FOR PUBLICATION                                        FILED
                                                     Aug 29 2012, 9:36 am


                                                            CLERK
                                                          of the supreme court,
                                                          court of appeals and
                                                                 tax court



ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                GREGORY F. ZOELLER
Marion County Public Defender                Attorney General of Indiana
Indianapolis, Indiana
                                             KARL M. SCHARNBERG
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

WILLIS PRYOR,                                )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )       No. 49A02-1202-CR-101
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Linda E. Brown, Judge
                      The Honorable Charles A. Wiles, Senior Judge
                           Cause No. 49F10-1107-CM-51138



                                   August 29, 2012


                             OPINION - FOR PUBLICATION


BROWN, Judge
        Willis Pryor appeals his conviction for resisting law enforcement as a class A

misdemeanor1 and argues that he received ineffective assistance of trial counsel. Pryor

raises one issue, which we revise and restate as whether trial counsel’s failure to preserve

Pryor’s right to a jury trial denied him the effective assistance of counsel. We reverse

and remand.

        The relevant facts follow. On July 19, 2011, the State charged Pryor with resisting

law enforcement as a class A misdemeanor. On August 8, 2011, the court scheduled a

hearing for November 1, 2011. On November 1, 2011, the court held a pre-trial hearing.2

An “Off the Record Request for New Court Date” form signed by the deputy prosecuting

attorney, Pryor, and defense counsel on November 1, 2011, included the date of “1-23-

12” next to the pre-printed words “Bench Trial on” and the time of “1:00 pm” was

circled. Appellant’s Appendix at 24.

        On January 17, 2012, Pryor, by counsel Daniel Cicchini, filed a request for a jury

trial. On January 23, 2012, prior to the scheduled bench trial the court heard arguments

and testimony from Pryor on Pryor’s request for a jury trial. Pryor’s counsel initially

stated that he believed that the jury request had been timely filed due to the weekend and

holiday. The court noted: “Well Judge Brown[3] looked at this just now, you know, as I


        1
         Ind. Code § 35-44-3-3 (Supp. 2011) (subsequently repealed and re-codified by Pub. L. No. 126-
2012, §§ 53-54 (eff. Jul. 1, 2012)).
        2
           The record does not contain a transcript of this hearing. The chronological case summary
(“CCS”) indicates that Pryor was represented by attorney Mark Nicholson at the hearing. The CCS also
indicates that Pryor had been represented by other counsel at pre-trial conferences held on July 20, 2011
and August 8, 2011.
        3
         Senior Judge Charles Wiles presided over the January 23, 2012 proceedings in Marion Superior
Court, Criminal Division, Room 10. According to the CCS, Judge Linda Brown had presided over the
                                                   2
walked in she was looking at it and denied the motion. She must have calculated the

dates.”4 Transcript at 5-6. Pryor’s counsel then argued that, if the court was “not

persuaded that the motion was timely, unfortunately [] Pryor has received ineffective

assistance of counsel by the Public Defender’s Agency,” that “[t]here’s no strategic

reason for filing a Jury Demand tardy,” and that “[i]t is reversible error on appeal if the

defendant is wrongfully denied a jury trial,” citing Stevens v. State, 689 N.E.2d 487 (Ind.

Ct. App. 1997), and Lewis v. State, 929 N.E.2d 261 (Ind. Ct. App. 2010). Id. at 6. Pryor

testified, in response to questions from defense counsel, that he was represented by public

defenders. When asked “[w]hen you spoke with members of, attorneys with the Public

Defender’s Agency, did you inform them that you wanted a jury trial,” Pryor testified

“Yes, the last time I was here before.” Id. at 9. Pryor’s counsel then argued that Pryor

notified his attorneys that he wanted a jury trial, that the court has determined that the

motion for a jury trial was filed untimely, that there is no strategic reason to file a late

motion, and if Pryor is forced to proceed with a bench trial he would be deprived of his

fundamental right to a jury trial through no fault of his own. The court denied Pryor’s


November 1, 2011 pre-trial conference.
       4
           Ind. Rule of Crim. Procedure 22 provides:

       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.
                                                       3
request and stated “well given all those circumstances and everything, I’m going to well,

reaffirm if you will, Judge Brown’s denial of the request for trial by jury and I don’t see

ineffective assistance of counsel being a remedy to get around a rule for, that’s been in

place ever since I can remember,” that “[i]t’s very well defined, and if there was a slip up

on somebody’s behalf, I guess it would just say so be it,” and “[s]o we’re going to go

ahead with trial today then.” Id. at 11.

        The court then proceeded to hold a bench trial, at which the State presented the

testimony of Indianapolis Police Department Officer Todd Scroggins that on July 19,

2011, he had stopped Pryor for committing a traffic violation while riding his bicycle,

that when an officer attempted to handcuff him, Pryor attempted to break the officer’s

grip, and officers placed Pryor on the ground and handcuffed him. The court stated that

“I am not into the bike lane violation, but I think the evidence here supports the finding of

guilty on the Resisting charge” and acknowledged that Pryor “has some infirmities and

things and we appreciate that.”5 Id. at 55. The court found Pryor guilty as charged,

sentenced him to 365 days with 359 days suspended, and ordered Pryor to be placed on

probation for 180 days and to complete thirty hours of community service work.

        The issue is whether trial counsel’s failure to preserve Pryor’s right to a jury trial

denied him the effective assistance of counsel. To prevail on a claim of ineffective

assistance of counsel, a petitioner must demonstrate both that his counsel’s performance

was deficient and that the petitioner was prejudiced by the deficient performance. Ben-

        5
           Pryor testified that he had “plastic screws in [his] neck” and ankle, that he had “been diffused,”
that the “whole left side of [his] body” was impaired, and that he was “about twenty five (25) to about
thirty five (35) percent disabled.” Transcript at 38. Pryor also testified that he had been riding his bike on
a sidewalk.
                                                      4
Yisrayl v. State, 729 N.E.2d 102, 106 (Ind. 2000) (citing Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), reh’g denied), reh’g denied, cert. denied,

534 U.S. 830, 122 S. Ct. 73 (2001). A counsel’s performance is deficient if it falls below

an objective standard of reasonableness based on prevailing professional norms. French

v. State, 778 N.E.2d 816, 824 (Ind. 2002). To meet the appropriate test for prejudice, the

petitioner must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.

Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001). Failure to satisfy either prong will cause

the claim to fail. French, 778 N.E.2d at 824. Most ineffective assistance of counsel

claims can be resolved by a prejudice inquiry alone. Id.

       When considering a claim of ineffective assistance of counsel, a “strong

presumption arises that counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Morgan v. State, 755

N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance is presumed effective, and a

defendant must offer strong and convincing evidence to overcome this presumption.”

Williams v. State, 771 N.E.2d 70, 73 (Ind. 2002). Evidence of isolated poor strategy,

inexperience, or bad tactics will not support a claim of ineffective assistance of counsel.

Clark v. State, 668 N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S.

1171, 117 S. Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986).



                                            5
       We observe that Pryor is raising a claim of ineffective assistance of counsel on

direct appeal. In Lewis, we noted that a post-conviction hearing is normally the preferred

forum to adjudicate an ineffectiveness claim. 929 N.E.2d at 263 (citing Woods v. State,

701 N.E.2d 1208, 1219 (Ind. 1998), reh’g denied, cert. denied, 528 U.S. 861, 120 S. Ct.

150 (1999)). We also noted that, “[n]evertheless, some claims of ineffective assistance of

counsel can be evaluated on the trial record alone, and such claims are resolvable on

direct appeal. Id. “Some claims of ineffective assistance of trial counsel concern a

decision by trial counsel that is perhaps within the range of acceptable tactical choices

counsel might have made, but in the particular instance is claimed to be made due to

unacceptable ignorance of the law or some other egregious failure rising to the level of

deficient attorney performance.” Id. (citation and internal quotation marks omitted). “In

those cases, the reasoning of trial counsel is sometimes apparent from the trial record.”

Id. “When the reasoning of trial counsel is apparent from the record, the claim of

ineffective assistance of trial counsel can be appropriately addressed on direct appeal.”

Id.   Here, Pryor’s counsel presented arguments before the court and elicited sworn

testimony from Pryor regarding his claim. There is sufficient evidence in the record to

address Pryor’s claim. See id. at 263 n.4 (acknowledging that neither Lewis nor his

attorneys testified under oath at the hearings in the matter but nevertheless concluding

that there was sufficient evidence in the record to address Lewis’s claim).

       Pryor argues that he received ineffective assistance of counsel when his attorney

failed to file a timely demand for a jury trial because he inadvertently miscalculated the

deadline date.   Pryor argues that “[t]he record is unclear as to when trial Attorney

                                             6
Cicchini learned of Pryor’s desire to be tried by jury” but that “it must have been

sometime on or before January 17, 2011.” Appellant’s Brief at 7. Pryor points to this

court’s opinions in Stevens and Lewis and asserts that the failure to file a timely demand

was a mistake and not a choice or strategy and that he was prejudiced by his trial

counsel’s deficient performance.

        The State argues that, while Pryor claimed he had made a request for a jury trial

the last time he was in court, the CCS shows that the last time Pryor was in court he

signed a document requesting a bench trial, that “[t]he request for a bench trial on the

same date that [Pryor] claims he requested a jury trial signed by both [Pryor] and the

person who he purports to have informed of his request contradicts his later claim that he

made such a request,” and that “[t]his Court should reject [Pryor’s] testimony and find

that the record indicates that he made no such request and affirm the trial court’s denial of

his request.” Appellee’s Brief at 5. The State further argues that this court’s “rule in

Stevens and Lewis acts in contradiction to the Davis/Hatton procedure” and that this

court should reconsider Stevens and Lewis and “hold that the procedure outlined in Davis

and Hatton is sufficient to the resolution of claims like these.”6 Id. at 8.

        In his reply brief, Pryor argues that this court “decided Stevens fifteen years ago

and its reasoning has never been questioned or viewed unfavorably by another Court

        6
           The Davis/Hatton procedure involves a termination or suspension of a direct appeal already
initiated, upon appellate counsel’s motion for remand or stay, to allow a post-conviction relief petition to
be pursued in the trial court. Taylor v. State, 929 N.E.2d 912, 917 n.1 (Ind. Ct. App. 2010) (citing State
v. Lopez, 676 N.E.2d 1063, 1069 (Ind. Ct. App. 1997) (citing Hatton v. State, 626 N.E.2d 442 (Ind.
1993); Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977)), trans. denied), trans. denied; Ind. Appellate
Rule 37(A) (“At any time after the Court on Appeal obtains jurisdiction, any party may file a motion
requesting that the appeal be dismissed without prejudice or temporarily stayed and the case remanded to
the trial court . . . for further proceedings. The motion must be verified and demonstrate that remand will
promote judicial economy or is otherwise necessary for the administration of justice.”)).
                                                     7
since then” and in fact it was relied upon heavily in Lewis. Appellant’s Reply Brief at 2.

Pryor argues that the right to a jury trial is an essential element of his right to due process,

that “[t]he wrong in this case is Pryor was deprived of a fundamental right due to his

attorney’s miscalculation of a deadline,” and that “[a]s a result, the best and only way to

fix it is to allow him fully and fairly exercise his right to be tried by jury.” Id.

       The right to a trial by jury is a fundamental linchpin of our system of criminal

justice. Lewis, 929 N.E.2d at 264 (citing Kellems v. State, 849 N.E.2d 1110, 1112 (Ind.

2006)). Article 1, Section 13 guarantees the right to a jury trial without distinction

between felonies and misdemeanors. Id.

       In Stevens v. State, the defendant was convicted following a bench trial of

criminal trespass and disorderly conduct, each as misdemeanors, based upon his

demonstration against the sale of animal furs at the Lazarus Store in the Castleton Square

Mall in Indianapolis. 689 N.E.2d at 487-488. Following his arrest, the defendant was

advised that if he wished to have a jury trial he had to submit a timely request. Id. at 488.

Although the defendant notified his attorney that he desired to exercise his right to a jury

trial, counsel did not file a request in the trial court. Id. Thereafter, counsel withdrew,

and a new attorney appeared on the defendant’s behalf. Id. On the scheduled trial date,

the defendant’s new attorney explained to the court that the defendant had requested a

jury trial and indicated that she had spoken with the original attorney assigned to the case

who told her that the defendant was to have a jury trial. Id. The trial court noted that the

defendant had not filed a timely jury trial request and had waived his right. Id.



                                               8
       On appeal, the defendant argued that he was denied his right to a jury trial due to

counsel’s ineffective assistance. Id. at 489. This court initially noted that “the right to a

jury trial is of fundamental dimension,” that an “accused must be given every reasonable

opportunity to procure a fair and impartial jury,” and that “[w]hile Criminal Rule 22

alters the manner of preserving the right to a jury trial in misdemeanor cases, the rule

cannot diminish [the defendant’s] fundamental right.”           Id. (citations and internal

quotation marks omitted). The court then noted that the defendant’s trial counsel stated

that both attorneys knew of the defendant’s desire for a jury trial, that neither filed the

necessary request in a timely manner, and that the record did not support an inference that

the omission was due to trial strategy but rather showed that the failure to file the request

resulted from a combination of a change in representation, a burdensome case load, and

confusion over the trial date. Id. at 490. The court concluded that, in failing to preserve

the defendant’s fundamental right, the performance of defendant’s trial counsel fell below

the range of professionally competent representation. Id. at 490. The court further noted

that in certain instances prejudice from defense counsel’s performance will be presumed

for purposes of ineffective assistance of counsel claims and that the right to a trial by jury

is an essential element of a criminal defendant’s right to due process of law. Id. The

court held that the defendant did not receive the effective assistance of counsel and,

accordingly, the cause was remanded to the trial court with instructions to set aside the

conviction and grant a new trial. Id. at 491.

       In Lewis v. State, the defendant was convicted of domestic battery as a class A

misdemeanor. 929 N.E.2d at 262. On the day of the defendant’s bench trial, the parties

                                                9
appeared in court, and the defendant, by counsel, told the court that he wanted a jury trial

and had requested one at his initial hearing. Id. at 262-263. The defendant’s counsel

informed the court that the request had not been communicated to anybody until that day.

Id. at 263. After initially resetting the case for a jury trial, the trial court ultimately reset

the case for a bench trial and denied the defendant’s written request for a jury trial. Id.

       On appeal, the defendant argued that he received ineffective assistance of trial

counsel because counsel failed to timely file a written demand for a jury trial. Id. at 263-

264. The court noted that the trial court’s chronological case summary demonstrated that

the defendant had expressed a preference for a jury trial during an initial hearing. Id. at

264. The court further noted that, like in Stevens, the failure of the defendant’s attorneys

to file a written jury trial request could not be considered a strategic choice and that the

change in the defendant’s representation between hearings also doubtlessly contributed to

counsel’s error. Id. at 265. The court concluded that the attorneys’ failure to timely file a

written request for a jury trial fell below the range of professionally competent

representation and that prejudice was presumed because the defendant was deprived of a

fundamental right. Id. The court reversed the judgment of the trial court and remanded

with instructions to vacate the defendant’s conviction and hold a new trial. Id.

       In this case, Pryor was represented by attorney Shannon Garvey at the July 20,

2011 pre-trial conference, by attorney Fallon Coleman at the August 8, 2011 pre-trial

conference, by attorney Mark Nicholson at the November 1, 2011 hearing, and by

attorney Daniel Cicchini at the time he filed his request for a jury trial on January 17,

2012, and at the January 23, 2012 proceedings and bench trial. Prior to the trial on

                                               10
January 23, 2012, Pryor’s counsel Cicchini stated that he believed that the jury trial

request had been timely filed due to the weekend and holiday. 7 Pryor testified, in

response to questions from defense counsel, that he was represented by public defenders,

and when asked “[w]hen you spoke with members of, attorneys with the Public

Defender’s Agency, did you inform them that you wanted a jury trial,” Pryor testified

“Yes, the last time I was here before,” see Transcript at 9, which according to the CCS

was the November 1, 2011 hearing. Pryor’s counsel then argued that Pryor notified his

attorneys that he wanted a jury trial, that there was no strategic reason to file a late

motion, and that if Pryor was forced to proceed with a bench trial he would be deprived

of his fundamental right to a jury trial through no fault of his own.

        Further, like in Stevens and Lewis, the failure of Pryor’s attorneys to file a written

jury trial request in a timely manner cannot be considered a strategic choice. Pryor’s

defense counsel argued at length prior to the start of the bench trial on January 23, 2012,

that Pryor should be given a jury trial, and this course of conduct is inconsistent with a

strategic determination to seek a bench trial. See Lewis, 929 N.E.2d at 265. Also, as was

the case in Stevens and Lewis, the change in Pryor’s representation between hearings

contributed in part to defense counsel’s error. See id. (providing that “the change in

Lewis’ representation between hearings also doubtlessly contributed to counsel’s error”);

Stevens, 689 N.E.2d at 490 (noting that the record showed that “the failure to file the


        7
          Specifically, Pryor’s counsel stated that “[i]f today is included in the ten (10) day period, if we
count inclusively from the 23rd backwards, including the 23rd, it would mean that the jury expiration date
was January 14th which was a Saturday,” that “[c]ourt didn’t re-open until Tuesday because of Martin
Luther King, Jr. Holiday, and that was the date upon which I filed the Motion for the Jury Demand.”
Transcript at 4.

                                                    11
request resulted from a combination of a change in representation, a burdensome case

load, and confusion over the trial date”). Based upon the record, we find that the failure

of Pryor’s counsel to timely file a written request for a jury trial fell below the range of

professionally competent representation.8 See Lewis, 929 N.E.2d at 265.

        In addition, when counsel’s performance falls below the range of professionally

competent representation and deprives a defendant of a fundamental right such as the

right to a trial by jury, prejudice is presumed. See id. (citing Stevens, 689 N.E.2d at 490).

Therefore, Pryor was prejudiced by his counsel’s error and did not receive effective

assistance of trial counsel with respect to his request for a jury trial.9 See id.

        Accordingly, for the foregoing reasons, we reverse the judgment of the trial court

and remand with instructions to vacate Pryor’s conviction for resisting law enforcement

as a class A misdemeanor and to hold a new trial by jury.

        Reversed and remanded.

FRIEDLANDER, J., and DARDEN, Sr. J., concur.




        8
           We cannot say that the “Off the Record Request for New Court Date” form signed on
November 1, 2011, standing alone was tantamount to an agreement by Pryor to proceed to a bench trial
rather than a jury trial. The form, which by its caption and format appears to have been primarily used to
schedule court dates, contained pre-printed lines for “Review of Counsel,” “Request Public Defender,”
“Pre-trial Conference,” “Guilty Plea Hrg,” and “Bench Trial,” there was no pre-printed option for a jury
trial, and the only written portion of the form included the date of “1-23-12” next to the words “Bench
Trial” and the circle around the time of “1:00 pm” on the form. Appellant’s Appendix at 24.
        9
          We decline to reconsider this court’s previous decisions in Stevens and Lewis or to require
Pryor to suspend this direct appeal under the Davis/Hatton procedure in order to develop a record below
under the circumstances and where Pryor’s counsel presented arguments before the trial court and elicited
testimony from Pryor which is included in the record.
                                                   12
