MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                            Sep 05 2018, 7:40 am
this Memorandum Decision shall not be
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
Rory Gallagher                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Shon L. Hudson,                                          September 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1712-CR-2903
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Certo, Judge
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         49G12-1701-CM-3057



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2903 | September 5, 2018             Page 1 of 8
[1]   Following a bench trial, Shon Hudson was convicted of battery resulting in

      bodily injury as a Class A misdemeanor. The sole issue he raises on appeal is

      whether he knowingly waived his right to a jury trial.


[2]   We reverse and remand.


                                       Facts & Procedural History


[3]   On January 23, 2017, the State charged Hudson with battery resulting in bodily

      injury as a Class A misdemeanor. At the initial hearing, the trial court

      explained to Hudson his rights, including that he had “the right to a public and

      speedy trial, by a jury if you want one.” Supplemental Transcript Vol. 2 at 4-5

      (emphasis supplied). Over the next couple of months, Hudson, represented by

      a public defender, appeared before the trial court for several, brief hearings,

      during which the court offered no additional advisements about Hudson’s right

      to a jury trial or the procedural requirements of Ind. Crim. Rule 22 (Rule 22).

      A hearing scheduled for August 15, 2017, was continued, and an “off record

      request form,” signed by the State and defense counsel but not Hudson, was

      submitted to the court. The form noted that the reason for the continuance was

      that the matter was to be “set for BT,” and a bench trial was requested to be set

      for September 12, 2017. Appellant’s Appendix Vol. II at 52. The trial court set the

      matter for a bench trial as requested. On the State’s motion, the bench trial was

      rescheduled for November 21, 2017.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2903 | September 5, 2018   Page 2 of 8
[4]   Before the bench trial began, Hudson expressed his dissatisfaction with his

      public defender and indicated that he thought the matter was set for a jury trial.

      Hudson explained:


              I’m not ready to go to court, I mean, I’m not ready to go to trial
              today, sir. My public defender hasn’t did [sic] his job. … Why
              I’m concerned about this case, Your Honor, is it was an incident
              going on where I had another public defender who was supposed
              to set my trial for a jury trial. I get a new public defender, I got a
              bench trial.


      Transcript Vol. 2 at 4. Hudson continued asserting complaints about his public

      defender and then reiterated, “I thought we were going . . . to jury trial. I’ve

      never been to a bench trial.” Id. at 6. The trial court addressed Hudson’s

      comments, stating “I don’t have any options. This is our date for trial.

      Everybody is here for trial that I’m aware of. We’re going to proceed.” Id. at 8.

      The trial court assured Hudson that the bench trial would be done “fully and

      fairly.” Id. The court then moved forward with the bench trial and found

      Hudson guilty as charged. The court sentenced Hudson to 365 days

      incarceration with 359 days suspended to probation. Hudson now appeals.

      Additional evidence will be provided as necessary.


                                          Discussion & Decision


[5]   Hudson argues that he did not knowingly waive his right to a misdemeanor jury

      trial because he was never advised of the need to demand a jury trial in writing

      at least ten days before the scheduled trial date or of the consequences of failing

      to do so. The State argues that the trial court was not required to give formal
      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2903 | September 5, 2018   Page 3 of 8
      notice of the procedural requirements set forth in Rule 22 before a valid waiver

      of a jury trial can occur.


[6]   The right to a jury trial is guaranteed by both Article 1, Section 13 of the

      Indiana Constitution and the Sixth Amendment of the United States

      Constitution. Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012). While

      the Constitution does not differentiate between felonies and misdemeanors, in

      Indiana the procedure for asserting the right to a jury trial in misdemeanor cases

      is controlled by 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.


      “‘Thus, when charged with a misdemeanor, a defendant can waive [his or] her

      right to a jury trial by failing to make a timely demand for trial by jury.’” Fiandt

      v. State, 996 N.E.2d 421, 423 (Ind. Ct. App. 2013) (quoting Young, 973 N.E.2d

      at 645).


[7]   As this court has observed, “[t]he right to a jury trial is a fundamental right, and

      while the manner of preserving the right [in a misdemeanor case] is controlled

      by [Rule] 22, it is not diminished.” Duncan v. State, 975 N.E.2d 838, 842 (Ind.

      Ct. App. 2012). Indeed, it remains that even though a defendant charged with a


      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2903 | September 5, 2018   Page 4 of 8
      misdemeanor can waive his right to a jury trial by inaction, it must also be

      shown that the waiver was “made in a knowing, intelligent, and voluntary

      manner, with sufficient awareness of the surrounding circumstances and the

      consequences.” Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984); see also Patton v.

      United States, 281 U.S. 276, 312 (1930) (holding that, before the constitutional

      right to a jury may be waived, the “express and intelligent consent of the

      defendant” must be obtained).


[8]   In order to establish a valid waiver in a misdemeanor case, the record is

      sufficient if


              1) it does not contain a request for a trial by jury; 2) it evidences
              that the defendant was fully advised of the right to a trial by jury
              and of the consequences for failing to timely request the right;
              and 3) it reflects that the defendant was able to understand the
              advice.


      Eldridge v. State, 627 N.E.2d 844 (Ind. Ct. App. 1994), trans. denied. It is in this

      context of a knowing waiver that this court has held that “‘[a] valid waiver

      cannot be made pursuant to [Rule] 22 in the absence of an advisement by the

      trial court of the consequences of a failure to demand a trial by jury not later

      than ten days prior to the trial date.’” Hanna–Womack v. State, 623 N.E.2d 439,

      440 (Ind. Ct. App. 1993) (quoting Vukadinovich v. State, 529 N.E.2d 837, 839

      (Ind. Ct. App. 1988)); see also Fiandt, 996 N.E.2d 421; Levels v. State, 972 N.E.2d

      972 (Ind. Ct. App. 2012).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2903 | September 5, 2018   Page 5 of 8
[9]    In Duncan, this court squarely addressed the issue presented herein. In that case

       the defendant was charged with thirteen Class A misdemeanors. At his initial

       hearing, the defendant appeared pro se and the trial court advised him of his

       right to a jury trial but did not mention the requirement to timely request a jury

       trial if desired or the consequences of failing to do so. The defendant was

       represented by counsel at subsequent hearings. The record did not suggest that

       the defendant was ever informed of the requirements for requesting a jury trial

       or the consequences of failing to do so. There was also nothing in the record

       indicating that the defendant ever requested a jury trial, timely or otherwise.

       Following a bench trial, the defendant was found guilty of six misdemeanor

       offenses. On appeal, the defendant argued that he did not knowingly waive his

       right to a jury trial.


[10]   This court rejected the State’s argument that it could be inferred that the

       defendant was adequately informed of his rights to a jury trial and the

       procedure for asserting such right because he was represented by counsel. We

       explained that “[b]ecause the right to a jury trial is a fundamental right, we

       cannot assume from a silent record that [the defendant] was informed by his

       counsel.” Duncan, 975 N.E.2d at 843; see also Bex v. State, 952 N.E.2d 347, 349

       (Ind. Ct. App. 2011) (noting as an initial matter that a represented defendant

       was not fully informed), trans. denied; Hanna-Womack, 623 N.E.2d at 440 (noting

       that the defendant was not fully informed by the court and that there was also

       no indication that she was informed by her counsel).




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2903 | September 5, 2018   Page 6 of 8
[11]   The Duncan court also rejected the State’s argument that the matter should not

       be reversed because the defendant was not prejudiced, finding that the relevant

       inquiry was whether the defendant was adequately informed, not whether he

       was prejudiced. The court further noted that a violation of the right to trial by

       jury constitutes fundamental error, and thus, is not subject to harmless error

       analysis. 975 N.E.2d at 844 (citing Eldridge, 627 N.E.2d at 849).


[12]   The Duncan court also considered the State’s argument that reversal was not

       required because there was no indication that the defendant ever wanted,

       requested, or was denied a jury trial. The court noted that “it does not matter

       whether the defendant requested a jury trial.” Id. at 844 (citing Casselman v.

       State, 472 N.E.2d 1310, 1311 n.1 (Ind. Ct. App. 1985)).1 Although the court

       agreed with the State that it was possible the defendant went along with a bench

       trial and never requested a jury trial and only raised the issue on appeal because

       he wanted a new trial, the court nevertheless felt “obliged to find that [the

       defendant] did not waive his right to a jury trial. He was not able to meet the

       ‘knowing’ requirement of a valid waiver because he was not adequately




       1
         The Casselman court rejected the State’s argument that no error was committed because the defendant failed
       to demand a trial by jury in writing as required by Rule 22, finding the argument “specious.” 472 N.E.2d at
       1311 n.1. The State points out that the Casselman court did not make a holding on this issue, but rather its
       observations in this regard were dicta. We agree. Nevertheless, the Duncan court did not rely only on this
       comment by the Casselman court, but rather supported its conclusion that the defendant did not meet the
       knowing requirement of a valid waiver with citations to other cases adopting that analysis. See Levels, 972
       N.E.2d 972; Vukadinovich, 529 N.E.2d 837.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2903 | September 5, 2018         Page 7 of 8
       informed of his rights and obligations as set out in Criminal Rule 22.” Id. The

       court thus remanded the case for a jury trial.


[13]   Here, the record reveals, and the State does not assert otherwise, that the trial

       court failed to advise Hudson of the consequences of failing to demand a jury

       trial or of the specific requirements for making such a demand. There is also no

       indication that Hudson ever formally requested a jury trial. The fact that

       Hudson was represented by counsel does not give rise to a presumption that

       Hudson was advised about the procedural requirements of Rule 22. As in

       Duncan, we find that Hudson has established that his waiver of his right to a

       misdemeanor jury trial was not knowing and is therefore invalid; we must

       therefore remand this case for a jury trial. See also Levels, 972 N.E.2d at 974

       (holding that “[b]ecause the advisement [of the right to a misdemeanor jury

       trial] was insufficient, there was no valid waiver of a jury trial”).


       Judgment reversed and remanded.




       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2903 | September 5, 2018   Page 8 of 8
