VAIDIK, J.
[W]hen a probationer proceeds pro se and chooses to admit rather than to challenge his alleged probation violation, his knowing, intelligent, and voluntary waiver of counsel may be established even if the record does not show that he was warned of the pitfalls of self-representation. Greer v. State, 690 N.E.2d 1214, 1217 (Ind. Ct. App. 1998), trans. denied, abrogated by Hopper v. State, 934 N.E.2d 1086 (Ind. 2010), reh’g granted.2 [2We acknowledge that our future reliance on Greer is drawn into question by our Supreme Court’s September 28, 2010, decision in Hopper. In that case, the Court exercised its supervisory power
to require that in the future a defendant expressing a desire to proceed without counsel is to be advised of the dangers of going to trial as required by Faretta[ v. California, 422 U.S. 806 (1975)], and also be informed that an attorney is usually more experienced in plea negotiations and better able to identify and evaluate any potential defenses and evidentiary or procedural problems in the prosecution’s case.
934 N.E.2d at 1088. The Court specifically stated that the Hopper advisement is to be applied prospectively. Id. at 1089. Because Butler’s revocation hearings were held two months before our Supreme Court‘s decision in Hopper, its apparent abrogation of Greer is inapplicable to the facts before us. In any event, the Court recently granted the State’s petition for rehearing in Hopper but has not yet issued an opinion.] We find the facts of this case similar to Greer. There, the trial court advised Greer that he had the right to an attorney and that one would be appointed if he wanted an attorney but could not afford one. 690 N.E.2d at 1215. When the court asked Greer if he was making arrangements for an attorney, Greer responded that he was not and that he planned to admit the probation violation allegation. Id. The court then said, “Okay. And Mr. Greer, let me be sure that you understand that you have a right to have an attorney and that one can be appointed for you at no cost to you if you wish, do you understand that?” Id. Greer responded affirmatively. Id. The trial court proceeded to advise Greer of the rights he would be waiving if he admitted the allegations, his right to appeal if the court decided to revoke his probation, and the sanctions the court could impose if the court found that he had violated his probation. Id. The court asked Greer if he understood his rights, to which Greer said yes. Id. The court then asked Greer if he still wanted to admit that he violated his probation, to which Greer also said yes. Id. The court ultimately made a finding that Greer admitted violating his probation. Id.
On appeal, Greer contended that the trial court did not properly determine that he knowingly, intelligently, and voluntarily waived his right to counsel because the court did not inquire into his educational background and familiarity with legal procedures and failed to inform him of the pitfalls of self-representation. Id. at 1215-16. This Court concluded that the trial court was not required to inquire into Greer’s educational background and familiarity with legal procedures if the record nevertheless reflected that his waiver of counsel was knowingly, intelligently, and voluntarily made. Id. at 1216. This Court also concluded that when a pro se probationer in a revocation proceeding chooses to admit his alleged probation violation, the trial court is not required to warn him of the dangers of self-representation because he will not be going to trial:
[A] probationer who chooses to admit his probation violation . . . [is not] in danger of “conviction” at the hands of the State. It is unnecessary to warn such a person of the pitfalls of self-representation, for those pitfalls exist only when he is confronted with prosecutorial activity which is designed to establish his culpability. It is therefore clear that, when a probationer who proceeds pro se chooses to admit rather than to challenge his alleged probation violation, his knowing, intelligent, and voluntary waiver of counsel may be established even if the record does not show that he was warned of the pitfalls of self-representation.
Id. at 1217. Because Greer informed the trial court that he would admit the allegation, the trial court was not required to warn him of the dangers of self-representation. Id. at 1217, 1219. Finding that the record indicated that Greer was adequately advised of his rights and that he understood those rights, this Court concluded that Greer knowingly, intelligently, and voluntarily waived his right to counsel. Id. at 1217.
In line with Greer, because Butler admitted that he violated his probation, the trial court was not required to warn him of the dangers of self-representation in order to establish a knowing, intelligent, and voluntary waiver of his right to counsel.
Butler nonetheless attempts to distinguish Greer and argues that the trial court here should have warned him of the dangers of self-representation. He states that Greer “received an explicit advisement of his right to counsel,” the court then “listed the remaining rights and explained the possible outcomes of the case,” and Greer acknowledged his rights and still affirmed that he would admit the allegations. Appellant‘s Br. p. 9-10. In contrast, Butler argues, “the trial court asked Butler if he understood that he had the right to counsel and if he desired to have counsel appointed. Butler acknowledged this right in a conclusory fashion and declined the appointment of counsel.” Id. at 10. Butler continues, :The trial court did not make a repeated inquiry and ask Butler if he was sure he wanted to proceed pro se in advising him of his right to counsel . . . .” Id.
We find Butler‘s argument unavailing. We fail to see any difference between the “explicit advisement” of the right to counsel in Greer and the advisement given in this case. To the extent that Butler argues that the court‘s advisement was too perfunctory because the court did not repeatedly advise him of his right to counsel, we disagree that a court must make repeated advisements. Here, the trial court told Butler that he had a right to an attorney and that if he wanted an attorney but could not afford one, an attorney would be appointed for him. The court then asked Butler whether he wanted an attorney. Butler said no. The court verified with Butler that he was going to proceed at the hearing without an attorney and then said, “And you understand you have a right to a lawyer?” Tr. 7-28 p. 7. Butler said yes. The record shows that the trial court advised Butler of his right to counsel and that Butler unequivocally waived that right.
Furthermore, and important to our resolution of this issue, the record indicates that Butler has extensive experience with the criminal justice system in Vigo County. He has numerous misdemeanor and felony convictions spanning over twenty years, including felony convictions for dealing in cocaine, battery, domestic battery, theft, and failure to return to lawful detention. He has been placed on probation and has had his probation revoked multiple times. This information, coupled with the fact that Butler did ask for and receive appellate counsel, Tr. 8-3 p. 37-38, shows that he knew how to exercise his right to an attorney when he so desired. See Cooper, 900 N.E.2d at 70 (defendant‘s prior run-ins with the legal system, his explanation to court that he had requested public defender for other charges, and his request for appellate counsel shows he knew how to exercise his right to attorney).
MATHIAS, J., concurs.
KIRSCH, J., dissents with separate opinion:
My colleagues state that the facts of this case are similar to Greer v. State, 690 N.E.2d 1214 (Ind. Ct. App. 1998), and conclude that Butler, like Greer, waived his right to counsel because he admitted violating his probation.
The following exchange between the trial court and Butler is the entirety of the record regarding the waiver of counsel:
COURT: If it‘s found you‘ve violated your probation, whether you admit or it‘s found at a hearing, the maximum penalty the Court can impose is the four (4) years that was suspended. The minimum is zero (0) additional days in jail. Do you understand what the potential penalties are Mr. Butler?
DEFENDANT BUTLER: Yes sir.
COURT: You have a right to have a lawyer represent you in this proceeding. If you‘d like to have one, can‘t afford one, one will be appointed for you. Mr. Butler, do you wish to have a lawyer represent you?
DEFENDANT BUTLER: No. 15
COURT: You‘re gonna proceed today without a lawyer?
DEFENDANT BUTLER: Yes.
COURT: Okay. And you understand you have a right to a lawyer?
DEFENDANT BUTLER: Yes.
COURT: Mr. Butler then do you admit or deny that you violated the terms of your probation?
DEFENDANT BUTLER: Yes.
COURT: Okay, does that mean you admit—I need, I need to either hear that you admit it or deny it.
DEFENDANT BUTLER: I admit it.
Tr. 7-28 at 6-7.
I respectfully dissent for the following reasons:
First, as noted in the majority opinion, our Supreme Court abrogated Greer in Hopper v. State, 934 N.E.2d 1086 (Ind. 2010).
Second, in Greer, Greer voluntarily admitted that he planned on pleading guilty while the trial court was in the process of advising Greer of his right to counsel . . . Here, there was no such voluntary interjection. Rather, Butler’s admission came about in direct response to questioning from the court. Tr. 7-28 at 6-7. Thus, unlike the situation in Greer where the defendant himself injected the fact that he wished to plead guilty, the admission here came about in response to the court‘s direct questioning.
Third, “’whenever a defendant proceeds without the benefit of counsel, the record must reflect that the right to counsel was voluntarily, knowingly, and intelligently waived.’”‖ Cooper v. State, 900 N.E.2d 64, 66 (Ind. Ct. App. 2009). That is, in a probation revocation proceeding, the trial court must both determine the defendant‘s competency to represent himself. Id. Here, as shown by the above exchange, there was no determination of Butler’s competency.
Fourth, to ensure that the defendant’s waiver of counsel is made knowingly, intelligently, and voluntarily, the defendant must be made aware of the perils of self-representation. . . . .
. . . .
Fifth, although the trial court found that Butler admitted to probation violations, the record is unclear as to the extent of was such admission which, at best, was qualified and equivocal . . . .
Sixth and finally, my colleagues note that Butler’s criminal history reveals a familiarity with the criminal justice system supporting the conclusion that his waiver of counsel was knowing, intelligent, and voluntary. The trial court made no mention of Butler’s criminal history during the hearing at which it determined that Butler had waived his right to counsel and had admitted his probation violation. Further, there is no evidence in the record before us that either career criminals generally or Butler specifically possess a specialized legal knowledge or intelligence rendering them capable of making a knowing, intelligent and voluntary waiver of their rights in the absence of a full and adequate disclosure of the nature, extent and importance of such rights and the consequences of waiving them. Indeed, the conclusion could be easily drawn that an extensive criminal history is more likely reflective of the lack of critical thinking skills, not their presence.