MEMORANDUM DECISION
                                                                Aug 26 2015, 9:40 am
Pursuant to Ind. Appellate Rule 65(D), this
                                                                           Aug 26 2015, 9:40 am




Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Hilary Bowe Ricks                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Kevin Singh,                                             August 26, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1501-CR-37
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff.                                      Judge, and The Honorable Stanley
                                                         Kroh, Commissioner

                                                         Cause No. 49G03-1403-FC-11782




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-37 | August 26, 2015              Page 1 of 9
                                         Statement of the Case
[1]   Kevin Singh appeals the habitual offender enhancement to his sentence

      following his conviction for, among other things, stalking, as a Class C felony.

      The only issue he raises for our review is whether he knowingly, intelligently,

      and voluntarily waived his right to have a jury determine his status as an

      habitual offender. We affirm.


                                   Facts and Procedural History
[2]   On March 11, 2014, the State charged Singh with, among other things,1

      stalking, as a Class C felony. On July 25, 2014, the State filed a Motion

      Seeking Permission to Belatedly File Habitual Offender Enhancement and, on

      the same day, the trial court granted the motion. The trial court held an initial

      hearing on August 22, 2014, at which it explained to Singh the meaning of the

      habitual offender sentence enhancement and the possible penalties. Singh

      stated that he understood that information.


[3]   At a pretrial conference held on September 23, 2014, Singh filed a Waiver of

      Trial by Jury which stated, in relevant part:

              2. I have read this form[] and consulted with my attorney
              regarding the issue of waiving my right to a jury trial.




      1
       The State also charged Singh with seven counts of intimidation, each as a Class D felony, and thirty counts
      of invasion of privacy, each as a Class A misdemeanor. However, the State dismissed some of these counts,
      and the trial court merged the remaining intimidation and invasion of privacy counts with the stalking count
      due to double jeopardy concerns.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-37 | August 26, 2015             Page 2 of 9
         3. I understand that[,] as the Defendant in this criminal case, I
         have a right to trial by jury[] and that this right is guaranteed by
         the Constitutions of the United States and the State of Indiana.

         4. I understand that a jury trial means that . . . jurors . . . would
         be selected . . . to sit and listen to all of the evidence presented[]
         and then decide whether I am guilty beyond a reasonable doubt
         or not guilty of the charges filed against me in this cause.

         5. I understand that no one can take away my right to a jury trial
         unless I freely and voluntarily waive that right, and I understand
         that[,] once I waive my right to a jury trial, the waiver is final and
         I cannot get the right back.

         6. I understand that if this waiver is accepted by the Court I will
         not have a trial by jury[] and that this case will be set for a trial
         before a Judge who will hear all of the evidence and then decide
         whether I am guilty or not.


Appellant’s App. at 120. Upon receiving this waiver, the trial court placed

Singh under oath and questioned Singh’s understanding of the waiver as

follows:

         [THE COURT:] Have you had enough time, Mr. Singh, to talk
         with Mr. Tompkins, your attorney, about these two documents,[2]
         waiver of trial by jury?

         [THE DEFENDANT:] I have, Your Honor.




2
  At the pre-trial conference, Singh filed two waiver-of-jury-trial documents, one for the case at bar and one
for a separate, unrelated case pending before the same trial court. The substantive content of the waivers
were identical.

Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-37 | August 26, 2015                 Page 3 of 9
              [THE COURT:] Okay. And after reading them, you’ve also
              placed your signature here on the second page?

              [THE DEFENANT:] Correct.

              [THE COURT:] Do you believe that you understand these two
              pleadings?

              [THE DEFENDANT:] I fully understand.

              [THE COURT:] Okay. And I see they are identical. They are
              just filed on two separate cases. And what you’re advising the
              Court then is that you wish to waive your constitutional right to a
              jury trial on these two cases and have the case heard as a court
              trial rather than a jury trial?

              [THE DEFENDANT:] Correct.

              [THE COURT:] And do you believe that’s in your best interest
              in how to resolve these two cases?

              [THE DEFENDANT:] I do, Judge. I fully understand.

              [THE COURT:] Okay. And the Court notes that both attorneys
              have also signed.


      Tr. at 19-20. The Court then found that Singh had made a knowing, intelligent,

      and voluntary waiver of his right to trial by jury.


[4]   The bench trial began on October 17, 2014, and was continued to November

      25, 2014, at which time the trial court found Singh guilty of stalking, as a Class

      C felony. The court noted that the habitual offender issue still needed to be

      resolved, and the attorney for Singh requested that they “come back and do the

      habitual as part of the sentencing.” Id. at 249. The trial court granted that

      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-37 | August 26, 2015   Page 4 of 9
      request, and noted the habitual offender sentence enhancement would “proceed

      to the court trial” on December 12, 2014. Id. at 253.


[5]   On December 12, 2014, the court conducted a continuation of the bench trial,

      wherein Singh stipulated to the prior convictions offered by the State to

      establish his eligibility for habitual offender enhancement. In return, the State

      agreed that Singh’s total sentence would be limited to “a cap of fourteen years

      on the overall sentence.” Id. at 256. The court noted the parties’ agreement

      and concluded that the State had proved beyond a reasonable doubt that Singh

      was an habitual offender.


[6]   On January 9, 2015, the trial court sentenced Singh to six years on the stalking

      count, with four years suspended. The court enhanced that sentence by six

      years of executed time due to the habitual offender determination, for a total

      sentence of twelve years, with four years suspended and eight years executed.

      This appeal ensued.


                                     Discussion and Decision
[7]   Singh argues that he did not voluntarily, knowingly, and intelligently waive his

      right to a jury trial on the habitual offender determination. “The United States

      and Indiana Constitutions guaranty the right to trial by jury.” Dixie v. State, 726

      N.E.2d 257, 258 (Ind. 2000) (footnotes omitted); see U.S. Const. amend.

      VI (guaranteeing “the right to a speedy and public trial, by an impartial jury” in

      all criminal prosecutions); Ind. Const. art. 1, § 13 (guaranteeing the right to “a

      public trial, by an impartial jury,” in all criminal prosecutions). The right to a

      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-37 | August 26, 2015   Page 5 of 9
      jury trial applies to habitual offender proceedings. Hogan v. State, 966 N.E.2d

      738, 748 (Ind. Ct. App. 2012), trans. denied. A criminal defendant is presumed

      not to waive this right unless he affirmatively acts to do so. Id. It is

      fundamental error to deny a defendant a jury trial unless there is evidence of the

      defendant’s knowing, voluntary, and intelligent waiver of the right. Id. A

      defendant must express his personal desire to waive a jury trial, and such

      personal desire must be apparent from the trial court’s record. Poore v. State,

      681 N.E.2d 204, 206 (Ind. 1997).


[8]   There is no question that Singh filed a written, signed waiver of jury trial. A

      defendant’s filing of such a signed document demonstrates a personal desire to

      waive the right to a jury. Johnson v. State, 6 N.E.3d 491, 497 (Ind. Ct. App.

      2014). And “a lawyer’s signature on a waiver implies that the defendant acted

      upon the advice and information of legal counsel.” Id.; see also Poore, 681

      N.E.2d at 207 (“[A] defendant’s understanding may be inferred when he and

      his attorney both sign a written waiver of the jury trial right and file it in open

      court.”). Both Singh and his attorney signed Singh’s written jury-trial waiver,

      and it explicitly states that Singh consulted with his attorney about the waiver.

      This demonstrates Singh’s knowing and voluntary waiver of his right to a jury

      trial.


[9]   Moreover, a knowing jury-trial waiver can be demonstrated by a court record of

      advisement on the waiver of jury trial and a colloquy in open court. See, e.g.,

      McSchooler v. State, 15 N.E.3d 678, 683 (Ind. Ct. App. 2014) (holding that the

      defendant’s waiver of his right to a jury trial was knowingly made where

      Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-37 | August 26, 2015   Page 6 of 9
       defendant was advised of his right to trial by jury and he expressed a personal

       desire on the record to waive that right). Here, the court placed Singh under

       oath and questioned him thoroughly about his understanding of the jury

       waiver. Singh testified that he had spoken with his attorney about the waiver,

       that he “fully” understood the jury waiver, that he wished to waive a jury trial

       on the case and have “the case heard as a court trial rather than a jury trial,”

       and that he believed the waiver was the best way to resolve his case. Tr. at 19-

       20. Singh also testified that he “waived jury not only to not waste the Court’s

       time and resources” but also because he thought his case was “better suited for

       a bench trial.” Id. at 302. Singh’s familiarity with the judicial process is not

       surprising, given his criminal history.3 See, e.g., McSchooler, 15 N.E.3d at 683

       (finding that the defendant’s “somewhat extensive criminal history makes it

       likely that he knew very well what a jury was and what it meant to waive a jury

       trial.”). Singh’s testimony evinces his understanding of the waiver of his right

       to a jury trial in his case.


[10]   But Singh argues that his waiver was not intelligent because he did not know

       the waiver applied to the habitual offender determination. We addressed this

       precise issue in Pryor v. State, 949 N.E.2d 366, 372 (Ind. Ct. App. 2011), where

       we held that a jury-trial waiver that applied to “the case” was sufficient to

       encompass all stages of the proceedings, including the habitual offender phase.

       In Pryor, as in the case at bar, the defendant claimed that his written jury-trial



       3
           Singh had at least two prior Class D felony convictions.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-37 | August 26, 2015   Page 7 of 9
       waiver was invalid because he had not been advised that a waiver on the

       charged offenses also constituted a waiver on his habitual offender

       determination. Yet, as in the case at bar, Pryor’s waiver stated that it applied to

       “the case”:


               Here, Pryor executed a waiver acknowledging his right to have a
               jury hear “his case” and asking that “this case” be set for trial by
               the court. Pryor affirmed to the court that he understood his
               right to have a jury hear his “case” and that he wanted a judge to
               hear the “case” instead. At the time of the waiver submission
               and colloquy, the State had filed all charges including the
               habitual offender count. The court had also convened a hearing
               on the State’s notice of filing of habitual offender charge. Pryor
               was thus aware that his “case” included a habitual offender
               allegation and, upon conviction, would involve a habitual
               offender status determination. . . . The advisement’s application
               to Pryor’s “case” sufficed to encompass all stages of the
               proceedings including the habitual offender phase. We therefore
               cannot say that Pryor’s advisement was deficient nor that his jury
               trial waiver was involuntary, unknowing, or unintelligent.

       Id.; see also Johnson, 6 N.E.3d at 497 (holding that, where the defendant’s

       written jury trial waiver only listed one of the charges against him, it was still a

       voluntary, knowing, and intelligent waiver of the right to a jury on all counts in

       his case where the written wavier asked that the case be tried to the court).


[11]   Here, as in Pryor, the written waiver states that Singh will not have a trial by

       jury, and that “this case” will be set for a trial before a judge. Appellant’s App.

       at 120. Moreover, Singh’s written waiver was filed approximately two months

       after the State had filed its information charging him as an habitual offender,


       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-37 | August 26, 2015   Page 8 of 9
       and approximately one month after the court had conducted an initial hearing

       at which it explained to Singh the meaning of the habitual offender sentence

       enhancement and the possible penalties. And, after the filing of the waiver but

       before the hearing on the habitual offender enhancement, the trial court

       explicitly stated that the habitual offender sentence enhancement would

       “proceed to the court trial” on December 12, 2014. Tr. at 253. Thus, as in

       Pryor, Singh was aware that “the case” included a habitual offender

       determination. Cf. Jones v. State, 810 N.E.2d 777, 779-80 (Ind. Ct. App. 2004)

       (holding that the defendant did not voluntarily, knowingly, and intelligently

       waive his right to a jury trial on an habitual offender determination where his

       waiver of jury trial was made before the habitual offender information had been

       filed). The record establishes that Singh’s waiver of his right to jury trial was

       voluntary, knowing, and intelligent as to all stages of the proceedings in his

       case. Accordingly, we affirm his sentence.


[12]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1501-CR-37 | August 26, 2015   Page 9 of 9
