MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Nov 07 2018, 9:43 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Megan Shipley                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Ian McLean
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Roderick Whitney,                                       November 7, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-223
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Christina R.
Appellee-Plaintiff.                                     Klineman, Judge
                                                        The Honorable Marshelle
                                                        Broadwell, Magistrate
                                                        Trial Court Cause No. 49G17-
                                                        1709-F6-37530



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018                Page 1 of 10
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Roderick Whitney (Whitney), appeals his conviction for

      resisting law enforcement, a Class A misdemeanor, Ind. Code § 35-44.1-3-

      1(a)(1).


[2]   We affirm.


                                                   ISSUE
[3]   Whitney presents us with two issues on appeal, which we consolidate and

      restate as: Whether he validly waived his right to a jury trial on a misdemeanor

      charge of resisting law enforcement.


                      FACTS AND PROCEDURAL HISTORY
[4]   On September 29, 2017, Officer Michael Price (Officer Price) of the

      Indianapolis Metropolitan Police Department responded to a call of domestic

      violence at an apartment in Marion County. When Officer Price arrived at the

      home of the putative victim, she informed Officer Price that she wanted

      Whitney out of the apartment. Officer Price encountered Whitney in the

      bedroom of the apartment and eventually handcuffed him prior to leading him

      out of the bedroom. Whitney became increasingly angry during this encounter.

      Officer Price held Whitney by his left arm as he escorted Whitney out of the

      apartment building. Upon reaching the exterior landing of the apartment

      building, Whitney forcefully jerked his shoulder away from Officer Price and

      turned so that he was facing the officer. Officer Price’s grip on Whitney was

      broken. Officer Price warned Whitney that he would be forced to place
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018   Page 2 of 10
      Whitney on the ground if he continued to resist. Officer Price then escorted

      Whitney to his police car.


[5]   On September 29, 2017, the State charged Whitney with domestic battery as a

      Level 6 felony, domestic battery as a Class A misdemeanor, and resisting law

      enforcement as a Class A misdemeanor. On October 2, 2017, the trial court

      conducted Whitney’s initial hearing. During the initial hearing, the trial court

      orally advised Whitney that he had a right to a trial by jury. Whitney signed a

      written copy of his initial hearing rights which provided in relevant part as

      follows:


                You have the right to a trial by jury. If you are charged with a
                misdemeanor and you wish to have a trial by jury, you must
                make a request for a jury trial at least ten (10) days prior to your
                trial setting. If you do not request a jury trial at least ten (10)
                days prior to your trial setting, you waive your right to a trial by
                jury. If you want a jury trial, you must make a timely request
                even if you do not have an attorney.


      (Appellant’s App. Vol. II, p. 27). 1 Whitney confirmed with the trial court that

      he had signed the copy of his initial rights form because he understood the

      rights contained in it. The trial court appointed Whitney a public defender, and

      the matter was set for a pre-trial conference.




      1
          All Appendix citations are to the Public Access Appendix.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018   Page 3 of 10
[6]   During the discovery process, Whitney’s defense counsel served the putative

      domestic battery victim with two subpoenas, one for October 30, 2017, and

      another for November 13, 2017, seeking to take a recorded statement. She did

      not appear in response to either subpoena. On November 28, 2017, the State

      filed a Notice of Discovery Compliance which indicated that the 911 dispatch

      audio recording had been requested and would be available for review upon

      receipt and that a copy of the Certified CAD/Event History Detail would be

      forwarded to the defense upon receipt. At a November 30, 2017, pre-trial

      hearing, Whitney’s defense counsel moved to exclude the putative victim’s

      testimony based on the fact that she had failed to appear in response to

      Whitney’s subpoenas. The trial court granted Whitney’s motion.


[7]   The trial court then asked the State if it was planning to proceed:


              Prosecutor 1: Uh, we plan to proceed on Count Three (3), your
              Honor.


              Trial Court: Okay, and that’s Resisting Law Enforcement as a
              Class-A misdemeanor?


              Prosecutor 1: Yes, your Honor.


              Trial Court: Do we want to set this for a [b]ench [t]rial at this
              time?


              Prosecutor 1: Uhm, I plan to offer a plea in this matter.


              Defense Counsel: Uhm, your Honor, we would ask to set this
              matter for a trial at this time.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018   Page 4 of 10
        Trial Court: Okay, so a trial rather than a pre-trial?


        Defense Counsel: Uhm, your Honor, my client has informed me
        that he does not want to enter into the plea agreement.


        Trial Court: Okay. We’ll set this for January Eleventh (11th) at
        8:30 a.m. Sir, are you still going to have the same school
        schedule next, next January, or no?


        Whitney: Yes. I go to school from 9:00 a.m. to 4:00 p.m.


        Trial Court: Okay, but you’re going to have to be present for that
        date, okay?


        Whitney: Okay. I will, but I’ll just need an excuse. That’s it.
        Just to show I was here.


        Prosecutor 2: And is that a jury?


        Trial Court: Bench trial.


        Prosecutor 2: For an F6?


        Trial Court: Well, I think the felony is going to be dismissed.
        That’s my understanding. [Prosecutor 1], are you dismissing the
        felony and the second misdemeanor?


        Prosecutor 1: I can, your Honor.


        Trial Court: Count three (3) is only a misdemeanor. Is that
        okay? If it’s not let me know.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018   Page 5 of 10
              Prosecutor 2: I think it’s fine. If we need to file something, we’ll
              file something. But, it’s [Prosecutor 1]’s case, and I was
              wondering if we were setting it for a jury or a bench trial since the
              underlying matter is a felony.


              Trial Court: Well, I was going to set it for a bench trial just
              because the motion to exclude as to the first two (2) counts.


              Prosecutor 2: That’s fine.


              Defense Counsel: And, uhm, when [Prosecutor 1] stated that she
              would proceed with the third count and dismiss the first two (2),
              since the third count is a misdemeanor. That’s why we’d like to
              set it for a bench trial.


              Trial Court: Okay. We’ll set it for January Eleventh (11th) for a
              [b]ench [t]rial.


      (Transcript Vol. II, pp. 26-27). On December 15, 2017, the State filed a notice

      of supplemental discovery compliance indicating that it had provided an audio

      records request and CAD report to the defense, the 911 call associated with the

      records request and CAD report was available for review upon request, and that

      a tape research investigator for the Marion County Sheriff’s Office may be

      called as a State witness.


[8]   Whitney’s bench trial took place on January 11, 2018. At the beginning of the

      trial, the State moved to dismiss the domestic battery charges, and the trial

      court granted the motion. The trial court found Whitney guilty of resisting law

      enforcement and proceeded to sentence him to time served, which amounted to


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018   Page 6 of 10
       fourteen days. After trial and sentencing was concluded, the State filed a

       written motion to dismiss the domestic battery charges.


[9]    Whitney now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[10]   Whitney contends that his conviction for resisting law enforcement must be

       reversed because he did not validly waive his state and federal rights to a jury

       trial. The validity of a jury trial waiver is a question of law, which we review de

       novo. Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016).


[11]   A trial by jury is a fundamental principle of our criminal justice system which is

       guaranteed by the United States and Indiana Constitutions. Kellems v. State, 849

       N.E.2d 1110, 1112 (Ind. 2006). A waiver of the Sixth Amendment jury trial

       right must be “express and intelligent.” Horton, 51 N.E.3d at 1158 (quoting

       Patton v. United States, 281 U.S. 276, 312 (1930)). A waiver of our state

       constitutional jury trial right must be “knowing, voluntary[,] and intelligent.”

       Id. (quoting Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989)).


[12]   In Indiana, a defendant who is charged with a felony must personally

       communicate the waiver of his jury trial right to the trial court. Id. at 1160; see

       also Ind. Code § 35-37-1-2 (“The defendant and prosecuting attorney, with the

       assent of the court, may submit the trial to the court. All other trials must be by

       jury.”). A failure to confirm a defendant’s jury trial waiver to a felony charge

       constitutes fundamental error. Id. Waiver of the jury trial right in a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018   Page 7 of 10
       misdemeanor case in Indiana is governed by Criminal Rule 22 which provides,

       in relevant part:


               A defendant charged with a misdemeanor may demand trial by
               jury by filing a written demand therefor not later than ten (10)
               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.


[13]   The gravamen of Whitney’s argument on appeal is that his case remained a

       felony case until his January 11, 2018, trial date and that he never personally

       waived his jury trial right. Thus, in order to credit that argument, we would

       first have to determine that this matter remained a felony case until January 11,

       2018.


[14]   Our examination of the record does not support that conclusion. At the

       November 30, 2017, pre-trial hearing, Whitney’s counsel was successful in

       having the putative domestic battery victim’s testimony excluded. The State

       then informed the trial court and the defense that it would proceed only on the

       misdemeanor resisting law enforcement charge, which the trial court

       acknowledged. Indiana Code section 35-34-1-13 provides that a prosecutor

       may move the trial court to dismiss the information at any time before

       sentencing, either on the record or in writing, provided that the prosecutor

       states the reason for doing so. The trial court may not deny such a motion.

       Malone v. State, 702 N.E.2d 1102, 1103 (Ind. Ct. App. 1998), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018   Page 8 of 10
       Although the State did not explicitly move to dismiss the felony and

       misdemeanor domestic battery charges, its colloquy with the trial court

       regarding the fact that it would proceed only on the misdemeanor resisting law

       enforcement charge after its witness to those offenses was excluded was the

       functional equivalent of a motion to dismiss. Whitney’s counsel then

       acknowledged that the State had dismissed the domestic battery charges and

       requested that the matter be set for a bench trial on the remaining misdemeanor

       resisting law enforcement charge.


[15]   Whitney contends that his case remained a felony case until trial because there

       was no legal barrier to the State proceeding on the domestic battery charges

       until the State made a more explicit motion to dismiss on the record at the

       beginning of his trial. However, the applicable statute explicitly provides that

       the State may make an oral motion to dismiss, and the trial court was obligated

       to grant that motion. Although the State made another oral motion to dismiss

       at the beginning of Whitney’s trial and filed a written motion to dismiss after

       trial and sentencing was concluded, these subsequent motions did not negate

       the validity of the State’s actions at the November 30, 2017, pre-trial

       conference. Whitney’s assertion that his case retained its felony case status

       because the State filed a discovery notice after the November 30, 2017, pre-trial

       conference is no more persuasive. This supplementary notice merely addressed

       matters which had previously been discovered by the State and did not

       represent a renewed effort to prosecute the felony domestic battery charge.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018   Page 9 of 10
[16]   The effect of the State’s dismissal of the domestic battery charges was to render

       this a misdemeanor case as of November 30, 2017. Whitney was informed of

       the procedure for invoking his misdemeanor jury trial rights through the copy of

       his initial hearing rights that he confirmed to the trial court he had read, signed,

       and understood. Those procedures became applicable to Whitney’s case as of

       November 30, 2017, when Whitney’s counsel advised the trial court that

       Whitney wished to proceed with a bench trial. By January 11, 2017, which was

       his first scheduled trial date, Whitney had more than fifteen days’ notice of his

       scheduled trial date and of the consequences of his failure to demand a trial by

       jury. He did not invoke his right to a jury trial on the resisting law enforcement

       charge within ten days of his trial date, and, thus, Whitney validly waived his

       jury trial right.


                                            CONCLUSION
[17]   Based on the foregoing, we conclude that Whitney validly waived his right to a

       jury trial on the misdemeanor charge of resisting law enforcement.


[18]   Affirmed.


[19]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-223 | November 7, 2018   Page 10 of 10
