Quincy D. Sullivan v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                    FILED
    regarded as precedent or cited before any
    court except for the purpose of establishing                        Feb 21 2017, 9:29 am
    the defense of res judicata, collateral                                  CLERK
    Indiana Supreme Court
    estoppel, or the law of the case.                                       Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Scott H. Duerring                                        Curtis T. Hill, Jr.
    South Bend, Indiana                                      Attorney General of Indiana
    Ian McLean
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Quincy D. Sullivan,                                      February 21, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    20A03-1606-CR-1246
    v.                                               Appeal from the Elkhart Circuit
    Court
    State of Indiana,                                        The Honorable Terry C.
    Appellee-Plaintiff                                       Shewmaker, Judge
    Trial Court Cause No.
    20C01-1504-FB-15
    Baker, Judge.
    Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017     Page 1 of 5
    Quincy Sullivan appeals his convictions for two counts of Robbery, 1 a Class B
    felony, five counts of Confinement,2 a class B felony, and one count of
    Conspiracy to Commit Robbery,3 a class B felony. Sullivan argues that the trial
    court committed fundamental error by allowing Sullivan’s co-defendant to
    proceed pro se in the middle of trial and by neglecting to sever the two
    defendants’ cases sua sponte. Finding no fundamental error, we affirm.
    [1]   On April 9, 2015, the State charged Sullivan and Albert Webb with two counts
    of Class B felony robbery, five counts of Class B felony confinement, and one
    count of Class B felony conspiracy to commit robbery. As the two cases dealt
    with precisely the same set of alleged facts, the co-defendants’ joint jury trial
    began on February 29, 2016. At the outset of the trial, Sullivan and Webb were
    each represented by attorneys. Three days into the trial, Webb requested to
    represent himself because he was dissatisfied with his attorney’s performance.
    The trial court strongly discouraged Webb from doing so, advising him of the
    dangers and disadvantages of self-representation, but Webb insisted on
    representing himself. At the close of the trial, the jury found Webb and
    Sullivan guilty as charged.
    [2]   Sullivan concedes that he did not object to Webb’s request to represent himself,
    nor did he request that the cases be severed at the time Webb’s request was
    1
    Ind. Code § 35-42-5-1.
    2
    I.C. § 35-42-3-3.
    3
    Ind. Code § 35-41-5-2; I.C. § 35-42-5-1.
    Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017   Page 2 of 5
    granted. Therefore, to succeed on appeal, he must meet the extremely high bar
    of establishing fundamental error. E.g., Ryan v. State, 
    9 N.E.3d 663
    , 668 (Ind.
    2014). To constitute fundamental error, the error must be a clearly blatant
    violation of basic and elementary principles of due process and present an
    undeniable and substantial potential for harm such that a fair trial was
    impossible. E.g., 
    id. Additionally, Sullivan
    must establish that the error was so
    severe that it would have compelled any competent trial judge to immediately
    intervene, regardless of the defendant’s decision not to object or request other
    relief. Brewington v. State, 
    7 N.E.3d 946
    , 974 (Ind. 2014).
    [3]   With respect to Sullivan’s contention that the trial court should have severed
    the two cases sua sponte, we note that it has long been the case that trial courts
    do not “have a duty to order separate trials sua sponte.” Snider v. State, 
    274 Ind. 401
    , 403, 
    412 N.E.2d 230
    , 232 (1980). Consequently, he has not established
    that any competent trial judge would have been compelled to intervene sua
    sponte.
    [4]   With respect to Sullivan’s contention that the trial court committed
    fundamental error by permitting Webb to proceed pro se, we note that the right
    to representation is personal. E.g., Carter v. State, 
    512 N.E.2d 158
    , 162 (Ind.
    1987) (observing that “[t]he policy supporting the right of self-representation is
    personal autonomy,” noting that as the defendant is the one who must suffer
    the consequences of his decision as to counsel, “he is entitled to choose his
    advocate, a lawyer or himself”). Therefore, Sullivan may not challenge Webb’s
    decision to proceed pro se, or the trial court’s ruling permitting Webb to do so.
    Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017   Page 3 of 5
    Cf. Horton v. State, 
    51 N.E.3d 1154
    , 1159 (Ind. 2016) (holding that the choice to
    exercise the personal right to a jury trial may not be exercised by proxy); Reed v.
    State, 
    748 N.E.2d 381
    , 390 (Ind. 2001) (holding that defendant cannot exercise
    State’s right to grant use immunity); Eaton v. State, 
    274 Ind. 73
    , 75, 
    408 N.E.2d 1281
    , 1283 (1980) (holding that a personal right against self-incrimination may
    not be exercised by a third party). Sullivan continued to be represented by an
    attorney, and he had no more ability to demand that Webb waive his right of
    self-representation than Webb had to demand that Sullivan waive his right to be
    represented by counsel.
    [5]   In any event, the trial court had discretion to grant or deny Webb’s request,
    given that the request was made after the trial had begun. Koehler v. State, 
    499 N.E.2d 196
    , 198-99 (Ind. 1986). In this case, Webb did not request a delay in
    the trial, nor had he engaged in any other conduct that would argue against
    granting his motion. Webb asserted his fundamental right to represent himself,
    even in the fact of the trial court’s advisement against it, and the trial court did
    not commit fundamental error by granting Webb’s request.
    [6]   Furthermore, Sullivan has failed to establish that these rulings made a fair trial
    impossible. Although he complains that he was “tied” to “every in-artfully
    framed question, fumbling objection, or statement made by Webb,” he does not
    explain how Webb’s conduct made a fair trial impossible. Appellant’s Br. p. 8.
    The record reveals that both Webb and Sullivan’s attorney strenuously cross-
    examined the remaining witnesses, pursued identical trial strategies, and raised
    similar arguments to the jury. Under these circumstances, we cannot see how
    Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017   Page 4 of 5
    Webb’s self-representation made a fair trial impossible for Sullivan. In sum,
    Sullivan has not established that the trial court committed fundamental error by
    neglecting to sever the cases sua sponte or by permitting Webb to proceed pro
    se.
    [7]   The judgment of the trial court is affirmed.
    Mathias, J., and Pyle, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1246 | February 21, 2017   Page 5 of 5
    

Document Info

Docket Number: 20A03-1606-CR-1246

Filed Date: 2/21/2017

Precedential Status: Precedential

Modified Date: 2/21/2017