Ventura S. Sanchez v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 23 2016, 10:48 am
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
Adam C. Squiller Gregory F. Zoeller
Squiller & Harley Attorney General of Indiana
Auburn, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ventura S. Sanchez, November 23, 2016
Appellant-Defendant, Court of Appeals Case No.
44A03-1603-CR-564
v. Appeal from the LaGrange
Superior Court
State of Indiana, The Honorable Lisa Bowen-
Appellee-Plaintiff. Slaven, Judge
Trial Court Cause No.
44D01-1306-FB-17
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 44A03-1603-CR-564 | November 23, 2016 Page 1 of 3
[1] Ventura Sanchez appeals his convictions of Class B felony sexual deviate
conduct 1 and Class B felony incest 2 following a bench trial. He argues he did
not personally waive his right to a trial by jury. The State concedes reversible
error occurred. Accordingly, we reverse and remand for a new trial.
Facts and Procedural History
[2] On June 24, 2013, the State charged Sanchez with Class B felony sexual deviate
conduct, Class B felony incest, and Class D felony sexual battery. 3 On August
5, 2015, Sanchez filed notice he was ready for trial, a waiver of trial by jury, and
a motion to set his cause for a bench trial. Sanchez’s counsel had signed the
jury trial waiver, but Sanchez had not personally signed the waiver. The trial
court held a bench trial and convicted Sanchez of sexual deviate conduct and
incest. 4
Discussion and Decision
[3] Both the United States and Indiana Constitutions guarantee the right to jury
trial. Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997); U.S. Const. amend. VI;
1
Ind. Code § 35-42-4-2 (1998).
2
Ind. Code § 35-46-1-3(a) (1994).
3
Ind. Code § 35-42-4-8(a)(1)(A) (2012).
4
The trial court determined it was prohibited from convicting Sanchez of both criminal deviate conduct and
sexual battery “pursuant to the actual evidence test of the Indiana Double Jeopardy principles[.]” (App. Vol.
III at 11-12.)
Court of Appeals of Indiana | Memorandum Decision 44A03-1603-CR-564 | November 23, 2016 Page 2 of 3
Ind. Const. art. 1 § 13. We presume a defendant did not waive this right unless
he affirmatively acts to do so. Poore, 681 N.E.2d at 207. “To constitute a valid
waiver of the right to a jury trial, [a] defendant’s waiver must be knowingly,
voluntarily, and intelligently made with sufficient awareness of the relevant
circumstances surrounding its entry and consequences.” Anderson v. State, 833
N.E.2d 119, 122 (Ind. Ct. App. 2005). In addition, the waiver “must be
‘personal,’ either in a writing signed by the defendant or in the form of a
colloquy in open court between the defendant and judge.” Kellems v. State, 849
N.E.2d 1110, 1112-13 (Ind. 2006).
[4] Sanchez did not sign the jury trial waiver that defense counsel filed. Nor does
the record reflect a colloquy in open court between Sanchez and the trial court.
As Sanchez did not personally express a desire to waive his right to jury trial,
the waiver is invalid. See Anderson, 833 N.E.2d at 122 (holding waiver invalid
where defendant neither signed the waiver nor expressed his personal desire to
waive right to jury trial in open court). We therefore vacate Sanchez’s
convictions and remand this case for a jury trial.
[5] Reversed and remanded.
Kirsch, J., and Crone, J., concur.
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