MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any
                                                                         Oct 28 2019, 8:09 am
court except for the purpose of establishing
the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel Hageman                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Sierra A. Murray
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Barry Allen Montgomery,                                  October 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-430
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton Graham,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G07-1806-CM-18556



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-430 | October 28, 2019                   Page 1 of 5
                                                Case Summary

[1]   Barry Montgomery appeals his conviction following a bench trial for false

      informing, a Class A misdemeanor. We reverse and remand.


                                                       Issue

[2]   Montgomery raises two issues on appeal; however, we find one to be

      dispositive: whether Montgomery knowingly, voluntarily, and intelligently

      waived his right to a jury trial. 1


                                                       Facts

[3]   On June 10, 2018, Montgomery was charged with false informing, a Class A

      misdemeanor, due to a 911 call in which Montgomery was alleged to have

      reported false information. In the call, Montgomery reported that his ex-

      girlfriend stabbed her new boyfriend, which resulted in many law enforcement

      and emergency medical personnel rushing to the scene. The Indianapolis

      Police Department officers determined the information Montgomery provided

      was false.


[4]   On July 2, 2018, a courtroom minute sheet indicates that Montgomery had an

      initial hearing and that an “Advisement of Rights [was] Conducted.”




      1
       As we find this issue dispositive, we decline to address Montgomery’s other argument regarding the
      sufficiency of the evidence.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-430 | October 28, 2019                 Page 2 of 5
      Appellant’s App. Vol. II p. 32. The transcript from this July 2, 2018, hearing

      provides that the trial court’s advisement of rights was as follows:


              Sir, you have a right and a duty to retain counsel within ten days
              after today’s hearing date because of certain deadlines for filing
              motions and raising defenses. You also have the right to a public
              trial, privilege against self-incrimination. At this time the Court
              is going to enter a preliminary plea of not guilty, and that will
              become a formal plea of not guilty within ten days after today’s
              hearing date, unless you decide to enter a contrary plea.


      Supp. Tr. Vol. II p. 5. There was no discussion regarding Montgomery’s right

      to a jury trial.


[5]   The trial court set the matter for a bench trial, which was held on January 28,

      2019. The trial court found Montgomery guilty of false reporting, a Class A

      misdemeanor. The trial court immediately thereafter held a sentencing hearing,

      and Montgomery was sentenced to 365 days in the Marion County Jail, with

      four days credit for time already served, and 361 days suspended. Montgomery

      now appeals.


                                                   Analysis

[6]   Montgomery argues that he did not knowingly, voluntarily and intentionally

      waive his right to a trial by jury. We review questions of law de novo. See

      Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016).


              The right to a jury trial in a criminal case is a fundamental right
              guaranteed by the Sixth Amendment to the United States
              Constitution and Article 1, Section 13 of the Indiana

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-430 | October 28, 2019   Page 3 of 5
        Constitution. . . . A defendant’s waiver of the right to jury trial
        “must be made in a knowing, intelligent, and voluntary manner,
        with sufficient awareness of the surrounding circumstances and
        the consequences.” . . . A defendant charged with a felony has
        an automatic right to a jury trial and “is presumed not to waive
        this right unless he affirmatively acts to do so.” . . . By contrast,
        a defendant charged with a misdemeanor must demand a jury
        trial and may waive that right by inaction. The procedure for
        demanding a jury trial in a misdemeanor case is controlled by
        Indiana Criminal Procedure Rule 22.


                                              *****


        In a misdemeanor case, a defendant waives the right to a jury
        trial when the record does not contain a timely request for a jury
        trial and establishes that the defendant: (1) was advised of the
        right to a jury trial; (2) had at least fifteen days advance notice of
        the trial date; (3) was advised of the need to file a written demand
        for a jury trial at least ten days before the first scheduled trial date
        and that failure to do so will result in waiver of the right; and (4)
        understood the advisements. . . .


Dadouch v. State, 126 N.E.3d 802, 804 (Ind. 2019) (internal citations omitted).

See Horton, 51 N.E.3d 1154 (finding that the jury trial right “is a bedrock of our

criminal justice system. . . .”). “A defendant may be advised of his rights in

multiple ways.” Duncan v. State, 975 N.E.2d 838, 843 (Ind. Ct. App. 2012).

“The court can orally inform him of his rights, . . .; the defendant can be given a

written advisement, . . . ; his counsel, on the record, can inform him of his

rights and question his understanding of them, . . . ; or the defendant can sign a

written waiver and file it in open court. . . .” Id. (internal citations omitted).



Court of Appeals of Indiana | Memorandum Decision 19A-CR-430 | October 28, 2019   Page 4 of 5
[7]   The transcripts from Montgomery’s initial hearing and subsequent hearings do

      not indicate that Montgomery was, at any point, advised of his right to a jury

      trial or advised of the need to file a written demand for a jury trial. Moreover,

      the State, in its brief, concedes that, “under existing precedent, Montgomery did

      not waive his right to a jury trial.” Appellee’s Br. p. 10. Montgomery has met

      his burden that his constitutional rights were violated, and the State concedes.

      Accordingly, we reverse and remand for a jury trial. See, e.g., Hudson v. State,

      109 N.E.3d 1061, 1065 (Ind. Ct. App. 2018) (reversing and remanding for a

      jury trial where the defendant did not knowingly waive his right to a

      misdemeanor jury trial).


                                                 Conclusion

[8]   Pursuant to our review and the State’s concession that Montgomery did not

      knowingly, voluntarily, and intelligently waive his right to a jury trial, we

      reverse and remand.


[9]   Reversed and remanded.


      Brown, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-430 | October 28, 2019   Page 5 of 5
