamper would be
effective if required to continue to act as his own attorney. Stamper
did not dispute the charges against him, nor does there appear to have
been any attempt on his part to negotiate with the State on a
plea agreement. This was borne out by Stampers performance at the sentencing
hearing, which was limited to a discussion with the trial court regarding his
criminal record and time served and stating that he had read the presentence
investigation report the best [he] could, and found no errors therein. Sentencing
Transcript at 2. Stamper made no effort to argue for a lesser
Considering these factors, we conclude that Stampers request for appointed counsel should have
been granted. See Koehler, 499 N.E.2d at 199-200. See also Goble,
766 N.E.2d at 7. (concluding that trial court abused its discretion in
denying defendants request to have standby counsel conduct direct examination of the defendant
where reasons for the request appeared legitimate, any delay in the proceedings would
have been minimal, and the record contained no indication that the trial court
had advised the defendant of the dangers of self-representation); Miller v. State, 789
N.E.2d 32 (Ind. Ct. App. 2003) (holding that trial court erred in denying
defendants request to allow standby counsel to conduct voir dire where there was
no indication that the trial court considered the Koehler factors or that granting
the request would have disrupted or delayed the trial), affd upon rehg, 795
N.E.2d 468; Dowell, 557 N.E.2d at 1067 (although reversing due to trial courts
summary denial of defendants request, in discussing factors which trial court should have
considered, court noted that defendants request to have standby counsel conduct closing arguments
was made prior to closing arguments, defendant had not previously made requests for
substitution of counsel, defendants self-representation had been less than effective up to that
point, and standby counsel was prepared to assume representation). Cf. Maisonet v.
State, 579 N.E.2d 660 (Ind. Ct. App. 1991) (stating in dicta that, even
if defendants comments were taken as a request to abandon his self-representation, trial
court did not err in denying such request; although the request occurred at
a natural break in the proceedings, there was no standby counsel prepared to
take over without interruption, the jury was seated, and request would have required
lengthy continuance causing excessive delay).
The judgment of the trial court is reversed and the cause is remanded
for proceedings not inconsistent with this opinion.
ROBB, J., and ROBERTSON, Sr.J., concur.
Tumulty v. State, 666 N.E.2d 394, 395-96 (Ind. 1996), our
Supreme Court held that a defendant who pleads guilty may not challenge his
plea by direct appeal but must instead avail himself of post-conviction remedies.
However, such a defendant is entitled to contest the merits of the trial
courts sentencing discretion where the court exercised such discretion. Id. at 396.
Here, Stamper specifically limits his claim of denial of counsel to the
sentencing phase only. Thus, he is not challenging the validity of the
guilty plea. At the same time, however, he is not directly challenging
the merits of the trial courts sentencing discretion, which was exercised here.
Be that as it may, Stampers claim that he was denied counsel at
the sentencing hearing is an indirect attack on the trial courts sentencing discretion,
and we will consider this argument upon direct appeal.
We would also observe that under our reading of Tumulty, it could not
be said that Stamper has waived any potential post-conviction claim of deprivation of
counsel at the guilty plea hearing for failure to bring such upon direct
appeal. This is not to say that we can see any practical
reason why Stamper should be prohibited from bringing such a claim now, or
why we could not adequately review such a claim upon the record before
us. However, a claim of denial of counsel at the guilty plea
hearing is effectively an attack upon the validity of the plea, which according
to the holding of Tumulty may only be brought upon post-conviction review.
By limiting its holding, we take the
Koehler Court to have
meant its particular holding that the trial court had abused its discretion given
the facts of that case, not that the factors are to be considered
only in situations where standby counsel was present. This is apparent from
the language used in describing when such factors are to be considered, i.e.,
when trial courts are ruling on a defendants request to change from self-representation
to representation by counsel. 499 N.E.2d at 199.