                                                                              FILED
                                                                          Jul 16 2020, 9:55 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Leanna Weissmann                                            Curtis T. Hill, Jr.
      Lawrenceburg, Indiana                                       Attorney General of Indiana

                                                                  Jodi Kathryn Stein
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Jason Wiley,                                                July 16, 2020
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-CR-3062
              v.                                                  Appeal from the Pulaski Superior
                                                                  Court
      State of Indiana,                                           The Honorable Crystal Kocher,
      Appellee-Plaintiff                                          Judge
                                                                  Trial Court Cause No.
                                                                  66D01-1709-CM-397



      Altice, Judge.


                                               Case Summary
[1]   Following a bench trial, Jason Wiley was convicted of Class B misdemeanor

      operating a motor vehicle without an ignition interlock device and Class C



      Court of Appeals of Indiana | Opinion 19A-CR-3062 | July 16, 2020                           Page 1 of 9
      misdemeanor violation of driving conditions. On appeal, Wiley argues that he

      was denied his right to a jury trial.


[2]   We reverse and remand.


                                    Facts & Procedural History
[3]   In October 2016, Wiley was granted specialized driving privileges for a period

      of three years by the White Superior Court. Among other restrictions, Wiley

      was required to “operate a vehicle that is equipped with a certified ignition

      interlock device” and to carry on his person or in the vehicle he is operating the

      order for specialized driving privileges and to produce such upon the request of

      a law enforcement officer. Exhibits Vol. 3 at 5.


[4]   On September 5, 2017, Deputy Tanner Prentice of the Pulaski County Sheriff’s

      Department was on patrol when he observed a car drive left of center and then

      back into its lane of travel. Deputy Prentice initiated a traffic stop and found

      Wiley to be the driver of the vehicle. Deputy Prentice ran Wiley’s driver’s

      license information and was advised that Wiley had a conditional license.

      When questioned, Wiley explained to Deputy Prentice that he was driving his

      girlfriend’s car, that he was on his way to pick up his daughter from the school

      nurse, and that his girlfriend was driving his truck to move items from a storage

      unit. The car Wiley was driving did not have an ignition interlock device, nor

      was Wiley carrying a copy of the order for specialized driving privileges.


[5]   On September 27, 2017, the State charged Wiley with operating a motor vehicle

      without an ignition interlock device, a Class B misdemeanor, and violation of
      Court of Appeals of Indiana | Opinion 19A-CR-3062 | July 16, 2020         Page 2 of 9
      driving conditions, a Class C misdemeanor. An initial hearing was held

      January 5, 2018, during which Wiley submitted a signed advice of rights form

      that included the following advisement:


              If you are charged with a misdemeanor you may demand a trial
              by jury by filing a written demand therefor no later than ten (10)
              days before your first scheduled trial date. Your failure to
              demand a trial by jury as required by this rule, shall constitute a
              waiver of trial by jury unless the defendant has not had at least 15
              days advanced notice of scheduled trial date and of the
              consequences of failure to demand a trial by jury.


      Appendix Vol. 2 at 29. During a February 26, 2018 pretrial conference before

      Judge Crystal Kocher, Wiley’s appointed counsel orally requested a jury trial.

      The trial court set the matter for a jury trial on November 13, 2018. The jury

      trial was confirmed at a pretrial conference on October 22, 2018.


[6]   Wiley appeared on November 13 for the scheduled jury trial. Before the jury

      was called, Wiley complained that his trial counsel was not acting in his best

      interest. He requested the withdrawal of appointed counsel and a continuance

      to subpoena witnesses. The following exchange then occurred:


              THE COURT: Let me ask this; at what point in time, did the
              parties agree that this would be a Jury Trial today previously?


              [THE STATE]: Was there a demand filed?


              [DEFENSE COUNSEL]: Yeah, I filed a demand.


              THE COURT: You filed a demand for trial.

      Court of Appeals of Indiana | Opinion 19A-CR-3062 | July 16, 2020          Page 3 of 9
        [DEFENSE COUNSEL]: When I entered my appearance, your
        honor.


        THE COURT: Okay. I’m not seeing that. Do you recall the
        date you did that?


        [DEFENSE COUNSEL]: Well, I entered my appearance on
        January 13th.


        [THE STATE]: Well, I know on 2-26, at the Pretrial, the State
        had made an offer, and my notes indicate that he rejected my
        offer and was requesting a Jury Trial that date, so maybe it was
        in February?


        [WILEY]: I will reiterate that. I believe that is correct.


        THE COURT: I am sorry?


        [WILEY]: I believe that is correct.


        THE COURT: That is correct.


        [THE STATE]: And so, I think it was before the omnibus date,
        so it would have been on file.


Transcript Vol. 2 at 15. The trial court then explained to Wiley the costs

associated with having assembled a jury pool. After Wiley agreed to pay those




Court of Appeals of Indiana | Opinion 19A-CR-3062 | July 16, 2020            Page 4 of 9
      costs, 1 the trial court permitted Wiley’s counsel to withdraw and reset the jury

      trial for May 6, 2019, which was subsequently rescheduled to May 21, 2019.

      Wiley, pro se, appeared for a status hearing on April 29, 2019, before Senior

      Judge Michael Shurn. During the hearing, the State moved to strike the jury

      trial and set the matter for a bench trial for the reason that Wiley was charged

      with only misdemeanors and he had never filed a written request for a jury trial

      as required by the trial rules. Over Wiley’s objection, Senior Judge Shurn

      granted the State’s motion, stating:


               So I am going to strike the jury trial, and it is going to be a bench
               trial in front of the judge alone. It will be brought to her
               attention. I am just filling in for her today at the last moment,
               and if she wishes to reverse that decision, then she, then she will
               do that, and you will be notified, so at this point in time, you
               have a bench trial, which means it is in front of the judge alone.


      Id. at 34. At the close of the hearing, the court confirmed the “jury trial” 2 for

      May 21, 2019. Id. at 35.


[7]   Wiley, pro se, appeared on May 21, 2019, objected to the bench trial, and

      reasserted his desire for a jury trial. Judge Kocher noted that Wiley had not

      filed anything with the court since the court struck the jury trial setting for lack

      of a written demand. In response to the court’s inquiry as to lack of a written




      1
       Wiley was ordered to pay $371.64 to cover the amount expended to have a jury pool present for the
      originally scheduled November trial date.
      2
        Given the substance of the hearing, the trial court clearly misspoke when confirming the matter for a “jury
      trial”. Id. at 35.

      Court of Appeals of Indiana | Opinion 19A-CR-3062 | July 16, 2020                                  Page 5 of 9
      demand, Wiley stated: “I, I have it in writing from you guys, saying that we

      were going to have a jury trial on a certain date, I didn’t know I needed to put

      anything else in writing.” Id. at 49. Wiley argued that the court’s repeated

      settings of jury trials led him to believe that his counsel had done all that was

      required to ensure he received a jury trial. The court overruled Wiley’s

      objection and proceeded with a bench trial. At the conclusion of the evidence,

      during which Wiley admitted to the charged offenses but offered extenuating

      circumstances as his defense, the trial court took the matter under advisement.

      On August 9, 2019, the court held a hearing and found Wiley guilty as charged.

      The court withheld judgment of conviction and referred Wiley to the Veteran’s

      Treatment Court.


[8]   On October 11, 2019, after two months in the Veteran’s Treatment Court,

      Wiley moved to terminate his enrollment. The court granted his request and

      entered judgment of conviction for the two misdemeanor offenses. At a

      November 26, 2019 sentencing hearing, the court sentenced Wiley to 180 days

      with 60 days executed (time served), 120 days suspended, and 305 days of

      supervised probation for the Class B misdemeanor and a concurrent term of 60

      days executed for the Class C misdemeanor. Wiley now appeals.


                                        Discussion & Decision
[9]   Wiley argues that he was denied his right to a jury trial. The right to a jury trial

      in a criminal case is a fundamental right guaranteed by the Sixth Amendment

      to the United States Constitution and Article 1, Section 13 of the Indiana

      Constitution. Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997). A defendant’s
      Court of Appeals of Indiana | Opinion 19A-CR-3062 | July 16, 2020          Page 6 of 9
       waiver of the right to a jury trial “must be made in a knowing, intelligent, and

       voluntary manner, with sufficient awareness of the surrounding circumstances

       and the consequences.” Hudson v. State, 109 N.E.3d 1061, 1063-64 (Ind. Ct.

       App. 2018) (quoting Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984)).


[10]   A defendant charged with a felony has an automatic right to a jury trial and “is

       presumed not to waive this right unless he affirmatively acts to do so.” Poore,

       681 N.E.2d at 207. By contrast, a defendant charged with a misdemeanor must

       demand a jury trial and may waive that right by inaction. Id. The procedure

       for demanding a jury trial in a misdemeanor case is controlled by Ind. Criminal

       Procedure Rule 22.


               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.


               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.


       Crim. R. 22.



       Court of Appeals of Indiana | Opinion 19A-CR-3062 | July 16, 2020            Page 7 of 9
[11]   In a misdemeanor case, therefore, a defendant waives the right to a jury trial

       when the record does not contain a timely written request for a jury trial and

       establishes that the defendant: (1) was advised of the right to a jury trial; (2)

       had at least fifteen days advance notice of the trial date; (3) was advised of the

       need to file a written demand for a jury trial at least ten days before the first

       scheduled trial date and that failure to do so will result in waiver of the right;

       and (4) understood the advisements. Dadouch v. State, 126 N.E.3d 802, 804

       (Ind. 2019) (citing Hudson v. State, 109 N.E.3d 1061, 1064 (Ind. Ct. App. 2018));

       Duncan v. State, 975 N.E.2d 838, 843 (Ind. Ct. App. 2012); Eldridge v. State, 627

       N.E.2d 844, 848 (Ind Ct. App. 1994), trans. denied. A defendant may be advised

       of his rights during a hearing held on the record or by a written advisement of

       rights. Id.


[12]   Wiley acknowledges that he was advised of his right to a jury trial and the

       procedural effects if a request for a jury trial was not made timely and in

       writing. Notwithstanding, Wiley argues that given the circumstances, he did

       not knowingly waive his right to a jury trial. We agree.


[13]   Here, Wiley has consistently asserted his desire for a jury. Consistent

       therewith, his trial counsel made an oral request for a jury trial during the first

       pretrial hearing and later indicated that he had filed a written request for a jury

       trial along with appearance on behalf of Wiley. After a brief inquiry was made

       about the existence of a written request, the trial court set the matter for a jury

       trial. The jury trial setting was confirmed at a final pretrial conference. Wiley

       appeared for the scheduled jury trial, but in exchange for his agreement to pay

       Court of Appeals of Indiana | Opinion 19A-CR-3062 | July 16, 2020            Page 8 of 9
       the expenses of the jury pool, the court permitted Wiley’s counsel to withdraw

       and granted Wiley’s request for a continuance. The court reset the jury trial for

       another date.


[14]   “‘[A] knowing waiver is the product of an informed will. . . .’” Duncan, 975

       N.E.2d at 843 (quoting Eldridge v. State, 627 N.E.2d 844, 846 (Ind. Ct. App.

       1994), trans. denied). The statement of Wiley’s attorney and the actions of the

       court led Wiley to believe that the necessary steps had been taken to ensure a

       jury trial. Indeed, Wiley appeared for the first scheduled jury trial and agreed to

       pay the costs associated with securing a jury pool to obtain a continuance of the

       jury trial. It was not until the State filed a motion to strike the jury trial five

       months later and three weeks prior to the second jury trial date that Wiley was

       made aware that no such written demand was ever made. Under these

       circumstances, it cannot be said that Wiley knowingly waived his right to a jury

       trial. Further, we note that by the time the court struck the jury trial, Wiley

       could no longer comply with the requirements of Crim. R. 22 as the time for

       filing a written demand for a jury trial, i.e., “not later than ten (10) days before

       his first scheduled trial date,” had already passed. We find that under the

       circumstances, Wiley has established that his implied waiver of his right to a

       misdemeanor jury trial was not knowing and is therefore invalid. We remand

       this case for a jury trial.


[15]   Judgment reversed and remanded.


       Bailey, J. and Crone, J., concur.

       Court of Appeals of Indiana | Opinion 19A-CR-3062 | July 16, 2020              Page 9 of 9
