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ATTORNEY FOR APPELLANT George A. Leininger Madison, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Kelly A. Miklos Deputy Attorney General Indianapolis, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 15S01-0609-CR-333 CARLOS M. JACKSON, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Dearborn Circuit Court, No. 15D01-0108-CF-26 The Honorable G. Michael Witte, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 15A01-0505-CR-205 _________________________________ June 26, 2007 Boehm, Justice. We hold that a trial court may find a knowing and voluntary waiver of a defendant's right to be present at his jury trial if (1) the defendant knew his trial date and (2) the defendant did not provide an adequate explanation for his absence from trial. We also hold that a trial court is not required to readvise a defendant of his right to counsel or the perils of self-representation when the trial court revokes a defendant's attorney's pro hac vice status if (1) the defendant was advised of his right to have appointed counsel at his initial hearing and (2) the defendant had initially retained counsel and had made no indication to the trial court that he could not afford to

hire another attorney or intended to proceed pro se. Finally, under these circumstances, a defendant's intentional and inexcusable absence from trial can serve as a knowing, voluntary, and intelligent waiver of the right to counsel. Facts and Procedural History Carlos Jackson was found guilty of possession of cocaine with intent to deliver as a class A felony and possession of a handgun without a license as a class C felony. Jackson raises two issues on appeal: (1) the trial court committed reversible error when it conducted a jury trial attended by neither Jackson nor any attorney representing him and (2) the trial court committed reversible error when it did not question Jackson about his ability to hire counsel and did not inform Jackson that he had a right to a court-appointed attorney if he could not afford one. The Court of Appeals found the first of these issues dispositive, concluding that there was "simply no evidence that Jackson knowingly, voluntarily, and intelligently waived his right to counsel." Jackson v. State, No. 15A01-0505-CR-205, slip op. at 6 (Ind. Ct. App. Feb. 15, 2006). On August 31, 2001, the State charged Jackson with several crimes. On September 4, 2001, Jackson was present at the initial hearing where the trial court advised Jackson of his rights. On November 28, 2001, Robert Carpenter, an attorney admitted in Indiana, filed Jackson's motions to suppress and for bill of particulars and a demand for discovery. On December 5, 2001, Clyde Bennett II, who is not admitted in this state, was admitted as Jackson's counsel pro hac vice. Jackson and Bennett were present for pretrial conferences on December 21, 2001 and March 20, 2002. A jury trial was scheduled for June 24, 2002. On May 28, 2002, Jackson appeared for a pretrial conference without an attorney. On June 5, 2002, Bennett successfully moved to continue the jury trial. The trial was reset for October 21, 2002 with a pretrial conference scheduled for September 23, 2002. On July 15, 2002, the trial court rescheduled the final pretrial conference for October 1, 2002. On October 1, 2002, Jackson appeared at the pretrial conference without an attorney. The State reported that there had been no depositions and the defense had not provided it with a witness or exhibit list. The trial court revoked Bennett's pro hac vice status and scheduled an additional pretrial hearing for October 15, 2002. Jackson was ordered to appear with an attorney licensed in Indiana. Carpenter remained Jackson's attorney of record. The trial court told Jack-

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son that the October 21 trial date would remain the same but that the new attorney could file a motion to continue. Jackson was handed a copy of the court's order. On October 3, 2002, the trial court sent an order with the same information to all parties and attorneys, revoking Bennett's pro hac vice status, setting a status conference for October 15, 2002, and ordering Carpenter to appear at the hearing and be prepared for the jury trial scheduled for October 21, 2002. On October 15, 2002, Carpenter and Jackson appeared before the trial court and notified the court that Jackson intended to retain new counsel and discharge Carpenter and Bennett. They stated that Jackson had been unsuccessful in contacting new counsel and needed additional time. The trial court granted Jackson's request for additional time and rescheduled the jury trial for January 27, 2003 with two pretrial hearings on November 21, 2002 and December 26, 2002. Jackson was ordered to hire counsel by the November 21 pretrial conference. Neither Jackson, Carpenter, nor anyone else suggested that Jackson might proceed pro se. The trial court entered a written order setting the dates of the new pretrial hearings and the jury trial, granting Jackson's request for additional time, noting that Jackson discharged his attorneys, and directing Jackson to retain substitute counsel by the next hearing. This order was handed to Jackson at the hearing. On November 21, 2002 and December 26, 2002, neither Jackson nor any defense attorney appeared for the pretrial conferences, and a bench warrant was issued for Jackson's arrest. On January 27, 2003, neither Jackson nor any defense attorney appeared for the scheduled jury trial, and the State moved to proceed with the trial in absentia. The trial court found that on October 15, 2002, Jackson had been notified of the trial date both orally and in writing by the trial court. The trial court held that Jackson's failure to appear was willful, voluntary, and knowing. Jackson was then tried and convicted in absentia after the two-day trial. On December 10, 2003, Attorney John Dornette filed an appearance on behalf of Jackson, a praecipe for transcript of hearing, and a motion to correct error. Jackson claimed, in an attached affidavit, that: (1) Jackson requested that Bennett refund his fee, but Bennett did not do so; (2) Jackson was unable to hire counsel; (3) Jackson "did not know to attend trial" because he did not have a lawyer and his "old lawyers led him to believe there was no trial"; and (4) that "throughout this time" Jackson continued to be represented by Bennett in another matter pending in Ohio. The trial court conducted a hearing on the motion to correct error on April 6, 2004 and

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subsequently denied the motion. The Court of Appeals reversed and remanded for a new trial, and we granted transfer. Jackson v. State, 860 N.E.2d 591 (Ind. 2006). Jackson's Constitutional Rights Of course, the constitutional rights of Jackson and every other accused must be strictly enforced. But a defendant cannot be permitted to manipulate the system simply by refusing to show up for trial. Jackson has not established on this record that any of his constitutional rights have been violated. To the contrary, we conclude that this record fully supports the trial court's finding that Jackson willfully and knowingly refused to appear at trial and waived his right to counsel and his right to be present at trial. We also conclude that, under these circumstances, the trial court did not have a duty to readvise Jackson of the right to counsel or the perils of selfrepresentation when it revoked Jackson's attorney's pro hac vice status because there was no indication that Jackson intended to proceed pro se or could not hire another attorney. A. Right To Be Present at Trial First, it is clear that Jackson waived his right to be present at his trial. Both the Federal and Indiana Constitutions afford defendants in a criminal proceeding the right to be present at all stages of their trial. U.S. Const. amend. VI; Ind. Const. art. 1,

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