MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be                          Nov 23 2016, 10:48 am

regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Adam C. Squiller                                        Gregory F. Zoeller
Squiller & Harley                                       Attorney General of Indiana
Auburn, Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Ventura S. Sanchez,                                     November 23, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        44A03-1603-CR-564
        v.                                              Appeal from the LaGrange
                                                        Superior Court
State of Indiana,                                       The Honorable Lisa Bowen-
Appellee-Plaintiff.                                     Slaven, Judge
                                                        Trial Court Cause No.
                                                        44D01-1306-FB-17



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 44A03-1603-CR-564 | November 23, 2016   Page 1 of 3
[1]   Ventura Sanchez appeals his convictions of Class B felony sexual deviate

      conduct 1 and Class B felony incest 2 following a bench trial. He argues he did

      not personally waive his right to a trial by jury. The State concedes reversible

      error occurred. Accordingly, we reverse and remand for a new trial.



                                Facts and Procedural History
[2]   On June 24, 2013, the State charged Sanchez with Class B felony sexual deviate

      conduct, Class B felony incest, and Class D felony sexual battery. 3 On August

      5, 2015, Sanchez filed notice he was ready for trial, a waiver of trial by jury, and

      a motion to set his cause for a bench trial. Sanchez’s counsel had signed the

      jury trial waiver, but Sanchez had not personally signed the waiver. The trial

      court held a bench trial and convicted Sanchez of sexual deviate conduct and

      incest. 4



                                     Discussion and Decision
[3]   Both the United States and Indiana Constitutions guarantee the right to jury

      trial. Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997); U.S. Const. amend. VI;




      1
          Ind. Code § 35-42-4-2 (1998).
      2
          Ind. Code § 35-46-1-3(a) (1994).
      3
          Ind. Code § 35-42-4-8(a)(1)(A) (2012).
      4
        The trial court determined it was prohibited from convicting Sanchez of both criminal deviate conduct and
      sexual battery “pursuant to the actual evidence test of the Indiana Double Jeopardy principles[.]” (App. Vol.
      III at 11-12.)

      Court of Appeals of Indiana | Memorandum Decision 44A03-1603-CR-564 | November 23, 2016           Page 2 of 3
      Ind. Const. art. 1 § 13. We presume a defendant did not waive this right unless

      he affirmatively acts to do so. Poore, 681 N.E.2d at 207. “To constitute a valid

      waiver of the right to a jury trial, [a] defendant’s waiver must be knowingly,

      voluntarily, and intelligently made with sufficient awareness of the relevant

      circumstances surrounding its entry and consequences.” Anderson v. State, 833

      N.E.2d 119, 122 (Ind. Ct. App. 2005). In addition, the waiver “must be

      ‘personal,’ either in a writing signed by the defendant or in the form of a

      colloquy in open court between the defendant and judge.” Kellems v. State, 849

      N.E.2d 1110, 1112-13 (Ind. 2006).


[4]   Sanchez did not sign the jury trial waiver that defense counsel filed. Nor does

      the record reflect a colloquy in open court between Sanchez and the trial court.

      As Sanchez did not personally express a desire to waive his right to jury trial,

      the waiver is invalid. See Anderson, 833 N.E.2d at 122 (holding waiver invalid

      where defendant neither signed the waiver nor expressed his personal desire to

      waive right to jury trial in open court). We therefore vacate Sanchez’s

      convictions and remand this case for a jury trial.


[5]   Reversed and remanded.


      Kirsch, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 44A03-1603-CR-564 | November 23, 2016   Page 3 of 3
