                                                                            FILED
                                                                       Apr 12 2018, 5:36 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Tarsha Cheesman,                                          April 12, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          11A01-1708-CR-1939
        v.                                                Appeal from the Clay Circuit
                                                          Court
State of Indiana,                                         The Honorable Joseph D. Trout,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          11C01-1606-CM-473



Robb, Judge.




Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018                       Page 1 of 15
                                 Case Summary and Issue
[1]   Following a bench trial, Tarsha Cheesman was convicted of theft, a Class A

      misdemeanor. Cheesman now appeals, presenting only one issue for our

      review which we restate as whether the trial court erred in denying Cheesman’s

      demand for a jury trial. Concluding the trial court did not err, we affirm.



                            Facts and Procedural History                            1




[2]   In May of 2016, Cheesman was employed by Page’s IGA Grocery Store in

      Brazil, Indiana. On May 31, she requested a $50 cash advance from her next

      paycheck. The owner obliged, Cheesman signed a note promising to repay the

      $50, and the owner left a note instructing another employee to withhold $50

      after cashing Cheesman’s next paycheck. In a video later presented at trial,

      Cheesman can be seen stealing the $50 which the employee had set aside, and,

      although given another opportunity to repay the debt, Cheesman never did.

      State’s Exhibit 1.


[3]   On June 22, 2016, Cheesman was charged with theft, a Class A misdemeanor.

      On August 1, 2016, the trial court conducted an initial hearing at which

      Cheesman signed a Defendant’s Acknowledgement of Rights providing:




      1
       We heard oral argument in Hammond, Indiana, at the Hammond Academy of Science and Technology on
      March 19, 2018. We thank the faculty, staff, and students of the Hammond Academy of Science and
      Technology for their generous hospitality and commend counsel for their skilled and informative oral
      advocacy.

      Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018                Page 2 of 15
              4. (For Misdemeanor cases only) If you wish to exercise your
              right to trial by jury, you must file a written demand for a jury
              trial. You must file this written demand no later than ten (10) days
              before your first scheduled trial date. If you fail to file a written
              demand, or if you file a written demand but you file it late, you
              give up your jury trial right, permanently. If you give up your
              jury trial right, you will have no say about whether it will be a
              jury or a judge who hears the evidence at your trial and
              determines whether the State of Indiana proves your guilt beyond
              a reasonable doubt.


      Appellant’s Appendix, Volume II at 14 (emphasis added).


[4]   The trial court set Cheesman’s trial date for September 28, 2016. Cheesman

      moved to continue her trial and the trial court set a new trial date of December

      7, 2016. Then, on November 18, 2016, the trial court set a new trial date of

      January 18, 2017, due to the unavailability of the presiding judge on the

      previously scheduled date. On January 6, 2017, Cheesman moved for a jury

      trial and a continuance. The trial court granted Cheesman’s request for a

      continuance, setting a new trial date of April 19, 2017, but denied her demand

      for a jury trial because it was untimely filed.


[5]   On April 7, 2017, the State moved to amend the information. Cheesman

      waived her initial hearing on the amended information and requested a

      continuance, which the trial court granted, and the trial court set a new trial

      date of May 10, 2017. On May 1, 2017, again because of the presiding judge’s

      unavailability on the scheduled date, the trial court reset the trial date for July

      26, 2017, when Cheesman’s trial was finally conducted. The trial court found


      Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018   Page 3 of 15
      Cheesman guilty as charged and sentenced her to one year suspended to

      probation. Cheesman now appeals.



                                     Discussion and Decision
[6]   On appeal, Cheesman argues that although Sixth Amendment jurisprudence

      only permits express waiver of a defendant’s jury trial right, Indiana Criminal

      Rule 22 permits waiver where a defendant fails to file a timely request for a jury

      trial—timely being ten days prior to the defendant’s first scheduled trial date.

      Therefore, Cheesman alleges that her Sixth Amendment jury trial right was

      violated when the trial court denied her jury demand. In turn, the State argues

      that Cheesman waived her jury trial right through her signature on the

      Defendant’s Acknowledgement of Rights and her subsequent failure to demand

      a jury trial within the allotted time period.


[7]   Notably, Cheesman confines her argument to the Sixth Amendment to the

      United States Constitution and does not present argument regarding Article 1,

      Section 13 of the Indiana Constitution, or Indiana Code Section 35-37-1-2.2


[8]   Indiana Criminal Rule 22 provides:


                 A defendant charged with a misdemeanor may demand trial by
                 jury by filing a written demand therefor not later than ten (10)



      2
          Indiana Code section 35-37-1-2 provides:

               The defendant and 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, all other trials must be by jury.

      Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018                           Page 4 of 15
              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.


      Applied here, the Rule required Cheesman’s demand for a jury trial be filed by

      September 18, 2016, ten days before the first scheduled trial date of September

      28. However, because September 18 fell on a Sunday, pursuant to Indiana

      Trial Rule 6(A)(2), Cheesman’s demand was due Monday, September 19.

      Cheesman’s demand was not filed until January 6, 2017—almost four months

      late.


                                      I. Standard of Review
[9]   Whether a defendant has waived her jury trial right under the Sixth

      Amendment is a question of law and we review such questions de novo. Horton

      v. State, 51 N.E.3d 1154, 1157 (Ind. 2016).




      Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018    Page 5 of 15
                                     II. The Jury Trial Right
                                      A. The Sixth Amendment
[10]   The Sixth Amendment to the United States Constitution provides:


               In all criminal prosecutions, the accused shall enjoy the right to a
               speedy and public trial, by an impartial jury of the state and
               district wherein the crime shall have been committed, which
               district shall have been previously ascertained by law, and to be
               informed of the nature and cause of the accusation; to be
               confronted with the witnesses against him; to have compulsory
               process for obtaining witnesses in his favor, and to have the
               assistance of counsel for his defense.


[11]   In criminal cases, the jury trial right is “fundamental to the American scheme of

       justice,” and such right has been incorporated to the states by way of the

       Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). This

       jury trial right extends to all charged with “serious” offenses. Id. at 160-61.

       Whether an offense is “serious,” as opposed to “petty,” is answered by

       “consider[ing] the maximum penalty attached to the offense.” Lewis v. United

       States, 518 U.S. 322, 326 (1996). A “serious offense” is any offense “where

       imprisonment for more than six months is authorized.” Baldwin v. New York,

       399 U.S. 66, 69 (1970).


[12]   In this case, Cheesman was charged with theft, a Class A misdemeanor. A

       Class A misdemeanor carries a possible term of imprisonment “of not more

       than one (1) year.” Ind. Code § 35-50-3-2. Thus, as a matter of federal

       constitutional law, Class A misdemeanors constitute “serious offenses” for the


       Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018   Page 6 of 15
       purposes of the Sixth Amendment.3 See, e.g., Martinez v. State, 82 N.E.3d 261,

       264 n.4 (Ind. Ct. App. 2017), trans. denied.


                          B. Waiver Under the Sixth Amendment
[13]   On appeal, Cheesman claims that her signature on the Defendant’s

       Acknowledgement of Rights form and her subsequent failure to demand a jury

       trial within the time permitted by Indiana Criminal Rule 22 were insufficient to

       constitute a valid waiver of her Sixth Amendment right to a trial by jury. We

       disagree.


[14]   It has long been established that a criminal defendant may waive his or her

       Sixth Amendment jury trial right. Patton v. United States, 281 U.S. 276, 299

       (1930), abrogated on other grounds by Williams v. Florida, 399 U.S. 78 (1970). Our

       supreme court recently discussed such waiver in Horton v. State:


               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.
               Waiver of the Sixth Amendment jury trial right must be “express
               and intelligent,” Patton v. United States, 281 U.S. 276, 312, 50
               S.Ct. 253, 74 L.Ed. 854 (1930), and waiver of the Indiana




       3
         Under the Supreme Court’s definition, “serious offenses” in Indiana for the purpose of the Sixth
       Amendment are Class A misdemeanors and all felonies. Class B and Class C misdemeanors carry maximum
       possible sentences of six months and two months, respectively. Ind. Code §§ 35-50-3-3; 35-50-3-4. Thus,
       they constitute “petty” offenses—without the protection of the Sixth Amendment.

       Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018                  Page 7 of 15
               constitutional jury trial right 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, Kellems [v. State, 849
               N.E.2d 1110, 1114 (Ind. 2006)]—an issue which, under the Sixth
               Amendment, has split federal circuit courts of appeals. Compare
               United States v. Khan, 461 F.3d 477, 492 (4th Cir. 2006)
               (upholding written waiver signed only by counsel), and United
               States v. Leja, 448 F.3d 86, 94-95 (1st Cir. 2006) (same), and
               United States v. Page, 661 F.2d 1080, 1081-82 (5th Cir. 1981)
               (upholding oral waiver by counsel), with United States v. Diaz, 540
               F.3d 1316, 1321-22 (11th Cir. 2008) (refusing to uphold written
               waiver signed only by counsel).


       51 N.E.3d 1154, 1158 (Ind. 2016) (emphasis added).


[15]   We addressed a claim similar to Cheesman’s in Martinez v. State. There,

       Martinez was charged with a Class A misdemeanor and several Class C

       misdemeanors. At his initial hearing, Martinez—who spoke limited English—

       signed a written acknowledgement of rights form in Spanish. 82 N.E.3d at 263.

       After failing to file a timely request for a jury trial, Martinez was convicted of a

       Class A misdemeanor at a bench trial and he subsequently appealed his

       conviction presenting two arguments:


               First, he argue[d] that requiring a person charged with a Class A
               misdemeanor to follow the procedures set forth in Ind. Criminal
               Rule 22 in order to exercise his or her right to a jury trial violates
               the Sixth Amendment to the U.S. Constitution. Second, he
               argue[d] that the record in this case does not reflect a knowing
               and intelligent waiver because the trial court gave him

       Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018    Page 8 of 15
               contradictory and ambiguous advisements concerning his right to
               a jury trial.


       Id. at 264.


[16]   Notwithstanding Martinez’s waiver of the issues due to his failure to present a

       complete record for our review, we nevertheless attempted to address his claims

       on the merits. Regarding his first argument, we explained, “even if we assume

       that Martinez did not personally waive his right to a jury trial, we conclude that

       no such waiver was constitutionally required.” Id. at 265. In doing so, we

       distinguished Horton, because the personal waiver discussed therein stemmed

       from a state statute—not the Sixth Amendment—and related to felony

       prosecutions—not misdemeanors. Id. Regarding his second argument, we noted

       that Martinez did not dispute the validity of the written acknowledgement of

       rights form, nor did he claim that he did not understand it. Rather, Martinez

       claimed the form was later contradicted when he was advised that if “he wished

       to waive his right to a jury trial, he must do so affirmatively in writing.” Id. at

       266. We then explained that the absence of transcripts hindered our review of

       the issue and concluded that Martinez had therefore failed to establish

       reversible error. Id. at 267.


[17]   Here, Cheesman’s argument differs in two meaningful respects. First, rather

       than the personal waiver at issue in Martinez—and Horton for that matter—

       Cheesman claims that waiver of the Sixth Amendment’s jury trial right must be

       “express and intelligent.” Appellant’s Brief at 10. And second, Cheesman

       makes no allegation that the trial court provided contradictory instructions and
       Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018   Page 9 of 15
       instead alleges that her inaction—failing to file a timely demand for a jury

       trial—is insufficient to constitute an express waiver.


[18]   We, of course, look to federal law regarding the efficacy of a waiver of a federal

       constitutional right. “The question of a waiver of a federal guaranteed

       constitutional right is . . . a federal question controlled by federal law.”

       Brookhart v. Janis, 384 U.S. 1, 4 (1966). “A waiver is ordinarily an intentional

       relinquishment or abandonment of a known right or privilege.” Johnson v.

       Zerbst, 304 U.S. 458, 464 (1938). And, when considering fundamental

       constitutional rights, like the right to trial by jury, we “indulge every reasonable

       presumption against waiver.” Id. Furthermore, we may not presume the

       waiver of a fundamental right from a silent record. Boykin v. Alabama, 395 U.S.

       238, 243 (1969); Casselman v. State, 472 N.E.2d 1310, 1311 n.1 (Ind. Ct. App.

       1985).


[19]   Regarding the applicable standard for waiver, Cheesman relies on the United

       States Supreme Court’s language in Patton v. United States:


                Trial by jury is the normal and, with occasional exceptions, the
                preferable mode of disposing of issues of fact in criminal cases
                above the grade of petty offenses. In such cases the value and
                appropriateness of jury trial have been established by long
                experience, and are not now to be denied. Not only must the
                right of the accused to a trial by a constitutional jury be jealously
                preserved, but the maintenance of the jury as a fact-finding body
                in criminal cases is of such importance and has such a place in
                our traditions, that, before any waiver can become effective, the
                consent of government counsel and the sanction of the court


       Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018    Page 10 of 15
                  must be had, in addition to the express and intelligent consent of the
                  defendant.


       281 U.S. at 312 (emphasis added).4 Cheesman also points to our supreme

       court’s statement in Horton that “[w]aiver of the Sixth Amendment jury trial

       right must be ‘express and intelligent,’ [citing Patton, 281 U.S. at 312].” 51

       N.E.3d at 1158.


[20]   In turn, the State attempts to distinguish the holding of Patton, arguing that the

       court was presented with a narrow question regarding whether a defendant

       could consent to an eleven-person jury, not whether a defendant could waive

       the right to trial by jury altogether. Therefore, the State argues, “the Court’s

       statement was dictum,” because there was no question that the parties had

       consented to the jury. Brief of Appellee at 8. And, in support thereof, the State

       offers two examples of Justices referring to the relevant language from Patton as

       dictum:


                  Gonzalez v. United States, 553 U.S. 242, 255 n.1 (2008) (Scalia, J.,
                  concurring) (noting that the statement “was dictum; the Patton
                  defendants had all agreed to the waiver”) (internal quotation
                  marks and citations omitted); id. at 267 (Thomas, J., dissenting)
                  (“The [Patton] Court stated in dicta that the express and




       4
           Although not cited by Cheesman, the Court later explained in Adams v. U.S. ex rel. McCann,
                We have already held that one charged with a serious federal crime may dispense with his
                Constitutional right to jury trial, where this action is taken with his express, intelligent consent,
                where the Government also consents, and where such action is approved by the responsible
                judgment of the trial court.
       317 U.S. 269, 277-78 (1942).

       Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018                               Page 11 of 15
               intelligent consent of the defendant is required before any waiver
               [of the right to a jury trial] can become effective.”) (internal
               quotation marks and citation omitted).


       Id. Instead of the “express and intelligent” standard of waiver advanced by

       Cheesman, the State asserts that the applicable standard is found in Brady v.

       United States, where the Court held that “[w]aivers of constitutional rights not

       only must be voluntary but must be knowing, intelligent acts done with

       sufficient awareness of the relevant circumstances and likely consequences.”

       397 U.S. 742, 748 (1970). However, because we find the record sufficient to

       support either, we need not decide exactly which standard is necessary to satisfy

       the Sixth Amendment. See Jean-Baptiste v. State, 82 N.E.3d 878, 878 (Ind. 2017)

       (noting “our longstanding principle of constitutional avoidance”).


[21]   Here, at her initial hearing and with the benefit of counsel, Cheesman signed an

       Acknowledgement of Rights form explaining that:


               4. (For Misdemeanor cases only) If you wish to exercise your
               right to trial by jury, you must file a written demand for a jury
               trial. You must file this written demand no later than ten (10) days
               before your first scheduled trial date. If you fail to file a written
               demand, or if you file a written demand but you file it late, you
               give up your jury trial right, permanently. If you give up your
               jury trial right, you will have no say about whether it will be a
               jury or a judge who hears the evidence at your trial and
               determines whether the State of Indiana proves your guilt beyond
               a reasonable doubt.


       Appellant’s App., Vol. II at 14 (emphasis added). Thus, Cheesman was clearly

       advised of her jury trial right and the consequences of failing to make a timely
       Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018   Page 12 of 15
       demand. See Levels v. State, 972 N.E.2d 972, 973-74 (Ind. Ct. App. 2012)

       (noting that a jury trial waiver is not valid unless the trial court advises a

       defendant of the consequences of his failure to demand a jury trial no later than

       ten days prior to the trial date).


[22]   After being clearly advised of the consequences thereof, Cheesman failed to file

       a demand for a jury trial until nearly four months after the deadline. As we

       have previously explained, “[t]he right to a jury trial in misdemeanor cases is

       not self-executing, but is controlled by Indiana Rule of Criminal Procedure 22.”

       Fiandt v. State, 996 N.E.2d 421, 423 (Ind. Ct. App. 2013). And, in Greene v.

       State, we held that:


               a defendant charged with a misdemeanor who fails to make a
               timely request waives the right to trial by jury if he has been
               advised in a timely manner of both the right to jury trial and the
               consequences of failing to make a timely demand. The
               defendant’s waiver, however, must be voluntary, knowing,
               intelligent, and personal.


       670 N.E.2d 38, 39 (Ind. Ct. App. 1996) (citations omitted), trans. denied; but see

       Martinez, 82 N.E.3d at 265 (holding that personal waiver of the jury trial right is

       not required). “Thus, when charged with a misdemeanor, a defendant can

       waive her right to a jury trial by failing to make a timely demand for trial by

       jury.” Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012).


[23]   To the extent Cheesman now argues that she never “expressly” waived her

       Sixth Amendment trial by jury right, her argument leaves us unconvinced.

       Although Cheesman explains the meaning of “express” as “clearly and
       Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018   Page 13 of 15
       unmistakably stated[,]” Appellant’s Br. at 10 (quoting Daubert v. NRA Group,

       LLC, 861 F.3d 382, 389 (3rd Cir. 2017)), she fails to apply the standard to the

       facts presented here by explaining how exactly her actions were constitutionally

       inadequate, or what exactly is necessary to expressly waive her Sixth

       Amendment trial by jury right. The Seventh Circuit explained:


               the sole constitutional requirement is that the waiver be
               voluntary, knowing, and intelligent. The colloquy and the
               written waiver serve to document these qualities, but a jury
               waiver may be valid despite their absence. So long as the
               defendant had a “concrete understanding” of his right to a jury
               trial, his waiver is valid.


       U.S. v. Williams, 559 F.3d 607, 610 (7th Cir. 2009), cert. denied, 558 U.S. 1147

       (2010) (citations omitted).


[24]   Here, it is undisputed that Cheesman had a “concrete understanding” of her

       right to a jury trial; she signed a form clearly advising her of such right and

       warning her of the procedural effects of Criminal Rule 22. Thus, Cheesman

       was aware of what she had to do and when she had to do it—she simply did not

       follow proper procedure. Moreover, we note that the specific language from

       Patton states that waiver requires the “express and intelligent consent of the

       defendant.” 281 U.S. at 312. We view Cheesman’s signature on the

       Acknowledgement of Rights form and her subsequent failure to file a demand

       for a jury trial as reflecting her express and intelligent consent—especially

       considering that she now offers no argument to the contrary. Therefore, we



       Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018   Page 14 of 15
       conclude Cheesman effectively waived her right to a jury trial pursuant to the

       Sixth Amendment.



                                                Conclusion
[25]   In light of Cheesman’s advisement of her right to jury trial, her

       acknowledgment thereof, and her failure to request a jury trial within the time

       period allotted by Criminal Rule 22, we conclude Cheesman effectively waived

       her right to a jury trial pursuant to the Sixth Amendment.


[26]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 11A01-1708-CR-1939 | April 12, 2018   Page 15 of 15
