Court of Appeals of Indiana | Memorandum Decision 60A04-1610-CR-2268 | March 14, 2017 Page 1 of 9

MEMORANDUM DECISION

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

Megan J. Schueler

Ferguson Law

Bloomington, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Randy Tapp,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

March 14, 2017

Court of Appeals Case No.

60A04-1610-CR-2268

Appeal from the Owen Circuit 

Court

The Honorable Lori Thatcher 

Quillen, Judge

Trial Court Cause No.

60C01-1603-CM-86

Baker, Judge.
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[1] Randy Tapp appeals his convictions for Class A Misdemeanor Resisting Law 

Enforcement1 and Class B Misdemeanor Disorderly Conduct.2 He raises a 

number of arguments on appeal, but we find one dispositive—whether he 

knowingly and voluntarily waived his right to be represented by an attorney. 

Finding that he did not, we reverse and remand for further proceedings.

Facts

[2] On March 8, 2016, Gosport Town Marshal James Harrington and Gosport 

Police Officer Kemper Freeman went to Tapp’s residence to talk to his son, 

Cody, regarding alleged ordinance violations for trash in the yard and a vehicle 

parked on the town’s right of way. The officers spoke with Cody first, and he 

was angry and repeatedly refused to identify himself. Tapp came out of the 

house with a dog, which attacked Marshal Harrington. Tapp secured the dog 

and commented that when the police returned, he and Cody “would have guns 

on our side.” Tr. p. 29, 58. Tapp and Cody were combative and told the 

officers they did not want them on the property.

[3] The next day, Marshal Harrington learned that a civil writ of attachment had 

been issued for Tapp, so the marshal went back to Tapp’s residence to serve the

body attachment. When Marshal Harrington and Officer Robbie Bean arrived 

at the residence, they again encountered Cody. Cody stated that his father was 

 

1

Ind. Code § 35-44.1-3-1 (2014).

2

Ind. Code § 35-45-1-3(a)(1).
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not home, and Marshal Harrington responded that he did not believe Cody 

because the marshal had heard conversation inside the house and had identified 

one of the voices as Tapp.

[4] Cody went inside the house and Tapp came to the door. Marshal Harrington 

began the process of arresting Tapp, asking him to turn around and place his 

hands behind his back. Tapp initially complied, but as the marshal gripped 

Tapp’s right hand, Tapp placed his left hand on the storm door and tried to pull 

away. Cody reemerged from the house, and Marshal Harrington told him 

repeatedly to move away. When Cody ignored that command, Marshal 

Harrington pushed him away; a struggle then ensued between Marshal 

Harrington and Tapp. It was raining and Marshal Harrington’s shoes were wet, 

and as he struggled to gain control of Tapp, he lost his footing and both fell to 

the ground. Tapp continued to resist being handcuffed and Cody continued to 

interfere, threatening Marshal Harrington. Marshal Harrington instructed 

Officer Bean to place Cody in custody; after that occurred, the marshal was 

finally able to place Tapp in handcuffs. Tapp was combative throughout the 

whole encounter.

[5] On March 10, 2016, the State charged Tapp with Class A misdemeanor 

resisting law enforcement and Class B misdemeanor disorderly conduct. At the 

initial hearing, Tapp indicated that he would hire his own attorney. He failed 

to do so, and on May 5, 2016, the trial court appointed a public defender for 

Tapp. That attorney filed a motion to withdraw five days later, which the trial 

court granted; on the same day, the trial court appointed a second public 
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defender to represent Tapp. On May 17, 2016, Tapp declined the second public 

defender and again indicated a desire to hire his own attorney. The second 

public defender withdrew two days later.

[6] On August 25, 2016, the trial court reconvened, and Tapp appeared without 

counsel. The trial court ultimately granted Tapp’s request to proceed pro se. 

On September 6, 2016, a bench trial took place, after which the trial court found 

Tapp guilty as charged. The trial court sentenced Tapp to 365 days, suspended 

to probation, for resisting law enforcement, and to 180 days, suspended to 

probation, for disorderly conduct. Tapp now appeals.

Discussion and Decision

[7] Tapp raises a number of arguments on appeal, but we find one dispositive. He 

argues that he did not knowingly and voluntarily waive his right to counsel. A 

defendant who wishes to waive the constitutional right to counsel must do so 

knowingly, intelligently, and voluntarily. Hopper v. State, 957 N.E.2d 613, 617 

(Ind. 2011). Therefore, a defendant who wishes to proceed pro se should be 

made aware of the dangers and disadvantages of self-representation such that 

the record will show that he “knows what he is doing and his choice is made 

with eyes open.” Id. Our Supreme Court has held that courts considering 

whether a waiver of counsel was knowing and intelligent must evaluate (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 
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defendant, and (4) the context of the defendant’s decision to proceed pro se. Id. 

The trial court is in the best position to assess whether the defendant has made 

a knowing and intelligent waiver, and we will affirm if the trial court “has made 

the proper inquiries and conveyed the proper information, and reaches a 

reasoned conclusion.” Drake v. State, 895 N.E.2d 389, 393 (Ind. Ct. App. 2008).

[8] At a May 17, 2016, hearing, Tapp indicated that he wanted his second public 

defender to withdraw. He stated that he intended to hire his own attorney and 

the trial court agreed, cautioning that it would not appoint further public 

defenders for Tapp and stating that if Tapp did not have an attorney by 

subsequent hearing dates, “you will be proceeding on your own and I would 

caution you against that because obviously an attorney needs to do some 

depositions in this case and a [sic] discovery in this case. You know, and get 

some witnesses on board for—for all parties involved.” Tr. p. 6-7.

[9] At an August 25, 2016, pretrial hearing, Tapp appeared pro se. At that hearing, 

the following discussion occurred:

Court:. . . Mr. Tapp, are you still wanting to proceed on your 

own for representation purposes?

Tapp: I can’t afford not to and I won’t take that public defender 

that wants me to plead guilty . . . .

***

Court:I—I’m willing to appoint you a public defender so that’s 

where we’ve always been at.
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Tapp: No, ma’am.

Court:So, if you want to hire your own attorney, . . .

***

Tapp: I can’t afford to and I—I can’t afford to and I won’t take a 

State representative that wants me to plead guilty to this.

***

Court:. . . I would think if your attorney tells you to plead and 

you don’t, you have every right to go to trial and they still 

have to take it to trial. So, if you want me to appoint 

somebody that’s going to—

***

Tapp: I’m just going to relax and go upon the Lord’s word.

Court:Okay.

Tapp: He proceeds me. And, I—

Court:I—I agree. I’m a big—

Tapp: —I’m pretty sure he’ll represent me just well.

Court:I—I follow Jesus Christ as well. . . .

***
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Court:If you want me to appoint somebody that will take it to the 

trial regardless, I’m willing to do that. . . .

***

Tapp: No, Ma’am.

***

Tapp: So, my God says he is my counselor in the Courtroom, so 

I’m going to—I’m going to trust him upon his word.

***

Court:Well – well, Mr. Tapp, if you change your mind at any 

time you want me to appoint someone, I will and certainly 

I – I want a trial on this. I want you to be able to come 

before me. So, I – and, if you don’t – if you don’t want to 

plead, I don’t want you to plead. And, I want to hear the 

evidence on it and an attorney has ethics and standards 

that they must follow, they may think that it’s a better, 

wise decision based upon what they view for you to plead. 

I don’t know. But, the reality is [] they still have a duty 

and obligation to present the evidence, object when certain 

evidence comes in. If you give them evidence to present, 

provided it’s truthful evidence and it doesn’t violate any of 

their ethical[] rules, they still have the obligation to present 

that. So, if you change your mind, you put something in 

writing and I will appoint someone for you. If you hire 

your own attorney, you’re entitled to do that. But, you’re 

also entitled to represent yourself. And, we – we’ve done 

this three or four times. So, I’m proceeding with you 

representing yourself at this point in time unless you put 

something in writing telling me differently. Okay? 
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Tapp: Yes, Ma’am. We’re good. Thank you.

Tr. p. 16-19.3

[10] Aside from the trial court’s brief statement at the May 17 hearing—when a 

request to proceed pro se was not even on the table—the trial court never once 

advised Tapp about the dangers and disadvantages of self-representation. 

Similarly, the trial court did not inquire into Tapp’s background and education, 

so we have no way of evaluating this factor. And as for the context of the 

decision to proceed pro se, Tapp did not want to be represented by any attorney 

who advised him to plead guilty and he believed that he would be sufficiently 

represented by God during his trial. We do not find this context helpful to a 

ruling granting his request to represent himself.

[11] We are mindful of the frustration that the trial court must have felt as Tapp 

refused representation by two public defenders and repeatedly voiced an 

intention to retain private counsel but failed to do so. We are likewise mindful 

that the trial court could not permit Tapp to postpone the trial indefinitely with 

promises of private counsel on the horizon. But the right to representation by 

an attorney is so sacrosanct, and so crucial to the administration of justice, that 

certain procedures—including, most importantly, a pointed advisement 

regarding the dangers and disadvantages of self-representation—simply must be 

 

3 At that hearing, Tapp later requested to take a polygraph examination and stipulated to its admission into 

evidence at trial regardless of the results.
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followed before a defendant is permitted to proceed pro se. In this case, those 

procedures were not followed. As a result, the trial court erred by concluding 

that Tapp had knowingly and voluntarily waived his right to counsel. We 

reverse and remand for a new trial.

[12] The judgment of the trial court is reversed and remanded for further 

proceedings.

Barnes, J., and Crone, J., concur.