DEWESTER v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a bench trial, Dewester was convicted of Level 3 felony criminal confinement, Level 4 felony unlawful possession of a firearm by a serious violent felon, two counts of Level 5 felony intimidation, two counts of Level 6 felony pointing a firearm, Level 5 felony attempted obstruction of justice, Class A misdemeanor domestic battery, and Class A misdemeanor invasion of privacy. He pled guilty to being a habitual offender and to the habitual offender enhancement. The sole issue he raises on appeal is whether the trial court violated his federal and state constitutional rights to self-representation. Finding his constitutional rights to self-representation were not violated, we affirm.

Facts and Procedural History

[2] Dewester married his wife, Shannon Dewester (Shannon), in January 2014. In August 2023, Shannon leased an apartment in Indianapolis. Dewester initially had a key to the apartment, but when the couple separated in January 2024, Shannon “took [the key] back.” Tr. Vol. II p. 66.

[3] In late June to early July 2024, Dewester began to “stalk[ ] and torment[ ]” Shannon at her home and workplace. Id. at 69. He vandalized parking signs with obscene messages directed at Shannon and her friend, Richard Maynard. Dewester kicked in Shannon's apartment door multiple times, trashed the apartment, took her belongings, and made a “shrine [and] banners.” Id. at 71. Dewester used “random phone numbers” to leave Shannon voicemail messages and obscene and threatening text messages. Id.

[4] In the early morning hours of July 13, Shannon was asleep on a couch located just inside the front door of her apartment. Her front door was locked, and before she fell asleep, she placed her handgun on the coffee table near the couch. Maynard was in the bathroom, taking a shower. Maynard was with her that night because Shannon felt “unsafe” and was afraid to stay in her apartment alone. Id. at 68.

[5] At around 2:15 a.m., while Shannon slept and without waking her, Dewester “kicked in” the locked door, entered the apartment, picked up Shannon's gun from the table, and walked toward the bathroom. Id. at 185. He entered the bathroom, “jerk[ed] the shower curtain open[,]” pointed the gun at Maynard, and told Maynard to “get out of this house.” Id. at 127. Shannon woke up, called out for Maynard, and heard a voice that was not his. Shannon then walked toward the bathroom and was “met” by Dewester, holding her gun to her face. Id. at. 83. After dressing himself, Maynard stepped out of the bathroom. Dewester turned and pointed the gun at Maynard's face and told Maynard, again, to get out of the apartment. Maynard left the apartment. Once outside, he encountered a bystander whom he asked to call the police.

[6] Shannon tried to leave the apartment when Maynard left, but Dewester pointed the gun between Shannon's eyes and told her to shut up and sit down on the couch. He grabbed a coat tree, a bed frame, curtain rods, and “anything [else] that he could grab” and placed the items in front of the door to prevent Shannon from leaving the apartment. Id. at 88. He called her a derogatory name and said he “would kill [her] and himself” and they would both “go out with a bang.” Id. at 86. Dewester kissed Shannon's face and told her to “say hi to [her] sister when [she] got there.” Id. at 87. Shannon's sister had passed away two years prior.

[7] Shannon asked Dewester “[n]umerous times” to allow her to leave the apartment. Id. at 89. When Shannon tried to remove the items blocking the front door, Dewester “hit his hand across [her] nose.” Id. He pushed her in the chest and knocked her backward onto the couch.

[8] Indianapolis Metropolitan Police Department (IMPD) officers responded to the scene around 2:30 a.m. Over several minutes, an officer repeatedly commanded Dewester to allow Shannon to leave the apartment. After both Dewester and Shannon spoke to the officers through the door, Shannon exited the apartment. According to Shannon, Dewester eventually “snapped out of it[,]” opened the front door, and allowed her to leave. Id. at 92. Shannon was “disheveled[,]” “afraid[,]” and “crying[.]” Id. at 120. As she left, Dewester slipped Shannon's handgun into the purse she carried. Dewester remained in the apartment and closed the front door.

[9] Shortly after Shannon left the apartment, a SWAT team arrived. Approximately thirty or forty minutes later, Dewester exited the apartment and was taken into IMPD custody.

[10] On July 15, 2024, the State charged Dewester with Level 3 felony criminal confinement, Level 4 felony unlawful possession of a firearm by a serious violent felon, two counts of Level 5 felony intimidation, two counts of Level 6 felony pointing a firearm, and Class A misdemeanor domestic battery.¹ At his initial hearing held the following day, Dewester interrupted the trial court and requested a speedy trial. The court asked Dewester to “stop talking over [the court].” Id. at 6. Immediately thereafter, the court found Dewester indigent and appointed an attorney to represent him. The court, however, granted Dewester's speedy trial request because it was made before the court had the opportunity to appoint counsel to represent him. The trial court also issued a no-contact order in favor of Shannon and Maynard and against Dewester. After Dewester violated the no-contact order by contacting Shannon, the State added two charges on August 29: Level 5 felony attempted obstruction of justice and Class A misdemeanor invasion of privacy.

[11] At a pretrial hearing held on September 3, Dewester appeared with counsel, and his counsel asked the court for a continuance. Dewester interjected, indicating he did not want the trial continued, and the court stated, “I'm not asking you.” Id. at 28. The court then granted the continuance and moved the trial from September 9 to September 23. Dewester, again, attempted to address the court, and the court told Dewester, “Talk to your lawyer.” Id. When Dewester responded, “I would like to give a sworn affidavit, Your Honor[,]” the following exchange took place:

THE COURT: Sir, we are not having this conversation. Take [Dewester] back, please.

[DEWESTER]: May I speak to my lawyer?

THE COURT: [Your attorney will] come back and talk to you.

[DEWESTER]: Your Honor, I would like to go pro se.

THE COURT: We're done with your hearing, sir. Thank you.

Id. at 28-29 (emphasis added). On September 9, the State alleged that Dewester was a habitual offender.

[12] On September 17, a final pretrial conference was held. Dewester appeared with counsel, but neither Dewester nor his counsel mentioned Dewester wanting to proceed pro se. At a waiver hearing held three days later, Dewester appeared with counsel and waived his right to a jury trial. Neither Dewester nor his counsel indicated Dewester wanted to proceed pro se.

[13] Dewester's bench trial commenced on September 23. Dewester was represented by two attorneys: Attorney Schneider and Attorney Levin, who served as co-counsel. Dewester did not express a desire to proceed pro se at that time. At the conclusion of the trial, Dewester was found guilty as charged.

[14] On October 7, Dewester filed a motion to proceed pro se for the habitual offender phase of his trial. The trial court held a hearing to address (1) whether Dewester waived his right to a jury trial for the habitual offender phase of his trial, (2) a plea offer the State had presented to Dewester for the habitual offender enhancement, and (3) sentencing. Initially, the court determined Dewester had not made a valid waiver of his right to a jury trial for the habitual offender phase. Defense counsel then informed the court, “Mr. Dewester, first and foremost wishes ․ to represent himself.” Tr. Vol. III p. 5.

[15] Next, the trial court addressed the State's plea offer that, if accepted, “would guarantee” an eight-year minimum sentence for the habitual offender enhancement. Id. The trial court determined that Dewester wanted a jury to decide his status as a habitual offender. Thereafter, the court addressed Dewester's request to proceed pro se.

[16] Dewester addressed the court directly and expressed dissatisfaction with his counsel, Attorney Schneider. Dewester told the court he intended to file a lawsuit against the attorney, alleging ineffective assistance of counsel, and Dewester stated, “I told [my attorney] to discharge himself[.]” Id. at 8. The court told Dewester that Schneider was his attorney “unless one of three things happens. You hire your own attorney, the Court grants you leave to represent yourself, ․ or the Marion County Public Defender Agency makes a change in attorneys.” Id. at 9. The court then cautioned Dewester against proceeding pro se and explained how the habitual offender phase of the trial would proceed.

[17] Dewester continued to complain about his attorney, and the trial court asked him, “[W]ould it satisfy you if another attorney served as lead counsel in this case and [Attorney] Schneider did not?” Id. at 14. Dewester replied, “Yes. Yes. It will.”² Id. Dewester then asked the court questions about his case and the State's plea offer. He never clarified, however, whether he wanted to proceed pro se or, instead, would accept the appointment of another attorney. The trial court then explained to Dewester his sentencing exposure under the plea agreement. Thereafter, the court told Dewester, “But if you want to represent yourself at trial, ․ I'll give that opportunity.” Id. at 17. Dewester interjected, “No.” Id.

[18] Dewester ultimately accepted the plea agreement. He waived his right to a jury trial and pled guilty to being a habitual offender and to the habitual offender enhancement.

[19] Dewester was sentenced on October 17, 2024. Due to double jeopardy concerns, the court did not enter convictions on one of the Level 5 felony intimidation counts and both Level 6 felony pointing a firearm counts. On the Level 3 felony criminal confinement count and the habitual offender enhancement, Dewester received an aggregate term of seventeen years, with six years suspended and eleven years executed in the Indiana Department of Correction.³ Dewester now appeals.

Discussion and Decision

The trial court did not violate Dewester's federal and state constitutional rights to self-representation.

[20] Dewester argues the trial court violated his constitutional rights to self-representation. The right to self-representation “is implicit in the Sixth Amendment to the United States Constitution, and Article 1, [Section] 13 of the Indiana Constitution also guarantees this right.” Stroud v. State, 809 N.E.2d 274, 279 (Ind. 2004). “A request to proceed pro se is a waiver of the right to counsel, and consequently, there are several requirements to invoking the right of self-representation successfully.” Id.

[21] The decision to proceed pro se must be “knowing, intelligent, and voluntary.” Jones v. State, 783 N.E.2d 1132, 1138 (Ind. 2003). And a defendant should “be made aware of the dangers and disadvantages of self-representation” so that the defendant “knows what he is doing and [the] choice is made with eyes open.” Faretta v. California, 422 U.S. 806, 835 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).

[22] A defendant's request for self-representation must be clear and unequivocal and must be made within a reasonable time before the first day of trial. Stroud, 809 N.E.2d at 279. As our Supreme Court explained:

An unequivocal assertion is one that's sufficiently clear in that, when granted, the defendant should not be able to turn about and urge that he was improperly denied counsel. Half-hearted expressions of dissatisfaction with counsel and general references by the defendant to self-representation ultimately fail to meet this requisite. Absent this condition, trial courts subject themselves to potential manipulation by defendants clever enough to record an equivocal request to proceed without counsel in the expectation of a guaranteed error.

Wright v. State, 168 N.E.3d 244, 259 (Ind. 2021) (internal citations and quotation marks omitted), cert. denied. Even after a defendant has asserted his right to self-representation, the right may be waived through conduct indicating he is vacillating on the issue or has abandoned the request altogether. Wheeler v. State, 15 N.E.3d 1126, 1130 (Ind. Ct. App. 2014) (citing Stroud, 809 N.E.2d at 281).

[23] Dewester argues he clearly and unequivocally asserted his right to self-representation when, at the end of the September 3 pretrial hearing, he told the trial court, “Your Honor, I would like to go pro se.” Tr. Vol. II p. 29. Dewester contends the court “ignored” his request “entirely” when it told him the court was “done” with his hearing; the court “never ruled” on his request; and the court failed to instruct him on the dangers of self-representation. Appellant's Br. pp. 10-11. According to Dewester, it was “irrelevant that [he] ultimately went to trial with the assistance of counsel and, at that trial, did not again inform the court that he wished to proceed pro se.” Id. at 11. He maintains that “[b]eyond his first unequivocal statement, [he] had no further duty to inform the court that he wished to proceed pro se.” Id.

[24] The State contends Dewester's request was not clear and unequivocal. The State proffers that Dewester's “request to proceed pro se was made in conjunction with a request to continue speaking with his attorney[,]” thus the request was “more accurately viewed as an attempt to expedite [the] trial rather than an expression that [Dewester] wished to invoke the right of self-representation.” Appellee's Br. p. 13. We agree with the State.

[25] During the September 3 pretrial hearing, Dewester twice interrupted the court proceedings because he did not want his trial continued. The court told Dewester to speak with his attorney about the matter; Dewester told the court he wanted to “give a sworn affidavit.” Tr. Vol. II p. 28. Dewester then asked the court if he could speak with his lawyer, and the court told him his lawyer would speak with him.

[26] Immediately thereafter, Dewester told the trial court he wanted to “go pro se.” Id. at 29. The court, however, did not deny that right to him. Rather, the court told Dewester the hearing was over. Dewester did not object to the court ending the hearing. He did not reassert his request to proceed pro se, and he proceeded to his bench trial represented by counsel. Thus, he abandoned, and consequently waived, his request to proceed pro se. As noted supra, the right to self-representation may be waived through conduct indicating a defendant is vacillating or abandoning his request altogether. Wheeler, 15 N.E.3d at 1130.

[27] As for Dewester's argument it was “irrelevant” that he proceeded to his bench trial represented by counsel and “did not again inform the [trial] court that he wished to proceed pro se[,]” Appellant's Br. p. 11, we look to our Supreme Court's decision in Wright. Wright held the trial court properly denied Wright's self-representation request because his request was neither unequivocal nor intelligent. 168 N.E.3d 244. In reaching its determination that Wright equivocated in his decision to proceed pro se, the Wright Court noted that when a trial court is faced with a defendant invoking his right of self-representation,

it makes little sense to limit the trial court to testimony presented at the Faretta hearing when assessing one factor (equivocalness) while permitting the trial court to look beyond the Faretta hearing when assessing other factors (voluntariness and intelligence). And, so far as our research has uncovered, the U.S. Supreme Court has never imposed such a limitation. What's more, this Court has broadly stated that “waiver must be viewed in light of all facts and circumstances,” Kubsch [v. State, 866 N.E.2d 726, 737 (Ind. 2007)], suggesting that the inquiry as a whole may focus on evidence outside the Faretta hearing.

Wright, 168 N.E.3d at 265 n.15 (emphasis added).

[28] Simply put, Dewester's right to self-representation was not violated. His request to proceed pro se was made at the conclusion of the September 3 hearing, after the continuance had been granted, and after he repeatedly interrupted court proceedings to express his dissatisfaction with the delay of his trial and tried to stop the continuance. And Dewester abandoned his request.⁴ Under these circumstances, we cannot say Dewester's request was clear and unequivocal, and the trial court could reasonably have determined it need not rule on the request because it was made only because Dewester was unhappy with the continuance of his trial. Dewester's claim that he was denied his constitutional rights to self-representation fails.

[29] The trial court did not violate Dewester's constitutional rights to self-representation. The judgment of the trial court is affirmed.

[30] Affirmed.

FOOTNOTES

1.   The State amended the charging information by interlineation on July 30, 2024, to correct a scrivener's error.

2.   Dewester declined to be represented by Attorney Levin, who had served as Attorney Schneider's co-counsel during Dewester's bench trial.

3.   Three of the six years of Dewester's sentence that were suspended were ordered to be served on probation. As for the remaining counts, Dewester was sentenced to six years on the Level 4 felony unlawful possession of a firearm by a serious violent felon count; three years each on the Level 5 felony intimidation and attempted obstruction of justice counts; and 180 days each on the Class A misdemeanor domestic battery and invasion of privacy counts—all to run concurrently with Dewester's sentence for the Level 3 felony criminal confinement count.

4.   Indeed, Dewester did not renew his request to proceed pro se until the habitual offender phase of his trial. Even so, at the hearing to address matters related to the habitual offender phase, Dewester equivocated regarding proceeding pro se. He complained about his attorney and never clarified whether he wanted to proceed pro se or would accept the appointment of another attorney to represent him in the habitual offender phase of the trial. Dewester ultimately waived his right to a jury trial and pled guilty to being a habitual offender.

Scheele, Judge.

May, J., and Weissmann, J., concur.