MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Sep 07 2018, 10:15 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Randy A. Elliott                                         George P. Sherman
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rolland R. Ladyga,                                       September 7, 2018
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-595
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Warren Haas,
Appellee-Respondent                                      Judge
                                                         Trial Court Cause No.
                                                         27D03-1608-PC-8



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-595 | September 7, 2018                 Page 1 of 6
[1]   Rolland Ladyga appeals the post-conviction court’s denial of his petition for

      post-conviction relief, arguing that his guilty plea was not knowing, voluntary,

      and intelligent because he had not been advised of his right to a jury trial before

      waiving it. Finding no error in the post-conviction court’s ruling, we affirm.


                                                    Facts

[2]   On January 8, 2002, the State charged Ladyga with Class A misdemeanor

      operating while intoxicated and Class C infraction driving on the wrong side of

      the road. Later that day, the trial court advised a large group of defendants—

      Ladyga among them—about their constitutional right to a trial by jury, their

      right against self-incrimination, and their right to confront and cross-examine

      witnesses at trial. PCR Resp. Ex. 2 p. 2-3. The trial court also advised those

      charged with misdemeanors that they must demand a jury trial, in writing, no

      later than ten days prior to their first scheduled trial date or else they would

      waive that right and would only be entitled to a bench trial thereafter. Id.


[3]   On January 23, 2002, the trial court appointed a public defender to represent

      Ladyga. Ladyga requested a bench trial, which was eventually set for June 3,

      2002.


[4]   On June 3, 2002, Ladyga agreed to plead guilty in accordance with a written

      plea agreement. The trial court advised Ladyga once again that he would be

      waiving his constitutional rights by pleading guilty but did not specifically

      mention the right to a trial by jury. PCR Pet. Ex. A p. 2-3. Ladyga affirmed that


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-595 | September 7, 2018   Page 2 of 6
      he understood his rights, that he had waived them, and that he had reviewed

      the drafted plea agreement with his attorney and understood its contents. PCR

      Pet. Ex. A p. 2-3.


[5]   Pursuant to the written plea agreement, the State would dismiss the driving on

      the wrong side of the road charge, Ladyga would pay a fine of $300 as well as

      attorney and court costs, Ladyga would be sentenced to one year in jail

      suspended to probation, and Ladyga’s driving privileges would be suspended

      for ninety days.


[6]   On August 25, 2016, Ladyga filed a pro se petition for post-conviction relief.

      On November 1, 2017, Ladyga filed an amended petition for post-conviction

      relief with the aid of counsel. The amended petition argued that Ladyga’s guilty

      plea was not knowing, voluntary, and intelligent because he was not readvised

      of his constitutional right to a jury trial at the guilty plea hearing.


[7]   On February 23, 2018, following a hearing, the post-conviction court denied

      Ladyga’s petition, finding that the trial court had properly advised Ladyga of

      his constitutional rights and that Ladyga had waived his right to a jury trial by

      the time of the guilty plea by virtue of Indiana Rule of Criminal Procedure 22.

      Ladyga now appeals.




      Court of Appeals of Indiana | Memorandum Decision 18A-PC-595 | September 7, 2018   Page 3 of 6
                                  Discussion and Decision

[8]    Ladyga’s sole argument on appeal is that he did not plead guilty knowingly,

       voluntarily, and intelligently because the trial court did not readvise him of his

       constitutional right to a trial by jury at the time he pleaded guilty.


[9]    When reviewing a petitioner’s claim for improper denial of post-conviction

       relief, we will disturb a post-conviction court’s decision as being contrary to law

       only where the evidence is without conflict and leads to but one conclusion,

       and the post-conviction court has reached the opposite conclusion. Dewitt v.

       State, 755 N.E.2d 167, 170 (Ind. 2001). Moreover, we accept the post-

       conviction court’s findings of fact unless clearly erroneous. Ben-Yisrayl v. State,

       738 N.E.2d 253, 258 (Ind. 2000).


[10]   Indiana Code section 35-35-1-2(a) provides as follows:


               (a) The Court shall not accept a plea of guilty or guilty but mentally ill at
               the time of the crime without first determining that the defendant: . . .

                        (2) has been informed by the defendant’s plea the defendant
                        waives the defendant’s rights to:

                                (A) a public and speedy trial by jury;

                                (B) confront and cross-examine the witnesses against the
                                defendant; [and] . . .

                                (D) require the state to prove the defendant’s guilt beyond a
                                reasonable doubt at a trial at which the defendant may not
                                be compelled to testify against himself or herself [.]



       Court of Appeals of Indiana | Memorandum Decision 18A-PC-595 | September 7, 2018   Page 4 of 6
       (Emphasis added).


[11]   Ladyga concedes that he was advised of all three constitutional rights at the

       January 8, 2002, en masse hearing. But he asserts that the trial court should

       have readvised him of the rights he was waiving at the guilty plea hearing.


[12]   Both parties come to us with constitutional arguments, but we need not decide

       the case on constitutional grounds. Instead, this matter can be easily decided on

       procedural grounds.


[13]   Indiana Rule of Criminal Procedure 22 states:


                 A defendant charged with a misdemeanor may demand trial by jury by
                 filing a written demand therefore not later than ten (10) days before his
                 first schedule 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 notice of his scheduled
                 trial date and of the consequences of his failure to demand a trial by jury.


       (Emphasis added). This Court “has consistently held that, under [Rule 22], a

       misdemeanant waives his right to a jury trial by not making the proper request

       after having been duly advised of his rights and the consequences for failure to

       make a timely demand.” Stevens v. State, 689 N.E.2d 487, 489 (Ind. Ct. App.

       1998); see also Fiandt v. State, 996 N.E.2d 421, 423 (Ind. Ct. App. 2013)

       (emphasizing that while right to a jury trial is guaranteed by Indiana and

       United States Constitutions, the right “is not self-executing” in misdemeanor

       cases).




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-595 | September 7, 2018   Page 5 of 6
[14]   In this case, the highest level of offense with which Ladyga was charged was a

       Class A misdemeanor. As such, Rule 22 required him to make a formal

       demand if he desired a trial by jury, which the trial court clearly stated at

       Ladyga’s initial hearing, PCR resp. ex. 2 p. 2-3, and which Ladyga did not do.

       Therefore, Ladyga had waived his right to a jury trial by operation of law before

       the guilty plea hearing took place. As he no longer had this right at the time he

       pleaded guilty, the trial court did not err by failing to readvise him of it.

       Therefore, the post-conviction court did not err by denying Ladyga’s petition

       for post-conviction relief.


[15]   The judgment of the post-conviction court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-595 | September 7, 2018   Page 6 of 6
