Barry Allen Montgomery v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Oct 28 2019, 8:09 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel Hageman Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Barry Allen Montgomery, October 28, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-430
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Clayton Graham,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G07-1806-CM-18556
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-430 | October 28, 2019 Page 1 of 5
Case Summary
[1] Barry Montgomery appeals his conviction following a bench trial for false
informing, a Class A misdemeanor. We reverse and remand.
Issue
[2] Montgomery raises two issues on appeal; however, we find one to be
dispositive: whether Montgomery knowingly, voluntarily, and intelligently
waived his right to a jury trial. 1
Facts
[3] On June 10, 2018, Montgomery was charged with false informing, a Class A
misdemeanor, due to a 911 call in which Montgomery was alleged to have
reported false information. In the call, Montgomery reported that his ex-
girlfriend stabbed her new boyfriend, which resulted in many law enforcement
and emergency medical personnel rushing to the scene. The Indianapolis
Police Department officers determined the information Montgomery provided
was false.
[4] On July 2, 2018, a courtroom minute sheet indicates that Montgomery had an
initial hearing and that an “Advisement of Rights [was] Conducted.”
1
As we find this issue dispositive, we decline to address Montgomery’s other argument regarding the
sufficiency of the evidence.
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Appellant’s App. Vol. II p. 32. The transcript from this July 2, 2018, hearing
provides that the trial court’s advisement of rights was as follows:
Sir, you have a right and a duty to retain counsel within ten days
after today’s hearing date because of certain deadlines for filing
motions and raising defenses. You also have the right to a public
trial, privilege against self-incrimination. At this time the Court
is going to enter a preliminary plea of not guilty, and that will
become a formal plea of not guilty within ten days after today’s
hearing date, unless you decide to enter a contrary plea.
Supp. Tr. Vol. II p. 5. There was no discussion regarding Montgomery’s right
to a jury trial.
[5] The trial court set the matter for a bench trial, which was held on January 28,
2019. The trial court found Montgomery guilty of false reporting, a Class A
misdemeanor. The trial court immediately thereafter held a sentencing hearing,
and Montgomery was sentenced to 365 days in the Marion County Jail, with
four days credit for time already served, and 361 days suspended. Montgomery
now appeals.
Analysis
[6] Montgomery argues that he did not knowingly, voluntarily and intentionally
waive his right to a trial by jury. We review questions of law de novo. See
Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016).
The right to a jury trial in a criminal case is a fundamental right
guaranteed by the Sixth Amendment to the United States
Constitution and Article 1, Section 13 of the Indiana
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Constitution. . . . A defendant’s waiver of the right to jury trial
“must be made in a knowing, intelligent, and voluntary manner,
with sufficient awareness of the surrounding circumstances and
the consequences.” . . . A defendant charged with a felony has
an automatic right to a jury trial and “is presumed not to waive
this right unless he affirmatively acts to do so.” . . . By contrast,
a defendant charged with a misdemeanor must demand a jury
trial and may waive that right by inaction. The procedure for
demanding a jury trial in a misdemeanor case is controlled by
Indiana Criminal Procedure Rule 22.
*****
In a misdemeanor case, a defendant waives the right to a jury
trial when the record does not contain a timely request for a jury
trial and establishes that the defendant: (1) was advised of the
right to a jury trial; (2) had at least fifteen days advance notice of
the trial date; (3) was advised of the need to file a written demand
for a jury trial at least ten days before the first scheduled trial date
and that failure to do so will result in waiver of the right; and (4)
understood the advisements. . . .
Dadouch v. State, 126 N.E.3d 802, 804 (Ind. 2019) (internal citations omitted).
See Horton, 51 N.E.3d 1154 (finding that the jury trial right “is a bedrock of our
criminal justice system. . . .”). “A defendant may be advised of his rights in
multiple ways.” Duncan v. State, 975 N.E.2d 838, 843 (Ind. Ct. App. 2012).
“The court can orally inform him of his rights, . . .; the defendant can be given a
written advisement, . . . ; his counsel, on the record, can inform him of his
rights and question his understanding of them, . . . ; or the defendant can sign a
written waiver and file it in open court. . . .” Id. (internal citations omitted).
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[7] The transcripts from Montgomery’s initial hearing and subsequent hearings do
not indicate that Montgomery was, at any point, advised of his right to a jury
trial or advised of the need to file a written demand for a jury trial. Moreover,
the State, in its brief, concedes that, “under existing precedent, Montgomery did
not waive his right to a jury trial.” Appellee’s Br. p. 10. Montgomery has met
his burden that his constitutional rights were violated, and the State concedes.
Accordingly, we reverse and remand for a jury trial. See, e.g., Hudson v. State,
109 N.E.3d 1061, 1065 (Ind. Ct. App. 2018) (reversing and remanding for a
jury trial where the defendant did not knowingly waive his right to a
misdemeanor jury trial).
Conclusion
[8] Pursuant to our review and the State’s concession that Montgomery did not
knowingly, voluntarily, and intelligently waive his right to a jury trial, we
reverse and remand.
[9] Reversed and remanded.
Brown, J., and Altice, J., concur.
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