                                                                       FILED
                                                                  Aug 08 2017, 7:39 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Suzy St. John                                              Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana

                                                           Angela N. Sanchez
                                                           Supervising Deputy Attorney
                                                           General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Evaristo Martinez,                                         August 8, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1609-CR-2155
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Rebekah F.
Appellee-Plaintiff                                         Pierson-Treacy, Judge
                                                           The Honorable Ronnie Huerta,
                                                           Commissioner
                                                           Trial Court Cause No.
                                                           49G19-1511-CM-41708



Altice, Judge.


                                           Case Summary



Court of Appeals of Indiana | Opinion 49A02-1609-CR-2155 | August 8, 2017                  Page 1 of 11
[1]   Following a bench trial, Evaristo Martinez was convicted of Class A

      misdemeanor operating a vehicle while intoxicated (OWI). On appeal,

      Martinez argues that his conviction must be reversed because he did not validly

      waive his right to a jury trial.


[2]   We affirm.


                                        Facts & Procedural History


[3]   On November 22, 2015, Martinez was pulled over for speeding and failing to

      signal a left turn. Martinez exhibited signs of intoxication, and after failing a

      field sobriety test, he was transported to the police station where a chemical

      breath test revealed that he had an alcohol concentration equivalent of 0.129

      grams of alcohol per 210 liters of breath.


[4]   As a result of these events, Martinez was charged with two OWI offenses, one

      as a Class A misdemeanor and one as a Class C misdemeanor, as well as Class

      C misdemeanor driving without ever receiving a license. At the initial hearing,

      Martinez (who speaks limited English) received a written advisement of rights

      form in Spanish. The form advised Martinez that he had a right to a jury trial,

      and that because he was charged with misdemeanors, he would be required to

      file a petition requesting a jury trial at least ten days before the trial date if he




      Court of Appeals of Indiana | Opinion 49A02-1609-CR-2155 | August 8, 2017     Page 2 of 11
      wished to exercise that right.1 The form further advised that if no timely jury

      request was filed, Martinez would waive his right to be tried by a jury.

      Martinez signed the form, indicating that he had read and understood his

      rights.


[5]   Martinez retained counsel the day after the initial hearing, and he was

      continuously represented by counsel through trial. At a pretrial conference on

      February 25, 2016, the trial court issued a case management order setting a trial

      date of June 9, 2016. The order also contained the following paragraph:

                Monday, Thursday, and Friday trial settings are 1 day trials. If a
                jury is demanded by either the Defendant or the State, then the
                jury will be heard on the same date as the court trial setting.
                Written jury waviers [sic] will not be granted less than 30 days
                prior to the trial date. Oral jury waviers [sic] will not be
                accepted. Jury demand by the State must be in writing and filed
                no less than 30 days prior to the trial date. Continuances are
                disfavored.


      Appellant’s Appendix at 26.


[6]   Martinez did not file a request for a jury trial, and this case proceeded to a

      three-day bench trial, at the conclusion of which he was found guilty of the

      OWI offenses. The State dismissed the driving without ever receiving a license

      charge, and the trial court vacated the judgment of conviction for the Class C




      1
        A copy of this form has been included in the Appellant’s Appendix. In his brief, Martinez has provided a
      translation of the relevant portion of the form obtained using Google Translate. The State does not dispute
      the accuracy of the translation Martinez has provided.

      Court of Appeals of Indiana | Opinion 49A02-1609-CR-2155 | August 8, 2017                        Page 3 of 11
      misdemeanor OWI. On the remaining Class A misdemeanor, the trial court

      sentenced Martinez to 178 days, with sixty days executed on home detention

      and the balance suspended to probation. Martinez now appeals.


                                             Discussion & Decision


[7]   On appeal, Martinez argues that he did not validly waive his right to a jury

      trial. We note, however, that Martinez has not provided us with transcripts of

      any of the pretrial hearings in this case, which would be integral to our review

      of his arguments.2 It is well settled that it is the appellant’s burden to provide us

      with an adequate record to permit meaningful appellate review. Wilhoite v.

      State, 7 N.E.3d 350, 354-55 (Ind. Ct. App. 2014). We acknowledge that in his

      notice of appeal, Martinez requested transcripts of “all relevant pre-trial

      proceedings[.]” Appellant’s Appendix Vol. 2 at 23. Nevertheless, when Martinez

      received an incomplete transcript, it was his obligation to request

      supplementation of the record and, if a transcript of the pretrial proceedings was

      unavailable for some reason, to prepare a statement of evidence as set forth in

      Ind. Appellate Rule 31. Martinez did neither,3 and has therefore failed to meet

      his burden to present us with an adequate record. Accordingly, he has waived



      2
        In addition to his initial hearing and the February 25, 2016 pretrial conference at which the trial court
      issued the case management order mentioned above, the CCS indicates that another pretrial conference was
      held on March 31, 2016.
      3
        On December 22, 2016, Martinez requested and was granted an extension of time from this Court to obtain
      supplemental transcripts, to which he attached a copy of the motion he had filed in the trial court pursuant to
      Ind. Appellate Rule 9. In the motion, he requested transcripts of the first two days of the trial proceedings,
      which took place on June 9 and July 14, 2016, as well as a conference held on August 4, 2016, prior to the
      last day of trial. He did not seek to have any of the pretrial proceedings transcribed at that time.

      Court of Appeals of Indiana | Opinion 49A02-1609-CR-2155 | August 8, 2017                          Page 4 of 11
      his claims of error on appeal. See Davis v. State, 935 N.E.2d 1215, 1217 (Ind. Ct.

      App. 2010) (finding waiver based on defendant’s failure to provide a transcript

      of the relevant proceedings).


[8]   Waiver notwithstanding, we will address Martinez’s arguments to the extent

      the limited record permits. His claims are twofold. First, he argues that

      requiring a person charged with a Class A misdemeanor to follow the

      procedures set forth in Ind. Criminal Rule 22 in order to exercise his or her right

      to a jury trial violates the Sixth Amendment to the U.S. Constitution. Second,

      he argues that the record in this case does not reflect a knowing and intelligent

      waiver because the trial court gave him contradictory and ambiguous

      advisements concerning his right to a jury trial.


[9]   “The right to a jury trial in misdemeanor cases is not self-executing, but is

      controlled by Indiana Rule of Criminal Procedure 22.” Fiandt v. State, 996

      N.E.2d 421, 423 (Ind. Ct. App. 2013). Ind. Crim. Rule 22 provides in relevant

      part as follows:

              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.




      Court of Appeals of Indiana | Opinion 49A02-1609-CR-2155 | August 8, 2017    Page 5 of 11
       Martinez acknowledges that he was charged with misdemeanors and did not

       request a jury trial as Crim. R. 22 requires. He argues instead that requiring

       him to make such a request in order to preserve his right to a jury trial is

       unconstitutional. Specifically, he argues that in order for a jury waiver to be

       valid under the Sixth Amendment when a defendant is charged with a Class A

       misdemeanor,4 the defendant must personally indicate a desire to waive that

       right, either in writing or verbally in open court.


[10]   Our Supreme Court recently discussed the jury trial right in Horton v. State:


                The jury trial right is a bedrock of our criminal justice system,
                guaranteed by both Article I, Section 13 of the Indiana
                Constitution and the Sixth Amendment to the United States
                Constitution. In broad view, federal and Indiana constitutional
                jury trial rights guarantee the same general protection—a
                criminal defendant must receive a jury trial, unless he waives it.
                Waiver of the Sixth Amendment jury trial right must be “express
                and intelligent,” Patton v. United States, 281 U.S. 276, 312, 50 S.
                Ct. 253, 74 L.Ed. 854 (1930), and waiver of the Indiana
                constitutional jury trial right must be “knowing, voluntary[,] and
                intelligent,” Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989).


                But the Indiana jury trial right provides greater protection
                because, in a felony prosecution, waiver is valid only if



       4
        The Sixth Amendment guarantees the right to a jury trial for all “serious infractions.” Duncan v. Louisiana,
       391 U.S. 145, 160-61 (1968). Serious infractions are those for which the maximum sentence exceeds six
       months. Baldwin v. New York, 399 U.S. 66, 69 (1970). Because the maximum sentence for a Class A
       misdemeanor is one year, the Sixth Amendment right to a jury trial applies. See Ind. Code § 35-50-3-2.
       Because the maximum sentences for Class B and C misdemeanors do not exceed six months, the Sixth
       Amendment does not guarantee a right to a jury trial for such offenses. See I.C. §§ 35-50-3-3, -4. The Indiana
       Constitution, however, guarantees the right to a jury trial “[i]n all criminal prosecutions[.]” Ind. Const. Art.
       1, § 13.

       Court of Appeals of Indiana | Opinion 49A02-1609-CR-2155 | August 8, 2017                          Page 6 of 11
               communicated personally by the defendant, Kellems [v. State, 849
               N.E.2d 1110,1114 (Ind. 2006)]—an issue which, under the Sixth
               Amendment, has split federal circuit courts of appeals. Compare
               United States v. Khan, 461 F.3d 477, 492 (4th Cir. 2006)
               (upholding written waiver signed only by counsel), and United
               States v. Leja, 448 F.3d 86, 94–95 (1st Cir. 2006) (same), and
               United States v. Page, 661 F.2d 1080, 1081–82 (5th Cir.1981)
               (upholding oral waiver by counsel), with United States v. Diaz, 540
               F.3d 1316, 1321–22 (11th Cir. 2008) (refusing to uphold written
               waiver signed only by counsel).


       51 N.E.3d 1154, 1158 (Ind. 2016) (emphasis supplied). The court went on to

       explain that “Indiana’s personal waiver requirement derives from the statutory

       procedure for waiving the state constitutional jury trial right.” Id. The relevant

       statute, Ind. Code § 35-37-1-2, provides that “[t]he 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.” (emphasis supplied). As set forth above, Crim.

       R. 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, 51 N.E.3d at 1158, n.1.


[11]   In support of his argument that there is nevertheless a personal waiver

       requirement emanating from the Sixth Amendment and applicable where a

       defendant is charged only with misdemeanors, Martinez directs our attention to

       Jean-Baptiste v. State, 71 N.E.3d 406 (Ind. Ct. App. 2017), petition for trans. filed.

       In that case, another panel of this court reversed a misdemeanor conviction,

       based in part on its sua sponte conclusion that the defendant, who had not

       Court of Appeals of Indiana | Opinion 49A02-1609-CR-2155 | August 8, 2017      Page 7 of 11
       complied with Crim. R. 22 but requested a jury trial on the day of his scheduled

       bench trial, was nevertheless entitled to a trial by jury. The court held that it

       was fundamental error to deny the jury trial request because “[a]bsent his

       personal waiver of his right to a jury trial on the record, the court was required

       under the Sixth Amendment to presume that a defendant charged with a Class

       A misdemeanor desired a jury trial, not a bench trial.” Jean-Baptiste, 71 N.E.3d

       at 412.


[12]   As an initial matter, we note that by failing to provide us with transcripts of the

       pretrial proceedings, Martinez has not provided us with a record sufficient to

       support a finding that he did not personally waive his right to a jury trial

       verbally and in open court. This is not a case where the record is silent or

       missing—Martinez has simply failed to provide us with the relevant transcripts.

       See Fiandt, 996 N.E.2d at 424 (explaining that a record is “silent” when an

       existing transcript fails to reveal a proper advisement, while a “missing” record

       is one in which the transcript is unavailable and cannot be reconstructed).

       Martinez cannot create a presumption that no personal waiver occurred by

       providing an incomplete record.


[13]   In any event, even if we assume that Martinez did not personally waive his

       right to a jury trial, we conclude that no such waiver was constitutionally

       required. Because we believe it represents a departure from a long line of case

       law, we decline to follow Jean-Baptiste. See Smith v. State, 21 N.E.3d 121, 126

       (Ind. Ct. App. 2014) (explaining that this court does not recognize horizontal



       Court of Appeals of Indiana | Opinion 49A02-1609-CR-2155 | August 8, 2017   Page 8 of 11
       stare decisis, and although we consider and respect the decisions of other

       panels, we are not bound by them).


[14]   None of the cases cited in Jean-Baptiste held that the Sixth Amendment requires

       a personal waiver of the jury trial right in a misdemeanor case—or even in a

       felony case, for that matter.5 In Horton, our Supreme Court recognized a

       personal waiver requirement in felony cases emanating from state statute, but

       the relevant statute plainly does not require a personal waiver where a

       defendant is charged with misdemeanors only. Moreover, Indiana courts have

       routinely noted that misdemeanor defendants waive their right to a jury trial by

       failing to make a timely jury demand—no affirmative waiver is required. See,

       e.g., Hutchins v. State, 493 N.E.2d 444, 445 (Ind. 1986) (explaining that a

       misdemeanant waives a jury trial by failing to request one); Fiandt, 996 N.E.2d

       at 423 (holding that the misdemeanor defendant waived his right to a jury trial

       by operation of law by failing to file a timely request, and that he “did not have

       to make a personal, express, on-the-record statement that he was knowingly,




       5
         The court quoted Casselman v. State, 472 N.E.2d 1310, 1311 n.1 (Ind. Ct. App. 1985), for the proposition
       that waiver of a jury trial right cannot be presumed from a silent record. But the Casselman court was
       concerned with whether the misdemeanor defendant had been properly advised that failure to timely request
       a jury trial would result in waiver. Because the record reflected no such advisement, the defendant’s failure
       to request a jury trial did not constitute a valid waiver. Cf. Greene v. State, 670 N.E.2d 38, 39 (Ind. Ct. App.
       1996) (explaining that when the record contains a written advisement complete with a misdemeanor
       defendant’s signature, the record is not silent on the matter of waiver), trans. denied.
       The court also cited Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984), in which our Supreme Court recognized
       a statutory personal waiver requirement based on a prior version of I.C. § 35-37-1-2. No constitutional
       provisions are mentioned in that case.
       Finally, the court cited Judge Najam’s dissent in Fiandt v. State, but the majority in that case held that the
       misdemeanor defendant was not required to affirmatively waive his right to a jury trial on the record. 996
       N.E.2d at 423.

       Court of Appeals of Indiana | Opinion 49A02-1609-CR-2155 | August 8, 2017                            Page 9 of 11
       intelligently, and voluntarily waiving his right to a jury trial”); Young v. State,

       973 N.E.2d 643, 645 (Ind. Ct. App. 2012) (“although a [misdemeanor]

       defendant must be advised of her constitutional right to a jury trial, a written

       advisement of her rights and the consequences of failure to make a timely

       demand is sufficient to act as a waiver of said right”). For all of these reasons,

       we reject Martinez’s arguments with respect to the constitutionality of Crim. R.

       22 as applied to individuals charged with Class A misdemeanors.


[15]   Martinez also argues that the record in this case does not reflect a knowing and

       voluntary waiver of his right to a jury trial because he was given contradictory

       advisements on how to exercise that right. Martinez does not dispute that the

       advisement of rights form he signed at his initial hearing adequately advised

       him of his right to a jury trial and the consequences of his failure to make a jury

       demand, nor does he assert that he was incapable of understanding the

       advisement. Rather, he argues that this advisement was contradicted by the

       language of the February 25, 2016 case management order, which he claims

       “advised [him] that if he wished to waive his right to a jury trial, he must do so

       affirmatively in writing.” Appellant’s Brief at 11. Putting aside the question of

       whether this is a plausible reading of the case management order, and further

       assuming that Martinez was aware of and understood the order, which was

       written in English, the absence of transcripts of the initial hearing and pretrial

       conferences precludes us from conducting meaningful appellate review of this

       issue. Martinez has not established reversible error on this basis.


[16]   Judgment affirmed.

       Court of Appeals of Indiana | Opinion 49A02-1609-CR-2155 | August 8, 2017   Page 10 of 11
[17]   Kirsch, J. and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1609-CR-2155 | August 8, 2017   Page 11 of 11
