MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                        Jun 20 2017, 9:12 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
Thomas P. Keller                                         Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Frank E. Puzynski,                                       June 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A04-1611-CR-2511
        v.                                               Appeal from the
                                                         St. Joseph Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Jeffrey L. Sanford, Judge
                                                         Trial Court Cause No.
                                                         71D03-1503-F5-31



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2511 | June 20, 2017     Page 1 of 6
[1]   Frank E. Puzynski (“Puzynski”) was convicted after a bench trial of operating a

      motor vehicle while privileges are forfeited for life, 1 a Level 5 felony, and failure

      to remain at the scene of an accident 2 as a Class B misdemeanor. He was

      sentenced to six years executed for the convictions. Puzynski appeals and raises

      the following restated question for our review: whether the trial court

      committed fundamental error because it failed to advise him of his right to

      testify at trial.


[2]   We affirm.


                                        Facts and Procedural History
[3]   On the night of February 23, 2015, a truck, later identified as belonging to

      Puzynski, was involved in an accident, in which the truck struck two parked

      cars in South Bend, Indiana. A witness observed a light-skinned man running

      away from the truck. Officers from the South Bend Police Department arrived

      at the scene of the accident and found no one inside Puzynski’s truck.

      Puzynski’s cell phone was discovered in the truck, and it was still connected to

      the truck’s stereo system and playing music.


[4]   Later that night, Puzynski’s wife, Tina Puzynski (“Tina”), contacted the

      Mishawaka Police Department and reported Puzynski’s truck had been stolen

      from the Mishawaka Walmart, her place of employment. On February 25,



      1
          See Ind. Code § 9-30-10-17.
      2
          See Ind. Code § 9-26-1-1.1(b).


      Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2511 | June 20, 2017   Page 2 of 6
      2015, Puzynski called the South Bend Police Department and inquired about

      the release of his truck. The police told Puzynski that the truck could not be

      released at that time.


[5]   Puzynski and Tina agreed to come to the police station to be interviewed by the

      police. Prior to the interview, the police had spoken to a witness and viewed

      surveillance video of the Walmart parking lot. The information gained from

      the witness and video reflected that Puzynski had driven his truck to Walmart

      to drop Tina off at work earlier in the day on February 23 and that the truck

      had not been parked in the Walmart employee parking lot that day as Tina

      claimed. When the police confronted Tina with this information, she admitted

      that, at Puzynski’s direction, she had lied about the theft of the truck since he

      was not supposed to drive due to being a habitual traffic offender.


[6]   During the interview, Puzynski claimed that he had not driven his wife to work

      on February 23 and that Tina had driven herself to work. Puzynski stated that

      he was supposed to pick up the truck later that day to drive it to a job site, but

      that the job got canceled, and he spent the evening at a friend’s house instead.

      He gave the police the address of the canceled job, but the address turned out to

      be a fictitious address. Maurice Brown (“Brown”) was the name of the friend

      that Puzynski claimed he had spent the evening with on February 23. Brown

      and his wife later testified at trial that Puzynski was with them that night. The

      police examined the cell phone found in Puzynski’s truck at the time of the

      accident, and such examination showed that Puzynski had called Brown during

      the time that Puzynski claimed to be with Brown at his home.

      Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2511 | June 20, 2017   Page 3 of 6
[7]   On March 5, 2015, the State charged Puzynski with operating a motor vehicle

      while privileges are forfeited for life as a Level 5 felony and failure to remain at

      the scene of an accident as a Class B misdemeanor. Puzynski waived a jury

      trial, and a bench trial was held on August 19, 2016. At the conclusion of trial,

      the trial court found Puzynski guilty as charged. The trial court sentenced

      Puzynski to six years executed. Puzynski now appeals.


                                     Discussion and Decision
[8]   Puzynski argues that he was denied his right to testify, which is guaranteed

      under the Indiana Constitution. He contends that the trial court has an

      affirmative duty to inquire directly as to whether a defendant wishes to testify at

      trial and that, at his trial, the trial court did not advise Puzynski that he had a

      right to testify. Puzynski asserts that the trial court committed fundamental

      error when it failed to conduct a discussion as to whether or not he wished to

      testify.


[9]   Puzynski concedes that he did not object or raise this issue to the trial court and

      has waived this claim. Therefore, his argument is reviewed for fundamental

      error. The doctrine of fundamental error is only available in egregious

      circumstances. Dickerson v. State, 957 N.E.2d 1055, 1057 (Ind. Ct. App. 2011)

      (citing Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), trans. denied. “The

      mere fact that error occurred and that it was prejudicial will not satisfy the

      fundamental error rule.” Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App.

      2007). Similarly, in order to invoke the fundamental error doctrine, it is not


      Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2511 | June 20, 2017   Page 4 of 6
       enough to claim that a constitutional right is implicated. Dickerson, 957 N.E.2d

       at 1057. “[W]hen the issue is raised in terms of fundamental error, a defendant

       must demonstrate that the [constitutional] error worked to his actual and

       substantial disadvantage, infecting and tainting the entire trial.” Akard v. State,

       924 N.E.2d 202, 209 (Ind. Ct. App. 2010), aff’d in relevant part, 937 N.E.2d 811

       (2010). That is, the error must be so prejudicial to the rights of the defendant as

       to make a fair trial impossible. Dickerson, 957 N.E.2d at 1057.


[10]   The right to testify on one’s own behalf in a criminal proceeding has been

       described by the United States Supreme Court as “a right implicit in the

       Constitution.” United States v. Dunnigan, 507 U.S. 87, 96 (1993). The accused’s

       right to testify is guaranteed by the Sixth Amendment and Article 1, section 13

       of the Indiana Constitution. Baxter v. State, 522 N.E.2d 362, 368 (Ind. 1988).

       “However, a trial court judge has no affirmative duty to insure [sic] that a

       defendant represented by counsel knowingly and intelligently waived his right

       to testify at trial.” Vanzandt v. State, 730 N.E.2d 721, 723 (Ind. Ct. App. 2000)

       (citing Correll v. State, 639 N.E.2d 677, 681-82 (Ind. Ct. App. 1994)). A trial

       court is entitled to presume that a lawyer and his client have discussed the

       possibility of testifying. Phillips v. State, 673 N.E.2d 1200, 1202 (Ind. 1996).


[11]   In the present case, Puzynski was represented by counsel at trial. Therefore,

       because trial courts have no duty to make sure that a defendant who is

       represented by counsel has knowingly and intelligently waived his right to

       testify at trial, the fact that the trial court did not do so here cannot be error. Id.



       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2511 | June 20, 2017   Page 5 of 6
       Puzynski has failed to establish that the trial court committed fundamental

       error.3


[12]   Affirmed.


[13]   Mathias, J., and Altice, J., concur.




       3
         Puzynski attempts to distinguish the present case from Phillips v. State, 673 N.E.2d 1200 (Ind. 1996) and
       Correll v. State, 639 N.E.2d 677 (Ind. Ct. App. 1994), which both held that a trial court has no affirmative duty
       to ensure a counseled defendant knowingly and intelligently waived his right to testify at trial. Phillips, 673
       N.E.2d at 1202; Correll, 639 N.E.2d at 681-82. He contends that Phillips is distinguishable because in that
       case the defendant’s counsel stated on the record that his client would not be testifying. Appellant’s Br. at 11.
       He also claims that Correll is distinguishable because there the trial court at least discussed the defendant’s
       right to testify during jury instructions. Id. Puzynski asserts that, in both of these cases, the defendants were
       at least made aware of the right to testify and that, here, “there is no mention anywhere in the record that
       Puzynski had the right, much less gave it up.” Id. at 12. However, we find this argument to have no merit.
       The facts highlighted by Puzynski in these two cases did not substitute for the duty Puzynski alleges he was
       deprived of. Puzynski has not shown fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 71A04-1611-CR-2511 | June 20, 2017                 Page 6 of 6
