Kevin Singh v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Aug 26 2015, 9:40 am
Pursuant to Ind. Appellate Rule 65(D), this
Aug 26 2015, 9:40 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Singh, August 26, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1501-CR-37
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Sheila A. Carlisle,
Appellee-Plaintiff. Judge, and The Honorable Stanley
Kroh, Commissioner
Cause No. 49G03-1403-FC-11782
Najam, Judge.
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Statement of the Case
[1] Kevin Singh appeals the habitual offender enhancement to his sentence
following his conviction for, among other things, stalking, as a Class C felony.
The only issue he raises for our review is whether he knowingly, intelligently,
and voluntarily waived his right to have a jury determine his status as an
habitual offender. We affirm.
Facts and Procedural History
[2] On March 11, 2014, the State charged Singh with, among other things,1
stalking, as a Class C felony. On July 25, 2014, the State filed a Motion
Seeking Permission to Belatedly File Habitual Offender Enhancement and, on
the same day, the trial court granted the motion. The trial court held an initial
hearing on August 22, 2014, at which it explained to Singh the meaning of the
habitual offender sentence enhancement and the possible penalties. Singh
stated that he understood that information.
[3] At a pretrial conference held on September 23, 2014, Singh filed a Waiver of
Trial by Jury which stated, in relevant part:
2. I have read this form[] and consulted with my attorney
regarding the issue of waiving my right to a jury trial.
1
The State also charged Singh with seven counts of intimidation, each as a Class D felony, and thirty counts
of invasion of privacy, each as a Class A misdemeanor. However, the State dismissed some of these counts,
and the trial court merged the remaining intimidation and invasion of privacy counts with the stalking count
due to double jeopardy concerns.
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3. I understand that[,] as the Defendant in this criminal case, I
have a right to trial by jury[] and that this right is guaranteed by
the Constitutions of the United States and the State of Indiana.
4. I understand that a jury trial means that . . . jurors . . . would
be selected . . . to sit and listen to all of the evidence presented[]
and then decide whether I am guilty beyond a reasonable doubt
or not guilty of the charges filed against me in this cause.
5. I understand that no one can take away my right to a jury trial
unless I freely and voluntarily waive that right, and I understand
that[,] once I waive my right to a jury trial, the waiver is final and
I cannot get the right back.
6. I understand that if this waiver is accepted by the Court I will
not have a trial by jury[] and that this case will be set for a trial
before a Judge who will hear all of the evidence and then decide
whether I am guilty or not.
Appellant’s App. at 120. Upon receiving this waiver, the trial court placed
Singh under oath and questioned Singh’s understanding of the waiver as
follows:
[THE COURT:] Have you had enough time, Mr. Singh, to talk
with Mr. Tompkins, your attorney, about these two documents,[2]
waiver of trial by jury?
[THE DEFENDANT:] I have, Your Honor.
2
At the pre-trial conference, Singh filed two waiver-of-jury-trial documents, one for the case at bar and one
for a separate, unrelated case pending before the same trial court. The substantive content of the waivers
were identical.
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[THE COURT:] Okay. And after reading them, you’ve also
placed your signature here on the second page?
[THE DEFENANT:] Correct.
[THE COURT:] Do you believe that you understand these two
pleadings?
[THE DEFENDANT:] I fully understand.
[THE COURT:] Okay. And I see they are identical. They are
just filed on two separate cases. And what you’re advising the
Court then is that you wish to waive your constitutional right to a
jury trial on these two cases and have the case heard as a court
trial rather than a jury trial?
[THE DEFENDANT:] Correct.
[THE COURT:] And do you believe that’s in your best interest
in how to resolve these two cases?
[THE DEFENDANT:] I do, Judge. I fully understand.
[THE COURT:] Okay. And the Court notes that both attorneys
have also signed.
Tr. at 19-20. The Court then found that Singh had made a knowing, intelligent,
and voluntary waiver of his right to trial by jury.
[4] The bench trial began on October 17, 2014, and was continued to November
25, 2014, at which time the trial court found Singh guilty of stalking, as a Class
C felony. The court noted that the habitual offender issue still needed to be
resolved, and the attorney for Singh requested that they “come back and do the
habitual as part of the sentencing.” Id. at 249. The trial court granted that
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request, and noted the habitual offender sentence enhancement would “proceed
to the court trial” on December 12, 2014. Id. at 253.
[5] On December 12, 2014, the court conducted a continuation of the bench trial,
wherein Singh stipulated to the prior convictions offered by the State to
establish his eligibility for habitual offender enhancement. In return, the State
agreed that Singh’s total sentence would be limited to “a cap of fourteen years
on the overall sentence.” Id. at 256. The court noted the parties’ agreement
and concluded that the State had proved beyond a reasonable doubt that Singh
was an habitual offender.
[6] On January 9, 2015, the trial court sentenced Singh to six years on the stalking
count, with four years suspended. The court enhanced that sentence by six
years of executed time due to the habitual offender determination, for a total
sentence of twelve years, with four years suspended and eight years executed.
This appeal ensued.
Discussion and Decision
[7] Singh argues that he did not voluntarily, knowingly, and intelligently waive his
right to a jury trial on the habitual offender determination. “The United States
and Indiana Constitutions guaranty the right to trial by jury.” Dixie v. State, 726
N.E.2d 257, 258 (Ind. 2000) (footnotes omitted); see U.S. Const. amend.
VI (guaranteeing “the right to a speedy and public trial, by an impartial jury” in
all criminal prosecutions); Ind. Const. art. 1, § 13 (guaranteeing the right to “a
public trial, by an impartial jury,” in all criminal prosecutions). The right to a
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jury trial applies to habitual offender proceedings. Hogan v. State, 966 N.E.2d
738, 748 (Ind. Ct. App. 2012), trans. denied. A criminal defendant is presumed
not to waive this right unless he affirmatively acts to do so. Id. It is
fundamental error to deny a defendant a jury trial unless there is evidence of the
defendant’s knowing, voluntary, and intelligent waiver of the right. Id. A
defendant must express his personal desire to waive a jury trial, and such
personal desire must be apparent from the trial court’s record. Poore v. State,
681 N.E.2d 204, 206 (Ind. 1997).
[8] There is no question that Singh filed a written, signed waiver of jury trial. A
defendant’s filing of such a signed document demonstrates a personal desire to
waive the right to a jury. Johnson v. State, 6 N.E.3d 491, 497 (Ind. Ct. App.
2014). And “a lawyer’s signature on a waiver implies that the defendant acted
upon the advice and information of legal counsel.” Id.; see also Poore, 681
N.E.2d at 207 (“[A] defendant’s understanding may be inferred when he and
his attorney both sign a written waiver of the jury trial right and file it in open
court.”). Both Singh and his attorney signed Singh’s written jury-trial waiver,
and it explicitly states that Singh consulted with his attorney about the waiver.
This demonstrates Singh’s knowing and voluntary waiver of his right to a jury
trial.
[9] Moreover, a knowing jury-trial waiver can be demonstrated by a court record of
advisement on the waiver of jury trial and a colloquy in open court. See, e.g.,
McSchooler v. State, 15 N.E.3d 678, 683 (Ind. Ct. App. 2014) (holding that the
defendant’s waiver of his right to a jury trial was knowingly made where
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defendant was advised of his right to trial by jury and he expressed a personal
desire on the record to waive that right). Here, the court placed Singh under
oath and questioned him thoroughly about his understanding of the jury
waiver. Singh testified that he had spoken with his attorney about the waiver,
that he “fully” understood the jury waiver, that he wished to waive a jury trial
on the case and have “the case heard as a court trial rather than a jury trial,”
and that he believed the waiver was the best way to resolve his case. Tr. at 19-
20. Singh also testified that he “waived jury not only to not waste the Court’s
time and resources” but also because he thought his case was “better suited for
a bench trial.” Id. at 302. Singh’s familiarity with the judicial process is not
surprising, given his criminal history.3 See, e.g., McSchooler, 15 N.E.3d at 683
(finding that the defendant’s “somewhat extensive criminal history makes it
likely that he knew very well what a jury was and what it meant to waive a jury
trial.”). Singh’s testimony evinces his understanding of the waiver of his right
to a jury trial in his case.
[10] But Singh argues that his waiver was not intelligent because he did not know
the waiver applied to the habitual offender determination. We addressed this
precise issue in Pryor v. State, 949 N.E.2d 366, 372 (Ind. Ct. App. 2011), where
we held that a jury-trial waiver that applied to “the case” was sufficient to
encompass all stages of the proceedings, including the habitual offender phase.
In Pryor, as in the case at bar, the defendant claimed that his written jury-trial
3
Singh had at least two prior Class D felony convictions.
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waiver was invalid because he had not been advised that a waiver on the
charged offenses also constituted a waiver on his habitual offender
determination. Yet, as in the case at bar, Pryor’s waiver stated that it applied to
“the case”:
Here, Pryor executed a waiver acknowledging his right to have a
jury hear “his case” and asking that “this case” be set for trial by
the court. Pryor affirmed to the court that he understood his
right to have a jury hear his “case” and that he wanted a judge to
hear the “case” instead. At the time of the waiver submission
and colloquy, the State had filed all charges including the
habitual offender count. The court had also convened a hearing
on the State’s notice of filing of habitual offender charge. Pryor
was thus aware that his “case” included a habitual offender
allegation and, upon conviction, would involve a habitual
offender status determination. . . . The advisement’s application
to Pryor’s “case” sufficed to encompass all stages of the
proceedings including the habitual offender phase. We therefore
cannot say that Pryor’s advisement was deficient nor that his jury
trial waiver was involuntary, unknowing, or unintelligent.
Id.; see also Johnson, 6 N.E.3d at 497 (holding that, where the defendant’s
written jury trial waiver only listed one of the charges against him, it was still a
voluntary, knowing, and intelligent waiver of the right to a jury on all counts in
his case where the written wavier asked that the case be tried to the court).
[11] Here, as in Pryor, the written waiver states that Singh will not have a trial by
jury, and that “this case” will be set for a trial before a judge. Appellant’s App.
at 120. Moreover, Singh’s written waiver was filed approximately two months
after the State had filed its information charging him as an habitual offender,
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and approximately one month after the court had conducted an initial hearing
at which it explained to Singh the meaning of the habitual offender sentence
enhancement and the possible penalties. And, after the filing of the waiver but
before the hearing on the habitual offender enhancement, the trial court
explicitly stated that the habitual offender sentence enhancement would
“proceed to the court trial” on December 12, 2014. Tr. at 253. Thus, as in
Pryor, Singh was aware that “the case” included a habitual offender
determination. Cf. Jones v. State, 810 N.E.2d 777, 779-80 (Ind. Ct. App. 2004)
(holding that the defendant did not voluntarily, knowingly, and intelligently
waive his right to a jury trial on an habitual offender determination where his
waiver of jury trial was made before the habitual offender information had been
filed). The record establishes that Singh’s waiver of his right to jury trial was
voluntary, knowing, and intelligent as to all stages of the proceedings in his
case. Accordingly, we affirm his sentence.
[12] Affirmed.
Kirsch, J., and Barnes, J., concur.
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