Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018 Page 1 of 11

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

Lisa M. Johnson

Brownsburg, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika Prekopa Talbot

Supervising Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Daryl Newman,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

June 7, 2018

Court of Appeals Case No.

18A-CR-285

Appeal from the Marion Superior 

Court

The Honorable Stanley Kroh, 

Magistrate

Trial Court Cause No.

49G03-1710-F2-39272

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018 Page 2 of 11

Case Summary

[1] Daryl Newman (“Newman”) appeals his conviction for burglary as a Level 2 

felony.1 He raises one issue on appeal which we restate as whether the trial 

court committed clear error when it allowed him to waive legal counsel and 

represent himself.

[2] We affirm.

Facts and Procedural History

[3] On October 6, 2017, Jeffrey Cummings (“Cummings”) was at his residence in

Indianapolis, loading items into his vehicle that was parked in his detached

garage. The large garage door was closed and Cummings used the service door 

to access the garage. Cummings left the service door of the garage open and 

went into his house to shower. As he was shaving, Cummings heard a signal 

from his home security system, indicating that the back door to his house, 

which faced the garage, had been opened. Cummings went downstairs and, 

when he stepped out of his back door, he saw a man standing inside the 

doorway of his garage. The man, later identified as Newman, had short hair 

and wore khaki pants and a black shirt. 

 

1

 Ind. Code § 35-43-2-1.
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[4] Newman then walked towards Cummings and Cummings noticed a scar on 

Newman’s face. Newman said, “I don’t want any problems.” Tr. Vol. II at 

150. Newman then walked onto the patio, and, when he was about two feet 

away from Cummings, he pulled out a gun and said, “I don’t want any f---ing 

problems.” Id. Cummings said, “Just go,” and then ran inside the house and 

locked the back door. Id. 

[5] Cummings ran upstairs and called 9-1-1. He then went back downstairs and 

saw that his patio door was opening. Newman, while holding a gun, walked 

into Cummings’s house through the patio door and said, “I came back to take 

care of a f---ing problem.” Id. at 154-55. Cummings ran out the front door and 

to the home of his next-door neighbor, Linda Anderson (“Anderson”).

Anderson was on the phone with 9-1-1, and she handed Cummings the phone. 

The police arrived a few minutes later. Cummings described Newman to the 

officers as a black male wearing loose fitting khaki pants and a loose fitting 

black shirt, and he said that he had confronted Newman inside Cummings’s 

house. The police went through all three floors of the house but did not see 

Newman.

[6] While the police were at Cummings’s house, Robert Olson (“Olson”), who 

lived one street away from Cummings, called 9-1-1 about a suspicious person 

who he described as a black male with a black shirt. Olson had seen the man, 

later identified as Newman, jump over a neighbor’s fence, approach the house, 

and try to open the door. Then, while on the phone with the police, Olson 
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observed Newman sit down on the curb of the street behind a parked white 

Jeep. 

[7] The two officers drove from Cummings’s house to Olson’s house, and Olson 

directed them to where Newman was sitting on the curb. The police 

handcuffed Newman and then located a gun on top of the rear, passenger-side 

tire of the Jeep next to which Newman had been sitting. The police took 

Cummings to Newman’s location, a block behind Cummings’ house, and 

Cummings identified Newman as the individual he had seen inside his house

with a gun. Later, Newman’s fingerprints were found on the gun and the 

window frame of the vehicle that was in Cummings’s garage.

[8] On October 12, 2017, the State charged Newman with burglary as a Level 2 

felony; carrying a handgun without a license, as a Class A misdemeanor;2 and 

pointing a firearm, as a Level 6 felony.3 On October 12, 2017, the court 

appointed a public defender to represent Newman. Newman requested a 

speedy trial, and the court scheduled a trial for December 14, 2017. Public 

defender, Phillip Riley (“Attorney Riley”), entered an appearance on October 

13, 2017. 

[9] On December 11, 2017, Attorney Riley withdrew, and Attorney Daniel Grove 

(“Attorney Grove”) entered his appearance as conflict counsel. The same day, 

 

2

 I.C. § 35-47-2-1.

3

 I.C. § 35-47-4-3.
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at a status hearing, Attorney Grove advised the trial court that he had received 

Newman’s file that morning and that he did not have sufficient time to prepare 

for the December 14 trial. Attorney Grove requested a continuance and the 

State joined in that request due to outstanding discovery issues. Newman, who 

was present at the hearing, stated that he objected to a continuance and that he 

wished to represent himself if Attorney Grove could not be prepared for the 

December 14 trial. Newman stated that he waived his right to counsel, that he 

invoked his “Faretta”

4

rights, and that he was “more than capable” of 

representing himself. Tr. Vol. II at 6.

[10] The trial court advised Newman that he had the right to be represented by 

counsel and that if he could not afford one, one would be appointed for him. 

The court also stated that Newman had “a very good and experienced lawyer” 

sitting next to him and that he should reconsider his speedy trial request in light 

of the fact that his attorney was not ready for trial. Id. The trial court stated 

that “[i]f this was a misdemeanor, that might be one thing,” but because this

was a Level 2 felony, Newman’s “exposure [was] significant.” Id. at 6-7. The 

trial court advised Newman that, although he had the right to represent himself, 

it was in his best interest to have the benefit of a lawyer who had experience 

and training and could protect his legal rights.

 

4

 Faretta v. Cal., 422 U.S. 806 (1975) (holding a criminal defendant’s Sixth Amendment right to counsel 

includes a right to waive assistance of counsel and represent oneself). 
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[11] The trial court then advised Newman that, if he represented himself, he would 

be solely responsible for jury selection, making opening and closing statements, 

arguments, objections, and motions, and that he would be responsible for 

issuing subpoenas for witnesses. The court further advised Newman that he 

would have to comply with the Indiana Rules of Evidence and that he would be 

responsible for preserving issues for appeal. The court also stated that Newman

would be at a disadvantage because the State was represented by an attorney 

and that it would be awkward for Newman to elicit testimony from himself. 

The court appointed standby counsel but explained to Newman that standby 

counsel could only participate in the trial actively if the court so ordered and 

that standby counsel might not be prepared to take over the case if Newman

changed his mind.

[12] The trial court asked Newman if he was aware of the penalty range, and 

Newman said that he was. The court also advised Newman that there could be 

lesser-included offenses or mitigating circumstances. Finally, the trial judge 

advised Newman that he had never seen self-representation work out well. 

However, Newman stated that he did not want to be in jail until the next trial 

setting, and he expressed frustration with past trial delays in different criminal 

proceedings in the same court. He stated that, based on the pattern of trial 

delays in his past and current criminal cases, he “believe[d] in [his] heart that 

this is some kind of trickery,” involving defense counsel working with the State. 

Tr. Vol. II at 15. 
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[13] After receiving additional encouragement from the court to accept legal 

counsel, Newman still maintained that he wanted to go to trial on December 

14, and represent himself. Newman stated that he had a GED and some 

college education. He also stated that no one had threatened him or done 

anything to make him go to trial representing himself. Newman added that he 

was not willing to sit in jail on a $100,000 bond for something he had not done. 

He informed the judge that all he needed was the ability to use the law library at 

the jail. After numerous additional warnings from the trial court about the risks 

of self-representation, Newman stated again that he wanted to go to trial on 

December 14. The trial court gave Newman a written advisement regarding 

self-representation, and Newman stated that he understood it.

[14] On December 14, the trial court again discussed the advisements of the 

document Newman had previously reviewed, styled “The Court Order 

Regarding Defendant’s Request to Proceed Pro Se,” and again advised 

Newman that Attorney Grove was there in a standby counsel capacity only and 

could not participate actively in the trial. Newman testified that he understood 

the advisements of the court. The trial court again went through lengthy 

advisements about the pitfalls of self-representation, told Newman the range of 

penalties he faced, and advised him that the State had an eyewitness who saw 

him inside the house with a firearm. Newman testified that he was not 

currently suffering from any mental disability and that he had never been 

treated for any such disability. Newman also stated that he had not been in 

special education at school. The trial judge stated that he thought Newman 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-285 | June 7, 2018 Page 8 of 11

might be in denial about his case and once again asked Newman if he was sure 

he wished to represent himself. Newman again stated that he still wished to 

represent himself.

[15] Newman’s case then proceeded to the jury trial, with Newman representing 

himself. The jury found Newman guilty as charged. On January 9, 2018, the

trial court sentenced Newman to twenty years on the burglary count and 

vacated the other convictions. This appeal ensued.

Discussion and Decision

[16] Newman contends the trial court violated his rights under the federal and state5

constitutions when it allowed him to waive counsel and represent himself.6 A 

defendant’s Sixth Amendment right to counsel is essential to the fairness of a 

criminal proceeding. Drake v. State, 895 N.E.2d 389, 392 (Ind. Ct. App. 2008) 

 

5

 Article 1, section 12 of the Indiana Constitution, cited by Newman, requires the same due process analysis 

as a federal due process claim. Gingerich v. State, 979 N.E.2d 694, 710 (Ind. Ct. App. 2012), trans. denied. 

And Article 1, section 13 of the Indiana Constitution, also cited by Newman, provides “no broader right to 

self-representation of mentally impaired persons” than that guaranteed by the Sixth Amendment. Edwards, 

902 N.E.2d at 828. 

6

 Newman also alleged a violation of Article 1, section 37, of the Indiana Constitution (“Slavery and 

involuntary servitude prohibited”), but developed no corresponding argument; therefore, that claim is 

waived. Ind. Appellate Rule 46(A)(8). 

In addition, Newman contends that the trial court erred by failing to conduct a competency hearing under 

Indiana Code Section 35-36-3-1. However, that statute’s specific procedural requirements relate to 

competency to stand trial, not competency to waive counsel and represent oneself. See Campbell v. State, 732 

N.E.2d 197, 202 (Ind. Ct. App. 2000) (citing Brewer v. State, 646 N.E.2d 1382, 1384 (Ind. 1995)) (holding a 

competency hearing is required under the statute only when the trial court has reasonable grounds to believe 

that the defendant lacks “the ability to consult rationally with counsel and factually comprehend the 

proceedings against him”). 
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(citing Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963)). Implicit in the right 

to counsel is the right to self-representation. Faretta, 422 U.S. at 819. 

[17] However, the right of self-representation is not absolute. “[A] trial court may 

deny a defendant’s request to act pro se when the defendant is mentally 

competent to stand trial but suffers from severe mental illness to the point where 

he is not competent to conduct trial proceedings by himself.” Edwards v. State, 

902 N.E.2d 821, 824 (Ind. 2009) (citing Indiana v. Edwards, 554 U.S. 164 

(2008)). The trial court’s determination of competence to act pro se will be 

reviewed under the clearly erroneous standard.

7

Id. “Clear error is that which 

leaves us with a definite and firm conviction that a mistake has been made.” 

Austin v. State, 997 N.E.2d 1027, 1040 (Ind. 2013). In reviewing for clear error, 

we neither reweigh the evidence nor determine the credibility of witnesses, but 

consider only the probative evidence and reasonable inferences supporting the 

judgment. Id.

[18] Mental competency is not a static condition; accordingly, it is to be determined 

at the time of trial. Edwards, 902 N.E.2d at 827. “[I]f a defendant is so impaired 

that a coherent presentation of a defense is unlikely, fairness demands that the 

court insist upon representation.” Id. at 829. Thus, in Edwards v. State, for 

example, the defendant was found to be incompetent to represent himself—

even though he was competent to stand trial—when several psychiatric 

 

7

 The parties mistakenly rely on earlier cases which formulated the standard as abuse of discretion. See id. at 

824, n.2.
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evaluations concluded that he suffered from severe and pervasive mental illness, 

and that he was competent to stand trial only if he had the assistance of legal 

counsel. Id. at 826-27.

[19] Here, the record reveals no indication that Newman suffered from “severe 

mental illness” that made him incompetent to represent himself. Id. at 834. 

There is no evidence8that Newman was ever evaluated for mental illness, much 

less found to suffer from mental illness, and Newman himself testified that he 

did not have a mental disability and had never been treated for one in the past. 

Moreover, Newman’s behavior during court proceedings did not indicate that 

he suffered from severe mental illness. Newman repeatedly asserted that he 

understood all the court’s advisements9 and that he was capable of, and wished 

to, represent himself. And while he may have “lacked a realistic view of his 

case,” Appellant’s Br. at 15, and made some odd assertions, that is not 

sufficient evidence of a severe mental illness rendering him incompetent to 

represent himself. See Sturdivant v. State, 61 N.E.3d 1219, 1225 (Ind. Ct. App. 

2016) (“While some of Sturdivant’s statements were undeniably strange, and 

she clearly lacked the legal skills of an experienced criminal defense attorney, 

 

8

 Newman points out that the trial judge said he believed Newman was “in denial” about the strength of the 

State’s case against him, and that the court wondered aloud at one point whether Newman was “of sound 

mental capacity.” Tr. Vol. II at 42-43. However, those statements of the court were not evidence. 

9

 Newman does not challenge the adequacy of the trial court’s advisements regarding the dangers of selfrepresentation and the benefits of counsel.
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this is not the stuff of ‘severe mental illness’ under Indiana v. Edwards.”), trans. 

denied. 

[20] The trial court was in the best position to observe Newman’s demeanor and 

behavior in making its ultimate determination that he was competent to 

represent himself, and we will not reweigh the evidence or judge witness 

credibility, as Newman urges us to do. Austin, 997 N.E.2d at 1040. The trial 

court’s decision to allow Newman to waive counsel and represent himself was 

not clearly erroneous.

[21] Affirmed.

Crone, J., and Brown, J., concur.