Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015 Page 1 of 18

ATTORNEY FOR APPELLANT

Paula M. Sauer 

Danville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Gabriel Kowalskey,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff. 

July 30, 2015

Court of Appeals Case No. 

32A01-1503-CR-99

Appeal from the Hendricks Superior 

Court 

The Honorable Rhett M. Stuard, 

Judge

Cause No. 32D02-1406-FB-39

Cause No. 32D02-1409-F6-142

Brown, Judge.
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[1] Gabriel Kowalskey brings this interlocutory appeal from the decision of the trial 

court that he, by his conduct, waived his right to counsel. Kowalskey raises 

two issues which we revise and restate as whether the court erred in finding 

that, by his conduct, he waived or forfeited his right to counsel. We reverse and 

remand. 

Facts and Procedural History

[2] On June 9, 2014, the State charged Kowalskey with possession of cocaine and 

possession of marijuana as class B felonies under cause number 32D02-1406-

FB-39 (“Cause No. 39”), and on that day Herb Witham was appointed as 

Kowalskey’s pauper counsel. The State later amended the information under

Cause No. 39 to add counts charging Kowalskey with carrying a handgun 

without a license as a class A misdemeanor, carrying a handgun without a 

license as a class C felony, and unlawful possession of a firearm by a serious 

violent felon as a class B felony. On July 23, 2014, Witham filed a motion to 

withdraw appearance and appoint alternate counsel “due to a conflict in regard 

to his continued representation of the defendant.” Appellant’s Appendix at 39. 

The same day, the court granted Witham’s motion and appointed Tyler Starkey 

as counsel for Kowalskey. 

[3] On September 2, 2014, the State charged Kowalskey with battery of a public 

safety official as a level 6 felony under cause number 32D-1409-F6-142 (“Cause 

No. 142”), and the court appointed Starkey as pauper counsel for him. 
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[4] On December 2, 2014, Starkey filed a motion to withdraw appearance in Cause 

No. 39 and Cause No. 142 “for the reason that there has been a breakdown in 

the attorney-client relationship.” Id. at 77, 123. On the following day, the court 

granted Starkey’s motion and, in its order stated “Def. given 10 days to obtain 

counsel.” Id. at 78, 124. 

[5] On December 15, 2014, the State filed a motion for attorney status hearing in 

Cause Nos. 39 and 142 stating that the court had previously appointed two 

attorneys to represent Kowalskey, both of whom withdrew their appearances, 

and asking the court to inform Kowalskey of the advisements required by 

Gilmore v. State, 953 N.E.2d 583 (Ind. Ct. App. 2011). The following day, the 

court issued an order scheduling an attorney status hearing for January 6, 2015, 

and stating that, at the hearing, Kowalskey would be warned that if his 

obstreperous behavior persists the court would find that he has chosen selfrepresentation by his own conduct and that he would be warned of the dangers 

and disadvantages of self-representation. 

[6] On January 6, 2015, the court held a hearing on the State’s motion. The court 

asked Kowalskey “do you want to go out for a court-appointed lawyer or . . . 

where are we on this,” and Kowalskey stated “there’s some things that I don’t 

understand about the way the process goes here.” Transcript at 7. He stated 

that Witham was his attorney up to his omnibus date and that that was the first 

time Witham visited him. The court stated that it did not matter and that what 

mattered was that the case kept moving along and Kowalskey’s rights were 

protected. The following exchange then occurred: 
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The Court: You have . . . had two attorneys; you couldn’t . . . for 

whatever reason couldn’t work with either of those. I mean we could 

try one more time and appoint you a lawyer and if you want to see if 

you can work with somebody that’s fine; I have no problem with that 

and we can do that or if you don’t think you can work with anybody 

then – then we can have you waive your right to a lawyer and you can 

try to represent yourself, you know, we’ll have to talk about that but as 

we sit here right now, uh, I need to know how you want to proceed in 

this case.

Gabriel Kowalskey: I need a lawyer. 

Id. at 8. 

[7] After questioning Kowalskey about his finances and finding that he qualified 

for a court-appointed lawyer, the court appointed Eric Oliver as his counsel in 

Cause Nos. 39 and 142. The following exchange then occurred: 

The Court: . . . . Uh, now, Mr. Kowalskey, uh, that Gilmer [sic] case . 

. . what it tells us is that, uh, if you keep having problems with lawyers 

over and over and over . . . the Court can enter just on its own that 

you’ve decided to represent yourself, okay. I can enter a motion that 

says by your own conduct, uh, you have decided to represent yourself. 

Uh, you know . . . and since you’ve chosen to hire court-appointed –

have court-appointed counsel today we’re not going to go into that but 

if we get to that point, you know, they’ll have to inform you of, uh, 

you know, the dangers of self-representation and the risks that are 

involved in it. The short story is, uh, you would be held to the same 

standard as this attorney sitting right here who’s been to law school, 

okay. 

Gabriel Kowalskey: Yeah. 

The Court: And – and so, uh, obviously that’s a risk that you – you, 

you know, you may not want to take. So I’m going to have Mr. Oliver 

come see you, okay. . . . 

* * * * *

Gabriel Kowalskey: . . . [T]here was one more thing that I wanted to 

- I don’t know if it’s maybe I should do it but I was speaking to it with 
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him but when I did have Tyler Starkey, my former attorney, I went to 

a video court for Battery, the liquid thrown on – water thrown on the

staff. I went to video court and then after that I had a visit with Tyler 

Starkey. 

The Court: Okay. 

Gabriel Kowalskey: I asked him for a fast and speedy to get this over 

with since I’ve done five, six months -

The Court: Okay. 

Gabriel Kowalskey: -- in here already; let’s get this done with, you 

know, maybe even sign a plea today but he failed to do that. I wrote 

him letters after letters and that’s where our relationship really -

The Court: Okay. 

Gabriel Kowalskey: -- deteriorated because of that subject and, uh, 

surveillance camera subject which is on the other case but I have the 

copy right here, the letters that I sent to him asking for a fast and 

speedy and I haven’t been to court one time and it’s been over three 

months since I’ve been to that video court. And I didn’t and just for 

the record I didn’t have any problem with Tyler Starkey. You know, I 

thought he was working real well for me until the very end, the last 

two months where he refused to - or failed to contact me. I wrote him 

over seven letters with the same, you know, literature inside. 

* * * * *

The Court: Okay, let’s show for the record that [Kowalskey] requests 

a fast and speedy on [Cause No. 142]. . . . 

Gabriel Kowalskey: Thank you. 

Id. at 9-10, 12-13. 

[8] On February 4, 2015, the court held a pretrial conference, at which Kowalskey 

appeared with Oliver. On February 5, 2015, the court received a letter from 

Kowalskey in Cause No. 39. In the letter, Kowalskey stated his concerns about 

“the prosecution, all three of [his] current and former lawyers, and the three 

arresting officers’ inability to produce dash-cam footage or CVS’s surveillance 
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footage from the night of the incident . . . .” Appellant’s Appendix at 91. He 

stated “I know for a fact that all three officers had their emergency lights 

activated,” that “I also know for a fact that CVS has an archive surveillance 

system,” that “the officers deny ever having activated their lights, as if they 

never even pulled up on me and made a stop,” and that “[t]herefore, I began to 

pursue the CVS’s surveillance cameras to prove that they did, in fact, make an 

investigatory stop.” Id. He further stated that “after 8 months and three 

different lawyers I get advised by Eric Oliver at a court hearing on 2-4-15 that 

the prosecution does not have the CVS footage,” that “[w]hen asked why, Mr. 

Oliver claimed that [it] had been deleted by CVS,” that “I then asked Mr. 

Oliver how he obtained the message that the footage had been deleted to which 

he admitted that he made up that statement,” that “[h]e then admitted that the 

only information the prosecution offered was that they did not have CVS’s 

footage in their possession,” and that, “[l]astly, he admitted that he never put 

forth effort in contacting CVS for the footage personally.” Id. at 91-92. 

Kowalskey stated, “I am scheduled for a suppression hearing and without 

footage from the scene or an honest account from at least one of the officers I 

cannot ‘definitely’ prove the arresting officer made an Invalid Investigatory 

Stop – they claim a stop was never made.” Id. at 92. Kowalskey also said “I’m 

not asking to fire [] Oliver. That is by no means not my intentions of this letter” 

and that “[a]ll that I’m hoping with this letter is that you, Your Honor, . . . 

demand that the prosecution produce or pursue obtaining either one of the three 

officer’s dash-cam or footage from CVS . . . .” Id. The court’s chronological 
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case summary for Cause No. 39 contains an entry indicating that the clerk was 

to provide a copy of the letter to the State and Oliver. 

[9] On February 6, 2015, Oliver filed a motion to withdraw appearance in Cause 

No. 39 and Cause No. 142 stating that he “received a letter on or about 

February 5, 2015 from Mr. Kowalskey containing information that prohibits 

[him] from representing [Kowalskey] further.” Id. at 93, 130. 

[10] On February 9, 2015, the court held a hearing under both causes at which 

Kowalskey appeared with Oliver. The following exchange occurred: 

The Court: [T]he Court got one letter from you which I forwarded on 

to the State and Mr. Oliver indicating that you felt like he was lying to 

you and, uh, quite possibly violating your due process rights. Uh, Mr. 

Kowalskey, we were here in Court back in January; do you remember 

that? 

Gabriel Kowalskey: Yes, I absolutely do. 

The Court: And, uh, that was on January 6, 2015 and you and I had a 

discussion sitting right here about the fact that if I was going to appoint 

you another attorney and that if you couldn’t get along with that 

attorney and did something to cause him to withdraw that you’re 

going to proceed on your own; do you remember that?

Gabriel Kowalskey: Yeah, I remember. 

The Court: And now it appears to me that you have accused your 

attorney of some kind of misconduct, at least not representing you to 

the best of his ability, that’s caused him to file this Motion to 

Withdraw of Appearance.

Gabriel Kowalskey: Right. . . . Your Honor, I don’t want you to or 

Eric Oliver to be under the impression that, uh, I don’t want him as a 

lawyer just like all of the rest of my lawyers, I just wanted to inform 

someone because I was trying to actually speak to you and tell you 

about some things before I left court that day. 

The Court: Um um (affirmative response). 
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Gabriel Kowalskey: And it was going to be the same issues. . . . I’m 

feeling that although I do believe that Eric Oliver is a – probably a 

fabulous lawyer, it’s just I told him some things that he should have 

reacted in a certain way and . . . didn’t and that gives me the, uh, 

understanding that he might not be doing exactly what I need to do for 

my case. And I was just hoping that you could set things right; that’s 

why I wrote you the letter and maybe influence or persuade, I don’t 

know which one, my lawyer or even the prosecutor but more so my 

lawyer to – to work diligently or sincerely. That’s the only reason that 

I wrote you that letter. 

The Court: I don’t have any control over your lawyer’s, uh, 

relationship with you. . . . Oliver has been in practice . . . [s]even 

years. . . . Mr. Starkey has been a lawyer for ten years . . . . Mr. 

Witham . . . has been in practice for twenty years and been a public 

defender right here in this court for probably fifteen years and you 

can’t get along with any of those people. . . . And I warned you last 

time you were here that we couldn’t tolerate that anymore. 

* * * * *

Gabriel Kowalskey: . . . I have no type of, you know, harsh feeling 

toward [] Oliver or actually any of the other, uh, lawyers that I had. 

That is not what I’m to do and I don’t want a different lawyer; I don’t 

have time to have a different lawyer. The reason why I’m so stressed 

and writing all these letters is because the fact that in a week . . . I will 

be having a suppression. I’m – I’m fighting for my life. . . . 

The Court: . . . [T]he bottom line is is due to your obstreperous 

conduct, the conduct that you keep demonstrating towards attorneys, 

uh, you know, this Court can find that you have waived by your 

conduct your right, uh, to have a lawyer. . . . 

Eric Oliver: [T]here’s been nothing that’s changed and the reason 

being is my concern is the effective assistance. . . . He wants to have 

the best of both worlds and have the lawyer but dictate to the lawyer 

how they handle the case and that just doesn’t make a feasible 

solution. . . . 

Transcript at 25-30. The court granted Oliver’s motion to withdraw his 

appearance. The court appointed appellate counsel for the purpose of this 
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interlocutory appeal and certified its orders in Cause No. 39 and Cause No. 142 

that Kowalskey waived his right to the appointment of pauper counsel for 

interlocutory appeal. 

Discussion

[11] The issue is whether the trial court erred in finding that Kowalskey, by his 

conduct, waived or forfeited his right to counsel. He contends that he was not 

advised of any of the pitfalls of self-representation or advantages of being 

represented by an attorney, that there was no voluntary, knowing, and 

intelligent waiver of his right to counsel, that the record does not establish

obstreperous conduct on his part, and that there was insufficient evidence of 

antagonistic conduct to conclude that he forfeited his right to counsel. 

Kowalskey argues that the court advised him, at the time it appointed Oliver, 

that if he did not get along with his new attorney the court would at that time 

advise him of the dangers and risks of self-representation, and that the court 

never gave him the required Gilmore warnings. He argues that the court took no 

affirmative step to ensure he appreciated the dangers and disadvantages of selfrepresentation, that there was no analysis of whether he had made a knowing 

and intelligent waiver of his right to counsel, and that there was no on-therecord evidentiary hearing where specific findings were made as required by 

Gilmore. Kowalskey maintains that many of the waiver-by-conduct cases 

involve defendants whose conduct appeared to constitute determined efforts to 

manipulate and obstruct the trial process, that the record here shows his earnest 

struggle to push the process forward and not thwart the State’s efforts to 
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prosecute him, and that his actions were aimed at obtaining the evidence 

needed to challenge the State’s case. 

[12] The State asserts that, while there is no dispute that Kowalskey did not 

affirmatively waive his right to counsel, the trial court properly found that he 

forfeited or waived his right to counsel through his conduct. It argues that the 

court held a hearing as required by Gilmore and sufficiently warned Kowalskey 

of the consequences of his conduct to allow the court to subsequently determine 

that he had forfeited his right to counsel. The State points to the court’s 

statement at the January 6, 2015 hearing that it would “try one more time” and 

the court’s warning that, if Kowalskey kept having problems with his attorneys, 

the court could decide that he had chosen to represent himself. The State 

argues that, although the court could have and perhaps ideally would have

given a more expansive warning, the warnings given were sufficient to place 

Kowalskey on notice of the consequences of continuing to make it impossible 

for any attorney to represent him. The State also contends that the court 

sufficiently warned Kowalskey of the disadvantages of proceeding without 

counsel, that this was not a situation where a defendant was expressing a desire 

to represent himself because he felt he could do better than an attorney, and 

instead the record shows Kowalskey understood it was not in his best interest to 

proceed pro se. 

[13] The right to be represented by counsel is protected by both the Federal and 

Indiana Constitutions. U.S. CONST. amend. VI; IND. CONST. art. 1, § 13. The 

right to counsel can be waived by a knowing, voluntary, and intelligent waiver. 
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Gilmore, 953 N.E.2d at 589 (citing 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. (citing Jackson v. State,

441 N.E.2d 29, 32 (Ind. Ct. App. 1982)). “Of all the rights that an accused 

person has, the right to be represented by counsel is by far the most pervasive 

for it affects his ability to assert any other rights he may have.” Poynter v. State,

749 N.E.2d 1122, 1125-1126 (Ind. 2001) (citation omitted). 

[14] In Gilmore v. State, this court addressed the waiver or forfeiture of a defendant’s 

right to counsel due to the defendant’s conduct. 953 N.E.2d at 589. Gilmore 

had five court-appointed attorneys, all of whom withdrew from representing 

him due to a breakdown of the attorney-client relationship. Id. at 585-586. The 

trial court found in part that Gilmore had waived his right to counsel by his 

obstreperous conduct. Id. at 585. On appeal, this court first set forth portions 

of the opinion of the United States Court of Appeals, Third Circuit, in United 

States v. Goldberg: 

A waiver is an intentional and voluntary relinquishment of a known 

right. The most commonly understood method of “waiving” a 

constitutional right is by an affirmative, verbal request. Typical of 

such waivers under the Sixth Amendment are the requests to proceed 

pro se and requests to plead guilty. . . . The High Court has 

emphasized the importance of an affirmative, on-the-record waiver, 

noting that it indulges every reasonable presumption against waiver of 

fundamental constitutional rights.

* * * * *
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At the other end of the spectrum is the concept of forfeiture. Unlike 

waiver, which requires a knowing and intentional relinquishment of a 

known right, forfeiture results in the loss of a right regardless of the 

defendant’s knowledge thereof and irrespective of whether the 

defendant intended to relinquish the right. . . . In United States v. 

McLeod, 53 F.3d 322 (11th Cir. 1995), . . . the Eleventh Circuit 

concluded that a defendant who is abusive toward his attorney may 

forfeit his right to counsel. 

* * * * *

Finally, there is a hybrid situation (“waiver by conduct”) that 

combines elements of waiver and forfeiture. Once a defendant has 

been warned that he will lose his attorney if he engages in dilatory 

tactics, any misconduct thereafter may be treated as an implied request 

to proceed pro se and thus, as a waiver of the right to counsel. . . . 

Thus, instead of “waiver by conduct,” this situation more 

appropriately might be termed “forfeiture with knowledge.”

* * * * *

[F]orfeiture would appear to require extremely dilatory conduct. On 

the other hand, a “waiver by conduct” could be based on conduct less 

severe than that sufficient to warrant a forfeiture. This makes sense 

since a “waiver by conduct” requires that a defendant be warned about 

the consequences of his conduct, including the risks of proceeding pro 

se. . . . [A] true forfeiture can result regardless of whether the 

defendant has been advised of the risks of proceeding pro se. . . .

Id. at 589-590 (citing United States v. Goldberg, 67 F.3d 1092, 1099-1101 (3rd Cir. 

1995)). The court in Gilmore then reviewed several opinions which examined 

the concepts of forfeiture and waiver by conduct, including the Indiana 

Supreme Court opinion in Poynter v. State, 749 N.E.2d 1122 (Ind. 2001). 

[15] In Poynter, the defendant indicated that he would retain his own counsel, but 

after continuances were granted so that he could secure private counsel, a bench 

trial was held and neither the trial court nor the parties commented regarding 
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the absence of an attorney for the defendant. Poynter, 749 N.E.2d 1126. The 

trial court found the defendant guilty, and on appeal the defendant maintained

that the court had a duty to advise him of the advantages of representation by 

counsel and the dangers of self-representation and that the lack of advisement

negated any finding of a voluntary, knowing, and intelligent waiver of his right 

to the assistance of counsel. Id. at 1124-1125. 

[16] In its opinion, the Indiana Supreme Court initially stated that, “[w]hen a 

defendant asserts the right to self-representation, the court should tell the 

defendant of the ‘dangers and disadvantages of self-representation,’” Poynter, 

749 N.E.2d at 1126 (citing Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 

2525, 2541 (1975)), and that “[t]here 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.” Id. (citing Leonard v. State, 579 N.E.2d 1294, 1296 (Ind.

1991)). The Court noted “[t]his determination must be made with the 

awareness that the law indulges every reasonable presumption against a waiver 

of this fundamental right.” Id. 

[17] The Court then observed that several courts have held that a verbal waiver of 

the right to counsel may not be necessary and that “so long as the . . . court has 

given a defendant sufficient opportunity to retain the assistance of . . . counsel, 

defendant’s actions which have the effect of depriving himself of . . . counsel 

will establish a knowing and intentional choice.” Id. (citing United States v. 
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Hoskins, 243 F.3d 407, 410 (7th Cir. 2001) (finding the defendant’s conduct to 

be sufficient to imply waiver and that the trial court’s inquiry was sufficient and 

provided explicit warning of consequences of continued conduct); United States 

v. Irorere, 228 F.3d 816, 828 (7th Cir. 2000) (holding that the defendant waived 

the right to counsel by his conduct where the court appointed four separate 

lawyers all of whom either requested to withdraw or were fired by the 

defendant and the defendant had been advised of the dangers and disadvantages 

of self-representation pursuant to Faretta)). The Court also observed that, “[i]n

each of these waiver-by-conduct cases, . . . the courts recognized that, just like 

an express verbal waiver, an implied waiver is not valid absent a finding under 

the totality of the circumstances that the waiver is knowing and intelligent” and 

that “this finding invariably included evidence of an admonition to the 

defendant on the dangers and disadvantages of self-representation.” Id. (citing 

Hoskins, 243 F.3d at 411; Irorere, 228 F.3d at 828). 

[18] The Court in Poynter then noted that, in United States v. Hoskins, the Seventh 

Circuit Court of Appeals, in analyzing the defendant’s waiver of his right to 

counsel, relied upon the following considerations: (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 1127-1128 

(citing Hoskins, 243 F.3d at 411). The Court found that, “[c]onsidering these 

factors within the circumstances of the present case we find that the trial court, 
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while it did determine that the defendant was advised of his trial rights and did 

tell the defendant of the procedural outcome if he failed to secure counsel, did 

not at any time advise the defendant on the dangers and disadvantages of selfrepresentation” and that “[t]his lack of any advisement weighs heavily against 

finding a knowing and intelligent waiver.” Id. at 1128. The Court also noted 

that, while there is evidence that the defendant chose to work and sleep rather 

than take the time to hire an attorney, his conduct did not result in gross delays 

or clearly appear to intend manipulation of the process. Id. 

[19] In Gilmore, after reviewing Poynter and other cases, this court addressed whether 

Gilmore, by his conduct, had waived or forfeited his right to counsel and

concluded: 

In the present case, Gilmore engaged in behavior that led his courtappointed attorneys to withdraw from representation. 

Understandably, the trial court became dissatisfied with the delay 

seemingly caused by Gilmore in moving the case forward. This 

conduct was not of the kind often associated with a finding of 

forfeiture of the right to counsel. Nor does this conduct fit neatly into 

the category of cases in which waiver of the right to counsel is found, 

as Gilmore repeatedly requested representation by counsel. Instead, it 

appears to be more along the lines of a waiver by conduct or forfeiture 

with knowledge. As such, Gilmore was and is entitled to a hearing during 

which he should be warned that if his obstreperous behavior persists, the trial 

court will find that he has chosen self-representation by his own conduct. Then 

the inquiry turns to an analysis of whether Gilmore made a knowing and 

intelligent waiver of his right to counsel, which includes a warning of the 

dangers and disadvantages of self-representation established in an on-the-record 

evidentiary hearing where specific findings are made. While not condoning 

Gilmore’s apparent obstreperous conduct, because those warnings 

were not given to Gilmore, we conclude that the trial court erred by 

finding that Gilmore had waived his right to counsel. We, therefore, 
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vacate the trial court’s order and remand for further proceedings 

consistent with this opinion.

Gilmore, 953 N.E.2d at 592-593 (emphasis added). 

[20] In this case, Kowalskey specifically stated at the January 6, 2015 hearing that 

he needed a lawyer and at the February 9, 2015 hearing that his letter was sent 

to influence his lawyer to work diligently or sincerely, that he did not wish to 

have a different lawyer, that he did not “have time to have a different lawyer,” 

and that he was stressed because the suppression hearing was scheduled for a 

week later. Transcript at 30. Thus, Kowalskey did not expressly and verbally 

waive his right to counsel, and we must determine whether a waiver by conduct 

or forfeiture with knowledge occurred. 

[21] Oliver indicated that Kowalskey’s February 5, 2015 letter prompted his request 

to withdraw appearance. In the letter, Kowalskey stated that he was scheduled 

for a suppression hearing, that the police had denied making an investigatory 

stop, that he knew the police had activated their emergency lights and thus that 

there had been an investigatory stop, that Oliver had not attempted to contact 

CVS for its surveillance system footage, that without footage he could not prove 

the arresting officer did not make a valid investigatory stop, and that he was not 

asking to fire Oliver but was hoping the court would demand the prosecutor to 

produce or obtain the officers’ dash-cam footage or the CVS footage. At the 

February 9, 2015 hearing, Kowalskey stated that he did not want a different 

lawyer, that he did not have time to have a different lawyer, and that he was 

stressed and wrote the letter because his suppression hearing was scheduled for 
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a week later. The record does not establish that Kowalskey, in sending his 

letter to the court, engaged in obstreperous conduct or behavior. The court did 

not make specific findings supporting the conclusion that Kowalskey, by his 

letter or otherwise, engaged in obstreperous conduct. 

[22] Moreover, similar to Poynter, while the trial court may have informed 

Kowalskey at the January 6, 2015 hearing that, if he kept having problems with 

lawyers, it could determine that he had decided to represent himself and that “if

we get to that point, . . . they’ll have to inform you of . . . the dangers of selfrepresentation and the risks that are involved in it,” the court did not at that time 

or later advise Kowalskey of the dangers and disadvantages of selfrepresentation. Transcript at 10 (emphases added). The court’s sole statement 

at the January 6, 2015 hearing that “[t]he short story is [Kowalskey] would be 

held to the same standard as this attorney sitting right here who’s been to law 

school” was not an adequate advisement of the dangers and disadvantages of 

self-representation under the circumstances. Id. at 10. Like in Poynter, this lack 

of an adequate advisement of the dangers and disadvantages of selfrepresentation “weighs heavily against finding a knowing and intelligent 

waiver.” See Poynter, 749 N.E.2d at 1128. 

[23] Additionally, the court did not enter specific findings, addressing the factors 

outlined in Hoskins and adopted in Poynter or otherwise, regarding whether it 

had given Kowalskey the required warnings regarding the dangers and 

disadvantages of self-representation, the extent to which Kowalskey’s behavior 

related to his attorneys’ requests to withdraw their appearances, his background 
Court of Appeals of Indiana | Opinion 32A01-1503-CR-99 | July 30, 2015 Page 18 of 18

and experience, the context of Oliver’s request to withdraw appearance and 

Kowalskey’s January 5, 2015 letter regarding his approaching suppression 

hearing, or whether Kowalskey had made a knowing and intelligent waiver of 

his right to counsel under the circumstances as required by Gilmore. The trial 

court did not undertake an analysis of whether, or make specific findings 

supporting the conclusion that, Kowalskey demonstrated obstreperous conduct 

after being warned that such conduct could result in the waiver of his right to 

counsel or made a knowing and intelligent waiver of his right to counsel which 

included a warning of the dangers and disadvantages of self-representation. 

[24] Based upon the record, Gilmore, and Poynter, and mindful that the law indulges 

every reasonable presumption against a waiver of the fundamental right to 

counsel, we conclude that the trial court erred in finding that Kowalskey, by his 

conduct, waived his right to pauper counsel. See Poynter, 749 N.E.2d at 1124-

1128; Gilmore, 953 N.E.2d at 589-593. Accordingly, we reverse the order of the 

trial court and remand for further proceedings. 

Conclusion

[25] For the foregoing reasons, we reverse the orders of the trial court in Cause No. 

39 and Cause No. 142 finding that Kowalskey by his conduct waived his right 

to counsel and remand for further proceedings consistent with this opinion. 

[26] Reversed and remanded.

Crone, J., and Pyle, J., concur.