                                                                         FILED
                                                                    May 23 2016, 9:14 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
James E. Saylor                                           Gregory F. Zoeller
Carlisle, Indiana                                         Attorney General

                                                          Ian McLean
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

James E. Saylor,                                          May 23, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          39A05-1503-PC-113
        v.                                                Appeal from the Jefferson Circuit
                                                          Court
State of Indiana,                                         The Honorable Jon Webster,
Appellee-Plaintiff.                                       Special Judge
                                                          Trial Court Cause No.
                                                          39C01-1404-PC-315



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016                       Page 1 of 23
                                           Case Summary
[1]   James E. Saylor was convicted of molesting his stepdaughter, pled guilty to

      being a habitual offender, and was sentenced to 138 years. We affirmed on

      direct appeal. Saylor then sought post-conviction relief raising numerous

      issues, including that his trial counsel was ineffective for conceding his guilt to

      two counts of Class A felony child molesting during closing argument and that

      his guilty plea to the habitual-offender charge was not knowing, voluntary, and

      intelligent because he did not personally waive his right to a jury trial.

[2]   As for Saylor’s ineffective-assistance claim, Saylor’s defense at trial was that he

      did not commit the crimes, and defense counsel consistently argued this during

      closing argument. Nevertheless, in making a point about the State’s medical

      evidence, defense counsel inadvertently said that Saylor “was not the only

      person that was having sex with” the victim. Given Saylor’s consistent defense

      and the fact that the State did not capitalize on this statement during its rebuttal

      argument, we find that defense counsel’s inadvertent statement, although a

      mistake, was not a judicial admission to two counts of Class A felony child

      molesting. And in light of the overwhelming evidence of Saylor’s guilt, we find

      that there is not a reasonable probability that, but for defense counsel’s mistake,

      the result of the proceeding would have been different.


[3]   As for Saylor’s argument that he did not personally waive his right to a jury trial

      on the habitual-offender charge, the Indiana Supreme Court recently reaffirmed

      the personal-waiver requirement when a defendant proceeds to a bench trial in


      Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016       Page 2 of 23
      Horton v. State, No. 79S02-1510-CR-628 (Ind. Apr. 21, 2016). Although this

      case involves a guilty plea—and not a bench trial like in Horton—and there is a

      different statute that governs guilty pleas, we find that the same rationale

      applies when a defendant waives his right to a jury trial when pleading guilty.

      Accordingly, because Saylor did not personally waive his right to a jury trial—

      rather, his attorney did—when he pled guilty to being a habitual offender, we

      vacate his habitual-offender adjudication and remand for a new trial on that

      charge. We affirm the post-conviction court on all other issues that Saylor

      raises.



                             Facts and Procedural History
[4]   In April 2005, Saylor moved into a home in Madison with his wife (“Wife”)

      and four children. B.D., then a ten-year-old girl, and M.D., then a thirteen-

      year-old boy, are Wife’s children from a previous relationship. J.M.S. is

      Saylor’s son from a previous relationship and was approximately eighteen years

      old. J.S., who was seven years old at the time, is the only child Saylor and

      Wife have together.

[5]   Over a period of approximately eighteen months, Saylor forced B.D. to have

      sexual intercourse and oral sex with him, forced M.D. and B.D. to have sexual

      intercourse and oral sex with each other while Saylor watched, and taught B.D.

      to have sex with the family dog. Saylor threatened to harm B.D. if she told

      anyone what was happening. But in July 2006, when B.D. was eleven years

      old, she told a family friend, Jasmine Mardello, who notified the Indiana

      Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016    Page 3 of 23
      Department of Child Services. Saylor was arrested the next day. Kathy Scifres,

      a forensic-nurse examiner, conducted a physical examination of B.D. The State

      ultimately charged Saylor with two counts of Class A felony child molesting

      (both involving B.D.), Class B felony vicarious sexual gratification (based on

      Saylor forcing B.D. to engage in sexual intercourse with M.D.), Class D felony

      intimidation (based on Saylor’s threats to B.D. if she told anyone), and being a

      habitual offender.

[6]   A jury trial began in August 2007. The trial was bifurcated, with the first phase

      addressing the child-molesting, vicarious-sexual-gratification, and intimidation

      charges, and the second phase addressing the habitual-offender charge.

[7]   During the first phase of trial, B.D., M.D., and J.S. all testified that Saylor had

      sexual intercourse with B.D. and forced M.D. to have sexual intercourse with

      B.D. Mardello testified about B.D.’s initial disclosure to her, and Scifres

      testified about her physical examination of B.D., which revealed a healed

      vaginal tear and hymenal thinning that was consistent with the penetration of

      her vagina by a blunt or round object, such as a penis. Scifres also testified that

      B.D. told her that she had sexual intercourse with Saylor but that B.D. did not

      tell her that she had sexual intercourse with anyone else.

[8]   During closing argument, defense counsel argued that the State’s medical

      evidence did not prove that Saylor molested B.D. because B.D. had sexual

      intercourse with other people, and they could have caused her injuries. As part




      Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016     Page 4 of 23
       of defense counsel’s lengthy argument on this point, he said, “Mr. Saylor was

       not the only person that was having sex with [B.D.].” Tr. p. 908.

[9]    The jury found Saylor guilty of the child-molesting, vicarious-sexual-

       gratification, and intimidation charges. While the jury was in the jury room

       waiting for the habitual-offender phase of trial to begin, Saylor’s trial counsel

       requested a brief recess to discuss the habitual-offender charge with Saylor. At

       the end of the recess, defense counsel told the trial court that Saylor had

       decided to plead guilty.

[10]   At sentencing, the trial court merged Saylor’s conviction for intimidation with

       his conviction for vicarious sexual gratification and sentenced Saylor to 45

       years for each of his child-molesting convictions, 18 years for his vicarious-

       sexual-gratification conviction, and 30 years for the habitual-offender

       enhancement, for an aggregate term of 138 years. We affirmed on direct

       appeal. Saylor v. State, No. 39A01-0712-CR-574 (Ind. Ct. App. Sept. 17, 2008),

       trans. denied.


[11]   Saylor filed a petition for post-conviction relief in 2014. Following a hearing,

       the judge entered findings of fact and conclusions of law denying relief.1




       1
        Saylor filed a motion to correct errors, in which he alleged that the post-conviction court did not address all
       of the issues that he raised in his post-conviction petition, see P-C App. p. 1-2, but, as the State points out, this
       motion was deemed denied the day before Saylor filed the notice of appeal in this case, see Appellee’s Br. p. 2
       & n.6.

       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016                                  Page 5 of 23
[12]   Saylor, pro se, now appeals.



                                  Discussion and Decision
[13]   Saylor contends that the post-conviction court erred in denying his petition.

       Defendants who have exhausted the direct-appeal process may challenge the

       correctness of their convictions and sentences by filing a post-conviction

       petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), reh’g denied. Post-

       conviction proceedings are not an opportunity for a “super-appeal.” Timberlake

       v. State, 753 N.E.2d 591, 597 (Ind. 2001), reh’g denied. Rather, they create a

       narrow remedy for subsequent collateral challenges to convictions that must be

       based on grounds enumerated in the post-conviction rules. Ind. Post-

       Conviction Rule 1(1); Timberlake, 753 N.E.2d at 597. In post-conviction

       proceedings, complaints that something went awry at trial are cognizable only

       when they show deprivation of the right to effective counsel or issues

       demonstrably unavailable at the time of trial or direct appeal. Sanders v. State,

       765 N.E.2d 591, 592 (Ind. 2002).

[14]   Post-conviction proceedings are civil proceedings, requiring the petitioner to

       prove his claims by a preponderance of the evidence. Stevens, 770 N.E.2d at

       745. We review the post-conviction court’s legal conclusions de novo but

       accept its factual findings unless they are clearly erroneous. Id. at 746. The

       petitioner must establish that the evidence as a whole leads unerringly and

       unmistakably to a decision opposite that reached by the post-conviction court.

       Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002).

       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016    Page 6 of 23
[15]   Saylor raises two main issues on appeal. He contends that his trial counsel was

       ineffective for multiple reasons and that his guilty plea to the habitual-offender

       charge was not knowing, voluntary, and intelligent because he did not

       personally waive his right to a jury trial.



                        I. Ineffective Assistance of Counsel
[16]   Saylor first contends that defense counsel was ineffective. We review claims of

       ineffective assistance of trial counsel under the two-prong test articulated in

       Strickland v. Washington, 466 U.S. 668 (1984). Pruitt v. State, 903 N.E.2d 899,

       905-06 (Ind. 2009), reh’g denied. To satisfy the first prong, the defendant must

       show that trial counsel’s performance fell below an objective standard of

       reasonableness based on prevailing professional norms, “committing errors so

       serious that the defendant did not have the counsel guaranteed by the Sixth

       Amendment.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002), reh’g denied.

       To satisfy the second prong, the defendant must show prejudice: “a reasonable

       probability (i.e. a probability sufficient to undermine confidence in the

       outcome) that, but for counsel’s errors, the result of the proceeding would have

       been different.” Id.


                                         A. Failure to Object
[17]   Saylor argues that defense counsel was ineffective for not objecting to (1) the

       trial court’s failure to administer an oath to B.D. before she testified at trial and

       (2) the prosecutor’s impermissible vouching during closing argument. To

       prevail on a claim of ineffective assistance due to the failure to object, the
       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016      Page 7 of 23
       defendant must show an objection would have been sustained if made.

       Overstreet v. State, 877 N.E.2d 144, 155 (Ind. 2007), reh’g denied. In determining

       whether an objection would have been sustained, we presume that the trial

       judge will act according to the law. Strickland, 466 U.S. at 694.


                                                     1. Oath
[18]   Saylor first argues that defense counsel was ineffective for not objecting when

       the trial court failed to administer an oath to twelve-year-old B.D. before she

       testified at trial. After opening statements, the State called B.D. as its first

       witness. When B.D. took the stand to testify, the judge asked B.D. the

       following questions in the presence of the jury:

               [Judge]: Okay. [B.D.], I need to ask you a few questions, and
               you’re going to have to answer yes or no so we can hear you.
               Okay? Uh...I’m first going to ask you, how old are you?

               A. Twelve.

               Q. Okay. And uh...you understand that anything you say in here
                  is supposed to be the truth and not a lie?

               A. Yes.

               Q. Okay. And I want to be sure that I...I know that you know
                  the difference. Now what color is that?

               A. Orange.

               Q. Okay. And if you told me it was black, would that be true?

               A. No.

               Q. Would it be a lie?


       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016       Page 8 of 23
         A. Yes.

         Q. And if you told me it was orange, would that be true?

         A. Yes.

         Q. Okay. You understand that it’s important that any question
            that’s asked of you today be true and not a lie? [2]

         A. Yes.

         Q. And also if you don’t understand the question and you’re not
            sure how to answer it because you don’t understand it, you
            can just say that. Okay?

         A. Yes.

         Q. So that you don’t have to worry about whether your answer
            would be true or not because you can’t do that if you don’t
            understand the question. Okay?

         A. Yes.

                                                *****

         [Judge]: Okay. I believe that she is qualified, and I believe that
         what I have done is the best way of providing an oath for her . . .
         .[ 3 ]

         [Prosecutor]: Judge, did you want to administer an oath, or are
         you satisfied?




2
 Taken in context, we find that the judge meant to say that it was important for B.D.’s answers to the
questions be true and not a lie.
3
  Saylor argues that this statement by the judge constitutes impermissible vouching because it intruded on the
jury’s job to determine credibility. But the judge did not comment on B.D.’s credibility; rather, the judge
concluded that B.D. had sufficiently affirmed that she would tell the truth. Because these are different
inquiries, defense counsel was not ineffective for failing to object to this statement.

Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016                            Page 9 of 23
               [Judge]: Pardon? I’m satisfied. And if you wish to ask any other
               questions, you certainly may.

               [Prosecutor]: No, we’re satisfied as well. Thank you, Your
               Honor.

       Tr. p. 332-35.


[19]   Indiana Evidence Rule 603 requires that “[b]efore testifying, a witness must

       give an oath or affirmation to testify truthfully. It must be in a form designed to

       impress that duty on the witness’s conscience.” See also Ind. Const. art. 1, § 8

       (“The mode of administering an oath or affirmation, shall be such as may be

       most consistent with, and binding upon, the conscience of the person, to whom

       such oath or affirmation may be administered.”); Ind. Code § 34-45-1-2

       (“Before testifying, every witness shall be sworn to testify the truth, the whole

       truth, and nothing but the truth. The mode of administering an oath must be

       the most consistent with and binding upon the conscience of the person to

       whom the oath may be administered.”). No particular form of oath is required,

       and the form may be applied flexibly so as to be meaningful to children and

       mentally impaired witnesses. 13 Robert Lowell Miller, Jr., Indiana Practice,

       Indiana Evidence § 603.101 (3d ed. 2007); see also Perry v. State, 524 N.E.2d 316,

       317 (Ind. 1988) (explaining that it is not a “realistic approach” to give a child an

       adult oath because that would not show “whether a small child understands

       that he is to tell the truth”). Whether a witness has sufficiently declared by oath

       or affirmation to testify truthfully is a determination to be made by the trial

       court. 13 Miller, supra, § 603.101.



       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016    Page 10 of 23
[20]   In addition, Indiana Evidence Rule 601 addresses competency of witnesses.

       Rule 601 presumes that every person is a competent witness unless otherwise

       provided by statute or rule. “A child is only competent to testify if it can be

       established” that the child (1) understands the difference between telling a lie

       and telling the truth, (2) knows she is under a compulsion to tell the truth, and

       (3) knows what a true statement actually is. Ackerman v. State, No. 49S00-1409-

       CR-770, slip op. at 28 (Ind. Apr. 5, 2016) (noting that it “seems highly unlikely

       that a three-year-old would be able to comprehend that she was under oath and

       required to only tell the truth”); Kien v. State, 866 N.E.2d 377, 385 (Ind. Ct.

       App. 2007), trans. denied. Like oaths, there is no prescribed form to determine

       whether a child is competent to testify. See LeMaster v. State, 498 N.E.2d 1185,

       1187 (Ind. 1986). The trial court has discretion to determine whether a child

       witness is competent based on the court’s observation of the child’s demeanor

       and the child’s responses to questions posed by counsel and the court. Richard

       v. State, 820 N.E.2d 749, 754-55 (Ind. Ct. App. 2005), trans. denied.


[21]   Saylor claims that the trial court’s “questioning was insufficient to constitute an

       oath” because “[n]othing in the trial court’s questioning of B.D. made testifying

       truthfully binding upon her conscience.” Appellant’s Reply Br. p. 2. We

       disagree. The trial court examined B.D. to simultaneously (1) determine

       whether she was competent to testify and (2) administer an oath to her. The

       trial court explored whether B.D. was capable of understanding her obligation

       to tell the truth, inquired whether B.D. could distinguish between the truth and

       a lie and knew what the truth was, and was satisfied that B.D. had given an


       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016    Page 11 of 23
       oath. Because the trial court properly administered an oath to B.D., Saylor has

       not demonstrated that the trial court would have sustained an objection by

       defense counsel.


                               2. Prosecutor’s Closing Argument
[22]   Saylor next argues that his defense counsel was ineffective for not objecting to

       the prosecutor’s impermissible vouching during closing argument. It is

       improper for a prosecutor to make an argument that takes the form of

       personally vouching for a witness. See Schlomer v. State, 580 N.E.2d 950, 957

       (Ind. 1991) (“I’m not gonna say Detective McGee is ever gonna be a brain

       surgeon or a rocket scientist, but I believe Detective McGee when he tell[s] us

       what happened . . . .”); Gaby v. State, 949 N.E.2d 870, 880 (Ind. Ct. App. 2011)

       (“I cannot and would not bring charges that I believe were false.”). However, a

       prosecutor may comment on a witness’s credibility if the assertions are based on

       reasons arising from the evidence presented at trial. Cooper v. State, 854 N.E.2d

       831, 836 (Ind. 2006); Gaby, 949 N.E.2d at 881. In addition, a prosecutor may

       properly argue any logical or reasonable conclusions based on his own analysis

       of the evidence. Neville v. State, 976 N.E.2d 1252, 1260 (Ind. Ct. App. 2012),

       trans. denied.


[23]   Saylor highlights ten statements from the State’s thirty-page-long closing

       argument that he believes are the “most troublesome.” Appellant’s Br. p. 17.

       These statements focus primarily on B.D., Mardello, and M.D.




       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016   Page 12 of 23
[24]   As for B.D., Saylor claims that the prosecutor impermissibly vouched for her

       during closing argument:

                Let’s talk about [B.D.]. She is being truthful about her stepfather.
                [B.D.] is a credible witness.


       Tr. p. 884.4 The prosecutor then said that the trial court would give the jury an

       instruction on credibility because it was the jury’s job to determine credibility

       and that when the jury considered the medical evidence and the testimony from

       the other witnesses, B.D.’s testimony “ma[de] sense” and was “support[ed].”

       Id. at 884, 885-86.


[25]   We find that the prosecutor properly commented on B.D.’s credibility because

       the assertions were based on reasons arising from the evidence presented at

       trial. B.D.’s credibility was a significant topic addressed by both sides during

       closing arguments. The State argued that B.D. was credible because her

       testimony was consistent with the medical evidence5 and with the testimony




       4
         Saylor appears to argue that the prosecutor should not have argued that B.D. was credible because B.D.
       admitted during a pre-trial protected-person hearing that she was “used to telling a lie.” Tr. p. 206. Saylor
       takes this statement out of context. At the hearing, B.D. explained that because Saylor had threated to harm
       her if she told anyone what was happening, she was used to not telling the truth about what was really
       happening.
       5
        Regarding the medical evidence, Saylor argues that the prosecutor should not have argued that the medical
       evidence supported B.D.’s allegation that Saylor molested her because B.D. had sexual intercourse with other
       people besides Saylor. This was a proper argument based on the prosecutor’s analysis of the evidence.



       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016                          Page 13 of 23
       from the other witnesses. Because the prosecutor did not personally vouch for

       B.D., defense counsel was not ineffective for not objecting to this statement.

[26]   Saylor next claims that the prosecutor impermissibly vouched for Mardello. He

       points to this portion of the prosecutor’s closing argument:

               [T]he emotion in Jasmin [Mardello’s] testimony supports the
               credibility of [B.D.]. I argue to you Jasmin Mardello absolutely
               believes that happened because of the experiences that she had
               [when B.D. first revealed the abuse to her]. She was crying in
               court because she was reliving the pain, and she was reliving the
               horror of [B.D.]. That means you may make a reasonable
               inference that [B.D.] is a truthful witness.


       Id. at 889.


[27]   Notably, the prosecutor did not argue that Mardello was credible because she

       was emotional; rather, the prosecutor argued that, based on Mardello’s

       demeanor in court, the reasonable inference was that B.D. was telling the truth

       when she first revealed the abuse to Mardello. This was a proper argument

       based on the logical or reasonable conclusions from the prosecutor’s analysis of

       the evidence. Accordingly, defense counsel was not ineffective for not objecting

       to this statement.

[28]   Last, Saylor claims that the prosecutor impermissibly vouched for M.D. by

       arguing that M.D. “told the truth” because he could get in trouble for having

       sexual relations with B.D. Tr. p. 925. But the prosecutor argued the opposite—

       that M.D. could not be prosecuted based on his testimony in this case because

       the State promised not to prosecute M.D. See Ex. 13 (letter from the prosecutor
       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016   Page 14 of 23
       to the children’s guardian ad litem explaining that “none of the children in this

       matter will be subject to criminal prosecution as a result of any testimony they

       may provide concerning . . . Saylor.”).6 The prosecutor’s argument was proper

       because it was based on reasons arising from the evidence presented at trial.

       Accordingly, defense counsel was not ineffective for not objecting to this

       statement.7


                  B. Admitting Guilt During Closing Argument
[29]   Saylor argues that defense counsel was ineffective because he admitted Saylor’s

       guilt to both counts of Class A felony child molesting during closing argument.

       Saylor argues that defense counsel’s admission “nullified the jury’s need to

       determine guilt or innocence beyond a reasonable doubt” on those charges.

       Appellant’s Br. p. 7.




       6
         Regarding this letter, Saylor argues that defense counsel was ineffective for not telling the jury that the
       children were not subject to prosecution for their testimony against Saylor. The record shows, however, that
       the letter was admitted into evidence at trial, see Tr. p. 626-27 (defense counsel stipulating to the letter’s
       admission), and the prosecutor talked about it during closing argument, see id. at 925 (“Did you al[l] read that
       letter from the State of Indiana?”).
       7
         Although listed under the vouching section of his brief, Saylor argues that the prosecutor improperly
       commented on his and his son J.M.S.’s credibility. Defense counsel argued during closing argument
       that the more credible witnesses were J.M.S. and Saylor. The prosecutor responded during rebuttal by
       pointing out that J.M.S. testified to smoking marijuana, arguing that J.M.S.’s testimony that he did not
       hear B.D. scream was not credible because he was high. The prosecutor also argued that Saylor’s letter
       to a friend, in which he described the allegations against him as “Somebody said I was fu**ing sissy,”
       “sp[oke] volumes about Mr. Saylor’s credibility.” Tr. p. 921. Both matters were entered into evidence
       at trial and were properly used by the prosecutor to argue against J.M.S.’s and Saylor’s credibility.
       Accordingly, defense counsel was not ineffective for not objecting to these statements.



       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016                            Page 15 of 23
[30]   An attorney’s statements during opening statement or closing argument may

       constitute judicial admissions that are binding on the client. See 13 Robert

       Lowell Miller, Jr., Indiana Practice, Indiana Evidence, § 801.421 (3d ed. 2007);

       32 C.J.S. Evidence § 599 (2008). To constitute a judicial admission, the attorney

       must make “a clear admission of a material fact.” 32 C.J.S., supra, § 599.

       “Improvident or erroneous statements or admissions” resulting from

       “unguarded expressions or mistake or mere casual remarks, statements[,] or

       conversations” are not judicial admissions. Collins v. State, 174 Ind. App. 116,

       366 N.E.2d 229, 232 (1977), reh’g denied. It is “particularly important” in

       criminal cases that the defendant “be protected from inadvertent slips of the

       tongue of his attorney” and be “protected against any and every statement of

       his counsel which is not definitely and purposely intended as and for an

       admission.” Id. (quotation omitted). “[B]efore a statement by an attorney can

       be held to be [a judicial] admission it must be given a meaning consistent with

       the context in which it is found.” 32 C.J.S., supra, § 599.


[31]   During closing argument, defense counsel said that “Mr. Saylor was not the

       only person that was having sex with [B.D.] . . . . ” Tr. p. 909. This statement

       is part of counsel’s four-page argument that the State’s medical evidence,

       particularly Scifres’s testimony about B.D.’s healed vaginal tear and hymenal

       thinning, did not prove that Saylor molested B.D. Defense counsel pointed out

       that B.D. gave Scifres an inaccurate sexual history—that is, B.D. told Scifres

       that Saylor had sexual intercourse with her, but she did not tell Scifres about

       sexual intercourse with anyone else. Defense counsel then provided several

       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016   Page 16 of 23
       other explanations for B.D.’s injuries—including the vibrator found in M.D.’s

       room and the fact that B.D. had sexual intercourse with M.D., M.D.’s friend,

       and the family dog.8 Based on this evidence, defense counsel concluded that

       “the fact that [B.D.] has a stretched hymen, has indications of sexual activity,

       the conclusion doesn’t come that it’s Mr. Saylor.” Tr. p. 910.

[32]   When taken in context, defense counsel did not admit that Saylor committed

       both counts of Class A felony child molesting. Saylor’s defense at trial was that

       he did not molest B.D. or force M.D. to have sexual intercourse with B.D., and

       defense counsel vigorously and consistently argued this during closing

       argument. Nevertheless, in making a point about the State’s medical evidence,

       defense counsel inadvertently said that Saylor “was not the only person that

       was having sex with” B.D. At the post-conviction hearing, defense counsel

       testified that he did not remember making this statement. P-C Tr. p. 10. And

       notably, the State did not capitalize on it during its rebuttal argument, which

       supports the conclusion that defense counsel did not intend for it to be an

       admission to both counts of Class A felony child molesting. Accordingly, we

       find that defense counsel’s inadvertent statement, although a mistake, was not a

       judicial admission. See Collins, 366 N.E.2d at 232 (concluding that “an




       8
         Saylor argues that defense counsel was ineffective for not telling the jury that B.D. had sexual intercourse
       with other people. To the contrary, defense counsel argued this during closing argument, and the record
       includes testimony from the DCS family case manager that B.D. reported sexual abuse by a man named
       “Joe” in 2004 and sexual intercourse with M.D.’s friend, Tr. p. 790, 792; testimony from a neighbor that
       Saylor taught B.D. to have “sex” with the family dog and then B.D. had “inappropriate relations” with the
       neighbor’s dog, id. at 764-65; and testimony from Saylor that B.D. and M.D. had sexual intercourse with
       each other, id. at 837.

       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016                             Page 17 of 23
       inadvertent admission made by counsel in the heat of argument” was not a

       judicial admission). Nevertheless, we are convinced that in light of the

       overwhelming evidence of Saylor’s guilt, there is not a reasonable probability

       that, but for defense counsel’s mistake, the result of the proceeding would have

       been different.9


                                          C. Cumulative Effect
[33]   Finally, Saylor argues that when you consider the cumulative effect of defense

       counsel’s errors, they amount to ineffective assistance of counsel. While the

       cumulative effect of a number of errors can render counsel’s performance

       ineffective, see Grinstead v. State, 845 N.E.2d 1027, 1036 (Ind. 2006), here there

       is only one error by defense counsel: his isolated mistake during closing

       argument. This argument therefore fails.




       9
         Saylor also argues that trial counsel was ineffective for failing to move for dismissal because Saylor should
       have been charged with incest rather than child molesting and vicarious sexual gratification. Saylor could
       not have been convicted of incest because he is not biologically related to either B.D. or M.D., as required by
       the incest statute. See Ind. Code Ann. § 35-46-1-3 (West 2004); see also Pub. L. No. 158-1987, § 5 (1987)
       (adding the requirement of a biological relationship and striking stepparent and stepchild from the list of
       potential incestuous relationships in the statute).



       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016                            Page 18 of 23
                           II. Personal-Waiver Requirement
[34]   Saylor next contends that his guilty plea to the habitual-offender charge was not

       knowing, voluntary, and intelligent because he did not personally waive his

       right to a jury trial.10 See Appellant’s Br. p. 29.


[35]   The record shows that while the jury was in the jury room waiting for the

       habitual-offender phase of trial to begin, defense counsel requested a brief recess

       to discuss the habitual-offender charge with Saylor. The following colloquy

       then occurred:

                [Defense counsel]: . . . Your Honor, I’ve . . . I’ve discussed Mr.
                Saylor’s options with respect to the . . . habitual phase, and I’ve
                explained to him he has a right to a jury. He could waive jury
                and have the Court decide or that we can plead guilty to it
                understanding that there are no promises or guarantees. He’s
                pleading guilty open, and given the fact that we’ve already
                testified I think to facts that would constitute habitual offender
                status, he’s willing to plead guilty and send the jury home.


                [Trial Court]: Okay. What I’m going to do, and there is evidence
                support[ing] that that is in the record, I’m going to read this
                charge to you, Mr. Saylor, and I’m going to ask you to make a




       10
          Because a conviction as a result of a guilty plea is not an issue available to a defendant on direct appeal,
       this issue can be raised on post-conviction. See Hall v. State, 849 N.E.2d 466, 472 (Ind. 2006) (“Precisely
       because a conviction imposed as a result of a guilty plea is not an issue that is available to a defendant on
       direct appeal, any challenge to a conviction thus imposed must be made through the procedure afforded by
       the Indiana Rules of Procedure for Post-Conviction Remedies.”); see also Tumulty v. State, 666 N.E.2d 394,
       395 (Ind. 1996) (“One consequence of pleading guilty is restriction of the ability to challenge the conviction
       on direct appeal.”).

       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016                             Page 19 of 23
               plea on it. [substance of habitual-offender charge omitted]. To
               that charge, how do you plead? Guilty or not guilty?


               [Saylor]: Guilty.


               [Trial court]: Okay. The Court will accept that plea and will
               not[e] in the record that . . . that there is evidence in the file or
               probable cause to support . . . to lay a factual basis for that plea
               and will accept that plea.


       Tr. p. 932-34.

[36]   The Indiana Supreme Court recently reaffirmed the personal-waiver

       requirement in Horton v. State, No. 79S02-1510-CR-628 (Ind. Apr. 21, 2016). In

       that case, the State charged Horton with Class A misdemeanor domestic

       battery, which it sought to elevate to a Class D felony based on Horton’s prior

       domestic-battery conviction. The trial was bifurcated. After Horton was found

       guilty of Class A misdemeanor domestic battery and while the jurors were still

       seated in the box, the trial court asked defense counsel how they intended to

       proceed on the Class D felony enhancement. Defense counsel responded, “as a

       bench trial.” Horton, No. 79S02-1510-CR-628, slip op. at 3.


[37]   On appeal, our Supreme Court noted that the jury-trial right is “a bedrock of

       our criminal justice system” and was guaranteed by both the federal and state

       constitutions. Id. at 5. The Court explained that “[i]n broad view, federal and

       Indiana constitutional jury trial rights guarantee the same general proposition—

       a criminal defendant must receive a jury trial, unless he waives it.” Id. at 5-6.

       The Court then acknowledged that “Indiana’s jury trial right provides greater
       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016          Page 20 of 23
       protection” because the Indiana Supreme Court—dating back to 1977 and as

       recently as 2006—has held that a jury-trial waiver is valid only if it is

       communicated personally by the defendant. Id. at 6 (citing Good v. State, 267

       Ind. 29, 366 N.E.2d 1169 (1977); Kellems v. State, 849 N.E.2d 1110 (Ind. 2006)).

       The Court cited the source for the personal-waiver requirement as Indiana

       Code section 35-37-1-2, which provides:

                The 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.[11]


       (Emphases added).

[38]   Applying these principles, the Court found that “the record [was] devoid of any

       personal waiver by Horton to the court—it shows waiver only by Horton’s

       attorney.” Horton, No. 79S02-1510-CR-628, slip op. at 7. Although the State

       asked the Court to make an exception “where circumstances nevertheless imply

       waiver was the defendant’s choice”—such as where “Horton had just

       experienced a jury trial and thus was probably ‘aware’ of the right his attorney

       waived on his behalf”—the Court “decline[d] to carve out an exception.” Id. at

       8. Instead, given the “high stakes of erroneous jury-trial deprivation and the




       11
          As our Supreme Court explained in Horton, this statute was amended effective July 1, 2015, to “make[]
       clear” that the personal-waiver requirement applies only in felony prosecutions, because Criminal Rule 22
       provides that a defendant charged with a misdemeanor is presumed to waive the jury-trial right unless he
       invokes it in writing at least ten days before the first scheduled day of trial. Horton, No. 79S02-1510-CR-628,
       slip op. at 6 n.1.

       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016                            Page 21 of 23
       low cost of confirming personal waiver,” the Court “maintain[ed]” its “time-

       honored” personal-waiver requirement. Id. Concluding that the trial court’s

       “failure to confirm Horton’s personal waiver before proceeding to bench trial

       was fundamental error,” the Court vacated his Class D felony conviction for

       domestic battery and remanded for a new trial on that charge. Id.


[39]   We acknowledge that this case involves a guilty plea—not a bench trial like in

       Horton—and that there is a different statute that governs guilty pleas.

       Specifically, Indiana Code § 35-35-1-2 provides, in pertinent part:

               (a) The court shall not accept a plea of guilty or guilty but
               mentally ill at the time of the crime without first determining that
               the defendant:


                                                          *****


                        (2) has been informed that by the defendant’s plea the
                        defendant waives the defendant's rights to:


                        (A) a public and speedy trial by jury . . . .


       Despite these differences, we find that the same rationale applies when a

       defendant waives his right to a jury trial when pleading guilty. Because the

       right to a jury trial is a bedrock of our criminal-justice system, the same

       protection should be afforded to defendants who plead guilty—and not just to

       those who proceed to a bench trial. Accordingly, when a defendant pleads

       guilty, he must personally waive his right to a jury trial.



       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016    Page 22 of 23
[40]   Here, there is no evidence that Saylor personally waived his right to a jury trial

       on the habitual-offender charge. Instead, after the first phase of trial ended,

       defense counsel told the trial court that Saylor was “willing to plead guilty and

       send the jury home.” Because Saylor did not personally waive his right to a

       jury trial, we vacate his habitual-offender adjudication and remand for a new

       trial on that charge.12

[41]   Affirmed in part, and vacated and remanded in part.


       Bailey, J., and Crone, J., concur.




       12
         In light of this holding, we do not need to address Saylor’s argument that the trial court failed to advise
       him of his three Boykin rights before he pled guilty to the habitual-offender charge.

       Court of Appeals of Indiana | Opinion 39A05-1503-PC-113 | May 23, 2016                             Page 23 of 23
