Tarsha Cheesman v. State of Indiana

FILED
Apr 12 2018, 5:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tarsha Cheesman, April 12, 2018
Appellant-Defendant, Court of Appeals Case No.
11A01-1708-CR-1939
v. Appeal from the Clay Circuit
Court
State of Indiana, The Honorable Joseph D. Trout,
Appellee-Plaintiff. Judge
Trial Court Cause No.
11C01-1606-CM-473
Robb, Judge.
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Case Summary and Issue
[1] Following a bench trial, Tarsha Cheesman was convicted of theft, a Class A
misdemeanor. Cheesman now appeals, presenting only one issue for our
review which we restate as whether the trial court erred in denying Cheesman’s
demand for a jury trial. Concluding the trial court did not err, we affirm.
Facts and Procedural History 1
[2] In May of 2016, Cheesman was employed by Page’s IGA Grocery Store in
Brazil, Indiana. On May 31, she requested a $50 cash advance from her next
paycheck. The owner obliged, Cheesman signed a note promising to repay the
$50, and the owner left a note instructing another employee to withhold $50
after cashing Cheesman’s next paycheck. In a video later presented at trial,
Cheesman can be seen stealing the $50 which the employee had set aside, and,
although given another opportunity to repay the debt, Cheesman never did.
State’s Exhibit 1.
[3] On June 22, 2016, Cheesman was charged with theft, a Class A misdemeanor.
On August 1, 2016, the trial court conducted an initial hearing at which
Cheesman signed a Defendant’s Acknowledgement of Rights providing:
1
We heard oral argument in Hammond, Indiana, at the Hammond Academy of Science and Technology on
March 19, 2018. We thank the faculty, staff, and students of the Hammond Academy of Science and
Technology for their generous hospitality and commend counsel for their skilled and informative oral
advocacy.
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4. (For Misdemeanor cases only) If you wish to exercise your
right to trial by jury, you must file a written demand for a jury
trial. You must file this written demand no later than ten (10) days
before your first scheduled trial date. If you fail to file a written
demand, or if you file a written demand but you file it late, you
give up your jury trial right, permanently. If you give up your
jury trial right, you will have no say about whether it will be a
jury or a judge who hears the evidence at your trial and
determines whether the State of Indiana proves your guilt beyond
a reasonable doubt.
Appellant’s Appendix, Volume II at 14 (emphasis added).
[4] The trial court set Cheesman’s trial date for September 28, 2016. Cheesman
moved to continue her trial and the trial court set a new trial date of December
7, 2016. Then, on November 18, 2016, the trial court set a new trial date of
January 18, 2017, due to the unavailability of the presiding judge on the
previously scheduled date. On January 6, 2017, Cheesman moved for a jury
trial and a continuance. The trial court granted Cheesman’s request for a
continuance, setting a new trial date of April 19, 2017, but denied her demand
for a jury trial because it was untimely filed.
[5] On April 7, 2017, the State moved to amend the information. Cheesman
waived her initial hearing on the amended information and requested a
continuance, which the trial court granted, and the trial court set a new trial
date of May 10, 2017. On May 1, 2017, again because of the presiding judge’s
unavailability on the scheduled date, the trial court reset the trial date for July
26, 2017, when Cheesman’s trial was finally conducted. The trial court found
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Cheesman guilty as charged and sentenced her to one year suspended to
probation. Cheesman now appeals.
Discussion and Decision
[6] On appeal, Cheesman argues that although Sixth Amendment jurisprudence
only permits express waiver of a defendant’s jury trial right, Indiana Criminal
Rule 22 permits waiver where a defendant fails to file a timely request for a jury
trial—timely being ten days prior to the defendant’s first scheduled trial date.
Therefore, Cheesman alleges that her Sixth Amendment jury trial right was
violated when the trial court denied her jury demand. In turn, the State argues
that Cheesman waived her jury trial right through her signature on the
Defendant’s Acknowledgement of Rights and her subsequent failure to demand
a jury trial within the allotted time period.
[7] Notably, Cheesman confines her argument to the Sixth Amendment to the
United States Constitution and does not present argument regarding Article 1,
Section 13 of the Indiana Constitution, or Indiana Code Section 35-37-1-2.2
[8] Indiana Criminal Rule 22 provides:
A defendant charged with a misdemeanor may demand trial by
jury by filing a written demand therefor not later than ten (10)
2
Indiana Code section 35-37-1-2 provides:
The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the
court. Unless a defendant waives the right to a jury trial under the Indiana Rules of Criminal
Procedure, all other trials must be by jury.
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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.
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.
Applied here, the Rule required Cheesman’s demand for a jury trial be filed by
September 18, 2016, ten days before the first scheduled trial date of September
28. However, because September 18 fell on a Sunday, pursuant to Indiana
Trial Rule 6(A)(2), Cheesman’s demand was due Monday, September 19.
Cheesman’s demand was not filed until January 6, 2017—almost four months
late.
I. Standard of Review
[9] Whether a defendant has waived her jury trial right under the Sixth
Amendment is a question of law and we review such questions de novo. Horton
v. State, 51 N.E.3d 1154, 1157 (Ind. 2016).
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II. The Jury Trial Right
A. The Sixth Amendment
[10] The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
[11] In criminal cases, the jury trial right is “fundamental to the American scheme of
justice,” and such right has been incorporated to the states by way of the
Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). This
jury trial right extends to all charged with “serious” offenses. Id. at 160-61.
Whether an offense is “serious,” as opposed to “petty,” is answered by
“consider[ing] the maximum penalty attached to the offense.” Lewis v. United
States, 518 U.S. 322, 326 (1996). A “serious offense” is any offense “where
imprisonment for more than six months is authorized.” Baldwin v. New York,
399 U.S. 66, 69 (1970).
[12] In this case, Cheesman was charged with theft, a Class A misdemeanor. A
Class A misdemeanor carries a possible term of imprisonment “of not more
than one (1) year.” Ind. Code § 35-50-3-2. Thus, as a matter of federal
constitutional law, Class A misdemeanors constitute “serious offenses” for the
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purposes of the Sixth Amendment.3 See, e.g., Martinez v. State, 82 N.E.3d 261,
264 n.4 (Ind. Ct. App. 2017), trans. denied.
B. Waiver Under the Sixth Amendment
[13] On appeal, Cheesman claims that her signature on the Defendant’s
Acknowledgement of Rights form and her subsequent failure to demand a jury
trial within the time permitted by Indiana Criminal Rule 22 were insufficient to
constitute a valid waiver of her Sixth Amendment right to a trial by jury. We
disagree.
[14] It has long been established that a criminal defendant may waive his or her
Sixth Amendment jury trial right. Patton v. United States, 281 U.S. 276, 299
(1930), abrogated on other grounds by Williams v. Florida, 399 U.S. 78 (1970). Our
supreme court recently discussed such waiver in Horton v. State:
The jury trial right is a bedrock of our criminal justice system,
guaranteed by both Article I, Section 13 of the Indiana
Constitution and the Sixth Amendment to the United States
Constitution. In broad view, federal and Indiana constitutional
jury trial rights guarantee the same general protection—a
criminal defendant must receive a jury trial, unless he waives it.
Waiver of the Sixth Amendment jury trial right must be “express
and intelligent,” Patton v. United States, 281 U.S. 276, 312, 50
S.Ct. 253, 74 L.Ed. 854 (1930), and waiver of the Indiana
3
Under the Supreme Court’s definition, “serious offenses” in Indiana for the purpose of the Sixth
Amendment are Class A misdemeanors and all felonies. Class B and Class C misdemeanors carry maximum
possible sentences of six months and two months, respectively. Ind. Code §§ 35-50-3-3; 35-50-3-4. Thus,
they constitute “petty” offenses—without the protection of the Sixth Amendment.
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constitutional jury trial right must be “knowing, voluntary[,] and
intelligent,” Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989).
But the Indiana jury trial right provides greater protection
because, in a felony prosecution, waiver is valid only if
communicated personally by the defendant, Kellems [v. State, 849
N.E.2d 1110, 1114 (Ind. 2006)]—an issue which, under the Sixth
Amendment, has split federal circuit courts of appeals. Compare
United States v. Khan, 461 F.3d 477, 492 (4th Cir. 2006)
(upholding written waiver signed only by counsel), and United
States v. Leja, 448 F.3d 86, 94-95 (1st Cir. 2006) (same), and
United States v. Page, 661 F.2d 1080, 1081-82 (5th Cir. 1981)
(upholding oral waiver by counsel), with United States v. Diaz, 540
F.3d 1316, 1321-22 (11th Cir. 2008) (refusing to uphold written
waiver signed only by counsel).
51 N.E.3d 1154, 1158 (Ind. 2016) (emphasis added).
[15] We addressed a claim similar to Cheesman’s in Martinez v. State. There,
Martinez was charged with a Class A misdemeanor and several Class C
misdemeanors. At his initial hearing, Martinez—who spoke limited English—
signed a written acknowledgement of rights form in Spanish. 82 N.E.3d at 263.
After failing to file a timely request for a jury trial, Martinez was convicted of a
Class A misdemeanor at a bench trial and he subsequently appealed his
conviction presenting two arguments:
First, he argue[d] that requiring a person charged with a Class A
misdemeanor to follow the procedures set forth in Ind. Criminal
Rule 22 in order to exercise his or her right to a jury trial violates
the Sixth Amendment to the U.S. Constitution. Second, he
argue[d] that the record in this case does not reflect a knowing
and intelligent waiver because the trial court gave him
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contradictory and ambiguous advisements concerning his right to
a jury trial.
Id. at 264.
[16] Notwithstanding Martinez’s waiver of the issues due to his failure to present a
complete record for our review, we nevertheless attempted to address his claims
on the merits. Regarding his first argument, we explained, “even if we assume
that Martinez did not personally waive his right to a jury trial, we conclude that
no such waiver was constitutionally required.” Id. at 265. In doing so, we
distinguished Horton, because the personal waiver discussed therein stemmed
from a state statute—not the Sixth Amendment—and related to felony
prosecutions—not misdemeanors. Id. Regarding his second argument, we noted
that Martinez did not dispute the validity of the written acknowledgement of
rights form, nor did he claim that he did not understand it. Rather, Martinez
claimed the form was later contradicted when he was advised that if “he wished
to waive his right to a jury trial, he must do so affirmatively in writing.” Id. at
266. We then explained that the absence of transcripts hindered our review of
the issue and concluded that Martinez had therefore failed to establish
reversible error. Id. at 267.
[17] Here, Cheesman’s argument differs in two meaningful respects. First, rather
than the personal waiver at issue in Martinez—and Horton for that matter—
Cheesman claims that waiver of the Sixth Amendment’s jury trial right must be
“express and intelligent.” Appellant’s Brief at 10. And second, Cheesman
makes no allegation that the trial court provided contradictory instructions and
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instead alleges that her inaction—failing to file a timely demand for a jury
trial—is insufficient to constitute an express waiver.
[18] We, of course, look to federal law regarding the efficacy of a waiver of a federal
constitutional right. “The question of a waiver of a federal guaranteed
constitutional right is . . . a federal question controlled by federal law.”
Brookhart v. Janis, 384 U.S. 1, 4 (1966). “A waiver is ordinarily an intentional
relinquishment or abandonment of a known right or privilege.” Johnson v.
Zerbst, 304 U.S. 458, 464 (1938). And, when considering fundamental
constitutional rights, like the right to trial by jury, we “indulge every reasonable
presumption against waiver.” Id. Furthermore, we may not presume the
waiver of a fundamental right from a silent record. Boykin v. Alabama, 395 U.S.
238, 243 (1969); Casselman v. State, 472 N.E.2d 1310, 1311 n.1 (Ind. Ct. App.
1985).
[19] Regarding the applicable standard for waiver, Cheesman relies on the United
States Supreme Court’s language in Patton v. United States:
Trial by jury is the normal and, with occasional exceptions, the
preferable mode of disposing of issues of fact in criminal cases
above the grade of petty offenses. In such cases the value and
appropriateness of jury trial have been established by long
experience, and are not now to be denied. Not only must the
right of the accused to a trial by a constitutional jury be jealously
preserved, but the maintenance of the jury as a fact-finding body
in criminal cases is of such importance and has such a place in
our traditions, that, before any waiver can become effective, the
consent of government counsel and the sanction of the court
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must be had, in addition to the express and intelligent consent of the
defendant.
281 U.S. at 312 (emphasis added).4 Cheesman also points to our supreme
court’s statement in Horton that “[w]aiver of the Sixth Amendment jury trial
right must be ‘express and intelligent,’ [citing Patton, 281 U.S. at 312].” 51
N.E.3d at 1158.
[20] In turn, the State attempts to distinguish the holding of Patton, arguing that the
court was presented with a narrow question regarding whether a defendant
could consent to an eleven-person jury, not whether a defendant could waive
the right to trial by jury altogether. Therefore, the State argues, “the Court’s
statement was dictum,” because there was no question that the parties had
consented to the jury. Brief of Appellee at 8. And, in support thereof, the State
offers two examples of Justices referring to the relevant language from Patton as
dictum:
Gonzalez v. United States, 553 U.S. 242, 255 n.1 (2008) (Scalia, J.,
concurring) (noting that the statement “was dictum; the Patton
defendants had all agreed to the waiver”) (internal quotation
marks and citations omitted); id. at 267 (Thomas, J., dissenting)
(“The [Patton] Court stated in dicta that the express and
4
Although not cited by Cheesman, the Court later explained in Adams v. U.S. ex rel. McCann,
We have already held that one charged with a serious federal crime may dispense with his
Constitutional right to jury trial, where this action is taken with his express, intelligent consent,
where the Government also consents, and where such action is approved by the responsible
judgment of the trial court.
317 U.S. 269, 277-78 (1942).
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intelligent consent of the defendant is required before any waiver
[of the right to a jury trial] can become effective.”) (internal
quotation marks and citation omitted).
Id. Instead of the “express and intelligent” standard of waiver advanced by
Cheesman, the State asserts that the applicable standard is found in Brady v.
United States, where the Court held that “[w]aivers of constitutional rights not
only must be voluntary but must be knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and likely consequences.”
397 U.S. 742, 748 (1970). However, because we find the record sufficient to
support either, we need not decide exactly which standard is necessary to satisfy
the Sixth Amendment. See Jean-Baptiste v. State, 82 N.E.3d 878, 878 (Ind. 2017)
(noting “our longstanding principle of constitutional avoidance”).
[21] Here, at her initial hearing and with the benefit of counsel, Cheesman signed an
Acknowledgement of Rights form explaining that:
4. (For Misdemeanor cases only) If you wish to exercise your
right to trial by jury, you must file a written demand for a jury
trial. You must file this written demand no later than ten (10) days
before your first scheduled trial date. If you fail to file a written
demand, or if you file a written demand but you file it late, you
give up your jury trial right, permanently. If you give up your
jury trial right, you will have no say about whether it will be a
jury or a judge who hears the evidence at your trial and
determines whether the State of Indiana proves your guilt beyond
a reasonable doubt.
Appellant’s App., Vol. II at 14 (emphasis added). Thus, Cheesman was clearly
advised of her jury trial right and the consequences of failing to make a timely
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demand. See Levels v. State, 972 N.E.2d 972, 973-74 (Ind. Ct. App. 2012)
(noting that a jury trial waiver is not valid unless the trial court advises a
defendant of the consequences of his failure to demand a jury trial no later than
ten days prior to the trial date).
[22] After being clearly advised of the consequences thereof, Cheesman failed to file
a demand for a jury trial until nearly four months after the deadline. As we
have previously explained, “[t]he right to a jury trial in misdemeanor cases is
not self-executing, but is controlled by Indiana Rule of Criminal Procedure 22.”
Fiandt v. State, 996 N.E.2d 421, 423 (Ind. Ct. App. 2013). And, in Greene v.
State, we held that:
a defendant charged with a misdemeanor who fails to make a
timely request waives the right to trial by jury if he has been
advised in a timely manner of both the right to jury trial and the
consequences of failing to make a timely demand. The
defendant’s waiver, however, must be voluntary, knowing,
intelligent, and personal.
670 N.E.2d 38, 39 (Ind. Ct. App. 1996) (citations omitted), trans. denied; but see
Martinez, 82 N.E.3d at 265 (holding that personal waiver of the jury trial right is
not required). “Thus, when charged with a misdemeanor, a defendant can
waive her right to a jury trial by failing to make a timely demand for trial by
jury.” Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012).
[23] To the extent Cheesman now argues that she never “expressly” waived her
Sixth Amendment trial by jury right, her argument leaves us unconvinced.
Although Cheesman explains the meaning of “express” as “clearly and
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unmistakably stated[,]” Appellant’s Br. at 10 (quoting Daubert v. NRA Group,
LLC, 861 F.3d 382, 389 (3rd Cir. 2017)), she fails to apply the standard to the
facts presented here by explaining how exactly her actions were constitutionally
inadequate, or what exactly is necessary to expressly waive her Sixth
Amendment trial by jury right. The Seventh Circuit explained:
the sole constitutional requirement is that the waiver be
voluntary, knowing, and intelligent. The colloquy and the
written waiver serve to document these qualities, but a jury
waiver may be valid despite their absence. So long as the
defendant had a “concrete understanding” of his right to a jury
trial, his waiver is valid.
U.S. v. Williams, 559 F.3d 607, 610 (7th Cir. 2009), cert. denied, 558 U.S. 1147(2010) (citations omitted).
[24] Here, it is undisputed that Cheesman had a “concrete understanding” of her
right to a jury trial; she signed a form clearly advising her of such right and
warning her of the procedural effects of Criminal Rule 22. Thus, Cheesman
was aware of what she had to do and when she had to do it—she simply did not
follow proper procedure. Moreover, we note that the specific language from
Patton states that waiver requires the “express and intelligent consent of the
defendant.” 281 U.S. at 312. We view Cheesman’s signature on the
Acknowledgement of Rights form and her subsequent failure to file a demand
for a jury trial as reflecting her express and intelligent consent—especially
considering that she now offers no argument to the contrary. Therefore, we
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conclude Cheesman effectively waived her right to a jury trial pursuant to the
Sixth Amendment.
Conclusion
[25] In light of Cheesman’s advisement of her right to jury trial, her
acknowledgment thereof, and her failure to request a jury trial within the time
period allotted by Criminal Rule 22, we conclude Cheesman effectively waived
her right to a jury trial pursuant to the Sixth Amendment.
[26] Affirmed.
Vaidik, C.J., and Altice, J., concur.
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