Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 1 of 21

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

Suzy St. John

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jesse R. Drum

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Patricia Claywell,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 23, 2018

Court of Appeals Case No.

49A04-1703-CR-567

Appeal from the Marion Superior 

Court

The Honorable Amy Jones, Judge

The Honorable David Hooper, 

Magistrate

Trial Court Cause No.

49G08-1606-CM-24914

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 2 of 21

STATEMENT OF THE CASE

[1] Appellant-Defendant, Patricia Claywell (Claywell), appeals her conviction for 

operating a vehicle while intoxicated in a manner that endangers a person, a 

Class A misdemeanor, Ind. Code § 9-30-5-2(b).

[2] We reverse and remand.

ISSUE

[3] Claywell raises one issue on appeal, which we restate as: Whether the trial 

court denied her right to self-representation in violation of the Sixth 

Amendment to the United States Constitution.

FACTS AND PROCEDURAL HISTORY

[4] At approximately 3:00 p.m. on June 27, 2016, Ronald Brown (Brown) was 

standing on the corner of Dr. Martin Luther King Jr. Street and 25th Street in 

Indianapolis, Marion County, Indiana, when he observed a black SUV turn 

from Dr. Martin Luther King Jr. Street onto 25th Street and come to a complete 

stop in the middle of the road. The vehicle idled in the middle of the street for 

some time, and then a woman, later identified as Claywell, emerged from the 

vehicle and walked over to the sidewalk. Brown observed that she seemed 

“disoriented”; he questioned her as to whether anything was wrong but was 

unable “to understand” her response. (Tr. Vol. II, pp. 42-43). Claywell 

returned to the vehicle, “drove off about another five hundred or eight hundred 

feet and came to a complete stop.” (Tr. Vol. II, p. 45). As Claywell sat 
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 3 of 21

motionless in her vehicle in the middle of the street, Brown called for police 

assistance.

[5] Within minutes of Brown’s report to 9-1-1, Indianapolis Metropolitan Police 

Department Officer Brian Meeks (Officer Meeks) arrived to check on the 

welfare of Claywell. Officer Meeks parked behind Claywell’s SUV, which was 

“several feet from the curb.” (Tr. Vol. II, p. 52). Officer Meeks remained in his 

vehicle for “[m]aybe five or six minutes” and noted that Claywell’s vehicle was 

still running and, given that the brake lights were illuminated, still in gear. (Tr. 

Vol. II, p. 53). Officer Keith Shelton (Officer Shelton) arrived a short time later 

to provide assistance.

[6] Officer Meeks approached the driver-side window, and when he knocked, 

Claywell was “[s]urprised” to see him standing there. (Tr. Vol. II, p. 53). 

Claywell attempted to exit her vehicle but had failed to first shift it into park. 

Officer Meeks “had to walk her through the process of putting the car in park 

while turning the key back on so that she could manually move it into park and 

then shut the car off.” (Tr. Vol. II, pp. 55-56). “It was like speaking to a small 

child.” (Tr. Vol. II, p. 56). Claywell rolled down her window, and when 

Officer Meeks inquired as to her well-being, Claywell’s response “was unclear. 

She would begin a sentence and then stop and look at [the officer] as if she had 

finished her sentence, but [the officer] wasn’t sure what she was trying to tell 

[him].” (Tr. Vol. II, p. 54). This happened “at least three or four” times. (Tr. 

Vol. II, p. 54). Claywell’s speech was “slow and disorganized.” (Tr. Vol. II, p. 

56). When Officer Meeks asked for identification, Claywell provided “some 
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 4 of 21

sort of pamphlet of paperwork that was no[t] identification.” (Tr. Vol. II, p. 

85).

[7] At the officers’ request to exit the vehicle, Claywell was “[v]ery unsteady 

coming out of the vehicle. Using both hands on both sides, one hand on the car 

door and one hand on the car frame. Very slow. When she was on her own 

two feet, [the officers] were concerned that she may fall down.” (Tr. Vol. II, p. 

86). At that time, Officer Meeks called for medical assistance. However, before 

the ambulance arrived, Officer Meeks administered a vertical gaze nystagmus 

test—which is one field sobriety test “designed to indicate the presence of a 

narcotic o[r] other drug.” (Tr. Vol. II, p. 64). Officer Meeks and Officer 

Shelton both observed involuntary jerking of Claywell’s eyes. Once emergency 

medical personnel arrived, the officers helped escort Claywell to the ambulance. 

The paramedic noted that Claywell had “a very high heart rate.” (Tr. Vol. II, p. 

62).

[8] The officers followed the ambulance to Eskenazi Hospital. Based on Claywell’s 

“slow and disoriented speech and her unsteady balance, poor manual dexterity 

and the fact that she was operating a vehicle,” Officer Meeks believed that he 

had probable cause that Claywell was operating a motor vehicle while 

intoxicated. (Tr. Vol. II, p. 68). Accordingly, he advised Claywell of Indiana’s 

implied consent law, informing her that she was required to submit to a 

chemical test, the refusal of which would result in the suspension of her driving 

privileges. At first, Claywell indicated that she would consent, but when a 

nurse arrived to complete the test, Claywell declined. As a result, Officer 
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 5 of 21

Meeks obtained a warrant to retrieve a sample of Claywell’s blood. The lab 

results indicated a presence of phencyclidine in Claywell’s blood. 

Phencyclidine—more commonly known as PCP—is “a central nervous system 

depressant as well as a stimulant and it also has hallucinogenic properties.” 

(Tr. Vol. II, p. 113). PCP is known to “cause an increased heartrate as well as 

disorientation. A lot of confusion and stupor and it can also have people 

hallucinate and see things that aren’t really there.” (Tr. Vol. II, pp. 113-14).

[9] On June 28, 2016, the State filed an Information, charging Claywell with Count 

I, operating a vehicle while intoxicated in a manner that endangers a person, a 

Class A misdemeanor. On December 2, 2016, the State amended the 

Information by adding Count II, operating a vehicle while intoxicated with a

controlled substance, a Class C misdemeanor. On February 10, 2017, the State 

filed to add a habitual vehicular substance offender sentencing enhancement to 

the Information. At Claywell’s initial hearing on June 28, 2016, the trial court 

appointed an attorney from the Marion County Public Defender Agency to 

represent her.

[10] On June 29, 2016, the trial court ordered the immediate suspension of 

Claywell’s driver’s license for one year based on Claywell’s refusal to submit to 

a chemical test when offered. On July 28, 2016, Claywell filed a verified 

petition for a hearing on her refusal to submit to a chemical test. Claywell 

claimed that she “did not refuse to take a chemical test and/or was not properly 

advised of the Indiana Implied Consent Law.” (Appellant’s Conf. App. Vol. II, 

p. 33). On August 16, 2016, Claywell, via her public defender, requested that 
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 6 of 21

the refusal hearing scheduled for August 17, 2016, be converted to a pre-trial 

conference based on counsel’s belief that “a refusal hearing is [not] in . . . 

Claywell’s best interests.” (Appellant’s App. Vol. II, p. 38). The trial court 

granted Claywell’s motion and converted the hearing to a pre-trial conference.

[11] On August 17, 2016, the trial court held the pre-trial conference as requested. 

At that time, Claywell voiced her displeasure over her attorney’s actions in

cancelling the refusal hearing and alleged that there had been an attempt to 

coerce her into accepting a plea bargain. Claywell’s public defender explained 

that he was endeavoring to act in Claywell’s best interests, but he had advised 

her that “[i]f you would like to represent yourself or hire an attorney, you may 

do that.” (Supp. Tr. p. 7). Claywell then responded, “Right. So I came to 

represent myself. So I’m here for my Refusal hearing to represent myself.” 

(Supp. Tr. p. 7). From there, the following colloquy ensued:

THE COURT: Well, here’s the procedural trick now is that first, 

we have to sort out the issue that you have an attorney, because 

you can’t have both.

[CLAYWELL]: I know. So, he can withdraw[] and I can file an 

appearance to move forward pro se.

THE COURT: Are you moving with withdrawal?

[PUBLIC DEFENDER]: I don’t know that the Public Defender 

Agency can legally withdraw[]. She can file to represent herself 

Pro Se.

THE COURT: Ok.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 7 of 21

[PUBLIC DEFENDER]: Since we’ve been to [c]ourt, I can’t 

actually withdraw[].

THE COURT: Alright. So, there’s not much I can accomplish 

for you today and I’m sorry for that. I can’t make a Refusal 

hearing happen for you today. The best I can do for you is we’ll 

set this for Pre-Trial. If your intention is to represent yourself--

[CLAYWELL]: --Ok, and I will INAUDIBLE. I’m going to 

INAUDIBLE South Meridian. So I’ll represent myself. I’m 

going to INAUDIBLE South Meridian.

(Supp. Tr. pp. 7-8). 

[12] Following the pre-trial hearing, Claywell continued to be represented by the 

Public Defender Agency, although it appears that a new public defender was 

assigned. On October 12, 2016, the trial court conducted a hearing on the issue 

of Claywell’s refusal to submit to a chemical test pursuant to Indiana’s implied 

consent law. Claywell contended that she did not knowingly refuse to submit 

to a chemical test when requested because she was too incoherent at the time. 

However, the trial court found that evidence of Claywell’s moments of clarity 

while refusing to submit to a chemical test—such as her repeated demands for 

the officers’ names and badge numbers to report what she perceived as 

mistreatment—established that she was more “difficult or agitated versus being 

totally confused and out of it in this situation.” (Tr. Vol. II, p. 18). 

Accordingly, the trial court denied Claywell’s request to terminate the license 

suspension.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 8 of 21

[13] Near the end of the refusal hearing, Claywell’s public defender informed the 

trial court that, despite an earlier conversation with Claywell about not 

testifying regarding the refusal, Claywell was adamant that she did want to 

speak. However, the trial court advised Claywell that she “might want to listen 

to [her attorney’s advice] because he’s looking out for your best interest whether 

you think so or not and he’s, he did a fine job arguing the facts that you had.” 

(Tr. Vol. II, p. 20). The following conversation then occurred:

[PUBLIC DEFENDER]: Just to make the record clear. On and 

off through the past couple of weeks, my client has 

communicated that she wants to represent herself and I’ve told 

her that she’s free to do that. In [c]ourt earlier today, she said 

that she’s ok with me moving forward. At this point, I have to let 

her address the [c]ourt. She’s communicating now that she 

wants to represent herself.

THE COURT: Is that your desire?

[CLAYWELL]: That’s been my desire since the last hearing.

THE COURT: Why is that?

[CLAYWELL]: I told them out there that I wanted to represent 

myself in the hallway before I went to [c]ourt and he said 

something else, because nothing that I’ve sat here and given to 

him has been presented in [c]ourt today.

THE COURT: Well, let me explain something to you, because I 

know you’ve got a lot of stuff that you want to tell me. I know 

you’ve been in our [c]ourt office several times and you like to talk 

loud enough where I can hear you and I don’t listen to what 

you’re saying, because I can only listen to what is in front of me 

in [c]ourt. Now, there is one specific reason you were to be here 
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 9 of 21

today. Can you tell me what that was?

[CLAYWELL]: A refusal hearing.

THE COURT: Can you explain to me why we having [sic] that 

and what your burden was today?

[CLAYWELL]: First off, because I was supposed to have one--

THE COURT: --You were not supposed to have one last time 

you were here. Let me make that very clear to you.

[CLAYWELL]: I have the minutes right here and you approved 

it.

THE COURT: You were not to have one last time. What I told 

you was this. Is that the officer had to be subpoenaed to be here.

[CLAYWELL]: You weren’t here last time.

THE COURT: I have my file. Ok. So I can already see right 

now that you representing yourself is probably not going to be in 

your best interest, but we’re going to go through this. You’ve 

had Pre-Trial Conferences.

[CLAYWELL]: On the minutes it says, I mean, it was approved 

and then I got a phone call at home and was told if I didn’t take a 

plea bargain that they were going to, I got called on a Monday 

night and told that if I did not take a plea bargain, that they were 

going to withdraw[] the refusal hearing. I think that’s like against 

my amendments.

THE COURT: Wow. You need a lawyer and you need one 

bad--

[CLAYWELL]: --I’m not INAUDIBLE--
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 10 of 21

THE COURT: --Because, what you just said right there makes 

zero sense at all.

[CLAYWELL]: Zero sense to get a phone call and get--

THE COURT: --That doesn’t make any sense--

[CLAYWELL]: --Threatened--

THE COURT: --And that you’re going to have to take a plea or 

your refusal hearing is going away and that it’s against your 

amendments. You are going to be held to the same standard as a 

practicing attorney. Alright.

[CLAYWELL]: That’s fine. I’m going to go to 50 South 

Alabama. That’s fine.

THE COURT: No. It doesn’t just happen like that. You don’t 

get to act disrespectful to the [c]ourt and then just walk out.

[CLAYWELL]: I’m sorry.

THE COURT: I’m just going to go to 50 South Alabama and do 

whatever you’re going to do. I don’t know what you’re going to 

do there. I have no idea or Meridian, I have no idea what you’re 

doing. Ok.

[PUBLIC DEFENDER]: INAUDIBLE I think there are some 

INAUDIBLE for [t]rial if she lets me represent her.

THE COURT: There might be. There very well could be issues, 

but if she’s not going to listen to what they are, then that’s on her. 

We set it for refusal hearing. You got your refusal hearing. This 

has been moving fairly, along fairly quickly. You’ve gotten 

everything, but you don’t have your lab results is what the State 

has not yet provided and what they are going to have to provide 

that before [t]rial. . . . 
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 11 of 21

(Tr. Vol. II, pp. 21-24). The trial court and attorneys then briefly discussed trial

dates before circling back to Claywell’s desire to proceed pro se.

THE COURT: . . . As far as you wanting to represent yourself, 

how far did you go in school?

[CLAYWELL]: I’m INAUDIBLE college. I’ve been a paralegal 

for fourteen years. I know the implied consent law. I’ve been 

working in criminal justice for longer than fourteen years.

THE COURT: You’ve been a paralegal for a criminal attorney? 

Who’s that?

[CLAYWELL]: I’ve worked for Steven Gellar and for Marla 

Thomas officer [sic].

THE COURT: Ok. Have you ever appeared in [c]ourt with 

either of them or sat through any [t]rials with any of those 

people?

[CLAYWELL]: Some, I mean, I’m not concerned with that. I 

know what I need to do.

THE COURT: I don’t think you do. Maybe you should call one 

of those. 

[CLAYWELL]: I am. I have. So, I will.

THE COURT: They’re not going to take your case or what’s the 

situation?

[CLAYWELL]: I’ll deal with that.

THE COURT: No. I’m going to deal with this right now, 

because I’m not going to have you drag this on[] forever. [The 

public defender] has been--
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 12 of 21

[CLAYWELL]: --He’s been awesome.

THE COURT: He has been and he also has a lot of other clients 

that he could devote a lot of time and effort to if you’re going to 

hire someone, I’m going to let you get on with that. I’m going to 

set [t]rial dates and they’re going to be ready and if they’re not 

ready, that’s on them.

(Tr. Vol. II, pp. 25-26).

[14] On December 8, 2016, the parties convened for a pre-trial conference, during 

which the issue of self-representation was again raised.

[PUBLIC DEFENDER]: Judge, just to cover my bases. At 

some point during representation, at points in representation, 

[Claywell] has indicated that she would rather represent herself. 

It keeps coming up. So, my, to cover my file.

THE COURT: He’s an attorney. Would you like to speak with 

him? Go [a]head. You can hire an attorney at any point in time. 

You’re free to do that. [The public defender] has been working 

with you. [The public defender] is familiar with your case. He’s 

the one that’s setting depositions, that’s doing research and 

investigating on your behalf. I will tell you this. If you want to 

hire someone and you bring them in a week before your [t]rial 

date, they better be up to speed after all the months of prep that 

this attorney has done on your behalf. I will not give a 

continuance. It will go and that’s how it is. Got it?

[CLAYWELL]: INAUDIBLE.

THE COURT: Wow. I tell you. You have not learned much 

since day one when you have come in here about how to address 

the [c]ourt, how to talk in a professional manner to your attorney 
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 13 of 21

who is working his ta[il] off on your behalf. You cannot see that? 

That concerns me greatly. I mean, that really concerns me. 

Your inability to recognize the amount of work that he has done 

so far for you and if you’re inability [sic] to recognize that, you 

are really clouded in your judgment. His job is not to sit here 

and blow sunshine every day. His job is to represent you, make 

sure your rights are protective [sic] and to make sure that you 

understand [the] proceedings and you understand all of your 

options. You may not like some of the options, but if he doesn’t 

tell you each option that is available to you, he’s not doing his 

job and he’s being ineffective. He’s being very [e]ffective. He’s 

going quite frankly, he’s going, from what I’m hearing about 

some of these discovery issues that he is tackling, he’s doing the 

things he’s supposed to be doing. Now, the delay is no cause of 

his. The delay is because there was a witness that was 

unavailable. That is why there was a delay.

[CLAYWELL]: I’m not questioning the delay.

THE COURT: Ok, and I’m going to reset it and when we reset 

it, unless there’s some sort of issue with a witness that might be 

unavailable or maybe you need more time to gather more 

information, I will gladly give it, but what I’m telling you is I’m 

not going to play games with lawyers coming in here. If you 

want to hire an attorney, you need to go hire a lawyer and you 

need to do it very quickly, because we are not bumping this out 

because you want to bring someone in here at the last minute. I 

want you to be aware of that. You need to have realistic 

expectations that this is how the process will move. So we’re 

going to set it February 17th

.

(Tr. Vol. II, pp. 31-33).

[15] On February 17, 2017, the trial court conducted a bench trial, during which 

Claywell was represented by her public defender. Pursuant to an agreement 
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 14 of 21

with Claywell, the State, at the beginning of the trial, moved to dismiss the 

habitual vehicular substance offender enhancement. At the close of the 

evidence, the trial court found Claywell guilty of both Counts of operating 

while intoxicated—one as a Class A misdemeanor and the other as a Class C 

misdemeanor. However, the trial court entered a judgment of conviction only 

as to Count I, the Class A misdemeanor—vacating Count II under double 

jeopardy principles. Proceeding directly to sentencing, the trial court imposed a 

sentence of one year, with ten days executed and the remainder suspended to 

probation. In addition, the trial court ordered Claywell to complete a substance 

evaluation and treatment as a condition of probation.

[16] Claywell now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[17] Claywell claims that the trial court denied her Sixth Amendment right to selfrepresentation. The Sixth Amendment to the United States Constitution 

stipulates that, in all criminal prosecutions, a defendant “shall enjoy the right . . 

. to have the Assistance of Counsel for his defen[s]e.” U.S. CONST. amend. VI. 

The United States Supreme Court has held that, implicit in this Sixth 

Amendment right, is a corollary right of self-representation. Faretta v. California, 
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 15 of 21

422 U.S. 806, 821 (1975).1

 “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.” Stroud v. State, 809 N.E.2d 274, 279 

(Ind. 2004). Specifically, a defendant’s “request must be clear and unequivocal, 

and it must be [made] within a reasonable time prior to the first day of trial.” 

Id. (alteration in original).

[18] Once a defendant asserts a desire to proceed without the assistance of counsel, 

the trial court must ensure that any Sixth Amendment waiver is “‘knowing, 

intelligent, and voluntary.’” Id. “Waiver of the right to 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.” Taylor v. State, 944 N.E.2d 84, 89 (Ind. Ct. App. 2011). Factors to 

consider when determining whether a defendant has knowingly, intelligently, 

and voluntarily waived her right to counsel include: “(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.” 

Id. at 90 (quoting Poynter v. State, 749 N.E.2d 1122, 1127-28 (Ind. 2001)). A 

trial court “is in the best position to assess whether a defendant has knowingly 

 

1

 Article 1, Section 13 of the Indiana Constitution also guarantees a criminal defendant’s right to selfrepresentation; however, in the present case, Claywell has raised only a claim under the federal Constitution.
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 16 of 21

and intelligently waived counsel.” Id. On appeal, this court “will most likely 

uphold the trial judge’s decision to honor or deny the defendant’s request to 

represent [herself] where the [trial court] has made the proper inquiries and 

conveyed the proper information, and reaches a reasoned conclusion about the 

defendant’s understanding of his rights and voluntariness of his decision.” Id.

II. Claywell’s Pro Se Requests

[19] In this case, Claywell indicated that she desired to proceed pro se on three 

occasions: at the August 17, 2016 pre-trial hearing (which had previously been 

scheduled as a refusal hearing); at the October 12, 2016 refusal hearing; and at 

the December 8, 2016 pre-trial conference. In each instance, the trial court 

briefly discussed the issue with Claywell but never formally ruled on her 

requests. Claywell now requests that we reverse her conviction and remand for 

a new trial.

[20] The State, however, claims that Claywell waived her right to self-representation 

because she failed to clearly, unequivocally, and timely request it. A request to 

proceed pro se

must be “sufficiently clear that if it is granted, the defendant 

should not be able to turn about and urge that he was improperly 

denied counsel.” If the rule were otherwise, trial courts would be 

in a position to be manipulated by defendants “clever enough to 

record an equivocal request to proceed without counsel in the 

expectation of a guaranteed error no matter which way the trial

court rules.”
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 17 of 21

Dobbins v. State, 721 N.E.2d 867, 871 (Ind. 1999) (internal citations omitted). 

As to timeliness, defendants must assert requests for self-representation “within 

a reasonable time prior to the first day of trial”—more specifically, “morningof-trial requests are per se untimely.” Moore v. State, 557 N.E.2d 665, 669 (Ind.

1990).

[21] Claywell points out that her first request was made eight months prior to trial; 

her second request was made four months before trial; and her final request was 

lodged eight weeks before trial. We agree with Claywell that her requests were 

made within a reasonable time prior to trial. See Russell v. State, 383 N.E.2d 

309, 314 (Ind. 1978) (indicating that the Faretta Court found a request made 

“weeks before trial” to be timely and adding that “we do not think that the right 

must be asserted at that early a time to be realized”). Nevertheless, the State 

suggests that Claywell’s first request, i.e., on August 17, 2016, was untimely 

because it was made after the refusal hearing had been rescheduled to a pre-trial 

conference. Assuming arguendo that there is any merit to the State’s assertion 

that Claywell’s “request to represent herself at her refusal hearing did not also 

convey to the court that she wanted to represent herself at her trial,” Claywell’s 

third request, i.e., on December 8, 2016, clearly related to her representation at 

trial and was made within a reasonable time beforehand. (State’s Br. p. 13).

[22] The State also contends that Claywell’s last two requests to proceed pro se were 

unclear and equivocal. Our courts have previously held that a defendant’s 

general questions about the right to proceed pro se, “half-hearted expressions of 

dissatisfaction with counsel,” and “offer[s]” to proceed pro se (i.e., offering to 
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 18 of 21

proceed pro se to obtain a speedy trial) fail to constitute “a clear assertion of a 

right.” Dobbins, 721 N.E.2d at 872. In this case, however, Claywell explicitly

and repeatedly stated that she wanted to represent herself. During the first 

instance, at the August 17, 2016 pre-trial conference, Claywell stated, “I came 

to represent myself” and asked that her public defender be permitted to 

withdraw. (Supp. Tr. p. 7). When the trial court and her public defender 

indicated that there were procedural hurdles to withdrawal, she stated that she 

was “going to [50] South Meridian” and she concluded, “I’ll represent myself.” 

(Supp. Tr. p. 8). On the next occasion, at the conclusion of the refusal hearing 

of October 12, 2016, Claywell stated to the trial court that it had “been my 

desire since the last hearing” to proceed pro se. (Tr. Vol. II, p. 22). The trial 

court questioned Claywell’s motive and dissatisfaction with her attorney, but

when Claywell’s response lacked clarity and proper legalese, the trial court 

stated, “Wow. You need a lawyer and you need one bad.” (Tr. Vol. II, p. 23). 

Nevertheless, Claywell’s request was unequivocal enough for the trial court to 

briefly question whether Claywell understood the dangers of self-representation. 

Claywell described that she had worked as a paralegal and “kn[e]w what [she] 

need[ed] to do.” (Tr. Vol. II, p. 26). Yet, instead of making a determination as 

to Claywell’s ability to proceed pro se, the trial court pursued a discussion as to 

why Claywell had not asked one of her prior employers (criminal defense 

attorneys) to represent her and then simply proceeded with scheduling the next 

hearing without any further discussion of Claywell’s waiver. Finally, two 

months before the trial on December 8, 2016, Claywell’s public defender 

conveyed that Claywell had requested to proceed pro se. From there, the trial 
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 19 of 21

court did not allow Claywell an opportunity to speak but rather chastised her 

(albeit in response to a perceived display of disrespect to the court) for failing to 

appreciate the work done by her public defender and discussed her hiring of 

private counsel.

[23] We find that Claywell’s statements were sufficiently clear, unequivocal, and 

timely so as to trigger the trial court’s duty “to hold a hearing to determine the 

defendant’s competency to represent [herself] and to establish a record of [her] 

waiver of [her] right to counsel.” Dowell v. State, 557 N.E.2d 1063, 1066 (Ind. 

Ct. App. 1990), trans. denied; cert. denied, 502 U.S. 861 (1991). Each time 

Claywell asserted her wish to proceed pro se, the trial court, instead of directly 

addressing the request, either challenged Claywell’s reasoning and capacity to 

represent herself, scolded her for failing to appreciate the services of her public 

defender, advised her to retain private counsel, or changed the subject entirely.

[24] The State maintains that Claywell vacillated between proceeding pro se and 

utilizing her public defender, but the State relies on statements made by the 

public defender to the court about Claywell’s inconsistent desire to represent 

herself—i.e., the public defender informed the court that Claywell had discussed 

representing herself “[o]n and off through the past couple of weeks.” (State’s 

Br. p. 13; Tr. Vol. II, p. 21). Claywell herself never wavered when given the 

opportunity to speak.2

 The State also argues that Claywell acquiesced to her 

 

2

 Contrary to the State’s assertion, we do not find that Claywell’s acknowledgement that her public defender 

had been “awesome” negated her desire, or her right, to present her own defense. (Tr. Vol. II, p. 26).
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 20 of 21

public defender’s presence at trial. Our court has previously stated that a clear 

and unequivocal request “is made when a defendant objects to a court’s order 

appointing counsel and does not acquiesce in the court-appointed counsel’s 

presentation of the defense.” Jenkins v. State, 809 N.E.2d 362, 367 (Ind. Ct. 

App. 2004), trans. denied. Here, Claywell expressly asserted her desire to 

proceed pro se at multiple hearings. However, her public defender specifically 

indicated that he could not withdraw until Claywell actually filed to appear pro 

se, and the trial court ignored Claywell’s attempts for permission to do so. The 

record demonstrates that the various interjections by the trial court during each 

of the three hearings effectively stifled Claywell, but she should have received 

the opportunity to make a knowing, intelligent, and voluntary waiver of her 

right to counsel. See Stroud, 809 N.E.2d at 282 (despite ultimately finding that 

the defendant vacillated between representation and proceeding pro se, noting 

that a trial court should not “be dismissive of a defendant’s requests to proceed 

without a lawyer. It would be much easier to evaluate these claims on appeal if 

trial courts would err on the side of being cautious and hold a hearing to 

determine whether a defendant is waiving the right to counsel, even if such a 

hearing may not strictly be required because a defendant’s request is not clear 

and unequivocal”). Because the violation of a defendant’s right to selfrepresentation is not subject to harmless error analysis, “a new trial is 

warranted.” Osborne v. State, 754 N.E.2d 916, 921 (Ind. 2001).
Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-567 | March 23, 2018 Page 21 of 21

CONCLUSION

[25] Based on the foregoing, we conclude that Claywell was denied her Sixth 

Amendment right of self-representation and is entitled to a new trial.

[26] Reversed and remanded.

[27] Robb, J. and Pyle, J. concur