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

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.
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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.
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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.
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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
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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.
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