                                                                                FILED
                                                                            Oct 17 2018, 9:26 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Anthony S. Churchward                                      Curtis T. Hill, Jr.
      Anthony S. Churchward, P.C.                                Attorney General
      Fort Wayne, Indiana                                        Laura R. Anderson
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Shane R. Bradtmiller,                                      October 17, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-884
              v.                                                 Appeal from the Allen Superior
                                                                 Court
      State of Indiana,                                          The Honorable John F.
      Appellee-Plaintiff                                         Surbeck, Jr., Judge
                                                                 Trial Court Cause No.
                                                                 02D06-1705-F3-26



      Vaidik, Chief Judge.



                                            Case Summary
[1]   Shane R. Bradtmiller appeals his habitual-offender finding, arguing that he did

      not personally waive his right to a jury trial for the habitual-offender

      enhancement. We agree. Although Bradtmiller personally waived his right to

      Court of Appeals of Indiana | Opinion 18A-CR-884 | October 17, 2018                           Page 1 of 5
      a jury trial on the underlying felonies, that waiver came before the State filed

      the habitual-offender enhancement. Contrary to the State’s argument on

      appeal, Bradtmiller’s waiver on the underlying felonies did not encompass a

      waiver on the yet-to-be filed habitual-offender enhancement. We therefore

      vacate Bradtmiller’s habitual-offender finding and the sentence imposed thereon

      and remand this case to the trial court for further proceedings.



                             Facts and Procedural History
[2]   In the summer of 2017, the State charged Bradtmiller with several felonies. At

      a pretrial conference on Monday, October 30, 2017, the State told the trial court

      about several pending motions in the case, including a motion to waive jury

      trial that Bradtmiller’s attorney had filed on October 27. The court then

      engaged Bradtmiller in a colloquy during which it informed Bradtmiller of his

      right to a jury trial, and Bradtmiller waived that right. See Pretrial Tr. p. 5.

      Also at this hearing, the State told the trial court that it had made a plea offer to

      Bradtmiller that expired at “the end of the week.” Id. at 4. The State said that

      if Bradtmiller did not accept its offer, it was going to file a habitual-offender

      enhancement on Friday. The court set a hearing for Friday, November 3 to see

      where matters stood.


[3]   At the hearing on Friday, Bradtmiller’s attorney informed the trial court that

      Bradtmiller was not accepting the State’s offer. The State then filed the

      habitual-offender enhancement in open court. Bradtmiller’s attorney told the

      trial court that “[w]e’re . . . wanting for the record to waive the Jury . . . [i]n

      Court of Appeals of Indiana | Opinion 18A-CR-884 | October 17, 2018           Page 2 of 5
      reference to the Habitual Offender Enhancement[.]” Id. at 9-10. Unlike the

      October 30 hearing, however, the court did not inform Bradtmiller of his right

      to a jury trial for the habitual-offender enhancement or otherwise engage in a

      colloquy with Bradtmiller regarding waiver.


[4]   A bench trial was held in February 2018, and the trial court found Bradtmiller

      guilty of the felonies and also found him to be a habitual offender. The court

      sentenced Bradtmiller to thirty-five years, including twenty years for the

      habitual-offender finding.


[5]   Bradtmiller now appeals.



                                  Discussion and Decision
[6]   Bradtmiller contends that he did not personally waive his right to a jury trial for

      the habitual-offender enhancement. The Indiana Supreme Court recently

      reaffirmed the personal-waiver requirement in Horton v. State, where it stated

      that the Indiana Constitution’s right to a jury trial “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.” 51 N.E.3d 1154, 1155 (Ind. 2016) (holding that Horton’s attorney’s

      waiver for the second phase of trial was not a personal waiver by Horton). The

      State does not argue that Bradtmiller personally waived his right to a jury trial

      for the habitual-offender enhancement at the November 3 hearing. Instead, the

      State argues that Bradtmiller’s personal waiver at the October 30 hearing


      Court of Appeals of Indiana | Opinion 18A-CR-884 | October 17, 2018          Page 3 of 5
      “encompassed the habitual offender enhancement.” Appellee’s Br. p. 12. The

      State reasons that although the habitual-offender enhancement was not filed at

      the time of the October 30 hearing, Bradtmiller and his attorney nevertheless

      knew that the State would file the habitual-offender enhancement if Bradtmiller

      did not accept the State’s offer.


[7]   We have addressed this argument from the State before. In O’Connor v. State,

      the State argued that while the habitual-offender enhancement “was not filed

      until well after O’Connor waived her right to a jury trial upon the underlying

      charges, O’Connor knew full well at the time that she waived jury trial that the

      State would file the habitual count if she did not accept the plea offer.” 796

      N.E.2d 1230, 1234 (Ind. Ct. App. 2003) (quotation omitted). We rejected the

      State’s argument:


              Even though O’Connor knowingly, voluntarily, and intelligently
              waived her right to a jury trial upon the underlying charges, we
              fail to see how O’Connor’s waiver was effective as to an habitual
              offender information which had yet to be filed. The record
              reveals that O’Connor was never advised of her right to a jury
              trial as to the habitual offender determination and that at no time
              after the State filed the habitual offender information did she
              waive her right to such. O’Connor’s waiver of her right to a jury
              trial was not made with sufficient awareness of the relevant
              circumstances surrounding its entry and its consequences so as to
              be deemed a voluntary, knowing, and intelligent waiver of her
              right to a jury trial as to the habitual offender determination.
              Therefore, we reverse the trial court’s habitual offender
              determination, vacate the sentence imposed thereon, and remand
              to the trial court for proceedings not inconsistent with this
              opinion.


      Court of Appeals of Indiana | Opinion 18A-CR-884 | October 17, 2018           Page 4 of 5
      Id. at 1235.


[8]   We reach the same result in this case. Because Bradtmiller was never advised

      of his right to a jury trial for the habitual-offender enhancement, his jury-trial

      waiver on October 30 was not made with sufficient awareness of the relevant

      circumstances and therefore did not apply to the later-filed habitual-offender

      enhancement. See Jones v. State, 810 N.E.2d 777, 780 (Ind. Ct. App. 2004) (“As

      in O’Connor, we believe Jones was not given the opportunity to voluntarily,

      knowingly and intelligently waive his right to trial by jury on the habitual

      offender count.”). We therefore reverse the trial court’s habitual-offender

      finding and the sentence imposed thereon and remand this case to the trial

      court for further proceedings.


[9]   Reversed and remanded.


      Riley, J., and Kirsch, J., concur.




      Court of Appeals of Indiana | Opinion 18A-CR-884 | October 17, 2018         Page 5 of 5
