Opinion
24A-CR-1112
11-26-2024
Kip Rushin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Kay A. Beehler Terre Haute, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Kathy Bradley Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Fountain Circuit Court The Honorable Stephanie Campbell, Judge Trial Court Cause No. 23C01-2304-F6-148.
ATTORNEY FOR APPELLANT Kay A. Beehler Terre Haute, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Kathy Bradley Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Kip Rushin was convicted in a bench trial of one count of Battery on a person younger than fourteen years of age and one count of Domestic Battery, each as a Level 6 felony, and was adjudicated a habitual offender. He presents the sole issue of whether his waiver of a jury trial was deficient because it was not made knowingly, voluntarily, and intelligently. We affirm.
Ind. Code §§ 35-42-2-1(c)(1), (e)(3).
I.C. §§ 35-42-2-1.3(a)(1), (b)(2).
I.C. § 35-50-2-8.
Facts and Procedural History
[¶2] In April of 2023, Rushin and his girlfriend were living with Rushin's niece, Alexis, and Alexis's three minor children. On April 3, Alexis called 9-1-1 to report that Rushin had shoved her and her thirteen-year-old sister, J.B., into a wall. On April 5, Rushin was charged with battery on a person less than fourteen years of age and domestic battery.
[¶3] At Rushin's initial hearing, the trial court inquired whether Rushin had viewed a video concerning his rights, and Rushin indicated that he had done so. Rushin stated that he had no questions about those rights. Rushin was provided with court-appointed counsel.
[¶4] At a pre-trial conference conducted on July 19, Rushin's counsel stated that Rushin wished to waive his right to a jury trial. The trial court sought affirmation from Rushin, who declined an offer to speak with his counsel again and confirmed that he wished to waive his right to a jury trial. In the same hearing, the State indicated that it was planning to investigate Rushin's eligibility for a habitual offender enhancement. Five days later, the State filed an allegation that Rushin is a habitual offender.
[¶5] A bench trial was conducted on October 6, 2023, and the trial court subsequently entered judgment against Rushin on each of the battery charges. At the commencement of the habitual offender phase, defense counsel indicated that Rushin wished to admit to his commission of the predicate offenses. The trial court inquired of Rushin as to whether he had been given sufficient time to discuss the matter with counsel, whether he understood the proceedings, and whether he wished to enter his admission.
[¶6] The trial court advised Rushin that he had the right to make the State prove the existence of the predicate convictions and would be entitled to have a jury determine whether the State had met its burden. The court advised Rushin of the specific rights he would be relinquishing and asked, "knowing all that [do] you still wish to go forward" and Rushin responded "yes, your honor." (Tr. Vol. II, pg. 99.) Rushin admitted to the predicate offenses, and the trial court adjudicated Rushin a habitual offender.
[¶7] On April 23, 2024, Rushin was sentenced to 910 days for each of his battery convictions, to be served concurrently. His habitual offender sentence enhancement was fixed at 1,460 days, providing for an aggregate sentence of 2,370 days. A portion of the sentence - 730 days - was to be served in community corrections and 550 days were suspended to probation. Rushin now appeals.
Discussion and Decision
[¶8] The Sixth Amendment to the United States Constitution and Article 1, § 13 of the Indiana Constitution guarantee criminal defendants the right to a jury trial. Criminal defendants in Indiana may waive this right but must do so personally, either verbally or in writing. Horton v. State, 51 N.E.3d 1154, 1158-59 (Ind. 2016). Waiver of the Sixth Amendment jury trial right must be "express and intelligent," and waiver of the Indiana constitutional jury trial right must be "knowing, voluntary, and intelligent." Id. at 1158. Whether a waiver is deficient presents a question of law. Id. at 1157.
[¶9] Rushin alleges that he did not waive his right to a jury trial knowingly, voluntarily, and intelligently. He observes that his pre-trial advisement of rights was conducted by video, which was not a part of the trial record. However, he makes no claim that the advisement was inadequate or that he failed to understand any part of the advisement. Rushin also points out that he did not execute a written waiver of his right to a jury trial but makes no argument that a written waiver is constitutionally required.
[¶10] Additionally, Rushin directs our attention to Jones v. State, 810 N.E.2d 777 (Ind.Ct.App. 2004) and O'Connor v. State, 796 N.E.2d 1230 (Ind.Ct.App. 2003) (each holding that, when a habitual offender allegation is not filed until after a defendant has waived the right to a jury trial, the waiver does not extend to the habitual offender phase). Rushin asserts that his circumstances are akin to those in O'Connor, where the Court observed: "Even though O'Connor knowingly, voluntarily, and intelligently waived her right to a jury trial upon the underlying charges, we fail to see how O'Connor's waiver was effective as to an habitual offender information which had yet to be filed." Id. at 1235. Likewise, the habitual offender allegation against Rushin was not filed until after his initial waiver. However, there is a critical distinction here. During the habitual offender phase, the trial court informed Rushin that he had a right to have a jury hear the matter. Rushin then personally waived his right to a jury trial upon the habitual offender allegation.
Conclusion
[¶11] Concluding that Rushin's waiver of his right to a jury trial is not deficient, we affirm his convictions and the habitual offender adjudication.
[¶12] Affirmed.
Bradford, J., and Foley, J., concur.