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Schenke v. State

Court of Appeals of Indiana

November 13, 2019

James Schenke, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Tippecanoe Superior Court No. 79D06-1611-CM-4319. The Honorable Michael A. Morrissey, Judge

          Attorney for Appellant Caroline B. Briggs Lafayette, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

          BAKER, JUDGE.

         [¶1] James Schenke appeals following his conviction for Class A Misdemeanor Invasion of Privacy.[1] Schenke 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.[2] Finding no error with respect to the pretrial diversion agreement but also finding that Schenke was denied the right to legal representation, we affirm in part, reverse in part, and remand for a new trial.

         Facts

         [¶2] On October 28, 2016, Schenke was arrested for battering his wife ("Wife"). Upon his release from jail, Schenke signed a ten-day no contact order listing Wife as the protected person; among other things, he was prohibited from having any direct or indirect contact with her and from being within eyesight of her home.

         [¶3] On October 29, 2016, Schenke and a friend went to Wife's neighborhood. Schenke sent his friend into Wife's home with a key and a list of items to retrieve; Schenke waited on the corner and directed his friend on the phone. While this was occurring, Tippecanoe County Sheriff's Detective Jodi Rohler was dispatched to the scene. She talked to Schenke's friend at Wife's home and to Schenke on the corner. Detective Rohler could see Wife's home from the intersection where Schenke was standing.

         [¶4] On November 30, 2016, the State charged Schenke with two counts of Class A misdemeanor invasion of privacy. It later added four more counts of the same offense.

         [¶5] On December 14, 2017, the State agreed to withhold prosecution for one year in a pretrial diversion agreement. Among other things, the agreement required Schenke 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 Schenke had not yet completed the Character Restoration Program.

         [¶6] 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, Schenke filed a motion for indigent counsel. The trial court held a hearing on February 26, 2019, but Schenke failed to appear, so the court denied his motion and required that he proceed pro se.

         [¶7] 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 Schenke guilty and sentenced him to one year of probation. Schenke now appeals.

         Discussion ...


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