MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Jan 31 2020, 10:02 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
Valerie K. Boots                                         Curtis T. Hill, Jr.
Michael R. Fisher                                        Attorney General of Indiana
Marion County Public Defender Agency
                                                         Josiah J. Swinney
Appellate Division                                       Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Durrell L. Shepherd,                                     January 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1740
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Angela D. Davis, Judge
                                                         Trial Court Cause No.
                                                         49G16-1905-F6-18802



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1740 | January 31, 2020             Page 1 of 5
[1]   Durrell L. Shepherd (“Shepherd”) was convicted of domestic battery1 as a Level

      6 felony and was sentenced to 366 days executed. Shepherd appeals his

      conviction, contending that he did not knowingly, voluntarily, and intelligently

      waive his right to a jury trial.


[2]   We affirm.


                                         Facts and Procedural History
[3]   On May 10, 2019, Shepherd had an argument with the mother of his children.

      Tr. Vol. II at 8, 15. She fell to the ground holding their two-year-old child as

      Shepherd stood over her and punched her in the face with a closed fist five to

      ten times. Id. at 15, 17. As Shepherd was punching his children’s mother, he

      screamed that the beating was her fault because he thought she had called the

      police. Id. at 16. On May 14, 2019, the State charged Shepherd with two

      counts of domestic battery, each as a Level 6 felony, and one count of battery as

      a Level 6 felony. Appellant’s App. Vol. II at 17.


[4]   At a preliminary hearing on May 16, 2019, Shepherd’s counsel informed the

      trial court that Shepherd intended to waive his right to a jury trial and to request

      a bench trial. Supp. Tr. Vol. II at 9. The trial court then placed Shepherd under

      oath. Id. The trial court spoke directly to Shepherd and asked, “You have a

      constitutional right to six members of the public being selected from a larger




      1
          See Ind. Code § 35-42-2-1.3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1740 | January 31, 2020   Page 2 of 5
      group but with a court trial it just would be me or someone like me; do you

      understand?” Id. Shepherd responded in the affirmative that he understood.

      Id. The trial court then confirmed that he wished to proceed without a jury by

      asking, “Is that how you wish to proceed,” and Shepherd responded, “Yes,

      ma’am.” Id. The trial court next confirmed that Shepherd had not been

      promised any special treatment by waving his right to a jury trial. Id. After this

      inquiry, the trial court found that Shepherd’s waiver of a jury trial was “freely,

      knowingly, and voluntarily” done and set the case for a bench trial. Id. At the

      bench trial, Shepherd was found guilty of one count of Level 6 felony domestic

      battery. Tr. Vol. II at 79. The presentence investigation report stated that

      Shepherd had a lengthy criminal history, consisting of eighteen arrests, eight

      misdemeanor convictions, and five felony convictions. Appellant’s Conf. App.

      Vol. II at 69. The trial court sentenced Shepherd to 355 days executed.

      Shepherd now appeals.


                                     Discussion and Decision
[5]   Shepherd contends that he was denied his right to a jury trial because he did not

      personally communicate a knowing, voluntary, and intelligent waiver of his

      right to a jury trial. He specifically asserts that the record contains no

      indication that he waived his right to a jury trial. We disagree.


[6]   “The jury trial right is a bedrock of our criminal justice system, guaranteed by

      both Article I, Section 13 of the Indiana Constitution and the Sixth

      Amendment to the United States Constitution.” Horton v. State, 51 N.E.3d


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1740 | January 31, 2020   Page 3 of 5
      1154, 1158 (Ind. 2016). The Federal and Indiana constitutional jury trial rights

      guarantee the same general protection, that a criminal defendant must receive a

      jury trial, unless he waives it. Id. Under the Sixth Amendment, waiver of a

      jury trial right must be “express and intelligent,” Patton v. United States, 281 U.S.

      276, 312 (1930), and waiver of the right to a jury trial under the Indiana

      Constitution, must be “knowing, voluntary[,] and intelligent,” Perkins v. State,

      541 N.E.2d 927, 928 (Ind. 1989). But the Indiana jury trial right provides

      greater protection because, in a felony prosecution, waiver is valid only if

      communicated personally by the defendant. Horton, 51 N.E.3d at 1158 (citing

      Kellems v. State, 849 N.E.2d 1110, 1114 (Ind. 2006)).


[7]   Here, contrary to Shepherd’s contention, the record contains evidence of his

      waiver of his right to a jury trial. At the preliminary hearing on May 16, 2019,

      Shepherd was explicitly advised by the trial court of his right to a jury trial

      before he personally confirmed that he understood the right, that he still wished

      to proceed with a bench trial, and that he was not promised any special

      treatment by waiving his right to a jury. Supp. Tr. Vol. II at 9. Shepherd’s

      counsel was present at the time of the waiver and indicated that he had

      discussed the matter with Shepherd. Id. Additionally, Shepherd’s criminal

      history consisting of eighteen arrests, eight misdemeanor convictions, and five

      felony convictions made “it likely that he knew very well what a jury was and

      what it meant to waive a jury trial.” McSchooler v. State, 15 N.E.3d 678, 683

      (Ind. Ct. App. 2014). We, therefore, conclude that the record was sufficient to

      establish that Shepherd knowingly, voluntarily, and intelligently waived his

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1740 | January 31, 2020   Page 4 of 5
      right to a jury trial. See id. (holding that waiver of right to jury trial was valid

      where defendant personally expressed a desire to waive his jury trial right, was

      represented by an attorney who indicated that he and the defendant had

      discussed the waiver beforehand, and had a somewhat extensive criminal

      history).


[8]   Affirmed.


      Bailey, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1740 | January 31, 2020   Page 5 of 5
