Opinion
No. 71A04-1101-CR-67
09-20-2011
DARNELL KELLY, JR., Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : DONALD J. BERGER South Bend, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana MONIKA PREKOPA TALBOT Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT:
DONALD J. BERGER
South Bend, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable John M. Marnocha, Judge
Cause No. 71D02-1005-FC-111
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES , Judge
Case Summary
Darnell Kelly, Jr., appeals his conviction for Class C felony burglary and the finding that he is an habitual offender. We affirm.
Issue
The sole restated issue before us is whether the trial court properly refused to appoint a different public defender to represent Kelly.
Facts
On May 24, 2010, the South Bend Police Department received a dispatch stating that someone was kicking in the door of a building that a Masonic lodge used as a storage facility. When officers arrived at the building, they found Kelly inside of it. Kelly matched the description of the person identified in the police dispatch. Police also found a cart loaded with dinner plates, which belonged to the lodge, inside the building. Kelly admitted that the cart was his and that he intended to take the plates. He claimed, however, that he thought he had permission to enter the building and take the plates because he believed the building was vacant.
On May 26, 2010, the State filed an information charging Kelly with Class C felony burglary. Kelly was found to be indigent, and the trial court appointed the St. Joseph County Public Defender's Office to represent him. As a general rule, this trial court does not appoint a specific attorney to represent indigent defendants, and instead leaves to the chief public defender the assignment of cases to attorneys within the office. Kelly's case was assigned to Brian May.
Kelly's trial ultimately was scheduled for November 29, 2010. On October 8, 2010, Kelly, acting pro se, sent two letters to the trial court. The first was a purported "plea agreement," wherein Kelly expressed his willingness to plead to a Class D felony, to be treated as a Class A misdemeanor, apparently under alternative misdemeanor sentencing. The State was aware of Kelly's willingness to plead guilty in this manner, but it refused to accept such an offer. Instead, it wanted Kelly to enter an "open" plea to the Class C felony, with the threat that it would file an habitual offender allegation against Kelly if he did not accept such a plea.
The second letter was styled a "Motion to Dismiss Attorney Brian May." App. p. 105. The letter expressed Kelly's unhappiness with May because May had advised him to accept the State's offer of entering an "open" plea to Class C felony burglary. The letter also alleged, "There's no attorney, client relationship with us." Id. at 106. Kelly concluded the letter by asking that he be allowed to represent himself, "til [sic] the Court appoint me with another." Id. The trial court did not respond to either of Kelly's letters, and they were not deemed to be filed with the court.
Kelly did not accept the State's offer to plead "openly" to the Class C felony charge. On November 15, 2010, the State added an habitual offender allegation to the information against Kelly. Before Kelly's trial began on November 29, 2010, there was a discussion regarding Kelly's unhappiness with May. Kelly complained that May had only visited him in jail twice since the case had been initiated, that he was not "comfortable" having May represent him, and that he believed he was being "railroaded." Tr. pp. 9-10. May said that he was prepared to continue representing Kelly at trial. The trial court told Kelly that he was not going to appoint a different public defender to represent him and that Kelly could retain May, hire private counsel on his own, or represent himself. Kelly said that he would permit May to represent him, and the jury trial then took place.
On November 30, 2010, the jury found Kelly guilty of Class C felony burglary. Kelly then admitted to being an habitual offender, and the trial court sentenced him accordingly. Before sentencing occurred, Kelly sent the trial court another letter expressing his dissatisfaction with May's representation. Kelly now appeals.
Analysis
Kelly challenges only the trial court's refusal to appoint a different public defender to represent him. We review trial court actions regarding the appointment of counsel for indigent criminal defendants only for an abuse of discretion. Smith v. State, 474 N.E.2d 973, 978-79 (Ind. 1985). The general right of a defendant to choose his or her own attorney does not apply to indigent defendants who require counsel to be appointed for them. United States v. Gonzalez-Lopez, 548 U.S. 140, 151, 126 S. Ct. 2557, 2565 (2006); Moore v. State, 557 N.E.2d 665, 668 (Ind. 1990). If an indigent defendant refuses to be represented by appointed counsel, then the defendant must find some method to employ his or her own counsel or proceed pro se. Smith, 474 N.E.2d at 979. "The defendant may not arbitrarily compel a trial court to discharge competent appointed counsel." Id. Additionally, a defendant claiming error in the denial of a request to change appointed counsel must show that he or she was prejudiced by the denial. Dudley v. State, 480 N.E.2d 881, 896 (Ind. 1985).
Kelly never demanded that he be allowed to represent himself at trial; at most, he only sought to represent himself before trial until new counsel was appointed. On appeal, Kelly does not argue he was improperly denied his right of self-representation, nor that he had the means to hire his own attorney.
In reviewing the record and Kelly's writings to the trial court, it appears that Kelly's primary complaint with May is that Kelly wanted to plead guilty to a lesser offense, apparently either Class D felony residential entry or Class A misdemeanor trespass, while May advised Kelly to enter an "open" plea to the Class C felony burglary charge. Kelly apparently was insistent in maintaining that he thought he could enter the building and take the plates because he believed it was vacant. The State, however, refused to allow Kelly to plead guilty to anything less than a Class C felony. Moreover, the State conveyed to Kelly that it would add an habitual offender allegation against him if he did not plead to the C felony. Clearly, May's advice to Kelly to plead guilty to the C felony was reasonable, given the substantial evidence against him and the State's threat to file an habitual offender allegation, upon which it made good.
Kelly asserts in his brief that there is no indication in the record of whether he was made aware of such a threat. Before the jury trial, however, May stated, "Mr. Kelly was warned . . . that if he turned down the plea offer, they would file the habitual offender, make no doubt about that. And he saw it happen." Tr. p. 11.
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Kelly also seems to suggest that May was unprepared to try his case because he only physically met with Kelly twice before trial. However, Kelly has failed to pinpoint any specific way in which May was unprepared to try his case or otherwise indicate how he was prejudiced by May's physically meeting with him on only two occasions. In any event, a claim that May was unprepared to try Kelly's case would seem to fall more squarely under the sphere of ineffective assistance of counsel appropriate for resolution in a post-conviction proceeding, as such a claim would require some proof of what more May could have done to prepare for trial that he did not do.
In sum, Kelly has not established that May is or was an incompetent attorney. As an indigent defendant, Kelly could not compel the trial court to appoint another attorney to represent him where he was already represented by competent counsel. The trial court was under absolutely no obligation to appoint a different public defender to represent Kelly.
Conclusion
The trial court did not abuse its discretion in denying Kelly's motion to receive a different public defender. We affirm.
Affirmed. ROBB, C.J., and BRADFORD, J., concur.