Shon L. Hudson v. State of Indiana (mem. dec.) , 109 N.E.3d 1061 ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Sep 05 2018, 7:40 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rory Gallagher Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shon L. Hudson, September 5, 2018
Appellant-Defendant, Court of Appeals Case No.
49A02-1712-CR-2903
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Certo, Judge
Appellee-Plaintiff Trial Court Cause No.
49G12-1701-CM-3057
Altice, Judge.
Case Summary
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[1] Following a bench trial, Shon Hudson was convicted of battery resulting in
bodily injury as a Class A misdemeanor. The sole issue he raises on appeal is
whether he knowingly waived his right to a jury trial.
[2] We reverse and remand.
Facts & Procedural History
[3] On January 23, 2017, the State charged Hudson with battery resulting in bodily
injury as a Class A misdemeanor. At the initial hearing, the trial court
explained to Hudson his rights, including that he had “the right to a public and
speedy trial, by a jury if you want one.” Supplemental Transcript Vol. 2 at 4-5
(emphasis supplied). Over the next couple of months, Hudson, represented by
a public defender, appeared before the trial court for several, brief hearings,
during which the court offered no additional advisements about Hudson’s right
to a jury trial or the procedural requirements of Ind. Crim. Rule 22 (Rule 22).
A hearing scheduled for August 15, 2017, was continued, and an “off record
request form,” signed by the State and defense counsel but not Hudson, 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 a bench trial was requested to be set
for September 12, 2017. Appellant’s Appendix Vol. II at 52. The trial court set the
matter for a bench trial as requested. On the State’s motion, the bench trial was
rescheduled for November 21, 2017.
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[4] Before the bench trial began, Hudson expressed his dissatisfaction with his
public defender and indicated that he thought the matter was set for a jury trial.
Hudson explained:
I’m not ready to go to court, I mean, I’m not ready to go to trial
today, sir. My public defender hasn’t did [sic] his job. … Why
I’m concerned about this case, Your Honor, is it 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.
Transcript Vol. 2 at 4. Hudson continued asserting complaints about his public
defender and then reiterated, “I thought we were going . . . to jury trial. I’ve
never been to a bench trial.” Id. at 6. The trial court addressed Hudson’s
comments, stating “I don’t have any options. This is our date for trial.
Everybody is here for trial that I’m aware of. We’re going to proceed.” Id. at 8.
The trial court assured Hudson that the bench trial would be done “fully and
fairly.” Id. The court then moved forward with the bench trial and found
Hudson guilty as charged. The court sentenced Hudson to 365 days
incarceration with 359 days suspended to probation. Hudson now appeals.
Additional evidence will be provided as necessary.
Discussion & Decision
[5] Hudson argues that he did not knowingly waive his right to a misdemeanor jury
trial because he was never advised of the need to demand a jury trial in writing
at least ten days before the scheduled trial date or of the consequences of failing
to do so. The State argues that the trial court was not required to give formal
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notice of the procedural requirements set forth in Rule 22 before a valid waiver
of a jury trial can occur.
[6] The right to a jury trial is guaranteed by both Article 1, Section 13 of the
Indiana Constitution and the Sixth Amendment of the United States
Constitution. Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012). While
the Constitution does not differentiate between felonies and misdemeanors, in
Indiana the procedure for asserting the right to a jury trial in misdemeanor cases
is controlled by Rule 22, which provides, in relevant 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.
“‘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
v. State, 996 N.E.2d 421, 423 (Ind. Ct. App. 2013) (quoting Young, 973 N.E.2d
at 645).
[7] As this court has observed, “[t]he right to a jury trial is a fundamental right, and
while the manner of preserving the right [in a misdemeanor case] is controlled
by [Rule] 22, it is not diminished.” Duncan v. State, 975 N.E.2d 838, 842 (Ind.
Ct. App. 2012). Indeed, it remains that even though a defendant charged with a
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misdemeanor can waive his right to a jury trial by inaction, it must also be
shown that the waiver was “made in a knowing, intelligent, and voluntary
manner, with sufficient awareness of the surrounding circumstances and the
consequences.” Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984); see also Patton v.
United States, 281 U.S. 276, 312 (1930) (holding that, before the constitutional
right to a jury may be waived, the “express and intelligent consent of the
defendant” must be obtained).
[8] In order to establish a valid waiver in a misdemeanor case, the record is
sufficient if
1) it does not contain a request for a trial by jury; 2) it evidences
that the defendant was fully advised of the right to a trial by jury
and of the consequences for failing to timely request the right;
and 3) it reflects that the defendant was able to understand the
advice.
Eldridge v. State, 627 N.E.2d 844 (Ind. Ct. App. 1994), trans. denied. It is in this
context of a knowing waiver that this court has held that “‘[a] valid waiver
cannot be made pursuant to [Rule] 22 in the absence of an advisement by the
trial court of the consequences of a failure to demand a trial by jury not later
than ten days prior to the trial date.’” Hanna–Womack v. State, 623 N.E.2d 439,
440 (Ind. Ct. App. 1993) (quoting Vukadinovich v. State, 529 N.E.2d 837, 839
(Ind. Ct. App. 1988)); see also Fiandt, 996 N.E.2d 421; Levels v. State, 972 N.E.2d
972 (Ind. Ct. App. 2012).
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[9] In Duncan, this court squarely addressed the issue presented herein. In that case
the defendant was charged with thirteen Class A misdemeanors. At his initial
hearing, the defendant appeared pro se and the trial court advised him of his
right to a jury trial but did not mention the requirement to timely request a jury
trial if desired or the consequences of failing to do so. The defendant was
represented by counsel at subsequent hearings. The record did not suggest that
the defendant was ever informed of the requirements for requesting a jury trial
or the consequences of failing to do so. There was also nothing in the record
indicating that the defendant ever requested a jury trial, timely or otherwise.
Following a bench trial, the defendant was found guilty of six misdemeanor
offenses. On appeal, the defendant argued that he did not knowingly waive his
right to a jury trial.
[10] This court rejected the State’s argument that it could be inferred that the
defendant was adequately informed of his rights to a jury trial and the
procedure for asserting such right because he was represented by counsel. We
explained that “[b]ecause the right to a jury trial is a fundamental right, we
cannot assume from a silent record that [the defendant] was informed by his
counsel.” Duncan, 975 N.E.2d at 843; see also Bex v. State, 952 N.E.2d 347, 349
(Ind. Ct. App. 2011) (noting as an initial matter that a represented defendant
was not fully informed), trans. denied; Hanna-Womack, 623 N.E.2d at 440 (noting
that the defendant was not fully informed by the court and that there was also
no indication that she was informed by her counsel).
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[11] The Duncan court also rejected the State’s argument that the matter should not
be reversed because the defendant was not prejudiced, finding that the relevant
inquiry was whether the defendant was adequately informed, not whether he
was prejudiced. The court further noted that a violation of the right to trial by
jury constitutes fundamental error, and thus, is not subject to harmless error
analysis. 975 N.E.2d at 844 (citing Eldridge, 627 N.E.2d at 849).
[12] The Duncan court also considered the State’s argument that reversal was not
required because there was no indication that the defendant ever wanted,
requested, or was denied a jury trial. The court noted that “it does not matter
whether the defendant requested a jury trial.” Id. at 844 (citing Casselman v.
State, 472 N.E.2d 1310, 1311 n.1 (Ind. Ct. App. 1985)).1 Although the court
agreed with the State that it was possible the defendant went along with a bench
trial and never requested a jury trial and only raised the issue on appeal because
he wanted a new trial, the court nevertheless felt “obliged to find that [the
defendant] did not waive his right to a jury trial. He was not able to meet the
‘knowing’ requirement of a valid waiver because he was not adequately
1
The Casselman court rejected the State’s argument that no error was committed because the defendant failed
to demand a trial by jury in writing as required by Rule 22, finding the argument “specious.” 472 N.E.2d at
1311 n.1. The State points out that the Casselman court did not make a holding on this issue, but rather its
observations in this regard were dicta. We agree. Nevertheless, the Duncan court did not rely only on this
comment by the Casselman court, but rather supported its conclusion that the defendant did not meet the
knowing requirement of a valid waiver with citations to other cases adopting that analysis. See Levels, 972
N.E.2d 972; Vukadinovich, 529 N.E.2d 837.
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informed of his rights and obligations as set out in Criminal Rule 22.” Id. The
court thus remanded the case for a jury trial.
[13] Here, the record reveals, and the State does not assert otherwise, that the trial
court failed to advise Hudson of the consequences of failing to demand a jury
trial or of the specific requirements for making such a demand. There is also no
indication that Hudson ever formally requested a jury trial. The fact that
Hudson was represented by counsel does not give rise to a presumption that
Hudson was advised about the procedural requirements of Rule 22. As in
Duncan, we find that Hudson has established that his waiver of his right to a
misdemeanor jury trial was not knowing and is therefore invalid; we must
therefore remand this case for a jury trial. See also Levels, 972 N.E.2d at 974
(holding that “[b]ecause the advisement [of the right to a misdemeanor jury
trial] was insufficient, there was no valid waiver of a jury trial”).
Judgment reversed and remanded.
Najam, J. and Robb, J., concur.
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