                                                                               FILED
                                                                           Mar 11 2019, 6:46 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      PRO SE APPELLANT                                           ATTORNEYS FOR APPELLEE
      Anthony G. Taylor                                          Curtis T. Hill, Jr.
      Lafayette, Indiana                                         Attorney General of Indiana
                                                                 Ian McLean
                                                                 Supervising Deputy Attorney
                                                                 General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Anthony G. Taylor,                                         March 11, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-IF-1475
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court
      State of Indiana,                                          The Honorable David K. Najjar,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 29D05-1702-IF-1451



      Vaidik, Chief Judge.



                                            Case Summary
[1]   Anthony Taylor was charged with speeding in a work zone, and the case was

      filed in Carmel City Court. Those events implicated two rights under Indiana


      Court of Appeals of Indiana | Opinion 18A-IF-1475 | March 11, 2019                           Page 1 of 8
      law: (1) the right to a jury trial and (2) the right to a trial de novo in county

      court if found guilty in city court. Taylor did not request a jury trial in city

      court and was found guilty by the judge. He did, however, demand a jury trial

      when he filed his request for a trial de novo with the Hamilton County Clerk of

      Courts. The Hamilton Superior Court initially scheduled a jury trial but later

      found Taylor guilty in a bench trial, having determined that Taylor waived his

      right to a jury in the trial de novo by failing to request a jury trial in city court.

      We reverse. Our Supreme Court has made clear that a defendant can request a

      jury for a trial de novo regardless of whether they requested a jury in the city-

      court proceeding.



                             Facts and Procedural History
[2]   On October 7, 2016, Taylor was driving on I-69 in Fishers when he was pulled

      over by an Indiana State Police trooper. The trooper issued Taylor a citation

      for speeding in a work zone, alleging that the posted speed limit was 50 mph

      and that Taylor had been driving 64 mph. A few days later, the matter was

      filed in Carmel City Court, and an initial hearing was set for December 15,

      2016. Taylor appeared on that date and entered a denial, and trial was set for

      February 6, 2017. Taylor never requested a jury trial, and a bench trial was

      held on the scheduled date. The Carmel City Court judge found in favor of the

      State and ordered Taylor to pay a $300 fine and $158.50 in court costs.


[3]   Under Indiana Trial De Novo Rule 2(B), Taylor had fifteen days to file a

      request for a trial de novo with the Hamilton County Clerk of Courts. Taylor

      Court of Appeals of Indiana | Opinion 18A-IF-1475 | March 11, 2019             Page 2 of 8
      did so on or about February 18, 2017, also demanding a jury trial “pursuant to

      Rule 38 of the Indiana Rules of Trial Procedure.” Appellant’s App. Vol. II p.

      32. In accordance with Trial De Novo Rule 2(F), the city court vacated its

      judgment against Taylor.1 In accordance with Trial De Novo Rule 2(E), the

      Hamilton County Prosecutor’s Office filed a new complaint against Taylor.2

      Hamilton Superior Court 6 scheduled a jury trial for May 9, 2017. After Taylor

      filed a motion for change of judge, the case was sent to Hamilton Superior

      Court 5, which ultimately rescheduled the jury trial for February 22, 2018.


[4]   However, the day before the jury trial was to be held, Superior Court 5 called a

      hearing at which it announced that Taylor’s demand for a jury trial had been

      untimely and should not have been granted. The court relied on Trial Rule

      38(B), which provides, in part:




      1
          Trial De Novo Rule 2(F)(1) provides:

                 Upon the filing of a Request for Trial de novo, the clerk of the circuit court shall promptly send
                 notice of the filing of the Request to the city or town court from which the trial de novo is taken.
                 The city or town court shall within fifteen (15) days of its receipt of the notice vacate its judgment
                 against the defendant and shall send notice of the vacation of the judgment to any agency or entity
                 to which it had sent notice of the prosecution or the judgment. If the defendant paid an infraction or
                 ordinance violation judgment to the city or town court, the city or town court shall send the
                 payment, after deducting city or town court costs, to the clerk of the circuit court.
      2
          Trial De Novo Rule 2(E) provides:

                 Promptly after the Request for Trial de novo is filed, the clerk of the circuit court shall send notice of
                 the Request to the prosecuting attorney or the municipal counsel with an order from the trial de
                 novo court that the prosecuting attorney or municipal counsel file a duplicate infraction or
                 ordinance complaint and summons with the clerk of the circuit court charging the infraction or
                 ordinance violation as originally filed with the city or town court. Upon receiving the notice of the
                 Request, the prosecutor or municipal counsel shall within fifteen (15) days file the duplicate
                 summons and complaint or, in the prosecutor’s or municipal counsel’s discretion, notify the clerk in
                 writing that no proceeding will be filed. If the clerk is notified that no proceeding will be filed, the
                 clerk shall bring the case to the attention of the judge who shall issue an order of dismissal.

      Court of Appeals of Indiana | Opinion 18A-IF-1475 | March 11, 2019                                       Page 3 of 8
              Any party may demand a trial by jury of any issue triable of right
              by a jury by filing with the court and serving upon the other
              parties a demand therefor in writing at any time after the
              commencement of the action and not later than ten (10) days
              after the first responsive pleading to the complaint, or to a
              counterclaim, crossclaim or other claim if one properly is
              pleaded; and if no responsive pleading is filed or required, within
              ten (10) days after the time such pleading otherwise would have
              been required.


      The court read this rule to mean that if Taylor wanted a jury trial, he should

      have filed his demand at some point in late 2016, shortly after the original case

      was filed in Carmel City Court. The court vacated the jury-trial setting, held a

      bench trial on March 26, 2018, and entered judgment in favor of the State and

      ordered Taylor to pay a $300 fine and $160.50 in court costs.


[5]   Taylor now appeals.



                                  Discussion and Decision
[6]   Taylor raises three issues on appeal, but we need only address the first: whether

      the trial court erred by ruling that his demand for a jury trial was untimely. The

      parties agree that, because the relevant facts are undisputed, our review of the

      issue is de novo. See State v. Norfolk S. Ry. Co., 107 N.E.3d 468, 471 (Ind. 2018).


[7]   To begin, there is no dispute that Taylor had a right to a trial de novo following

      the trial in Carmel City Court. “A city court is not a court of record,” Ind.

      Code § 33-35-5-7(a), and “[a]n appeal from a judgment of a city court may be

      taken to the circuit, superior, or probate court of the county and tried de novo,”

      Court of Appeals of Indiana | Opinion 18A-IF-1475 | March 11, 2019            Page 4 of 8
      Ind. Code § 33-35-5-9(a). See also Ind. Trial De Novo Rule 2 (“A defendant

      who has a statutory right to an appeal after a trial for an infraction or ordinance

      violation in a city or town court may request and shall receive the trial de novo

      as provided in this rule.”). Nor is there any dispute that a person charged with

      speeding in Indiana has a right to a jury trial. See Cunningham v. State, 835

      N.E.2d 1075 (Ind. Ct. App. 2005), trans. denied. The issue is whether Taylor

      waived his right to a jury trial in his trial de novo by submitting to a bench trial

      in Carmel City Court. The trial court concluded that he did.


[8]   Taylor acknowledges that he did not ask for a jury trial in city court but argues

      that his right to a trial “de novo” is a right to a fresh start—that “anything

      regarding the prior proceeding is not relevant.” Appellant’s Br. p. 15. We

      agree with Taylor. His position is consistent with a common definition of “trial

      de novo” as “[a] new trial on the entire case – that is, on both questions of fact

      and issues of law – conducted as if there had been no trial in the first instance.”

      Trial de novo, Black’s Law Dictionary (10th ed. 2014). More importantly, his

      position is consistent with our Supreme Court’s precedent in this area.


[9]   As long ago as 1872, the Court held that an appeal from a justice-of-the-peace

      court to a circuit court had the effect of vacating the judgment of the justice of

      the peace and “brought the case into the circuit court for re-trial, as if it had not

      been before tried.” Britton v. Fox, 39 Ind. 369 (1872) (emphasis added). A

      century later, the Court invoked that passage from Britton in holding that

      “‘[a]ppeals’ from justice of peace courts and city courts to the circuit or superior

      courts have been recognized as not strictly appeals or a review of the
      Court of Appeals of Indiana | Opinion 18A-IF-1475 | March 11, 2019          Page 5 of 8
       proceedings before the lower courts. They are, in fact, a trial de novo.” Hensley

       v. State, 251 Ind. 633, 635, 244 N.E.2d 225, 226 (1969). See also State v. Rehborg,

       396 N.E.2d 953, 955 (Ind. Ct. App. 1979) (citing Hensley for the proposition

       that “[a] trial de novo is a trial from the beginning and is a trial had as if no

       action whatever had been instituted in the lower court”), reh’g denied.


[10]   The Court applied these same principles in State ex rel. Rodriguez v. Grant Circuit

       Court, 261 Ind. 642, 309 N.E.2d 145 (1974), which we find to be dispositive of

       the case before us. Rodriguez was charged with resisting arrest and disorderly

       conduct in Marion City Court. He did not ask for a jury trial, and the court

       held a bench trial and found him guilty. Rodriguez then “appealed” to the

       Grant Circuit Court under Indiana Code section 35-1-13-3 (1971), a predecessor

       to Section 33-35-5-9. In the circuit court, Rodriguez requested a jury trial. The

       circuit court denied that request, and Rodriguez sought relief from our Supreme

       Court by way of an original action against the circuit court. Before the

       Supreme Court, the circuit court argued that Rodriguez “submitted to a court

       trial in the city court without objection and that such submission without

       objection constituted a waiver of the right to trial by jury on appeal to the circuit

       court.” State ex rel. Rodriguez, 261 Ind. at 645, 309 N.E.2d at 146-47. Our

       Supreme Court held that Rodriguez’s submission to court trial in the city court

       did not have “any legal effect upon his right to trial by jury on appeal to the

       circuit court.” Id. at 645, 309 N.E.2d at 147. The Court explained:


               A case on appeal to a circuit court from a city court conviction
               which followed a plea of not guilty and a trial and judgment of

       Court of Appeals of Indiana | Opinion 18A-IF-1475 | March 11, 2019           Page 6 of 8
               conviction there, is indistinguishable for the purpose of affording
               a . . . trial by jury from a criminal cause first instituted in such
               higher trial court and for affording such substantial rights should
               be treated the same. The “appeal” granted by [statute] clearly
               carries with it the right to a trial when applied to the case before
               us, concluding in a completely new adjudication of guilt or
               innocence by the “appeal” trial court. Such trial and
               adjudication is independent of the city court adjudication. It is a
               trial de novo.


       Id. at 645-46, 309 N.E.2d at 147.


[11]   After quoting the foregoing language from Hensley and Britton, the Court

       concluded, “Since the trial in city court and the trial in the circuit court, are

       separate, distinct, and de novo, and take place in different trial courts before

       different judges,” the right to a jury trial exists to its “full extent in both court

       proceedings.” Id. at 646-47, 309 N.E.2d at 147. “Where, as here, the

       determination of guilt or innocence is to be freshly determined, in a new court

       de novo,” the interest of the defendant in jury trial is “resurrected” and exists to

       the same extent as it would “if the case were first originated in the circuit

       court.” Id. at 647, 309 N.E.2d at 147. As such, “upon his appeal to the circuit

       court,” Rodriguez was entitled to a trial by jury. Id. at 647, 309 N.E.2d at 147.


[12]   We see no meaningful distinction between this case and Rodriguez. Like

       Rodriguez, Taylor was charged in city court. Like Rodriguez, Taylor submitted

       to a bench trial in city court. Like Rodriguez, Taylor “appealed” to a county

       court for a trial de novo. Like Rodriguez, Taylor asked that his trial de novo be

       to a jury (and he did so promptly, at the same time he requested a trial de

       Court of Appeals of Indiana | Opinion 18A-IF-1475 | March 11, 2019             Page 7 of 8
       novo). And like our Supreme Court held regarding Rodriguez, we hold that

       Taylor is entitled to a jury trial.3


[13]   Reversed.


       Mathias, J., and Crone, J., concur.




       3
         The State’s reliance on our decision in Fiandt v. State, 996 N.E.2d 421 (Ind. Ct. App. 2013), is misplaced.
       The defendant in that case asked for a jury trial while the case was initially pending in city court, and the
       issue was whether he waited too long to do so. The case did not involve a trial de novo, and our opinion said
       nothing about the rights of a defendant in a trial de novo.

       Court of Appeals of Indiana | Opinion 18A-IF-1475 | March 11, 2019                                Page 8 of 8
