                                                               FILED
                                                          Jul 16 2019, 10:43 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court


                       IN THE

 Indiana Supreme Court
          Supreme Court Case No. 19S-CR-404

             Mohamed M. Dadouch,
                   Appellant-Defendant,

                            –v–

                  State of Indiana,
                     Appellee-Plaintiff.


                   Decided: July 16, 2019

Appeal from the Knox Superior Court, No. 42D02-1706-CM-477
       The Honorable Ryan S. Johanningsmeier, Judge

     On Petition to Transfer from the Court of Appeals,
                     No. 18A-CR-745




                   Per Curiam Opinion
                    All Justices concur.
Per Curiam.

   Following a bench trial Mohamed Dadouch was convicted of Class A
misdemeanor domestic battery. Dadouch claims he did not validly waive
his right to a jury trial. We agree.

   After Dadouch was charged with a misdemeanor, he appeared with his
own attorney at an initial hearing on June 21, 2017. Dadouch’s attorney
represented to the court that he had “gone through” Dadouch’s
constitutional rights with him. (Tr. p. 5.) The judge asked Dadouch,


      Sir, do you understand that you have various constitutional
      rights? Your attorney said he’s gone over those rights to a trial
      and confront/cross-examine witnesses and your presumption
      of innocence and proof beyond a reasonable doubt. He says
      he’s covered all of that with you.


      I’ve also been told there are forms over there that talk about
      your rights, and so what he said is instead of me going on
      about all of those rights, he will acknowledge that you
      understand them….


      …. Do you understand all of that?”


(Id. at 5-6.)

   Dadouch answered, “Yes, I am understanding Your Honor.” (Id. at 6.)
The court set a trial date of September 11, 2017. Dadouch signed an
advisement of rights form provided by the court. The form stated, “You
have the right to have a trial and for that trial to be public, speedy, and by
jury. This right to a jury can be lost if you do not meet certain deadlines.”
(Appellant’s App. Vol. II, p. 18.)

   On November 21, 2017, the court held a hearing after Dadouch was
arrested for failing to appear at a pretrial conference. The court noted the
“bench trial date” had been continued three times and remained set for
December 18, 2017. (Appellant’s App. Vol. III, p. 2.) Also on November 21,
2017, Dadouch signed a second advisement of rights form stating, “For a


Indiana Supreme Court | Case No. 19S-CR-404 | July 16, 2019            Page 2 of 6
criminal charge, you have the right to have a trial and for that trial to be
public, speedy, and by jury. In a misdemeanor case, you must request in
writing a jury trial.” (Id. at 3.)

   On December 11, 2017, Dadouch filed motions to continue the trial date
and set the case for a jury trial. The court denied the request for jury trial
as untimely and set the motion to continue for a hearing on December 18,
2017.

   At the hearing, Dadouch’s counsel argued that Dadouch had asked
prior counsel to request a jury trial but no jury demand was filed and
there may have been a “communication breakdown” due to a “linguistic
barrier.” (Tr. p. 39.) The court again denied the request for a jury trial as
untimely but the judge added, “Of course, I’m always open to
reconsideration if you have some evidence that he strenuously asked
counsel to advance that motion for him but counsel failed to do so.” (Id. at
40.) The court granted Dadouch’s request for an interpreter and reset the
bench trial date.

   At the start of the trial, Dadouch renewed his request for a jury trial. (Id.
at 63-64.) The court denied the request. At the conclusion of the trial, the
court found Dadouch guilty of Class A misdemeanor domestic battery.

   Dadouch appealed on grounds including that he did not validly waive
his right to a jury trial. The Court of Appeals affirmed the trial court.
Dadouch v. State, No. 18A-CR-745 (Ind. Ct. App. Mar. 14, 2019).

  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 Constitution. Poore v. State, 681
N.E.2d 204, 206 (Ind. 1997). 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.” Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984). 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.”
Poore, 681 N.E.2d at 207. By contrast, a defendant charged with a
misdemeanor must demand a jury trial and may waive that right by



Indiana Supreme Court | Case No. 19S-CR-404 | July 16, 2019            Page 3 of 6
inaction. The procedure for demanding a jury trial in a misdemeanor case
is controlled by Indiana Criminal Procedure Rule 22.


      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.

      The trial court shall not grant a demand for a trial by jury filed
      after the time fixed has elapsed except upon the written
      agreement of the state and defendant, which agreement shall
      be filed with the court and made a part of the record. If such
      agreement is filed, then the trial court may, in its discretion,
      grant a trial by jury.


Ind. Crim. 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. See
Hudson v. State, 109 N.E.3d 1061, 1064 (Ind. Ct. App. 2018); Duncan v. State,
975 N.E.2d 838, 843 (Ind. Ct. App. 2012); Eldridge v. State, 627 N.E.2d 844,
848 (Ind Ct. App. 1984), trans. denied. A defendant may be advised of his
rights during a hearing held on the record or by a written advisement of
rights. Hutchins v. State, 493 N.E.2d 444, 445 (Ind. 1986); Duncan, 975
N.E.2d at 843.




Indiana Supreme Court | Case No. 19S-CR-404 | July 16, 2019           Page 4 of 6
   Dadouch signed two advisement of rights forms. The first stated, “You
have the right to have a trial and for that trial to be public, speedy, and by
jury. This right to a jury can be lost if you do not meet certain deadlines.”
The second stated, “For a criminal charge, you have the right to have a
trial and for that trial to be public, speedy, and by jury. In a misdemeanor
case, you must request in writing a jury trial.”

   By the time Dadouch signed the second form, the deadline to request a
jury trial had passed. And regardless, neither form advised Dadouch he
had to file a demand for a jury trial within ten days before the first
scheduled trial date or that his failure to file a demand within that period
would result in the waiver of his right. The first advisement of rights also
did not inform Dadouch that his demand for a jury trial had to be in
writing. The transcript of the initial hearing includes no mention of
Dadouch’s right to a jury trial or the requirements of Criminal Rule 22.

   The Criminal Benchbook provides an advisement of rights dialogue
that clearly sets forth the Rule requirements that the trial judge must make
certain the defendant acknowledges and understands. Using the
Benchbook in this case would have insured that was done. While it is not
required that trial judges use a written advisement of rights form in
misdemeanor cases, it is the best practice and we urge all trial judges to
incorporate an accurate one into their practices. The very best practice in
these cases is to use both a written advisement of rights form together
with the dialogue to insure that a reversal does not occur.

   Based on this record, we hold that Dadouch did not validly waive his
right to a jury trial. We grant transfer, thereby vacating the Court of
Appeals opinion, see Ind. Appellate Rule 58(A), and reverse Dadouch’s
conviction. Because we agree with the Court of Appeals that the evidence
was sufficient to support the conviction, the State is free to retry Dadouch.


All Justices concur.




Indiana Supreme Court | Case No. 19S-CR-404 | July 16, 2019           Page 5 of 6
ATTORNEY FOR APPELLANT
Mark Small
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 19S-CR-404 | July 16, 2019   Page 6 of 6
