Bomani Marsh v. State of Indiana (mem. dec.) , 121 N.E.3d 145 ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Jan 29 2019, 10:17 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel Hageman Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bomani Marsh, January 29, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-835
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Hooper,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G02-1701-CM-3159
Brown, Judge.
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[1] Bomani Marsh appeals his misdemeanor convictions for carrying a handgun
without a license and operating a motor vehicle without ever receiving a
license. Marsh raises one issue which we revise and restate as whether he
knowingly, intelligently, and voluntarily waived his right to a jury trial. We
affirm.
Facts and Procedural History
[2] On January 24, 2017, the State charged Marsh with: Count I, carrying a
handgun without a license as a class A misdemeanor; and Count II, operating a
motor vehicle without ever receiving a license as a class C misdemeanor. On
January 31, 2017, the court held an initial hearing at which it advised Marsh of
certain rights and stated in part that “in a criminal case you are entitled to a
variety of rights, including the right to a public and speedy trial, by a jury if you
want one . . . .” Supplemental Transcript Volume 2, Filed November 15, 2018,
at 4. The court also appointed a public defender, attorney Lauren Rodriguez,
to represent Marsh and scheduled a hearing for April 4, 2017.
[3] On April 4, 2017, the court held a pretrial conference at which Marsh appeared
in person and by counsel, attorney Rodriguez. The court stated: “Show the
defendant appears in person and by Ms. Rodriguez. The matter comes before
the court today for pretrial. Ms. Rodriguez?” Supplemental Transcript Volume
1, Filed August 22, 2018, at 16. Defense counsel Rodriguez then stated: “Yes,
Judge. We’re requesting a bench trial with a final pretrial two weeks before. I
do - hold on. Sorry. We are requesting a bench trial be set in August, if that’s
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okay with the court.” Id. The court scheduled a final pretrial conference for
August 9, 2017, and a bench trial for August 23, 2017. On August 9, 2017, the
court held a pretrial conference, scheduled a change of plea hearing for October
4, 2017, and rescheduled the bench trial for January 10, 2018. On January 3,
2018, at the State’s request, the court rescheduled the bench trial for February
22, 2018. On February 22, 2018, the court conducted a bench trial at which
Marsh testified and found Marsh guilty on Counts I and II. The court
sentenced Marsh to concurrent terms of 365 days on Count I and sixty days on
Count II all suspended except for time served.
Discussion
[4] The issue is whether Marsh knowingly, intelligently, and voluntarily waived his
right to a jury trial. The right to a jury trial is guaranteed by the Indiana and
United States Constitutions. Fiandt v. State, 996 N.E.2d 421, 423 (Ind. Ct. App.
2013) (citing Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012)). The
right to a jury trial in misdemeanor cases is not self-executing, but is controlled
by Ind. Criminal Rule 22. Id. (citing Young, 973 N.E.2d at 645). Criminal Rule
22 provides in part:
A defendant charged with a misdemeanor may demand trial by
jury by filing a written demand therefor not later than ten (10)
days before his first scheduled trial date. The failure of a
defendant to demand a trial by jury as required by this rule shall
constitute a waiver by him of trial by jury unless the defendant
has not had at least fifteen (15) days advance notice of his
scheduled trial date and of the consequences of his failure to
demand a trial by jury.
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The trial court shall not grant a demand for a trial by jury filed
after the time fixed has elapsed except upon the written
agreement of the state and defendant, which agreement shall be
filed with the court and made a part of the record. If such
agreement is filed, then the trial court may, in its discretion, grant
a trial by jury.
“Thus, when charged with a misdemeanor, a defendant can waive [his or] her
right to a jury trial by failing to make a timely demand for trial by jury.” Fiandt,
996 N.E.2d at 423 (citing Young, 973 N.E.2d at 645). See Hutchins v. State, 493
N.E.2d 444, 445 (Ind. 1986) (“One charged with a misdemeanor has no right to
a jury trial pursuant to Criminal Rule 22 unless he makes a written demand for
it. . . . Thus, a misdemeanant can waive a jury trial by failing to request it.
More protection is given to one charged with a felony in that he has an
automatic right to a jury trial unless he expressly waives it.”). While a
defendant charged with a misdemeanor can therefore waive his right to a jury
trial by inaction, the waiver must nonetheless be knowing, voluntary, and
intelligent. Duncan v. State, 975 N.E.2d 838, 842 (Ind. Ct. App. 2012). On
appeal, we consider the entire record to determine whether the defendant has
made a voluntary, knowing, and intelligent waiver. Id.
[5] Marsh argues that the trial court did not advise him of his right to a jury trial or
the consequences of failing to make a timely, written demand for a jury trial.
He argues that, while the trial court may infer that the accused does not wish to
proceed to a jury trial by the accused’s decision not to file a timely written
demand, the court is not entitled to do so where the accused has not been
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advised of the consequences of failing to make such a demand. He requests
that we reverse and remand for a new trial. Marsh points to Hudson v. State, 109
N.E.3d 1061 (Ind. Ct. App. 2018), in support of his request for a new trial.
[6] The State responds that the trial court did advise Marsh that he was entitled to a
jury trial if he wanted but failed to advise him of the requirement that he file a
written demand. It argues that Marsh was represented by counsel at the April
4, 2017 hearing, affirmatively requested a bench trial, and in doing so invited
any error. The State argues that Marsh was fully aware that he had a right to a
jury trial and instead demanded a bench trial, that he did not merely acquiesce
to a bench trial by failing to file a timely demand, that there is no suggestion in
the record that he wanted or was denied a jury trial, and that it appears he is
raising the issue now only because he wants a second chance at trial.
[7] In Hudson v. State, the trial court advised the defendant at an initial hearing that
he had the right to a trial by a jury if he wanted one. 109 N.E.3d at 1062.
Later, a hearing was continued, an “off record request form,” which was signed
by the State and defense counsel but not the defendant, was submitted to the
court, the form noted that the reason for the continuance was that the matter
was to be “set for BT,” and the trial court set a bench trial. Id. at 1062-1063.
Before the bench trial began, the defendant expressed his dissatisfaction with his
public defender and indicated that he thought the matter was set for a jury trial.
Id. at 1063 (the defendant stated there “was an incident going on where I had
another public defender who was supposed to set my trial for a jury trial. I get a
new public defender, I got a bench trial” and “I thought we were going . . . to
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jury trial. I’ve never been to a bench trial”). The trial court stated that it did not
have any options and moved forward with the bench trial. Id. On appeal, the
Court observed that the trial court failed to advise the defendant of the
consequences of failing to demand a jury trial or of the specific requirements for
making such a demand. Id. at 1065. The Court held that the defendant
established that his waiver of his right to a misdemeanor jury trial was not
knowing, and remanded for a jury trial. Id.
[8] In this case, at the initial hearing on January 31, 2017, the trial court advised
Marsh that he had “the right to . . . a jury if you want one.” Supplemental
Transcript Volume 2, Filed November 15, 2018, at 4. Thus, Marsh was advised
of his right to a trial by jury. Of course, a more thorough advisement of rights
including the necessity to file a written request for a jury trial by the specified
deadline would be recommended in all cases. However, the record reveals that
the trial was rescheduled several times, that the trial was held on February 22,
2018, and that at no time did Marsh express that he thought he had, or wished
to have, a trial by jury. Moreover, unlike in Hudson, where the record
contained an “off record request” for a continuance to set a bench trial which
was not signed by the defendant and the defendant later indicated that he
thought the matter was set for a jury trial, the record here reveals that Marsh
was present at the April 4, 2017 pretrial hearing during which his defense
counsel stated “We’re requesting a bench trial with a final pretrial two weeks
before” and “We are requesting a bench trial be set in August.” Supplemental
Transcript Volume 1, Filed August 22, 2018, at 16. Marsh had ample
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opportunity to discuss with counsel whether to request a jury trial. Based upon
the entire record and under the circumstances, we conclude that reversal is not
warranted.
[9] For the foregoing reasons, we affirm Marsh’s convictions.
[10] Affirmed.
Bailey, J., and Bradford, J., concur.
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