                                                                         Sep 21 2015, 8:37 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Noah T. Williams                                          Gregory F. Zoeller
      Monroe County Public Defender Agency                      Attorney General of Indiana
      Bloomington, Indiana
                                                                Brian Reitz
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Carlos I. Nunez,                                          September 21, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                53A04-1407-CR-346
              v.                                                Appeal from the Monroe Circuit
                                                                Court.
                                                                The Honorable Marc R. Kellams,
      State of Indiana,                                         Judge.
      Appellee-Plaintiff.                                       Cause No. 53C02-1212-FB-1173




      Shepard, Senior Judge

[1]   By both law and practice, American courts have long been especially concerned

      that criminal defendants not give up various rights by virtue of being misled or

      uninformed or threatened. Here, the question is whether a conviction must be

      set aside because the defendant who was asking to waive trial by jury did not

      tell the trial judge that his request was voluntary.



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                                Facts and Procedural History
[2]   In December 2012, the State charged appellant Carlos I. Nunez with rape as a

      class B felony. Ind. Code § 35-42-4-1 (1998). Nunez subsequently filed a

      verified waiver of jury trial, and the trial court accepted the waiver after a

      hearing in which Nunez participated. Following a bench trial, the court found

      Nunez guilty as charged and sentenced him to ten years.


                                                      Issue
[3]   Nunez presents the issue on appeal this way: whether the trial court wrongly

      accepted his waiver because it was not voluntary and intelligent.


                                    Discussion and Decision
               I. Were There Omissions in Spanish Waiver Form?
[4]   In seeking to waive jury, Nunez signed two waiver forms — one in English and

      one in Spanish. Nunez’s appeal rests on a claim that the Spanish version was

      incomplete.


[5]   The English version informed Nunez that (1) he had a right to a jury trial, (2)

      the jury would consist of six or twelve members, (3) the jury would listen to the

      evidence, the arguments, and the instructions, and the verdict would have to be

      unanimous, (4) if the waiver was accepted, the court would make a

      determination as to his guilt without the use of a jury, and (5) his guilt would be

      determined beyond a reasonable doubt by the judge alone. The form also

      declared that (6) no one made any promises of special treatment or leniency, or

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      made threats to coerce him to waive his right to a jury trial, (7) the waiver was

      made freely, knowingly, understandingly, and voluntarily, and (8) he was

      affirming, under the penalties for perjury, that the representations in the waiver

      were true. Nunez and his counsel both signed the waiver. They each signed

      the Spanish version as well.


[6]   Subsequently, in open court with an interpreter present, the court questioned

      Nunez about the waiver. In the course of this discussion, Judge Kellams asked

      Nunez if he had signed the waivers and if he understood that he was giving up

      the right to a jury trial. Nunez, through the interpreter, responded in the

      affirmative. The court also asked if Nunez had any questions about the fact

      that the trial would be conducted by the judge and the judge would make the

      determination about guilt. Nunez said he did not. The court determined the

      waiver was adequate.


[7]   The Spanish version of the written waiver appears to mirror the English

      version, and Nunez apparently accepts that it covers the various explanations

      about jury trials and bench trials. But Nunez says the Spanish waiver lacks two

      provisions that are present in the English version: (1) a declaration that no

      promises or threats coerced him to waive his right to a jury trial, and (2) a

      declaration that the waiver was being made knowingly, understandingly, and

      voluntarily.


[8]   Assuring justice under circumstances where some language barrier exists that

      might affect the interests of a participant with limited English proficiency is a


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      matter of commitment and substantial effort for Indiana’s judiciary. As Justice

      Rucker wrote recently, “For the last decade the State of Indiana has endeavored

      to create a more comprehensive and centralized interpreter program that

      ensures competent interpreter services in order to improve the quality of

      language access for LEP [Limited English Proficiency] litigants.” Ponce v. State,
                                                       1
      9 N.E.3d 1265, 1269 (Ind. 2014). Speaking for a unanimous court, he

      emphasized the need for careful attention to language issues “lest we run the

      risk of diminishing our system of justice by infringing upon the defendant’s

      rights of due process.” Id.


[9]   Proceedings in the trial court pursuant to a writ in aid of appellate jurisdiction

      have produced debates about where the Spanish form came from and the like,




      1
          Justice Rucker described several aspects of Indiana’s efforts:
                 The Indiana Court Interpreter Program is a statewide court interpreter system, which
                 includes a code of ethics for interpreters and sets specific certification standards. See Ind.
                 Jud. Branch Div. of State Ct. Admin., Court Interpreter Certification Program. About the
                 Program, Introduction, http://www.in.gov/judiciary/interpreter/2384.htm [hereinafter
                 “Certification Program”]: see also Randall T. Shepard, Access to Justice for People Who Do Not
                 Speak English, 40 Ind. L. Rev. 643, 652–57 (2007) (explaining “Indiana’s Initiatives on
                 Interpreter Needs”). At present, in conjunction with the National Center for State Courts
                 Consortium, Indiana’s certification program includes 22 different languages. See
                 Certification Program, Get Certified. However, interpreter services are needed in even
                 more languages; but certification is not currently available. Consequently, our supreme
                 court is considering the efforts of other jurisdictions that employ a process by which
                 interpreters may be classified as “qualified” to conduct simultaneous, in-court, oral
                 interpretation or written translation even though they have not undergone the
                 requirements for court “certification.”
      Ponce, 9 N.E.3d 1269 n.2.

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       but no dispute about whether the Spanish version signed by Nunez omitted the

       material he has identified. We take it to be so.


                                  II. Examining Waivers of Jury
[10]   The right to trial by jury, guaranteed by both the state and federal constitutions,

       is a bedrock of our criminal justice system. Although this right may be waived,

       Indiana stipulates that waiver may occur only when the defendant personally

       waives and only when the record reflects that action in writing or in open court.

       Kellems v. State, 849 N.E.2d 1110 (Ind. 2006). These requirements ensure that

       the waiver is knowing, intelligent, and voluntary, with sufficient awareness of

       the surrounding circumstances and the consequences. Id.


[11]   The federal courts follow analogous practices. Trial by jury may be waived as

       long as four conditions are met: (1) the waiver is in writing, (2) the government

       consents, (3) the court accepts the waiver, and (4) the waiver is made

       voluntarily, knowingly, and intelligently. United States v. Duarte-Higareda, 113

       F.3d 1000, 1002 (9th Cir. 1997). As for the fourth requirement, defendants

       should be informed that (1) twelve members of the community compose a jury,

       (2) the defendant may take part in jury selection, (3) a jury verdict must be

       unanimous, and (4) the court alone decides guilt or innocence if the defendant

       waives a jury trial. Id. In addition, the court should question the defendant to

       ascertain that the defendant understands the benefits and burdens of a jury trial

       and its waiver, especially where the record indicates a special disadvantage or

       disability bearing upon the defendant’s understanding of the waiver. Id.


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[12]   So, what happens when a person convicted after a bench trial seeks to set aside
                                                                                                   2
       the conviction on grounds that such procedures were inadequate? In light of

       the fact that a person convicted by trial or plea is no longer presumed innocent,

       Williams v. State, 273 Ind. 547, 549-50, 406 N.E.2d 241, 243 (1980), the

       prevailing rule is that he bears the burden of establishing grounds on which the

       conviction should be set aside.


[13]   There is but one exception to this general rule. It is an important but narrow

       exception applicable to guilty pleas under collateral attack. There, when the

       convicted challenger can show that the record is silent about whether he knew

       he was giving up three critical rights – trial by jury, facing the accusers, and the

       right against self-incrimination – the challenger prevails. Boykin v. Alabama, 395

       U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). “Presuming waiver from a

       silent record is impermissible,” Justice Douglas wrote for the Court. Id. at 242.

       This rule was later described as necessary to ensure that the decision to plead

       was voluntary and intelligent and not the product of ignorance, terror, or

       deception. See Brady v. U.S., 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747
                 3
       (1970).




       2
        It but states the obvious that whether a party can ask for a bench trial and then seek relief on direct appeal
       because the court granted the request is a non-trivial question. The State has elected not to challenge the
       availability on appeal of the instant issue.
       3
        While some members of the Court later argued that the Boykin list was not exhaustive, they did not prevail.
       Neely v. Pennsylvania, 411 U.S. 954, 93 S. Ct. 1934, 36 L. Ed. 2d 416 (1973) (Douglas, J., dissenting, with
       whom Stewart and Marshall, JJ., concur) (asserting that the right to be proven guilty beyond a reasonable

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[14]   Aside from the Boykin exception applicable to guilty pleas, the U.S. Supreme

       Court and federal circuits apply the general rule on burden of proof, including

       with respect to claims about waiver of jury:

                If the result of the adjudicatory process is not to be set at naught,
                it is not asking too much that the burden of showing essential
                unfairness be sustained by him who claims such injustice and
                seeks to have the result set aside, and that it be sustained not as a
                matter of speculation but as a demonstrable reality.


       Adams v. U.S. ex rel. McCann, 317 U.S. 269, 281, 63 S. Ct. 236, 87 L. Ed. 268

       (1942). As the Sixth Circuit said more recently, “Although we will not presume

       waiver from a silent record, the burden of demonstrating that a waiver of jury

       trial was not valid lies with the defendant who waived it.” Sowell v. Bradshaw,

       372 F.3d 821, 832 (6th Cir. 2004), cert. denied, 544 U.S. 925, 125 S. Ct. 1645, 161

       L. Ed. 2d 485 (2005). This accords with the Seventh Circuit’s declaration that a

       defendant who “understood that the choice confronting him was, on the one

       hand, to be judged by a group of people from the community, and on the other

       hand, to have his guilt or innocence determined by a judge” has knowingly and

       intelligently waived his right to trial by jury. U.S. ex rel. Williams v. DeRobertis,

       715 F.2d 1174 (7th Cir. 1983), cert. denied, 464 U.S. 1072, 104 S. Ct. 982, 79 L.

       Ed. 2d 219 (1984).




       doubt is a Boykin right); Johnson v. Ohio, 419 U.S. 924, 95 S. Ct. 200, 42 L. Ed. 2d 158 (1974) (Douglas, J.,
       dissenting, with whom Brennan and Marshall, JJ., concur) (asserting that speedy trial is a Boykin right).

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[15]   At the heart of the voluntary and intelligent requirement, of course, is concern

       that a defendant might waive jury out of ignorance or as a result of coercion or

       deception. In this case, the straightforward claim is that Nunez did not

       affirmatively tell the trial court that his decision to waive was voluntary and

       intelligent. Like the Sixth Circuit, we conclude that an appellant unable to

       point to actual evidence of some miscarriage like ignorance or coercion cannot

       prevail on direct appeal. See U.S. v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990).


             III. Protecting Defendants from Coercion or Ignorance
[16]   Indiana has long been solicitous of claims about coercion or ignorance and

       provided a mechanism by which they can be made. Although there has been a

       presumption that one who pleaded guilty, for example, had done so voluntarily

       and intelligently, Indiana courts did not hesitate to set aside convictions when it

       appeared that a defendant pleaded guilty through coercion or misapprehension

       of the nature of the proceedings.


[17]   Several generations before the U.S. Supreme Court held that states were

       required to provide an avenue for such claims, Indiana resurrected the ancient

       common law writ of coram nobis as a vehicle by which to provide relief to

       defendants whose rights had been violated. See, e.g., Sanders v. State, 85 Ind. 318

       (1882) (prisoner whose plea is induced by fear of a lynch mob entitled to

       withdraw his plea and have a trial); Myers v. State, 115 Ind. 554, 18 N.E. 42

       (1888) (plea induced by false promises rendered to a defendant acting without

       legal representation should be set aside). Having provided a way to correct


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       manifest injustice imposed in earlier proceedings, Indiana courts have

       nevertheless felt the tug of the competing values in play during such processes:

       (1) the need to vindicate federal and state rights by correcting errors, and (2) the

       need to bring proceedings to a rest, especially where the passage of time reduces

       the possibility that a new trial will be reliable. Note, Habeas Corpus and Coram

       Nobis in Indiana, 26 Ind. L.J. 529 (1951).


[18]   If there is actually any evidence that Nunez’s waiver was the product of

       coercion or improper inducements, Indiana courts are open to receive it.


                                                 Conclusion
[19]   For the reasons stated, we affirm the trial court.


[20]   Affirmed.


[21]   Kirsch, J., and Crone, J., concur.




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