SHEPARD, C.J.
Appellant David Hopper has been seeking to set aside a 2005 conviction for driving while intoxicated, on grounds that he had not been advised or warned of the risks of dealing with prosecutors without a lawyer. We earlier affirmed the trial court’s denial of his petition for post-conviction relief.
The Attorney General has petitioned for rehearing, arguing that the rule announced in our prior opinion presents an unnecessary and impractical deviation from precedents established by the U.S. Supreme Court, and that it is unsupported by public policy. We grant rehearing to address the role and necessity of such advisements.
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This brings us, finally, to the rule announced in our prior opinion. The Court of Appeals had pointed out that counsel “should be better equipped to plea bargain with a prosecutor than a layperson.” Hopper, 925 N.E.2d at 504. We, in turn, required that a defendant be advised “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.” Hopper, 934 N.E.2d at 1088. One can acknowledge the correctness of that statement and yet not conclude that an advisement along these lines need be mandatory.
First, as we have discussed above, it is apparent that neither the U.S. Constitution nor the Indiana Constitution require any particular formulaic language or magic words. See Tovar, 541 U.S. at 77; Leonard, 579 N.E.2d at 1294. The U.S. Supreme Court expressly rejected similar language in Tovar, and there are only modest differences between mandatory warnings about an attorney’s skill at plea bargaining and the mandatory instructions concerning an attorney’s skill at trial that we rejected in Leonard.
To be sure, there are circumstances in which discussion with a defendant about the value of counsel may be especially valuable. As the Public Defender of Indiana has helpfully pointed out, some defendants who come from different cultures may not have a full understanding of the roles and risks in the American system. (Amicus Br. at 3) (“Persons who are familiar only with the Mexican legal system would not be aware of the legal concepts that the Hopper advisement conveys . . . .”). One can agree with this observation and still “not agree, however, that such guidelines should constitute a rigid mandate setting forth specific inquiries that a trial court is required to make before determining whether a defendant’s waiver of right to counsel is knowing, intelligent, and voluntary.” Leonard, 579 N.E.2d at 1296.
Second, our original opinion passed over a crucial question, the very one Mr. Hopper has presented: is the absence of the instruction simply an additional factor to consider, or is the absence of the instruction a per se violation of one‘s right to counsel? Put another way, where such a warning was not made, is that omission by itself a sufficient grounds for setting aside a conviction?
The Hopper warning, like other advisements, is prophylactic. When it comes time (like today) to decide whether one who pled guilty should have his plea and conviction vacated, the question will be whether omission of an advisement means, per se, that the previously-convicted can start over. Thirty years ago, this Court embraced precisely that approach. If each of the advisements appeared, the defendant was presumed to have pleaded voluntarily and intelligently, and he stayed convicted. If even one advisement was missing, he was said to have acted involuntarily and unintelligently, and his conviction was set aside. Austin v. State, 468 N.E.2d 1027 (Ind. 1984); German v. State, 428 N.E.2d 234 (Ind. 1981).
This approach “created a virtual tidal wave of petitions by prisoners, some of whom [had] slumbered on their rights for five or ten years. It [had], by definition, afforded relief only to prisoners who have asserted their guilt before the trial judge and never recanted.” White, 497 N.E.2d at 900. It visited felony convictions “with all the finality of default judgments in small claims court.” Id. Observing that the result had been setting aside convictions “when the trial judge’s omission was one which our common sense as human beings tells us was utterly harmless,” we overruled German and Austin and resolved to examine whether pleas were voluntary and intelligent on a holistic basis to determine whether any omissions or other circumstances warranted starting over. Id.
As we explained in White, this analytical approach resembled the tracks used by the federal courts. See id. at 902–03. “Looking at the totality of the circumstances surrounding the plea, can it be said that the defendant understood his or her rights?” Id. at 902 (citing United States v. Wetterlin, 583 F.2d 346 (7th Cir. 1978)). “Was the error in the proceeding a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure?” Id. (citing Hill v. United States, 368 U.S. 424 (1962)). The focus there is on “the likely effect of the district judge’s failure to advise a defendant properly before the plea is entered.” Id. at 904. For federal courts, “the question is not whether there was an omission but whether the defendant actually lacked knowledge and whether this ignorance made any difference.” Id. at 905.
Hopper himself may be the best illustration of why the totality of the circumstances approach serves better than the per se rule. He claims only a lack of an advisement. He does not articulate any negative impact or particularized prejudice. He makes no argument of injustice or innocence. He certainly never says, “I didn’t do it.” In fact, counsel acknowledged that this sort of attack would best suit those who are (like Hopper) guilty, but seek to have those convictions set aside to prevent facing habitual or repeat offender charges. Hopper never offers evidence that he would have received a better deal with advice of counsel or that he would have accepted counsel if the judge had told him that lawyers were so much better at plea bargaining. [Footnote omitted.]
Hopper thus urges adoption of the per se approach to the warning we earlier mandated and understandably expresses surprise that the advisement was deemed so important that mandating it was thought necessary, but not so important as to warrant granting relief to the defendant who filed the appeal.
In contrast to the per se rule, the totality of the circumstances test asks more searching questions. Was the defendant’s decision to forgo counsel or to plead guilty voluntary and intelligent? Taken as a whole, did the encounter afford a defendant due process, or was it seriously unfair in some respect?
We expect that judicial inquiries about such questions, by both trial and appellate judges, will be as fulsome as each situation requires to separate just results from unjust results. Looked at this way, an offender like Hopper, who lifts up no misstep in his earlier conviction save a warning about the valuable help of lawyers, makes no case for relief. On the other hand, a defendant like Tim Hood, who was threatened by a prosecutor with habitual offender charges unless he waived counsel, should get relief whether the court gave him an advisement or not.
While we do not doubt the value of the Hopper advisement’s language in particular stages of particular cases with particular defendants, the notion that such language should be mandatory in all stages of all cases with all defendants is misplaced. “’Matters of reality, and not mere ritual, should be controlling.’” Id. at 904 (quoting United States v. Frazier, 705 F.2d 903, 907 (7th Cir. 1983)).
Dickson, and David, JJ., concur.
Rucker, J., dissents with separate opinion in which Sullivan, J., concurs:
Because I believe our original opinion in this case is sound, I disagree with the majority‘s decision to grant the State‘s petition for rehearing.
At the outset I observe that although declaring a rehearing petition “must . . . go beyond a mere assertion that the original ruling was erroneous,” Slip op. at 4 (citing Griffin v. State, 763 N.E.2d 450-51 (Ind. 2002)), the majority nonetheless entertains and effectively grants the State’s petition even though the State’s claim is that this Courts original opinion was wrongly decided. . . . The State now seeks rehearing making essentially the same arguments it made before. Nothing has changed. Under these circumstances alone, this Court should deny the petition for rehearing.
And largely for the reasons the majority sets forth it is unlikely that the advisement we announced in our original opinion would have enlightened Hopper‘s decision whether to seek counsel or represent himself. Indeed although the majority glosses over the fact, we affirmed Hopper’s conviction and thus he was granted no relief despite our announcing an advisement that now bears his name.
Further, the majority laments “our original opinion passed over a crucial question . . . : is the absence of the instruction simply an additional factor to consider, or is the absence of the instruction a per se violation of one’s right to counsel?” Slip op. at 14. But rather than address this perceived inadequacy and clarify that the advisement is best understood as an additional factor to be considered, the majority creates a straw man characterizing the advisement as a “per se” rule and a “rigid mandate,” id., and then knocks it down by explaining why such rules and mandates have not worked in the past.
I am hard pressed to understand why the majority apparently thinks it is a bad thing or otherwise inappropriate simply to provide pro se – and likely indigent – defendants with such a modest advisement as: “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.”