MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   Apr 11 2017, 6:10 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
Matthew D. Anglemeyer                                    Curtis T. Hill, Jr.
Marion County Public Defender –                          Attorney General of Indiana
Appellate Division
                                                         Michael Gene Worden
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Howard,                                            April 11, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1609-CR-2105
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Alicia A. Gooden,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G21-1603-F4-11341



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2105 | April 11, 2017       Page 1 of 5
                                          Case Summary
[1]   On March 23, 2016, Appellant-Defendant David Howard was charged with

      Count I Level 4 felony unlawful possession of a firearm by a serious violent

      felon (“SVF”), Count II Level 5 felony possession of a narcotic drug while in

      possession of a firearm, Count III Class A misdemeanor driving while

      suspended, and Count IV Class B misdemeanor possession of marijuana.

      Howard’s bifurcated trial was held on June 30, 2016. In the first phase, the jury

      found Howard guilty of unlawful possession of a firearm, possession of a

      narcotic drug with a firearm and the lesser-included offense of possession of a

      narcotic drug, driving while suspended, and possession of marijuana. Howard

      stipulated to his prior robbery conviction but did not waive his right to a jury

      trial for the SVF enhancement. However, the trial court found Howard guilty

      of Count I. Howard was sentenced to eight years executed for Count I, 910

      days for Count II, 180 days for Count III, and 196 days for Count IV, all

      sentences to be served concurrently.


[2]   Howard challenges his conviction of Count I arguing that he did not waive his

      right to a jury trial for the SVF enhancement. Because it is fundamental error

      to violate the right to trial by jury, we reverse and remand for a new trial on the

      SVF enhancement for Count I.



                            Facts and Procedural History


      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2105 | April 11, 2017   Page 2 of 5
[3]   On March 23, 2016, Indianapolis Metropolitan Police Department (“IMPD”)

      Officer Kenneth Kunz and other officers were deployed to 25th Street and

      Keystone Avenue when they observed suspicious behavior involving a dark-

      colored Impala at a gas station. Officers stopped the vehicle a short time later

      after observing traffic infractions committed by the driver of the vehicle.


[4]   Howard was the driver and sole occupant of the vehicle. Two officers

      approached the vehicle, one on the passenger side and one on the driver’s side.

      Howard admitted to the officers that his driver’s license was suspended, which

      the officers subsequently verified, and Howard was arrested. While one of the

      officers was patting Howard down following his arrest, the officer found

      oxycodone in a white pill bottle and a bag containing what he suspected was

      marijuana. A search of the vehicle that Howard had been driving also revealed

      a handgun under the front passenger’s seat.


[5]   Appellee-Plaintiff the State of Indiana (“the State”) charged Howard with

      unlawful possession of a firearm by a SVF as a Level 4 felony, possession of a

      narcotic drug while in possession of a firearm, driving while suspended as a

      Class A misdemeanor, and possession of marijuana as a Class B misdemeanor.

      The trial was bifurcated. During the first phase of the trial, the jury found

      Howard guilty of possessing a firearm, but the trial court reserved the

      determination of whether Howard was a SVF for the second phase.


[6]   Before the second phase of the trial, the trial court asked Howard if he wanted

      to stipulate to his prior conviction for a C felony robbery or if he wanted to


      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2105 | April 11, 2017   Page 3 of 5
      waive his right to a jury trial; Howard told the trial court he did not want to do

      either. The trial court subsequently brought the jury back into the courtroom

      and informed them that there would be a second phase to the trial. Shortly

      thereafter, Howard changed his mind and stipulated to his prior conviction.

      Howard did not, however, waive his right to a jury trial.


[7]   While the jury was waiting in the deliberation room, the trial court found

      Howard guilty of being a SVF in possession of a firearm. The trial court then

      sentenced Howard to eight years executed for his unlawful possession of a

      firearm by a SVF conviction and ordered the other remaining sentences to run

      concurrently with it. Howard now appeals his unlawful possession of a firearm

      by a SVF and the sentence for that conviction.



                                 Discussion and Decision
[8]   “The United States and Indiana Constitutions guaranty the right to trial by

      jury.” Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997).


              A person charged with a felony has an automatic right to a jury
              trial, and he is presumed not to waive this right unless he
              affirmatively acts to do so. It is fundamental error to deny a jury
              trial unless there is evidence of a knowing, voluntary and
              intelligent waiver of the right.


      Jones v. State, 810 N.E.2d 777 (Ind. Ct. App. 2004). “The defendant must

      express his personal desire to waive a jury trial and such a personal desire must




      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2105 | April 11, 2017   Page 4 of 5
       be apparent from the court’s record, whether in the form of a written waiver or

       a colloquy in open court.” Id. (citations omitted).


[9]    Howard argues, and the State concedes, that the record does not reflect that he

       knowingly, voluntarily and intelligently waived his right to a jury trial. Howard

       merely stipulated to the fact that he had a prior felony conviction. However,

       Howard did not plead guilty to the SVF enhancement. See Corbin v. State, 713

       N.E.2d 906, 908 (Ind. Ct. App. 1999) (“Moreover, the stipulation to certain

       facts in no way transforms a trial into a guilty plea hearing.”).


[10]   “A violation of the right to a trial by jury is a fundamental error, and cannot be

       considered harmless.” Duncan v State, 975 N.E.2d 838, 844 (Ind. Ct. App.

       2012). We therefore reverse Howard’s Level 4 felony SVF conviction and

       remand for a new trial on that particular charge. Because we reverse Howard’s

       SVF conviction, we need not address his claim regarding double jeopardy.


[11]   We reverse and remand for a new trial for the SVF enhancement in Count I.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2105 | April 11, 2017   Page 5 of 5
