Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                          May 28 2013, 9:45 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

CARA SCHAEFER WIENEKE                             GREGORY F. ZOELLER
Special Assistant to the State Public Defender    Attorney General of Indiana
Wieneke Law Office, LLC
Plainfield, Indiana                               KATHERINE MODESITT COOPER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

ANGEL L. DIAZ,                                    )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )      No. 52A04-1212-CR-660
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                       APPEAL FROM THE MIAMI CIRCUIT COURT
                     The Honorable Douglas B. Morton, Judge Pro Tempore
                               Cause No. 52C01-1204-FB-34



                                         May 28, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                             STATEMENT OF THE CASE

       Angel Diaz appeals his convictions for possession of a firearm by a serious violent

felon, a Class B felony; pointing a firearm, as a Class D felony; and criminal mischief, as

a Class B misdemeanor, following a bench trial. Diaz presents a single issue for our

review, namely, whether the trial court abused its discretion when it denied his motion to

reinstate a jury trial.

       We affirm.

                          FACTS AND PROCEDURAL HISTORY

       In April 2012, the State charged Diaz with possession of a firearm by a serious

violent felon, a Class B felony; carrying a handgun without a license, as a Class C felony;

pointing a firearm, as a Class D felony; possession of marijuana, as a Class A

misdemeanor; and criminal mischief, as a Class B misdemeanor. A three-day jury trial

was scheduled to begin on October 22. On October 12, Diaz and his trial counsel signed

a written waiver of jury trial form, the State filed its consent to the jury trial waiver, and

the trial court scheduled a bench trial to begin on October 29.

       On the first day of the bench trial, Diaz filed a motion to reinstate jury trial and

requested a hearing “for determination of the voluntariness” of his jury trial waiver.

Appellant’s App. at 57. The trial court conducted a hearing on the motion, and Diaz

testified that he had misunderstood the waiver form and thought that “it was gonna be

less [sic] jurors to save the Court money.” Transcript at 69. The trial court denied Diaz’s




                                              2
motion, conducted a bench trial, and found Diaz guilty of three of the original charges. 1

This appeal ensued.

                              DISCUSSION AND DECISION

       A knowing, intelligent, and voluntary waiver of a jury trial may be accomplished

by a written waiver or in open court. Kimball v. State, 474 N.E.2d 982, 986 (Ind. 1985).

Although the right to a jury trial is of fundamental dimension, one who knowingly

relinquishes that right has no constitutional right to withdraw that relinquishment or

waiver. Hutchins v. State, 493 N.E.2d 444, 445 (Ind. 1986). The decision to allow

withdrawal of the waiver is within the court’s discretion. Id. Therefore, on appeal, we

will reverse the trial court’s decision only if it is clearly against the logic and effect of the

facts and circumstances before the court. See Daugherty v. State, 957 N.E.2d 676, 680

(Ind. Ct. App. 2011).

       Diaz contends that his jury trial waiver was not knowing or voluntary because

“when he signed the waiver, he misunderstood the consequences of that waiver.” Brief

of Appellant at 6. In particular, at the hearing on his motion to withdraw the waiver, Diaz

testified that he thought he was merely agreeing to save the State money by having fewer

jurors hear the case. He testified that after “speaking with a couple people [sic] who’ve

been in jail, and . . . looking it up [himself, he] found out” that the waiver meant that he

would be “judged by [the trial judge.]” Transcript at 69-70.

       But on cross-examination, Diaz testified that he knows how to read and that he

read the waiver before he signed it. The waiver stated:


       1
          The State withdrew one of the charges, and the trial court found Diaz not guilty of the
remaining charge.
                                               3
       Defendant moves this court to enter its order removing this case from the
       jury docket and setting it for a bench trial to the Court. In support
       defendant states:

       1.     Defendant herein waives the right to try this matter to a jury and asks
       the court to set the case for a bench trial.

       WHEREFORE, undersigned Defendant and defense counsel respectfully
       request the Court remove this cause from its jury docket and set the matter
       for a bench trial.

Appellant’s App. at 52. Diaz also admitted to having read and signed a form entitled

“Rights of Defendant Felony” while in jail after his arrest, and that form advised Diaz

that he had a right to a jury trial or a trial “only by the Judge sitting without a jury” if he

so chose. Id. at 72-73. Diaz’s contentions on appeal amount to a request that we reweigh

the evidence, which we will not do. The trial court did not abuse its discretion when it

denied Diaz’s motion to withdraw his jury trial waiver.

       Affirmed.

BAILEY, J., and BARNES, J., concur.




                                              4
