MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    Jan 29 2019, 10:17 am

court except for the purpose of establishing                                      CLERK
                                                                              Indiana Supreme Court
the defense of res judicata, collateral                                          Court of Appeals
                                                                                   and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Daniel Hageman                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana                                    Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bomani Marsh,                                            January 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-835
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Hooper,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G02-1701-CM-3159



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-835 | January 29, 2019                       Page 1 of 7
[1]   Bomani Marsh appeals his misdemeanor convictions for carrying a handgun

      without a license and operating a motor vehicle without ever receiving a

      license. Marsh raises one issue which we revise and restate as whether he

      knowingly, intelligently, and voluntarily waived his right to a jury trial. We

      affirm.


                                      Facts and Procedural History

[2]   On January 24, 2017, the State charged Marsh with: Count I, carrying a

      handgun without a license as a class A misdemeanor; and Count II, operating a

      motor vehicle without ever receiving a license as a class C misdemeanor. On

      January 31, 2017, the court held an initial hearing at which it advised Marsh of

      certain rights and stated in part that “in a criminal case you are entitled to a

      variety of rights, including the right to a public and speedy trial, by a jury if you

      want one . . . .” Supplemental Transcript Volume 2, Filed November 15, 2018,

      at 4. The court also appointed a public defender, attorney Lauren Rodriguez,

      to represent Marsh and scheduled a hearing for April 4, 2017.


[3]   On April 4, 2017, the court held a pretrial conference at which Marsh appeared

      in person and by counsel, attorney Rodriguez. The court stated: “Show the

      defendant appears in person and by Ms. Rodriguez. The matter comes before

      the court today for pretrial. Ms. Rodriguez?” Supplemental Transcript Volume

      1, Filed August 22, 2018, at 16. Defense counsel Rodriguez then stated: “Yes,

      Judge. We’re requesting a bench trial with a final pretrial two weeks before. I

      do - hold on. Sorry. We are requesting a bench trial be set in August, if that’s


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-835 | January 29, 2019   Page 2 of 7
      okay with the court.” Id. The court scheduled a final pretrial conference for

      August 9, 2017, and a bench trial for August 23, 2017. On August 9, 2017, the

      court held a pretrial conference, scheduled a change of plea hearing for October

      4, 2017, and rescheduled the bench trial for January 10, 2018. On January 3,

      2018, at the State’s request, the court rescheduled the bench trial for February

      22, 2018. On February 22, 2018, the court conducted a bench trial at which

      Marsh testified and found Marsh guilty on Counts I and II. The court

      sentenced Marsh to concurrent terms of 365 days on Count I and sixty days on

      Count II all suspended except for time served.


                                                   Discussion

[4]   The issue is whether Marsh knowingly, intelligently, and voluntarily waived his

      right to a jury trial. The right to a jury trial is guaranteed by the Indiana and

      United States Constitutions. Fiandt v. State, 996 N.E.2d 421, 423 (Ind. Ct. App.

      2013) (citing Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012)). The

      right to a jury trial in misdemeanor cases is not self-executing, but is controlled

      by Ind. Criminal Rule 22. Id. (citing Young, 973 N.E.2d at 645). Criminal Rule

      22 provides in part:


              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.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-835 | January 29, 2019   Page 3 of 7
              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.


      “Thus, when charged with a misdemeanor, a defendant can waive [his or] her

      right to a jury trial by failing to make a timely demand for trial by jury.” Fiandt,

      996 N.E.2d at 423 (citing Young, 973 N.E.2d at 645). See Hutchins v. State, 493

      N.E.2d 444, 445 (Ind. 1986) (“One charged with a misdemeanor has no right to

      a jury trial pursuant to Criminal Rule 22 unless he makes a written demand for

      it. . . . Thus, a misdemeanant can waive a jury trial by failing to request it.

      More protection is given to one charged with a felony in that he has an

      automatic right to a jury trial unless he expressly waives it.”). While a

      defendant charged with a misdemeanor can therefore waive his right to a jury

      trial by inaction, the waiver must nonetheless be knowing, voluntary, and

      intelligent. Duncan v. State, 975 N.E.2d 838, 842 (Ind. Ct. App. 2012). On

      appeal, we consider the entire record to determine whether the defendant has

      made a voluntary, knowing, and intelligent waiver. Id.


[5]   Marsh argues that the trial court did not advise him of his right to a jury trial or

      the consequences of failing to make a timely, written demand for a jury trial.

      He argues that, while the trial court may infer that the accused does not wish to

      proceed to a jury trial by the accused’s decision not to file a timely written

      demand, the court is not entitled to do so where the accused has not been


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-835 | January 29, 2019   Page 4 of 7
      advised of the consequences of failing to make such a demand. He requests

      that we reverse and remand for a new trial. Marsh points to Hudson v. State, 109

      N.E.3d 1061 (Ind. Ct. App. 2018), in support of his request for a new trial.


[6]   The State responds that the trial court did advise Marsh that he was entitled to a

      jury trial if he wanted but failed to advise him of the requirement that he file a

      written demand. It argues that Marsh was represented by counsel at the April

      4, 2017 hearing, affirmatively requested a bench trial, and in doing so invited

      any error. The State argues that Marsh was fully aware that he had a right to a

      jury trial and instead demanded a bench trial, that he did not merely acquiesce

      to a bench trial by failing to file a timely demand, that there is no suggestion in

      the record that he wanted or was denied a jury trial, and that it appears he is

      raising the issue now only because he wants a second chance at trial.


[7]   In Hudson v. State, the trial court advised the defendant at an initial hearing that

      he had the right to a trial by a jury if he wanted one. 109 N.E.3d at 1062.

      Later, a hearing was continued, an “off record request form,” which was signed

      by the State and defense counsel but not the defendant, was submitted to the

      court, the form noted that the reason for the continuance was that the matter

      was to be “set for BT,” and the trial court set a bench trial. Id. at 1062-1063.

      Before the bench trial began, the defendant expressed his dissatisfaction with his

      public defender and indicated that he thought the matter was set for a jury trial.

      Id. at 1063 (the defendant stated there “was an incident going on where I had

      another public defender who was supposed to set my trial for a jury trial. I get a

      new public defender, I got a bench trial” and “I thought we were going . . . to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-835 | January 29, 2019   Page 5 of 7
      jury trial. I’ve never been to a bench trial”). The trial court stated that it did not

      have any options and moved forward with the bench trial. Id. On appeal, the

      Court observed that the trial court failed to advise the defendant of the

      consequences of failing to demand a jury trial or of the specific requirements for

      making such a demand. Id. at 1065. The Court held that the defendant

      established that his waiver of his right to a misdemeanor jury trial was not

      knowing, and remanded for a jury trial. Id.


[8]   In this case, at the initial hearing on January 31, 2017, the trial court advised

      Marsh that he had “the right to . . . a jury if you want one.” Supplemental

      Transcript Volume 2, Filed November 15, 2018, at 4. Thus, Marsh was advised

      of his right to a trial by jury. Of course, a more thorough advisement of rights

      including the necessity to file a written request for a jury trial by the specified

      deadline would be recommended in all cases. However, the record reveals that

      the trial was rescheduled several times, that the trial was held on February 22,

      2018, and that at no time did Marsh express that he thought he had, or wished

      to have, a trial by jury. Moreover, unlike in Hudson, where the record

      contained an “off record request” for a continuance to set a bench trial which

      was not signed by the defendant and the defendant later indicated that he

      thought the matter was set for a jury trial, the record here reveals that Marsh

      was present at the April 4, 2017 pretrial hearing during which his defense

      counsel stated “We’re requesting a bench trial with a final pretrial two weeks

      before” and “We are requesting a bench trial be set in August.” Supplemental

      Transcript Volume 1, Filed August 22, 2018, at 16. Marsh had ample


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-835 | January 29, 2019   Page 6 of 7
       opportunity to discuss with counsel whether to request a jury trial. Based upon

       the entire record and under the circumstances, we conclude that reversal is not

       warranted.


[9]    For the foregoing reasons, we affirm Marsh’s convictions.


[10]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-835 | January 29, 2019   Page 7 of 7
