Opinion
21A-CR-1557
06-07-2022
Jermaine D. Marshall, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff,
Attorney for Appellant Tyler D. Helmond Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
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 establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Vanderburgh Circuit Court The Honorable Celia Pauli, Magistrate Trial Court Cause No. 82C01-2101-F5-317
Attorney for Appellant
Tyler D. Helmond
Voyles Vaiana Lukemeyer Baldwin & Webb
Indianapolis, Indiana
Attorneys for Appellee
Theodore E. Rokita
Attorney General of Indiana
Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Robb, Judge.
Case Summary and Issue
[¶1] Following a bench trial, Jermaine Marshall was found guilty of attempted robbery, a Level 5 felony, and he admitted to being an habitual offender. The trial court sentenced him to an aggregate term of three years, with one year suspended to probation. Marshall now appeals, raising one issue for our review which we restate as whether Marshall knowingly, voluntarily, and intelligently waived his right to a jury trial. Concluding Marshall's waiver of a jury trial was knowing, voluntary, and intelligent, we affirm.
Facts and Procedural History
[¶2] On the morning of January 15, 2021, Marshall placed a call to the Evansville/Vanderburgh central dispatch and indicated that he was robbing a CVS Pharmacy. Inside the store, Marshall also told the manager, Joseph Hostettler, that he was "robbing the place." The Transcript of Hearings, Volume II at 51. After a brief exchange, Hostettler grabbed his cellphone, walked outside, called the police, and reported the attempted robbery. Police arrived shortly thereafter and took Marshall into custody.
Marshall remained on the phone with central dispatch during his interaction with Hostettler.
[¶3] The State charged Marshall with Count I, robbery, a Level 5 felony, and Count II, attempted theft, a Level 6 felony. At an initial hearing held in late January 2021, Marshall was advised of his rights and appointed counsel. Thereafter, Marshall requested to waive counsel. In February 2021, at a hearing on Marshall's request to waive counsel, Marshall was advised of the perils of self-representation and he informed the court that he had a tenth-grade education, could read and write English, had previously represented himself in civil matters, was familiar with legal procedure, and had discussed the matter of self-representation with his appointed counsel. The trial court granted Marshall's request to proceed pro se and appointed standby counsel.
[¶4] Immediately after his request to waive counsel was granted, Marshall indicated that he had a few questions for the trial court and the following exchange took place:
[Marshall]: Alright. The first thing [is, ] I want to have a bench trial, not a jury trial.
THE COURT: Okay. You understand that you have the constitutional right to have a jury trial, right?
[Marshall]: Yes, your honor, but I do not want a jury trial, I want a bench trail [sic].
THE COURT: Okay. What I would like for you to do, I'll show that you make that oral request today. I'm going to ask that you follow that up in writing, okay? If you can, it doesn't have to be long or anything like that. If you can just follow that up with a written motion requesting a bench trial, that would be great. But I'm going to show that you make that oral request today, okay?
[Marshall]: Alright. . . .Id. at 7-8. Marshall then stated that he would include his request for a bench trial with several other pretrial requests that he intended to raise "all in one motion" and that he understood that he would be held to the same standard as an attorney. Id. at 8. The trial court then scheduled a bench trial to take place in May 2021. On February 19, 2021, Marshall filed a handwritten motion making multiple requests including a "[m]otion too [sic] have a [b]ench trial." Appendix to Appellant's Brief, Volume Two at 44.
[¶5] In March 2021, the State amended Count I, robbery, a Level 5 felony, to attempted robbery, also a Level 5 felony, and added an habitual offender enhancement. An initial hearing was held on the amended charge and Marshall was again advised of, among other rights, his right to a jury trial, which he indicated that he understood. See Tr., Vol. II at 29. Subsequently, Marshall reiterated his desire for a bench trial in multiple motions filed with the trial court in April 2021. See App. to Appellant's Br., Vol. Two at 77, 87, 92.
[¶6] In May 2021, a bench trial was conducted, and the trial court found Marshall guilty of both Count I and Count II. The trial court then merged the attempted theft conviction into the attempted robbery conviction and entered judgment of conviction for attempted robbery only. A hearing on Marshall's habitual offender enhancement was scheduled for June 2021; however, Marshall later admitted to being an habitual offender. As a result, the trial court vacated the hearing date and ordered a presentence investigation report. The report highlighted that Marshall currently suffers from anxiety and previously struggled with delusions and psychosis. The report also detailed Marshall's extensive criminal history, including four prior felony convictions.
[¶7] On July 15, 2021, the trial court held a sentencing hearing and sentenced Marshall to an aggregate term of three years, with one year suspended to probation. Marshall now appeals.
Discussion and Decision
I. Right to a Jury Trial
[¶8] The right to a jury trial is a bedrock of our criminal justice system, guaranteed by both Article 1, Section 13 of the Indiana Constitution and the Sixth Amendment to the United States Constitution. Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016). Accordingly, it is fundamental error to deny a defendant his right to a jury trial unless there is evidence of the defendant's knowing, voluntary, and intelligent waiver of the right. Johnson v. State, 6 N.E.3d 491, 496 (Ind.Ct.App. 2014). "A voluntary waiver occurs if the conduct constituting the waiver is the product of a free will; a knowing waiver is the product of an informed will; [and] an intelligent waiver is the product of a will that has the capacity to understand[.]" Id. (internal quotation omitted). Further, waiver of a jury trial must be personally expressed by the defendant, and such desire must be apparent from the record. Id. Whether a defendant has waived his right to a jury trial is a question of law and we review such questions de novo. Cheesman v. State, 100 N.E.3d 263, 267 (Ind.Ct.App. 2018), trans. denied
II. Knowing, Voluntary, and Intelligent Waiver
[¶9] Marshall argues that "the record [] does not establish [he] made a personal waiver of his right to jury trial knowingly, intelligently, and voluntarily." Appellant's Brief at 10. We disagree.
[¶10] Marshall orally expressed his desire to have a bench trial while in court. He then followed up this oral waiver of his right to a jury trial by filing a "[m]otion too [sic] have a [b]ench trial" in February 2021. App. to Appellant's Br., Vol. Two at 44. Marshall's actions are sufficient to establish that his waiver was personal. Moreover, the record also supports a knowing, voluntary, and intelligent waiver. In addition to expressing his personal desire to waive his right to a jury trial both orally and in writing, he appeared in person with standby counsel when he acknowledged his right to a jury trial, indicated that he understood this right, and did not object to scheduling a bench trial for May 2021. See Tr., Vol. II at 8, 12.
[¶11] Nevertheless, Marshall contends that the record suggests he had "virtually no awareness of the surrounding circumstances and consequences" to demonstrate a proper waiver. Appellant's Br. at 14. Marshall relies on our supreme court's decision in Poore v. State, 681 N.E.2d 204 (Ind. 1997), to suggest that a certain level of education and literacy, as well as the signing of specific documentation is necessary to demonstrate a proper waiver. In Poore, the court held that the defendant's waiver of his right to a jury trial was knowing, voluntary, and intelligent, in part, because he had received his G.E.D., completed undergraduate coursework, had a "literate exchange" with the court, and signed, along with his attorney, a written waiver of his right to a jury trial. 681 N.E.2d at 207. However, the court did not go so far as to say these specific circumstances were requirements for a proper waiver. Rather, due to the defendant's circumstances, a knowing, voluntary, and intelligent waiver could be inferred. See id.
[¶12] Similarly, this record provides several grounds for inferring Marshall knowingly, voluntarily, and intelligently waived his right to a jury trial. First, Marshall represented himself throughout the majority of this case and filed multiple motions, including motions restating his desire to have a bench trial. Second, he informed the trial court that he had previously represented himself in other matters and was familiar with legal procedure. See id. (reasoning that familiarity with the judicial process makes it quite likely that the defendant knew about the right he was giving up by waiving a jury trial). Third, Marshall has a lengthy criminal history which includes four prior felony convictions. See McSchooler v. State, 15 N.E.3d 678, 683 (Ind.Ct.App. 2014) (reasoning that an extensive criminal history allows a valid waiver to be inferred). Accordingly, the record also allows for an inference that Marshall knowingly, voluntarily, and intelligently waived his right to a jury trial.
[¶13] Finally, Marshall suggests that the trial court was required to question him more thoroughly to ascertain that he understood the benefits and burdens of a jury trial versus a bench trial. See Appellant's Br. at 14. "While it is advantageous for a trial judge to engage a defendant in colloquy concerning the consequences of waiving trial by jury, such an exchange is not required by either the United States or the Indiana constitutions, or by statute." Poore, 681 N.E.2d at 208 (internal quotation omitted). Marshall waived his right to a jury trial both orally and in writing. Further, the record allows for inferences that he was familiar with the judicial process and purpose of a jury. Therefore, we conclude that Marshall knowingly, voluntarily, and intelligently waived his right a jury trial.
Conclusion
[¶14] We conclude that Marshall's waiver of a jury trial was knowing, voluntary, and intelligent. Consequently, we affirm.
[¶15] Affirmed.
Pyle, J., and Weissmann, J., concur.