Baker, J.
J.S. appeals following his conviction for Class A Misdemeanor Invasion of Privacy. J.S. argues that the trial court erred by revoking his pretrial diversion agreement without a hearing and that he was denied the right to legal representation at his trial. Finding no error with respect to the pretrial diversion agreement but also finding that J.S. was denied the right to legal representation, we affirm in part, reverse in part, and remand for a new trial.
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On November 30, 2016, the State charged J.S. with two counts of Class A misdemeanor invasion of privacy. It later added four more counts of the same offense.
On December 14, 2017, the State agreed to withhold prosecution for one year in a pretrial diversion agreement. Among other things, the agreement required J.S. to attend, complete, and pay for the Character Restoration Program within six months. On December 20, 2018, the State petitioned to revoke the pretrial diversion agreement because J.S. had not yet completed the Character Restoration Program.
Thereafter, the State resumed prosecution and asked that a bench trial be scheduled; the trial court granted the motion and scheduled the trial. On February 21, 2019, J.S. filed a motion for indigent counsel. The trial court held a hearing on February 26, 2019, but J.S.
failed to appear, so the court denied his motion and required that he proceed pro se.
On March 4, 2019, the State dismissed all but one count of invasion of privacy. Following a March 5, 2019, bench trial, the trial court found J.S. guilty and sentenced him to one year of probation. J.S. now appeals.
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J.S. has neither a statutory nor a constitutional right to a hearing on the State’s decision to terminate the pretrial diversion agreement. Therefore, the trial court here did not err by failing to hold a hearing on the State’s petition to revoke that agreement. ….
Next, J.S. argues that he was denied the right to counsel at his bench trial. The State concedes this issue and agrees that a new trial should be held.
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Here, there is no evidence that J.S. voluntarily, knowingly, and intelligently waived his right to counsel. In fact, there is evidence of precisely the opposite. It appears that while J.S. originally had a public defender, that attorney withdrew from the case after the State agreed to allow J.S. to participate in the pretrial diversion program. On February 7, 2018, J.S. filed a pro se motion to reinstate a public defender to his case while the pretrial diversion agreement was still in place. Following a hearing, the trial court denied the motion.
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The trial court never engaged in a discussion with J.S. about the perils of self-representation, nor did it conduct an inquiry as to J.S.’s indigency. Instead, it repeatedly ignored his requests for counsel and ignored the many red flags indicating that J.S. was out of his depth and needed (and wanted) an attorney. Under these circumstances, we agree with the State that J.S. did not knowingly, voluntarily, and intelligently waive his right to counsel—he did not waive his right to counsel at all.
Therefore, we reverse and remand for a new trial.
The judgment of the trial court is affirmed in part, reversed in part, and remanded for a new trial.
Kirsch, J., and Crone, J., concur.