MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
                                                                     Oct 31 2017, 11:48 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth A. Johnson                                          Curtis T. Hill, Jr.
Matthew D. Anglemeyer                                    Attorney General of Indiana
Indianapolis, Indiana                                    Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kelvin Williams,                                         October 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1703-CR-504
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese Flowers,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G20-1610-F5-42383



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-504 | October 31, 2017        Page 1 of 8
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Kelvin Williams (Williams), appeals his conviction for

      possession of cocaine with a prior conviction, a Level 5 felony, Ind. Code § 35-

      48-4-6(a); and possession of methamphetamine of less than 5 grams with a prior

      conviction, a Level 5 felony, I.C. § 35-48-4-6.1(a).


[2]   We reverse and remand for a new trial.


                                                    ISSUE
[3]   Williams presents us with two issues on appeal, one of which we find

      dispositive and which we restate as: Whether Williams properly waived his

      right to a jury for the enhancement phase of the trial.


                      FACTS AND PROCEDURAL HISTORY
[4]   On October 26, 2016, two Indiana State Police officers (Officers) observed a

      vehicle speeding eastbound on 38th Street near Post Road in Indianapolis,

      Indiana. The Officers conducted a traffic stop and observed three adult males

      and a child in the vehicle. Williams was seated in the front passenger seat.

      During the course of the stop, the Officers ran Williams’ information and were

      informed that he had an active warrant. Williams was arrested and during a

      subsequent search at the Marion County Sheriff’s Office, a small baggie fell out

      of Williams’ pant leg, containing .47 grams of cocaine and .72 grams of

      methamphetamine.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-504 | October 31, 2017   Page 2 of 8
[5]   On October 27, 2016, the State filed an Information, charging Williams with

      possession of cocaine, as a Level 5 felony. On December 14, 2016, the State

      amended the Information, adding a Count of possession of methamphetamine,

      as a Level 5 felony. On January 9, 2017, the trial court conducted a jury trial.

      At the close of the evidence, the jury found Williams guilty of both Counts as

      Level 6 felonies. During the enhancement phase of the trial, Williams

      stipulated to his prior drug conviction. Following a bench trial, the trial court

      found him guilty, thereby enhancing his Level 6 felonies to Level 5 felonies.

      On February 14, 2017, the trial court held a sentencing hearing. The court

      imposed a concurrent term of four years with three years at the Indiana

      Department of Correction and one year in community corrections.


[6]   Williams now appeals. Additional facts will be provided as necessary.


                              DISCUSSION AND DECISION
[7]   Williams contends that he did not knowingly, voluntarily, and intelligently

      waive his right to a jury trial during the enhancement phase of the trial and,

      therefore, he requests this court to vacate his Level 5 convictions and to remand

      for resentencing.


[8]   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. In broad view, federal and

      Indiana constitutional jury trial rights guarantee the same general protection—a

      criminal defendant must receive a jury trial, unless he waives it. Horton v. State,

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-504 | October 31, 2017   Page 3 of 8
       51 N.E.3d 1154, 1158 (Ind. 2016). Waiver of the Sixth Amendment jury trial

       must be “express and intelligent,” and waiver of the Indiana constitutional jury

       trial must be “knowing, voluntary[,] and intelligent.” Id. (quoting Patton v.

       United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930); Perkins v.

       State, 541 N.E.2d 927, 928 (Ind. 1989)).


[9]    Compared to the federal right, the Indiana jury trial provides greater protection

       because, in a felony prosecution, waiver is valid only if communicated

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

       Indiana’s personal waiver requirement derives from the statutory procedure for

       waiving the State constitutional jury trial right. Horton, 51 N.E.3d at 1158.

       That statute, largely unchanged since its original enactment in 1852, confers the

       authority to waive on the defendant—not the defense attorney. Id. Specifically,

       Indiana Code section 35-37-1-2 provides that “[t]he defendant and the

       prosecuting attorney, with the assent of the court, may submit the trial to the

       court. Unless a defendant waives the right to a jury trial under the Indiana

       Rules of Criminal Procedure[ 1], all other trials must be by jury.”


[10]   Relying on that defendant-centric procedure, Indiana precedent has repeatedly

       affirmed the personal waiver requirement, beginning with our supreme court’s

       decision in Good v. State, 366 N.E.2d 1169 (1977) (defense attorney cannot

       waive jury trial on behalf of defendant), to Kellems, 849 N.E.2d at 1110 (defense



       1
         The Indiana Rules of Criminal Procedure make no change in the statue as it relates to jury trials for
       felonies.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-504 | October 31, 2017              Page 4 of 8
attorney’s statement that defendant had decided to waive his jury trial right

must be confirmed with defendant). Our supreme court’s most recent

pronouncement in this area is Horton, 51 N.E.2d at 1158. In Horton, after being

found guilty in a jury trial, the defendant proceeded to the enhancement phase.

Id. at 1155. At that point, the court asked Horton’s counsel whether defendant

wanted to waive his jury trial right, to which counsel responded “[t]hat’s

correct, Judge.” Id. In the absence of a personal waiver by Horton, the State

asked the supreme court to imply from the circumstances that the waiver was

nevertheless defendant’s choice because “Horton had just experienced a jury

trial and thus was probably ‘aware’ of the right his attorney waived on his

behalf.” Id. at 1159. Declining to carve out an exception, the Horton court

stated:


          The personal waiver requirement, rooted in Indiana Code section
          35-37-1-2 and longstanding precedent, eliminates an intolerable
          risk. It ensured that a felony prosecution will not proceed to a
          bench trial against the defendant’s will by demanding direct
          evidence that waiver is in the defendant’s choice. Given the high
          stakes of erroneous jury-trial deprivation and the low cost of
          confirming personal waiver, we see no reason to dilute our time-
          honored personal waiver requirement by “back[ing] away from
          [the] standard practice” that “Indiana trial courts have clearly
          adopted.” That refusal simply reflects this [c]ourt’s commitment
          to the doctrine of stare decisis—that “a rule which has been
          deliberately declared should not be disturbed by the same court
          absent urgent reasons and a clear manifestation of error.” Seeing
          no such urgent reasons, we maintain the personal waiver
          requirement.


Id. at 1160 (internal citations omitted).

Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-504 | October 31, 2017   Page 5 of 8
[11]   Likewise, here, we find no “direct evidence that waiver [was] in [Williams’]

       choice.” Id. After the jury returned a guilty verdict on the Level 6 charges and

       prior to the commencement of the enhancement phase, the following colloquy

       occurred:


               THE COURT: Okay. You all may be seated, Okay, as the parties
               are aware, [Williams] was charged with [L]evel 5 offenses. I
               believe as a result of prior convictions, we can – Defense what is
               your clients [sic] position, and your position regarding the second
               phase?

               [Williams’ counsel]: Judge, we are willing to stipulate to the prior
               conviction.

               THE COURT: Okay. And, do you have a copy of those?

               [Williams’ counsel]: I’m sorry?

               THE COURT: Do you have a copy of those?

               [Williams’ counsel]: Yes, I do. I do.

               THE COURT: Okay. And, it is – it’s just one prior conviction,
               is that correct; or is it two?

               [State]: It’s one.

               ***

               THE COURT: Okay, thank you. Mr. Williams sir, please raise
               your right hand. Mr. Williams. Mr. Williams.

               [Williams]: oh, yes.

               THE COURT: Okay, you’re [sic] head is on the desk. Are – are
               you ill, sir?

               [NO AUDIBLE RESPONSE]


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-504 | October 31, 2017   Page 6 of 8
        THE COURT: Mr. Williams, are you ill?

        [Williams]: yep.

        THE COURT: Okay, so. Do you need to go to – have a recess or
        something?

        [Williams]: I’m just ready to go, Judge.

        THE COURT: Okay. So, Mr. Williams, we can bring the jury in
        for the second phase, and they can be made aware, or right now
        we’re going to – I have to ask you some questions under oath and
        I’m sure your lawyers explained to you, both of them, how this
        process is going to go.

        [Williams]: I will accept, I will accept. I will accept.

        THE COURT: Okay. Mr. Williams, raise your right hand, sir.
        Do you swear or affirm under the penalties of perjury the
        statements you’re going to give are true and accurate?

        [Williams]: I ain’t got no reason not to.

        THE COURT: Okay, you have to answer yes or no, Mr.
        Williams. You know what we’ll do, to be – we can just bring the
        jury back in, and then we can have – be here several more hours
        to go through the second phase. So, you can either answer my
        questions, or State’s going to be presenting a lot of evidence in
        front of the jury.

        [Williams]: INDISCERNABLE, yeah.

        THE COURT: Okay. And, again, this is a courtroom. So, I
        need you to raise your right hand. I have to make sure that the
        record is clear, sir. Do you swear or affirm under the penalties of
        perjury that the statements you’re going to give are true and
        accurate, yes or no?

        [Williams]: Yeah.

(Transcript pp. 125-27).


Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-504 | October 31, 2017   Page 7 of 8
[12]   As in Horton, the State encourages us to find waiver by inferring that Williams

       waived his right to a jury trial from the surrounding circumstances, such as

       Williams’ history of contacts with the justice system, his education level, and

       the fact that he had just experienced a jury trial. Even if we read Williams’

       counsel’s stipulation to the prior conviction as inclusive of the jury trial waiver

       during the enhancement phase, Williams still did not personally make a

       voluntary, knowing, and intelligent waiver of his right. Accordingly, the failure

       to confirm Williams’ personal waiver before proceeding to a bench trial for the

       enhancement phase was fundamental error. See, e.g., Horton, 51 N.E.3d at 1160.

       We therefore reverse Williams’ Level 5 convictions and remand for a new trial

       on the enhancement charges.


                                             CONCLUSION
[13]   Based on the foregoing, we hold that the trial court committed fundamental

       error by proceeding to a bench trial on the enhancement charges absent

       Williams’ personal waiver of the right to trial by jury. We reverse his

       conviction for the Level 5 enhancement charges and remand with instructions

       to proceed to a new trial limited to the enhancements.


[14]   Reversed and remanded for a new trial.


[15]   Robb, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-504 | October 31, 2017   Page 8 of 8
