      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                             Jul 29 2015, 8:02 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.



      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Andrea L. Ciobanu                                          Gregory F. Zoeller
      Alex Beeman                                                Attorney General of Indiana
      Ciobanu Law, P.C.
                                                                 Jesse R. Drum
      Indianapolis, Indiana
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      William Goodwin,                                          July 29, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                33A05-1501-IF-23
              v.                                                Appeal from the Henry Circuit
                                                                Court.
                                                                The Honorable Bob A. Witham,
      State of Indiana,                                         Judge.
      Appellee-Plaintiff.                                       Cause No. 33C03-1403-IF-562




      Barteau, Senior Judge


                                       Statement of the Case
[1]   William Goodwin appeals from the trial court’s determination that he is guilty

      of following too closely, a Class C infraction. Ind. Code § 9-21-8-14 (1991).

      We affirm in part and remand in part for further proceedings.

      Court of Appeals of Indiana | Memorandum Decision 33A05-1501-IF-23 | July 29, 2015             Page 1 of 8
                                                     Issues
[2]   Goodwin presents two issues for our review:

              I.       Whether Goodwin’s rights were violated by the trial court
                       conducting a bench trial in his absence.
              II.      Whether the trial court abused its discretion by denying
                       Goodwin’s request for a continuance.

                                Facts and Procedural History
[3]   On March 4, 2014, the State charged Goodwin with following too closely, a

      Class C infraction. At a pretrial conference, Goodwin requested a bench trial,

      and one was scheduled for September 19, 2014. Goodwin subsequently filed a

      motion to continue the bench trial. The motion was granted, and the bench

      trial was rescheduled for October 17, 2014. On that date, Goodwin again

      requested a continuance. The court granted this second continuance and

      rescheduled the bench trial for December 19, 2014. On December 19, 2014,

      Goodwin’s counsel appeared, but Goodwin failed to appear, and the trial court

      held the trial in absentia. The court found Goodwin guilty, fined him $9.50,

      and ordered him to pay court costs of $118.50. Goodwin now appeals.


                                    Discussion and Decision
                                    I. Bench Trial In Absentia
[4]   Goodwin argues that the trial court erred when it tried him in absentia. In

      Indiana, infractions are treated as civil matters and are thus governed by Article

      I, Section 20 of the Indiana Constitution. See Schumm v. State, 866 N.E.2d 781,

      792 (Ind. Ct. App. 2007), opinion corrected on reh'g, 868 N.E.2d 1202 (2007).
      Court of Appeals of Indiana | Memorandum Decision 33A05-1501-IF-23 | July 29, 2015   Page 2 of 8
      Article I, Section 20 of the Indiana Constitution provides: “In all civil cases,

      the right of trial by jury shall remain inviolate.” Our supreme court has held

      that this right includes the ancillary right to be present in the courtroom, and,

      absent waiver or extraordinary circumstances, a party may not be so excluded.

      Jordan ex rel. Jordan v. Deery, 778 N.E.2d 1264, 1272 (Ind. 2002). Of particular

      importance to the instant case which involves a bench trial is this Court’s

      observation that, in support of its holding in Jordan, our supreme court’s

      citation to authority includes cases that did not have jury trials. See In Re

      Change of Name of Fetkavich, 855 N.E.2d 751, 755 n.4 (Ind. Ct. App. 2006).


[5]   A defendant may waive his right to be present at all stages of the trial and be

      tried in absentia if the trial court determines that the defendant knowingly and

      voluntarily waived that right. Brown v. State, 839 N.E.2d 225, 227 (Ind. Ct.

      App. 2005), trans. denied. A trial court may presume that a defendant

      knowingly, voluntarily, and intelligently waived his right to be present and try

      the defendant in absentia upon a showing that the defendant knew the

      scheduled trial date but failed to appear. Id. “Denial of a defendant’s

      substantive right to be present and heard at trial is fundamental error and, if not

      rectified, constitutes denial of fundamental due process.” Ellis v. State, 525

      N.E.2d 610, 611 (Ind. Ct. App. 1987).


[6]   “A defendant who has been so tried, however, must be afforded an opportunity

      to explain his absence and thereby rebut the initial presumption of waiver.” Id.

      at 612. “‘To look solely at the facts initially before the court would be patently

      unfair.’” Id. (quoting Gilbert v. State, 182 Ind. App. 286, 290, 395 N.E.2d 429,

      Court of Appeals of Indiana | Memorandum Decision 33A05-1501-IF-23 | July 29, 2015   Page 3 of 8
      432 (1979)). “If the facts initially before the court demonstrated a voluntary

      absence when in fact defendant was involuntarily absent, by defendant’s

      reasoning, even when the truth was known, if the trial court refused to grant

      defendant relief, the reviewing court would be compelled to uphold the ruling.”

      Gilbert v. State, 182 Ind. App. 286, 290, 395 N.E.2d 429, 432 (1979). “The

      determination of the reviewing court [m]ust be based upon the totality of the

      facts; not just a portion of them.” Id.


[7]   The transcript of the trial discloses the following:

              THE COURT: This is Cause Number 1403-IF-562, State of
              Indiana versus William Goodwin. The State appears by Mrs.
              Brock, Deputy Prosecuting Attorney. The defendant appears by
              counsel, Mr. Scott, but not in person. The matter is set for Bench
              Trial at 9:15. It is now approximately 9:30. Mr. Scott, is
              defendant ready to proceed with trial?
              MR. SCOTT: Yes, Your Honor.
              THE COURT: And the State is ready to proceed as well?
              MS. BROCK: Yes, Your Honor.


      Tr. p. 3.


[8]   The chronological case summary (CCS) in Goodwin’s case does not show that

      he was ever present in court to hear his trial date. The CCS reflects that

      Goodwin’s counsel appeared for Goodwin and filed a waiver of initial hearing

      on April 4, 2014. A pre-trial conference was scheduled for June 3, 2014, and

      the CCS entry on that date shows that Goodwin requested a bench trial. A

      bench trial was set for September 19, 2014, and Goodwin filed a motion to

      Court of Appeals of Indiana | Memorandum Decision 33A05-1501-IF-23 | July 29, 2015   Page 4 of 8
      continue. That motion was granted, and the bench trial was rescheduled for

      October 17, 2014. Goodwin filed a motion to continue this trial date as well,

      and the bench trial was rescheduled for December 19, 2014. None of these

      CCS entries state whether Goodwin was present in court. Furthermore, the

      transcript of the bench trial reveals no inquiry of Goodwin’s counsel by the trial

      court as to whether counsel had informed Goodwin of the trial date. Given

      these circumstances, there is no evidence of Goodwin’s waiver of his right to be

      present for trial. In addition, the State argues no extraordinary circumstances

      which would give rise to Goodwin’s exclusion from his trial. Because the

      record presents us with only a portion of the facts and not the totality of the

      same, we must remand this matter to the trial court for a hearing to afford

      Goodwin the opportunity to explain his absence from trial and for a

      determination by the trial court on the issue of whether Goodwin knowingly,

      voluntarily, and intelligently waived that right to be present.


                                 II.      Motion for Continuance
[9]   Goodwin also contends that the trial court abused its discretion in not granting

      his request for a continuance of the bench trial. Indiana Trial Rule 53.5

      provides that: “Upon motion, trial may be postponed or continued in the

      discretion of the court, and shall be allowed upon a showing of good cause

      established by affidavit or other evidence.” Accordingly, a trial court’s decision

      to grant or deny a motion to continue a trial date is reviewed for an abuse of

      discretion. Gunashekar v. Grose, 915 N.E.2d 953, 955 (Ind. 2009). There is a

      strong presumption the trial court properly exercised its discretion, and the trial

      Court of Appeals of Indiana | Memorandum Decision 33A05-1501-IF-23 | July 29, 2015   Page 5 of 8
       court abuses its discretion by denying a continuance only if the movant has

       demonstrated good cause for granting it. Id.


[10]   We must first address a preliminary question: whether the defense requested a

       continuance. Goodwin had requested and been granted two prior continuances

       of the bench trial in this matter by filing motions with the court. On December

       19, 2014, Goodwin’s case was again scheduled for bench trial, and his counsel

       appeared but he did not. Goodwin maintains that his counsel orally requested

       a continuance of the trial on that day. However, the transcript of the trial

       discloses only that Goodwin’s counsel indicated that the defense was ready to

       proceed with the trial.


[11]   Subsequently, Goodwin filed with the trial court a motion to certify verified

       statement of the evidence, pursuant to Indiana Appellate Rule 31(A), claiming

       that a part of the case was not included in the transcript. In his verified

       statement of the evidence, Goodwin’s counsel affirmed that he made an oral

       motion for continuance on December 19, 2014, which was denied by the trial

       court. See Appellant’s App. p. 14. The trial court held a hearing, and

       Goodwin’s motion to certify was denied. Pursuant to Indiana Appellate Rule

       31(D), the trial judge filed an affidavit setting forth his recollection of the trial of

       this cause. Judge Witham’s affidavit states, in pertinent part:


               2. The undersigned has no recollection of any request for
               continuance being requested by the defendant’s counsel being
               made off of the record prior to the trial being conducted.
               3. At hearing on the Motion to Certify Verified Statement of the
               Evidence, defendant’s counsel indicated that he thought that he
       Court of Appeals of Indiana | Memorandum Decision 33A05-1501-IF-23 | July 29, 2015   Page 6 of 8
                had requested a continuance of the bench trial but he was not
                absolutely sure that he had requested such a continuance.
                4. No other evidence was presented to the Court at the hearing
                on Motion to Certify Verified Statement of the Evidence
                regarding any other person recalling defendant’s counsel
                requesting a continuance of the bench trial.


       Id. at 15.


[12]   The materials on appeal indicate there was no request for a continuance of the

       bench trial. Although Goodwin’s counsel’s affidavit states that he orally moved

       for a continuance of trial, Judge Witham’s affidavit states that he has no

       recollection of a request for continuance and that, at the hearing on the motion

       to certify, defense counsel stated he “thought that he had requested a

       continuance” but that he was “not absolutely sure” he had requested one. Id.

       Moreover, the trial transcript shows no request for a continuance by Goodwin’s

       counsel; rather, it reflects counsel’s acknowledgement that the defense was
                                                                                 1
       ready to go forward with the trial. We find no error.


                                                    Conclusion
[13]   In light of the foregoing, we find no error with respect to the issue of the

       continuance and affirm the trial court. However, we remand this matter to the




       1
         We recognize that our resolution of this issue may become moot if Goodwin succeeds in establishing that
       he did not knowingly, voluntarily, and intelligently waive his right to be present for trial and is granted a new
       trial.

       Court of Appeals of Indiana | Memorandum Decision 33A05-1501-IF-23 | July 29, 2015                    Page 7 of 8
       trial court for further proceedings to address the issue of waiver of the right to

       be present at trial.


[14]   Affirmed in part and remanded in part for further proceedings.


[15]   Friedlander, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 33A05-1501-IF-23 | July 29, 2015   Page 8 of 8
