                                                                                  FILED
                                                                             Feb 06 2018, 10:21 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                        Rory Gallagher
Attorney General of Indiana                                Marion County Public Defender
                                                           Agency – Appellate Division
George P. Sherman                                          Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                          February 6, 2018
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           49A02-1704-CR-770
        v.                                                 Appeal from the Marion Superior
                                                           Court
Latasha Bonds,                                             The Honorable Annie Christ-
Appellee-Defendant.                                        Garcia, Judge
                                                           Trial Court Cause No.
                                                           49G24-1606-CM-23081



Bradford, Judge.




Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018                        Page 1 of 12
                                           Case Summary                    1




[1]   On June 15, 2016, Appellee-Defendant Latasha Bonds was charged with two

      misdemeanor offenses. Bonds waived her right to a trial by jury, instead

      electing to be tried in a bench trial. Appellant-Plaintiff the State of Indiana

      (“the State”), however, filed a written demand for a jury trial. The State

      initiated this interlocutory appeal after the trial court denied its demand for a

      jury trial and set the matter for a bench trial. Because we conclude that (1) the

      State does not have the right to demand a jury trial and (2) the State’s consent

      to a bench trial was not necessary in the underlying case, we affirm. It therefore

      follows that on remand, the matter should proceed to a bench trial.



                             Facts and Procedural History
[2]   Bonds stands accused of two misdemeanor offenses. On June 15, 2016, the

      State charged Bonds with Count I, Class A misdemeanor carrying a handgun

      without a license and Count II, Class A misdemeanor possession of marijuana.

      During a December 13, 2016 pre-trial conference, Bonds requested that the case

      be set for a bench trial. The deputy prosecutor responded, “Your Honor, the

      State does not waive.” Tr. Vol. II, p. 93. The trial court reminded the deputy




      1
        We held oral argument on January 22, 2018, at Ben Davis High School in Indianapolis. We wish to thank
      counsel for their advocacy and extend our appreciation to the students, faculty, and staff of Ben Davis for
      their hospitality.

      Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018                     Page 2 of 12
      prosecutor that the case involves only misdemeanor charges and set the case for

      a bench trial on February 6, 2017.


[3]   On December 28, 2016, the State filed a written demand for a jury trial.

      Following a January 23, 2017 hearing on the State’s motion, the trial court

      rejected the State’s demand for a jury trial. The trial court subsequently

      certified the issue for interlocutory appeal and this interlocutory appeal follows.



                                  Discussion and Decision
                                 I. The Parties’ Contentions
[4]   On appeal, the State contends that the trial court erred in denying its demand

      for a jury trial. In raising this contention, the State claims that the trial court

      erred in interpreting Indiana Code section 35-37-1-2 and Indiana Rule of

      Criminal Procedure 22 (“Criminal Rule 22”). Specifically, the State claims that

      the trial court erred in finding that the State did not have the right to demand a

      jury trial. The State alternatively claims that even if it could not demand a jury

      trial, its consent was necessary before the matter could be scheduled for a bench

      trial.


[5]   For her part, Bonds acknowledges that Indiana Code section 35-37-1-2 requires

      that the defendant, the State, and the trial court agree to waiver of a jury trial in

      cases involving felony charges, but contends that Criminal Rule 22 controls in

      this case as the case only involves misdemeanor charges. Thus, Bonds further

      contends that “[b]ecause the trial court properly followed Criminal Rule 22 by

      Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018   Page 3 of 12
      setting the matter for bench trial, this Court should affirm the trial court’s denial

      of the State’s demand for jury trial.” Appellee’s Br. p. 8.


                                     II. Standard of Review
[6]   On appeal, appellate courts “review a matter of statutory interpretation de novo

      because it presents a question of law.” Sloan v. State, 947 N.E.2d 917, 920 (Ind.

      2011). “[W]hen engaging in statutory interpretation, we ‘avoid an

      interpretation that renders any part of the statute meaningless or superfluous.’”

      ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1199 (Ind. 2016)

      (quoting Hatcher v. State, 762 N.E.2d 189, 192 (Ind. Ct. App. 2002)).


                   III. Overview of the Right to Trial by Jury
                                 A. Constitutional Protections
[7]   “The jury trial right is a bedrock of our criminal justice system, guaranteed by

      both Article I, Section 13 of the Indiana Constitution [(“Article I, Section 13”)]

      and the Sixth Amendment to the United States Constitution [(“the Sixth

      Amendment”)].” Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016) (bracketed

      material added). The Sixth Amendment provides as follows:


              Amendment VI. Jury trials for crimes, and procedural rights

              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

      Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018     Page 4 of 12
              process for obtaining witnesses in his favor, and to have the
              Assistance of Counsel for his defence.


      (Emphasis added). Article I, Section 13 provides, in relevant part, as follows:


              § 13 Rights of accused in criminal prosecutions

              Section 13. (a) In all criminal prosecutions, the accused shall have
              the right to a public trial, by an impartial jury, in the county in
              which the offense shall have been committed; to be heard by
              himself and counsel; to demand the nature and cause of the
              accusation against him, and to have a copy thereof; to meet the
              witnesses face to face, and to have compulsory process for
              obtaining witnesses in his favor.


      (Emphases added).


[8]   “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, 51 N.E.3d at 1158. The clear language of both the Sixth

      Amendment and Article I, Section 13 specifies that the rights afforded by each

      of these constitutional provisions are afforded to the accused. Neither provision

      contains any language indicating that the right to demand a jury trial is also

      afforded to the State. This is consistent with the general principle that both the




      Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018   Page 5 of 12
       United States and Indiana Constitutions provide certain enumerated rights

       meant to protect the citizenry from over-reach by the government.2


[9]    In addition, in Indiana the right to a jury trial is further guaranteed by Indiana

       Code section 35-37-1-2, which provides that “[t]he 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.”


                           B. Waiver of the Right to Trial by Jury
[10]   “Waiver of the Sixth Amendment jury trial right must be ‘express and

       intelligent[.]’” Horton, 51 N.E.3d at 1158 (quoting Patton v. U.S., 281 U.S. 276,

       312 (1930)). “[W]aiver of the Indiana constitutional jury trial right must be

       ‘knowing, voluntary[,] and intelligent[.]’” Id. (quoting Perkins v. State, 541

       N.E.2d 927, 928 (Ind. 1989)) (second set of brackets in original). Under this

       provision, “waiver is valid only if communicated personally by the defendant.”

       Id. (emphasis in original).




       2
         During oral argument, the State asserted that because it was not specifically mentioned in the constitutional
       provisions, statutory authority, or Supreme Court rules relating to an accused’s right to a jury trial, none of
       the limitations for such applied to the State and the State was therefore free to invoke its claimed right to a
       jury trial at any time. We are unpersuaded by the State’s assertion, however, because we find it to be
       inconsistent with the generally accepted principle that the United States and Indiana Constitutions are meant
       to protect the citizenry from over-reach by the government by limiting the powers of the government and
       granting certain enumerated rights to the citizenry which are not granted to the State. Constitutional and
       statutory rights are specifically created by enumeration, not by silence.

       Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018                        Page 6 of 12
[11]   Again, it is important to note that under both the Sixth Amendment and Article

       I, Section 13, the right to a jury trial is only expressly conferred upon the

       accused. As such, the requirements for waiver of that right generally relate to

       actions which must be taken by the accused.


                                        1. Felonies vs. Misdemeanors

[12]   While Article I, Section 13 “guarantees the right to a jury trial without

       distinction between felonies and misdemeanors or between degrees of

       misdemeanors,” Stevens v. State, 689 N.E.2d 487, 489 (Ind. Ct. App. 1997)

       (citing Gillespie v. Gilmore, 159 Ind. App. 449, 451, 307 N.E.2d 480, 482 (1974)),

       applicable authority has differentiated between the two. Applicable case law

       indicates that generally, “[a] person charged with a felony has an automatic

       right to a jury trial; the defendant is presumed not to waive this right unless he

       affirmatively acts to do so.” Poore v. State, 681 N.E.2d 204, 207 (Ind. 1997).


[13]   However, “‘[t]he right to a jury trial in misdemeanor cases is not self-executing,

       but is controlled by Indiana Rule of Criminal Procedure 22.’” Martinez v. State,

       82 N.E.3d 261, 264 (Ind. Ct. App. 2017) (quoting Fiandt v. State, 996 N.E.2d

       421, 423 (Ind. Ct. App. 2013)), trans. denied. “‘Thus, when charged with a

       misdemeanor, a defendant can waive [his or] her right to a jury trial by failing

       to make a timely demand for trial by jury.’” Fiandt, 996 N.E.2d at 423 (quoting

       Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012)) (bracketed material in

       original). “Further, although a defendant must be advised of her constitutional

       right to a jury trial, a written advisement of her rights and the consequences of


       Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018   Page 7 of 12
       failure to make a timely demand is sufficient to act as a waiver of said right.”

       Young, 973 N.E.2d at 645.


[14]   Criminal Rule 22 provides as follows:


               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.


       (Emphases added). Thus, pursuant to Criminal Rule 22, a defendant charged

       with a misdemeanor must file a timely written request for a jury trial and failure

       to do so results in waiver of the accused’s right to a jury trial.


                                                IV. Analysis
         A. Whether the State has the Right to Demand a Jury Trial
[15]   In claiming that the trial court erred in denying its demand for a jury trial, the

       State asserts that “[i]t has long been held that the statute governing jury trials

       requires that the defendant, the State, and the trial court all agree to any waiver

       of a jury trial.” Appellant’s Br. p. 6. The State further asserts that “[b]ecause

       Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018   Page 8 of 12
       there is no reason to believe that the General Assembly intended to remove the

       State’s long held statutory right to demand a jury trial, the trial court erred in

       denying the State’s request for a jury trial.” Appellant’s Br. p. 6. In researching

       the State’s assertions, however, we were unable to uncover any authority

       indicating that the State has the right to demand a jury trial. Rather, the

       relevant authority seems to suggest the opposite, i.e., that the right to demand a

       jury trial rests solely with the accused. Considering the relevant authority

       together with the clear language of the constitutional provisions discussed

       above, we conclude that the right to demand a jury trial rests solely with the

       accused and that the State does not have the right to demand a jury trial over

       the accused’s objection.


[16]   This conclusion is consistent with the likely intent of the Indiana Supreme

       Court as it seems illogical that it would place restrictions on when and how an

       accused can exercise their constitutionally protected right to trial by jury but fail

       to extend any of the same restrictions on the State. Criminal Rule 22 sets forth

       the procedure that an accused must follow if he or she wishes to submit his or

       her case to a jury rather than the trial court. Criminal Rule 22, however, makes

       no mention of any procedure by which the State may request to have the case

       be tried before a jury. If the Indiana Supreme Court had intended for the right

       to trial by jury to be extended to the State, it easily could have indicated that the

       procedures set forth in Criminal Rule 22 applied in equal force to both the

       accused and the State.




       Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018   Page 9 of 12
              B. Whether the State’s Consent to a Bench Trial was
                                  Necessary
[17]   For many years, Indiana Code section 35-37-1-2 provided that “[t]he defendant

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

       the court. All other trials must be by jury.” The Indiana Supreme Court

       interpreted this statute as meaning that “all criminal trials must be by jury

       except where [a bench trial is] consented to by both the parties and the court[.]”

       Alldredge v. State, 239 Ind. 256, 263, 156 N.E.2d 888, 891 (1959). However,

       effective July 1, 2015, the Indiana General Assembly amended Indiana Code

       section 35-37-1-2 to provide that “[t]he 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.” In arguing that the trial court erred

       by denying its request for a jury trial, the State claims that “it is reasonable to

       conclude that if the General Assembly intended to nullify the first sentence of

       the statute, then the first sentence would have been modified or deleted.”

       Appellant’s Br. p. 10. Thus, the State argues that Bonds should only receive a

       bench trial if the State consents, which it did not do.


[18]   Contrary to the State’s claim, however, we interpret the changes to Indiana

       Code section 35-37-1-2 as clarifying that the unchanged language provides the

       procedure for waiving a jury trial in a felony case while the added language

       clarifies the procedure for waiving a jury trial in a misdemeanor case. We

       believe that this interpretation better encompasses the likely intent of the


       Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018   Page 10 of 12
       General Assembly as it would not render any part of the amended version

       superfluous or meaningless. Stated differently, the addition of the reference to

       Criminal Rule 22, which again controls in cases involving only misdemeanor

       charges, would arguably have no bearing on the first sentence which has long

       been applied to cases involving felony charges. This interpretation is also

       consistent with Indiana Supreme Court’s decision in Horton, where it noted that

       “[e]ffective July 1, 2015, an amendment to this statute makes clear that the

       personal waiver requirement applies only in felony prosecutions—not

       misdemeanor prosecutions.… [Criminal Rule 22] provides that a defendant

       charged with a misdemeanor is presumed to waive the jury trial right unless he

       invokes it in writing at least ten days before the first scheduled day of trial.”

       Horton, 51 N.E.3d at 1158 n.1 (emphases added).


[19]   Considering the language of Criminal Rule 22 coupled with the recent change

       to Indiana Code section 35-37-1-2 and the Indiana Supreme Court’s statement

       found in footnote 1 in Horton, we infer that the General Assembly and the

       Indiana Supreme Court intended for misdemeanors to continue to be treated

       differently than felonies with regard to waiver of one’s right to trial by jury. 3

       We further conclude that because the instant matter involves only a




       3
         We note that provisional data for 2017 reveals that in 2017, 13,747 cases with misdemeanor cause numbers
       were filed in Marion County. See https://publicaccess.courts.in.gov/ICOR/ (last visited January 25, 2018).
       Provisional data also reveals that 136,550 cases with misdemeanor cause numbers were filed statewide in
       2017. See id.

       Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018                   Page 11 of 12
       misdemeanor charge, Criminal Rule 22, which does not require the State’s

       consent to a defendant’s waiver of her right to a jury trial, controls.



                                                Conclusion
[20]   The facts of this case demonstrate that Bonds was charged with two

       misdemeanor offenses. The State filed a written demand for a jury trial after

       Bonds waived her right to a jury trial. The trial court denied the State’s demand

       for a jury trial and set the matter for bench trial. Because we conclude that the

       State did not have the right to demand a jury trial and that the State’s consent to

       a bench trial was not necessary, we affirm the judgment of the trial court. On

       remand, the matter should therefore proceed to a bench trial.


[21]   The judgment of the trial court is affirmed and the matter remanded to the trial

       court for further proceedings.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1704-CR-770 | February 6, 2018   Page 12 of 12
