Pyle, J.
James Hart (“Hart”) appeals his conviction by jury of Class A misdemeanor invasion of privacy. Prior to trial, Hart told the trial court that he did not want court-appointed counsel, but then he failed to obtain his own counsel in the months that followed. A week prior to trial, Hart filed a motion for a continuance, requesting additional time to obtain counsel. The trial court denied the motion, and Hart subsequently represented himself at trial. On appeal, Hart argues that the trial court erred by trying him without counsel because he did not knowingly, intelligently, and voluntarily waive his right to counsel. The State argues that, even though Hart did not verbally waive his right to counsel, he waived his right through his conduct of failing to obtain a lawyer in a timely manner. Because we find that the trial court did not properly advise Hart of the dangers of representing himself, we agree with Hart that he did not knowingly, intelligently, and voluntarily waive his right to counsel verbally or through his conduct.
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A criminal defendant’s right to counsel is a fundamental individual right protected by the Sixth Amendment of the United States Constitution. Leonard v. State, No. 71S00-1509-LW-539 (Ind. May 2, 2017). “‘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, 1125-26 (Ind. 2001) (quoting United States v. Cronic, 466 U.S. 668, 684 (1984)). Accordingly, it is well-settled that when a defendant proceeds to trial without the benefit of counsel, the record must reflect that the right to counsel was voluntarily, knowingly, and intelligently waived. Brickert v. State, 673 N.E.2d 493, 495 (Ind. Ct. App. 1996), reh’g denied, trans. denied. Whether there has been an intelligent waiver depends on the “‘particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’” Poynter, 749 N.E.2d at 1127 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). It is the responsibility of the trial judge to determine whether there is an intelligent and competent waiver, and it is “‘fitting and appropriate for that determination to appear on the record.’” (quoting Johnson, 304 U.S. at 465).
There are no prescribed “talking points” the court is required to use; however, making a defendant aware of his constitutional right to counsel is insufficient. … The trial court must also tell the defendant of the “‘dangers and disadvantages of self-representation.’” Poynter, 749 N.E.2d at 1126 (quoting Faretta v. California, 422 U.S. 806 (1975)).
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Since Poynter, Indiana courts have likewise held that in order for a defendant to knowingly and intelligently waive his right to counsel through his conduct, the trial court must warn the defendant of the dangers and disadvantages of self representation. See Gilmore, 953 N.E.2d at 592 (finding that, even though Gilmore had caused five court-appointed attorneys to withdraw, he had not waived his right to counsel and noting that a knowing and intelligent waiver of the right to counsel “include[d] a warning on the dangers and disadvantages of self-representation established in an on-the-record hearing where specific
findings [were] made”); Kowalskey, 42 N.E.3d at 106 (concluding that Kowalskey had not waived his right to counsel through his conduct because there were no findings regarding whether the trial court had given Kowalskey the required “warnings regarding the dangers and disadvantages of self representation”).
In light of Poynter, Gilmore, and Kowalskey, we conclude that Hart cannot have knowingly and intelligently waived his right to counsel absent an advisement regarding the dangers and disadvantages of self-representation. Because Hart never received such an advisement, we conclude that the trial court erred in trying him without counsel. We reverse Hart’s conviction and remand to the trial court for a new trial.
Reversed and remanded.
Baker, J., and Mathias, J., concur.