                                                                  FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                           Jan 30 2013, 8:48 am
any court except for the purpose of
establishing the defense of res judicata,                              CLERK
                                                                     of the supreme court,
collateral estoppel, or the law of the case.                         court of appeals and
                                                                            tax court




ATTORNEY FOR APPELLANT:                                     ATTORNEYS FOR APPELLEE:

ELIZABETH A. GABIG                                          GREGORY F. ZOELLER
Indianapolis, Indiana                                       Attorney General of Indiana

                                                            ELLEN H. MEILAENDER
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

MONIQUE ROWE,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 49A05-1204-JM-165
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


         APPEAL FROM THE MARION SUPERIOR COURT JUVENILE DIVISION
                     The Honorable Marilyn A. Moores, Judge
                     The Honorable Roseanne Ang, Magistrate
                        Cause No. 49D09-1012-JM-55252


                                         January 30, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

          Monique Rowe (“Rowe”) appeals her conviction for Failure to Ensure School

Attendance, a Class B misdemeanor.1 Rowe presents for our review one issue, which we

restate as whether she was unlawfully denied her right to a jury trial.

          We affirm.

                                  Facts and Procedural History

          Rowe’s daughter, L.R., was enrolled at Indianapolis Public School #93 for the 2010-

11 school year. During the fall of 2010, L.R., then eight years old, accumulated thirteen

unexcused absences from school and nineteen tardies. Lori Kurtz (“Kurtz”), the school

social worker responsible for attendance issues, contacted Rowe multiple times by phone, in

person, and by letter regarding L.R.’s unexcused absences. While Rowe initially provided no

explanation for L.R.’s absences, she eventually told Kurtz that L.R. had asthma. However,

the “Certificate of Child’s Incapacity” provided to the school by L.R.’s doctor stated the

school should anticipate her to have “Regular Daily Attendance.” (State’s Ex. 1 at 8.)

          On November 19, 2010, the State charged Rowe with Failure to Ensure School

Attendance, a Class B misdemeanor. The trial court conducted initial hearings on January

31, 2011, and February 14, 2011. During the February 14, 2011 initial hearing, Rowe was

presented with an “Initial Hearing Rights” form, which stated in part that:

          You have the right to a trial by jury. If you wish to have a trial by jury, you must
          make your request at least ten (10) days prior to your trial setting. If you do not
          request a jury trial at least ten (10) days prior to your trial setting, you waive your
          right to a trial by jury. If you want a jury trial, you must make a timely request even if

1
    Ind. Code §§ 20-33-2-27 & 20-33-2-44.

                                                  2
        you do not have an attorney.

(App. at 11 and 41; Tr. at 66.) Rowe signed the form beneath a line which stated, “I have

read these rights and believe that I understand them.” (App. at 11 and 41; Tr. at 66.)2

        At a hearing on March 14, 2011, Rowe asked the trial court to set a denial hearing, but

made no request for a jury trial. At a hearing on July 18, 2011, Rowe asked the trial court to

set a trial date, but again made no request for a jury trial. The trial court scheduled the trial

for September 12, 2011, but later continued the trial to October 24, 2011. After Rowe failed

to appear for a pre-trial conference on October 3, 2011, the October 24, 2011 trial date was

converted to a pre-trial hearing.

        A different magistrate presided over the October 24, 2011 pre-trial hearing than had

presided over the previous hearings. At that hearing, Rowe orally requested a jury trial and

the magistrate, stating that Rowe was entitled to a jury trial, scheduled the trial for December

12, 2011. However, on December 12, 2011, the regular magistrate denied Rowe’s request for

a jury trial because it had not been made prior to the first trial setting, and continued the trial

until February 13, 2012.

        At the conclusion of the February 13, 2012 bench trial, the trial court found Rowe

guilty as charged and entered a judgment of conviction against her. During a sentencing

hearing on March 12, 2012, the trial court sentenced Rowe to 120 days of probation. She

now appeals.

2
  Rowe confirmed in open court she had signed the Initial Hearing Rights form. (Tr. at 66.) Rowe states
the signed copy of her Initial Hearing Rights form was unavailable for inclusion in her Appellant’s
Appendix because it was lost, according to the Office Manager of the Marion County Juvenile Court.
(Appellant’s Br. at 2, n. 1.)

                                                    3
                                  Discussion and Decision

                                  Indiana Criminal Rule 22

       Rowe contends she was deprived of her right to a jury trial when the trial court applied

Indiana Criminal Rule 22 instead of Indiana Code section 31-32-6-7(b).

       The United States and Indiana Constitutions guarantee a criminal defendant’s right to

due process of law. U.S. Const. amends. VI & XIV; Ind. Const. art. I, § 13; Duncan v.

Louisiana, 391 U.S. 145, 147-48, 88 S. Ct. 1444, 1446-47 (1968). Among these rights, a

criminal defendant has the right to a fair trial in a fair tribunal. See Everling v. State, 929

N.E.2d 1281, 1287 (Ind. 2010) (“[a] trial before an impartial judge is an essential element of

due process[]”). A criminal defendant also has the right to a jury trial. See Duncan, 391 U.S.

at 149, 88 S. Ct. at 1447-48; Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997).

       In Indiana, the right to a jury trial is further guaranteed by Indiana Code section 35-37-

1-2, pursuant to which all criminal trials must be tried before a jury unless there is a joint

waiver by the defendant, the prosecutor, and the trial judge. I.C. § 35-37-1-2; see also

Arnold v. State, 460 N.E.2d 494, 496 (Ind. 1984). Furthermore, an adult charged with a

crime arising in the juvenile code must be tried before a jury unless the adult requests a bench

trial. I.C. § 31-32-6-7(b).

       In misdemeanor cases, however, a defendant’s right to a jury trial is not self-executing

but is controlled by Rule 22. See Liquori v. State, 544 N.E.2d 199, 201 (Ind. Ct. App. 1989).

Rule 22 provides that a defendant charged with a misdemeanor may demand a jury trial by

filing a written demand at least ten days before the first scheduled trial date. Ind. Crim. Rule


                                               4
22. Failure to demand a trial by jury waives a defendant’s right to a jury trial “unless the

defendant has not had at least fifteen (15) days advance notice of [her] scheduled trial date

and of the consequences of [her] failure to demand a trial by jury.” Id. We have recently

held that Rule 22 applies to criminal misdemeanor charges arising from offenses set forth in

the juvenile code, even if Indiana Code section 31-32-6-7(b) otherwise would apply. See

Young v. State, 973 N.E.2d 643, 645-46 (Ind. Ct. App. 2012).

       Here, Rowe was convicted of Failure to Ensure School Attendance, a Class B

misdemeanor set forth in the juvenile code. Rowe, like the defendant in Young, argues that

we should apply Indiana Code section 31-32-6-7(b) to the exclusion of Rule 22. However,

the Indiana Supreme Court has the inherent power to adopt procedural rules governing the

conduct of litigation in our courts, and such rules take precedence over conflicting statutes.

State ex rel. Jeffries v. Lawrence Circuit Court, 467 N.E.2d 741, 742 (Ind. 1984). In

misdemeanor cases, the assertion of the right to a jury trial is procedural. See Crim. R. 22.

Therefore, Indiana Code section 31-32-6-7(b) notwithstanding, Rule 22 applies. See Jeffries,

467 N.E.2d at 742.

                               Waiver of Right to Jury Trial

       Rowe contends that, even if Rule 22 applies, she did not waive her right to a jury trial

under Rule 22 because she was inadequately advised of her right to a jury trial, and of the

consequences of failing to demand a jury trial.

       In Young, another panel of this Court held that the defendant, by signing an Initial

Hearing Rights form with an advisement identical to the one here, was adequately advised of


                                              5
the consequences of her failure to request a jury trial. 973 N.E.2d at 646. Without citation to

authority, Rowe contends Young was incorrectly decided as to the issue of the adequacy of

the advisement form.

       Rowe first argues that the Initial Hearing Rights form, both here and in Young, is

inadequate because it fails to explain that if the defendant failed to request a jury trial her

trial would be before a judge instead of a jury. (Appellant’s Br. at 6-8.) She in essence

argues that, because of the alleged inadequacy of the advisement, she was entitled to relief

from the judgment of conviction.

       Rowe has the right to a trial before a fair and impartial tribunal. See Everling, 929

N.E.2d at 1287. She could have waived the right to a trial before a fair and impartial tribunal

by, for example, entering a guilty plea. See Poore, 681 N.E.2d at 208 (a criminal defendant

who pleads guilty waives, among other things, “the opportunity to put the prosecution to its

proof, the chance to offer [her] own exculpatory evidence, and [her] right to have this

evidence weighed by a neutral finder of fact[]”).

       Yet, a criminal defendant may choose to waive only her right to a jury trial. See

Singer v. United States, 380 U.S. 24, 34, 85 S. Ct. 783, 790 (1965) (“a defendant can, . . . in

some instances waive [her] right to a trial by jury[]”); Dixie v. State, 726 N.E.2d 257, 258

(Ind. 2000) (“[a] defendant may waive [her] right [to a trial by jury] if [s]he does so

personally, intelligently, and voluntarily[]”).      However, “[t]he ability to waive a

constitutional right does not ordinarily carry with it the right to insist upon the opposite of

that right.” Singer, 380 U.S. at 34-35, 85 S. Ct. at 790. As such, a criminal defendant has no


                                              6
absolute right to dispense with a jury trial and then avoid trial altogether. Therefore, we

cannot agree that Rowe was inadequately advised because the Initial Hearing Rights form did

not expressly state that if she did not request a jury trial her case would be tried solely before

a judge.

        Rowe next argues that the Initial Hearing Rights form, both here and in Young, is

inadequate because it fails to specify whether the request for a jury trial must be made at least

ten days before the first trial setting, or whether the request could be made at least ten days

before any subsequent setting.

        Rule 22 requires that a misdemeanor defendant make a demand for trial by jury “not

later than ten (10) days before [her] first scheduled trial date.” Crim. R. 22 (emphasis

added). Rowe signed the Initial Hearing Rights form without the advice of counsel before

the February 14, 2011 initial hearing, at the end of which the trial court appointed a public

defender to represent her. (Tr. at 65-66.) The first scheduled trial date was September 12,

2011, before which she had ample opportunity to discuss with counsel whether to request a

jury trial. Despite that opportunity, she made no such request. Therefore, we cannot

conclude that Rowe was inadequately advised because the Initial Hearing Rights form did not

expressly state that her request for a jury trial must be made at least ten days before the first

trial setting.

        The Initial Hearing Rights form adequately advised Rowe as to the consequences of

her failure to timely request a jury trial, and she effectively waived her right to a jury trial.




                                                7
                                    Magistrate Confusion

         Rowe contends she did not waive her right to a jury trial because of the “confusing

statements” and “conflicting information” given to her by different magistrates in her case

concerning her right to a jury trial. (Appellant’s Br. at 8.) Here, the statements at issue were

made on October 24, 2011, and December 12, 2011. (Tr. at 78-79; App. at 7-8.) However,

despite the magistrates’ conflicting statements, Rowe had already waived her right to a jury

trial when she failed to make a request at least ten days before September 12, 2011, the first

scheduled trial date. Because the magistrates’ conflicting statements occurred after this

waiver, her claim that the conflicting statements restored her right to a jury trial is without

merit.

                                         Conclusion

         Rowe effectively waived her right to a jury trial, and was not unlawfully denied her

right thereto.

         We affirm.

VAIDIK, J., and BROWN, J., concur.




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