Matthew J. Gogarty v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 18 2020, 8:27 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Tyler D. Helmond Ian McLean
Voyles Vaiana Lukemeyer Baldwin & Supervising Deputy Attorney
Webb General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew J. Gogarty, September 18, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-825
v. Appeal from the Vanderburgh
Circuit Court
State of Indiana The Honorable Kelli E. Fink,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
82C01-1807-F6-4800
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-825 | September 18, 2020 Page 1 of 4
Case Summary
[1] Following a bench trial, Matthew J. Gogarty was convicted of level 6 felony
failure to register as a sex or violent offender. On appeal, he asserts that he did
not personally waive his right to a trial by jury, and therefore the waiver was
invalid. The State concedes that reversible error occurred. Accordingly, we
vacate Gogarty’s conviction and reverse and remand for a new trial.
Facts and Procedural History
[2] In July 2019, Gogarty was taken into custody and charged with level 6 felony
failing to register as a sex or violent offender. A preliminary hearing was held
on February 19, 2020. During the brief hearing, Gogarty’s counsel told the
magistrate, “I had offered to waive jury trial and so we’re here today to do it
formally.” Tr. Vol. 2 at 4. The State offered no objection, and the magistrate
simply pronounced in open court that the “parties waive jury.” Id. Gogarty
was present at the hearing but did not speak. The magistrate thereafter ordered
that the “[j]ury trial set for February 21, 2020 is now a bench trial.” Appellant’s
App. Vol. 2 at 13-14. 1
[3] The bench trial was held before a different magistrate on February 21, 2020.
The trial court found Gogarty guilty as charged and sentenced him to 547 days,
with 427 days suspended to probation, minus credit for time served. This
appeal ensued.
1
We note that the magistrate that presided over the preliminary hearing was not the same judicial officer that
presided over the bench trial.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-825 | September 18, 2020 Page 2 of 4
Discussion and Decision
[4] Gogarty contends that he did not personally waive his right to a jury trial, and
therefore the waiver was invalid. The State concedes that the record does not
reflect that a personal waiver occurred and that reversal and remand for a new
trial is warranted. As our supreme court has explained, “[t]he Indiana
Constitution guarantees the right to jury trial, which may be waived by one,
and only one, person—the defendant. Unless the defendant personally
communicates to the judge a desire to waive that right, he must receive a jury
trial.” Horton v. State, 51 N.E.3d 1154, 1155 (Ind. 2016). The personal
communication requirement derives from Indiana Code Section 35-37-1-2,
which provides that “[t]he 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.” (Emphasis added). So, while a defendant may indeed waive
his right to a jury trial, that waiver may occur “only when the defendant
personally waives and only when the record reflects that action in writing or in
open court.” Nunez v. State, 43 N.E.3d 680, 683 (Ind. Ct. App. 2015), trans.
denied (citations omitted). These requirements ensure that the defendant’s
waiver is “knowing, intelligent, and voluntary, with sufficient awareness of the
surrounding circumstances and the consequences.” Id. The failure to confirm a
defendant’s personal waiver before proceeding to bench trial constitutes
fundamental error. Horton, 51 N.E.3d at 1160.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-825 | September 18, 2020 Page 3 of 4
[5] Here, as conceded by the State, Gogarty did not sign a written jury trial waiver,
and the record reflects no colloquy in open court between Gogarty and the trial
court. As Gogarty did not personally express a desire to waive his right to a
jury trial, the waiver was invalid. See Anderson v. State, 833 N.E.2d 119, 122
(Ind. Ct. App. 2005) (holding waiver invalid where defendant neither signed
written waiver nor expressed personal desire to waive right to jury trial in open
court). We therefore vacate Gogarty’s conviction and remand this case for a
new trial.
[6] Reversed and remanded.
Robb, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-825 | September 18, 2020 Page 4 of 4