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Published by the Indiana Office of Court Services

A.S. v. State, No. 10A01-0908-JV-423, __ N.E.2d __ (Ind. Ct. App., June 30, 2010)

July 2, 2010 Filed Under: Juvenile Tagged With: Appeals, M. May

MAY, J.
In that [crime-based delinquency] situation virtually identical to the case before us, we determined A.S. and Mother did not knowingly and voluntarily waive the right to counsel guaranteed by the Indiana and United States Constitutions. [A.S. v. State, 923 N.E.2d 486, 491 (Ind. Ct. App. 2010)]. The trial court made no inquiry into the ostensible decision of A.S. and Mother to proceed pro se. The advisement they signed explained A.S.’s rights, including the right to be represented by an attorney, but nowhere in the record did they state affirmatively that they intended and wished to proceed without representation. There was no evidence in the record that A.S. and Mother understood the dangers and disadvantages of self-representation. A.S. was not advised that an attorney could investigate and present her self-defense claim. There was no evidence in the record establishing the background and experience of either A.S. or Mother, and the conversation Mother had with the trial court at the initial hearing suggested she was confused about the procedures to be followed. Id.
. . . .
A.S.’s claim is not waived, as the constitutional violation was fundamental error.  [Footnote omitted.]   Generally, a claim of error must be raised during trial in order to be available as an issue on appeal. Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009), reh’g denied. But we sometimes entertain such unraised claims under the rubric of “fundamental error.” Id. Fundamental error is an error that makes a fair trial impossible or amounts to a blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. Id.
We agree with A.S. that failing to adequately inform a delinquent of her right to counsel is fundamental error.  . . . .
BAILEY, J., and BROWN, J., concur.

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