Devon B. Bowen, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Devon Bowen appeals his conviction for resisting law enforcement, a Class A misdemeanor, and the judgment finding that he operated a bicycle without white and red lights or reflectors when required, a Class C infraction. Bowen argues that his conviction for resisting law enforcement must be reversed because he did not knowingly, voluntarily, and intelligently waive his right to counsel and the trial court therefore erred in permitting him to proceed pro se at trial. Bowen also claims that the trial court's imposition of fines and costs must be reversed because the trial court did not first conduct an indigency hearing to determine whether he was financially able to pay.

[2] We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Facts and Procedural History

[3] At approximately 3:00 a.m. on August 1, 2023, Peru Police Department Officer Jonathan Cruz observed an individual—subsequently identified as Bowen—riding a bicycle on Main Street in Peru. The bicycle did not have a light or reflector and was on the wrong side of the street. Officer Cruz activated his marked police vehicle's lights and siren, drove alongside Bowen, and ordered him to stop. Bowen refused and fled on the bicycle. At that point, Officer Cruz radioed other officers in the vicinity about the incident. Although one of the officers saw Bowen and began pursuit, Bowen evaded capture.

[4] At some point, another officer informed Officer Cruz that Bowen was the individual on the bicycle. After obtaining Bowen's date of birth, Officer Cruz conducted a computer search for Bowen's driver's license number. Officer Cruz located Bowen's license and recognized his photo.

[5] Bowen was subsequently arrested and on August 3, 2023, the State charged him with resisting law enforcement, a Class A misdemeanor, and operating a bicycle without white or red lights or reflectors when required, a Class C infraction. At the initial hearing, the trial court advised Bowen of his right to counsel, and Bowen indicated that he intended to hire an attorney. Thereafter, at a November pretrial conference, Bowen informed the trial court that he desired to proceed pro se.

[6] During a pretrial conference in January 2024, the trial court advised Bowen of the possible penalties for the charged offenses and the hazards of self-representation. The trial court established that Bowen could read and write and that he had not received any promises or threats in waiving his right to counsel. Bowen acknowledged at the hearing that he was not under the influence of drugs or alcohol that would affect his ability to understand the trial court's advisements.

[7] The trial court explained to Bowen that an attorney had the skills to present available legal defenses on his behalf. In response, Bowen indicated that he was “learning” and “studying” about selecting a jury and preparing jury instructions and that he had represented himself in prior cases. Supplemental Transcript at 8-9. Bowen's criminal history included four felony and five misdemeanor convictions.

[8] The trial court warned Bowen that he would receive no special treatment, that he would have to follow the rules of evidence and procedure, and that the result could “turn out very badly” if he represented himself. Id. at 10. Bowen indicated that he understood the trial court's advisements and dangers of self-representation and wanted to proceed pro se.

[9] The trial court revisited Bowen's decision to proceed pro se on the day of the February 29, 2024 bench trial. Bowen reaffirmed that he understood “all the pitfalls” of self-representation and advised the trial court that he wished to proceed pro se. Transcript Vol. II at 16. The trial court then presented Bowen with a written “Advise[ment] of Self-Represented Defendants” form and told Bowen that he should sign it if he understood its contents. Appellant's Appendix Vol. II at 31-33; Transcript Vol. II at 16, 18.

[10] Although the introductory paragraph in the form listed the name of “Shane Green,” it contained the correct cause number and Bowen's charges. That form repeated the trial court's advisements given at the January 2024 hearing. Bowen did not answer questions on the second page of the document that pertained to his knowledge of the legal system and whether any threats or promises had been made; however, he answered those same questions and signed an identical form in a separate pending criminal matter two weeks prior to proceeding to trial in this matter. Finally, the trial court again asked Bowen whether he had any questions “about representing himself” or with regard to “any of the information that [the court had] provided” at the prior hearing, to which Bowen responded, “no.” Transcript Vol. II at 16. Bowen then signed the form.

[11] When the trial commenced, Bowen gave an opening statement. Officer Cruz testified, and Bowen cross-examined him. Thereafter, Bowen objected to the admission of one of the State's exhibits, claiming that the proceeding “was a pre-trial.” Transcript Vol. II at 41. Bowen also moved for a mistrial on the same ground and accused the trial court of “stealing” his rights. Id. at 43, 53. Bowen then asked for a continuance and sought to “invoke [his] right to subrogation.” Id. at 44. At that point, the trial court denied Bowen's motion for a mistrial and a continuance. At no time did Bowen ask for legal representation. Moreover, when the prosecutor mentioned that Bowen should have legal counsel before continuing to proceed, Bowen responded that “[he] shouldn't have an attorney.” Id. at 44.

[12] After the State presented its evidence, Bowen testified on his own behalf. During cross-examination, Bowen admitted that he did not have a light on the bicycle and that he fled from the officers. After hearing the evidence, the trial court found Bowen guilty of resisting law enforcement and committing a Class C infraction.

[13] At a subsequent sentencing hearing, the trial court sentenced Bowen to 365 days of incarceration with 180 days suspended to probation on the resisting charge and $189.50 in costs. Bowen was also fined $25 for committing the Class C infraction.

[14] Bowen now appeals.

Discussion and Decision

I. Waiver of Right to Counsel

[15]Bowen argues that his conviction for resisting law enforcement must be set aside because the trial court failed to sufficiently advise him about the dangers of self-representation. Thus, Bowen claims that he did not knowingly and intelligently waive his right to counsel and that the trial court therefore erred in permitting him to proceed pro se.

[16]The Sixth Amendment, applicable to the states through the Fourteenth Amendment, guarantees a criminal defendant the right to counsel before he may be tried, convicted, and punished. Hopper v. State, 957 N.E.2d 613, 617 (Ind. 2011). This protection also encompasses an affirmative right for a defendant to represent himself in a criminal case. See Faretta v. California, 422 U.S. 806, 807 (1975). A defendant's assertion of the right of self-representation must be “unequivocal.” Wright v. State, 168 N.E.3d 244, 259 (Ind. 2021).

[17]When a criminal defendant waives his right to counsel and elects to proceed pro se, we must decide whether the trial court properly determined that the defendant's waiver was knowing, intelligent, and voluntary. Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). Waiver of assistance of counsel may be established based upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Id. There are no prescribed “talking points” the court is required to include in its advisement to the defendant; it need only come to a considered determination that the defendant is making a voluntary, knowing, and intelligent waiver. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001). The defendant should be made aware of the dangers and disadvantages of self-representation so the record will establish that he knows what he is doing and his choice is made “with eyes open.” Leonard v. State, 579 N.E.2d 1294, 1295 (Ind. 1991) (citing Faretta, 422 U.S. at 835).

[18]In reviewing the adequacy of the waiver of a defendant's right to counsel, we consider the totality of the circumstances, including: (1) the extent of the court's inquiry into the defendant's decision, (2) other evidence in the record that establishes whether the defendant understood the dangers and disadvantages of self-representation, (3) the background and experience of the defendant, and (4) the context of the defendant's decision to proceed pro se. Hopper, 957 N.E.2d at 619. Because a trial court is uniquely situated to assess whether a defendant has waived the right to counsel, we will most likely uphold the trial court's decision “to honor or deny the defendant's request to represent himself.” Wright, 168 N.E.3d at 259.

[19]In this case, Bowen informed the trial court at the November 2023 pretrial conference that he wished to represent himself at trial. In accordance with that request, the trial court conducted a hearing in January 2024, at which time it informed Bowen of the possible penalties he faced. The trial court determined that Bowen was not under the influence of drugs or alcohol and that he had not received any promises or threats about waiving counsel. It also warned Bowen that things “could turn out very badly” if he proceeded without legal counsel. Supplemental Transcript at 10. Also, while the trial court advised Bowen that an attorney had the expertise to present available legal defenses, Bowen assured the trial court that he had adequate skills and training to proceed pro se. Bowen acknowledged that he earned a high school diploma, had represented himself in prior criminal proceedings, and was learning how to select a jury. Bowen had prior criminal convictions for four felonies and five misdemeanors. After the trial court informed Bowen that he would not receive any special treatment for proceeding pro se and would have to follow the evidentiary and procedural rules, Bowen acknowledged that he understood the dangers of self-representation and stated that he wanted to represent himself at trial.

[20]In addition to the verbal advisements at the January pretrial conference, the trial court again considered Bowen's waiver of counsel on the day of trial, at which time Bowen verbally affirmed that he understood the pitfalls of self-representation and desired to represent himself at trial. Bowen was also provided with written advisements regarding “self-represented defendants” on the day of trial. Appellant's Appendix Vol. II at 31-33. That form contained the proper cause number and charges against him, even though the document's introductory paragraph listed a different name. Bowen signed the form acknowledging that he understood the hazards of proceeding pro se and while he did not answer the specific questions contained in the form that day, he had previously answered those same questions and signed the advisement in another pending criminal case on February 13, 2024. In short, Bowen was verbally informed of the self-representation warnings and advisements at the January 2024 pretrial conference. And on the day of trial, Bowen signed a written document acknowledging those same advisements and insisted on representing himself.

[21]The trial court's advisements as to Bowen's decision to proceed pro se were adequate. See, e.g., Faretta, 422 U.S. at 835 (stating that a defendant need not have the skill and experience of an attorney to competently and intelligently choose self-representation, but only that he should be made aware of the dangers and disadvantages of self-representation). Contrary to Bowen's assertions on appeal, the trial court's advisements were not confusing and did not convey that he was in court only for a pretrial conference on February 29, 2024. The trial court specifically informed Bowen at the January 2024 hearing that a bench trial was to commence on February 29. During the trial, Bowen made an opening statement, cross-examined witnesses, and testified on his own behalf. At no time did Bowen ask for representation of counsel in light of his alleged confusion. In short, the record unequivocally shows that Bowen desired to represent himself at trial.

[22]Given Bowen's previous experience representing himself, his level of education, and the extent of the trial court's warnings and advisements against proceeding pro se, the facts and circumstances establish that Bowen voluntarily, knowingly, and intelligently waived his right to counsel. Thus, the trial court did not err in permitting Bowen to proceed pro se.

II. Indigency Hearing

[23] Bowen argues that the trial court erred in ordering him to pay fines and costs because it failed to first inquire about his ability to pay. Thus, Bowen maintains that we must remand this case to the trial court with instructions that it conduct an indigency hearing.

[24] We review a trial court's sentencing decisions and the imposition of costs and fees under an abuse of discretion standard. Spells v. State, 225 N.E.3d 767, 771 (Ind. 2024). Reversal is permitted only when a decision is clearly against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law. Id.

[25] Here, Bowen maintains that the trial court was required to conduct an indigency hearing before ordering him to pay the $25 fine for committing the Class C infraction. We note, however, that this fine was civil in nature, and a trial court is not required to conduct an indigency hearing where there is no chance that a party will be imprisoned for nonpayment. Smith v. State, 38 N.E.3d 218, 222 (Ind. Ct. App. 2015) (citing Pridemore v. State, 577 N.E.2d 237, 238 (Ind. Ct. App. 1991) (holding that traffic infractions are civil in nature and, therefore, there can be no imprisonment)). Also, Ind. Code § 35-38-1-18(a) provides that “whenever the court imposes a fine, it shall conduct a hearing to determine whether the convicted person is indigent.” (Emphasis added). As the statute applies to fines that are imposed for criminal convictions, Bowen's argument is misplaced.¹ For these reasons, the trial court was not obligated to conduct an indigency hearing prior to imposing the fine against Bowen for committing the Class C infraction.

[26] As for the $189.50 in costs imposed against Bowen on the resisting law enforcement conviction, the State concedes—and we agree—that the trial court was required to first make an indigency determination as to whether Bowen had the ability to pay those costs. Pursuant to Ind. Code § 33-37-2-3(a), “when the court imposes costs, it shall conduct a hearing to determine whether the convicted person is indigent” and may only assess the cost “[i]f the person is not indigent.”

[27] Here, although the trial court inquired about Bowen's indigency for the appointment of appellate counsel, it did not do so for the purpose of imposing court costs. Thus, we reverse the imposition of $189.50 in costs and remand this case for the trial court to conduct an indigency hearing to determine Bowen's ability to pay those costs. See, e.g., Spells, 225 N.E.3d at 775 (holding that before assessing fines, costs, and certain types of fees, a trial court must inquire regarding the defendant's ability to pay these amounts by first determining whether the defendant is indigent).

[28] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Ind. Code § 34-28-5-4(c) applies here and provides for a maximum fine of $500 for the commission of a Class C infraction.

Altice, Chief Judge.

Judges Brown and Tavitas concur. Brown, J. and Tavitas, J., concur.