Opinion
23A-CR-3040
05-30-2024
Gregory A. Working, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Thomas J. O'Brien O'Brien & Dekker Lafayette, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Ian McLean 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 White Superior Court The Honorable Brad A. Woolley, Judge Trial Court Cause No. 91D01-2208-F6-137
ATTORNEY FOR APPELLANT
Thomas J. O'Brien
O'Brien & Dekker
Lafayette, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
Judges Felix and Kenworthy concur.
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Gregory Working (Working), appeals his conviction for operating a vehicle while intoxicated endangering a person with a conviction within the seven previous years, a Level 6 felony, Ind. Code §§ 9-30-5-2(a), (b); 9-30-5-3(a)(1).
[¶2] We affirm.
ISSUE
[¶3] Working presents this court with one issue: Whether he knowingly, voluntarily, and intelligently waived his right to a trial by jury.
FACTS AND PROCEDURAL HISTORY
[¶4] On August 10, 2022, Deputy Aaron Pitts (Deputy Pitts) of the White County Sherriff's Department was on patrol when he observed a vehicle driven by Working speeding at sixty-five miles per hour in a forty-five-miles-per-hour zone. Deputy Pitts initiated a traffic stop of Working's vehicle. When speaking with Working to explain the reason for the stop and to obtain his driver's license and registration, Deputy Pitts observed that Working's eyes were red and glassy and that Working was slurring his speech, both circumstances which the deputy recognized as indicia of intoxication. Working subsequently failed three standardized field sobriety tests and a portable breathalyzer test. After being informed of Indiana's implied consent law, Working consented to a chemical test which indicated that he had .15 grams of alcohol per 210 liters of breath.
[¶5] On August 18, 2022, the State filed an Information in Cause Number 91D01-2208-F6-000137 (Cause F6-137), charging Working with Class A misdemeanor operating a vehicle while intoxicated endangering a person and Class A misdemeanor operating a vehicle with an ACE of .15 or more. In a separate Information filed under the same cause number, the State alleged that the Class A misdemeanor charges should be elevated to Level 6 felonies because Working had two previous convictions within seven years.
[¶6] On September 14, 2022, the trial court held an initial hearing in Cause F6-137. The trial court read an advisement of rights to Working which provided the following relevant information:
You have the right to a speedy, public trial, either with or without a jury, to be held in the county in which the offenses are alleged to have been committed.
* * * *
I certify that I was present in [c]ourt and heard this form read by the Judge [on] this date, that I understand my rights as set out, and that I do not waive any rights by signing this form.(Appellee's App. Vol. II, p. 2). After reading these rights to Working, the trial court asked him whether he had any questions about the rights detailed within the advisement. Working confirmed that he had no questions and then signed and dated the advisement of rights. The trial court appointed Working a public defender and set Working's trial for January 24, 2023.
[¶7] On May 15, 2023, at a pre-trial conference which Working attended, Working's counsel requested a bench trial and indicated that Working would sign a waiver of his right to a jury trial. The parties discussed scheduling for the trial date, after which the following exchange occurred:
Trial Court: So, Mr. Working, the bailiff is going to give you a note with your trial date and time. In the meantime, though, I need you guys to get a waiver of trial by jury filed, okay? Please.
Defense Counsel: Yes, Your Honor. Trial Court: Because if we don't have that, well, then we're not going to have that trial.
Defense Counsel: Right.
Trial Court: Just before you head out, Mr. Working, that [sic] you have the right to have this case tried in front of a jury?
Working: Yes, I understand that.
Trial Court: And what you represented today is that you understand if you put it a [sic] bench trial, it's going to go in front of me. There will be no jury; you understand that?
Working: Yes.
Trial Court: Okay. And that's what you want to do?
Working: That's exactly what I want to do.
Trial Court: All right [sic]. Your attorney will send you the paperwork, you'll sign it, send it back, and then we will go from there, okay?
Working: You got it.(Transcript pp. 32-33) (speaker designations substituted).
[¶8] On July 21, 2023, Working's counsel filed a motion to convert Working's bench trial date to a status hearing because Working had not been in contact with his counsel and because Working had not yet executed a waiver of his jury trial right. On July 26, 2023, the trial court held a status hearing which Working attended. Working confirmed that he still wanted to proceed to trial, and the trial court asked him, "[D]o you want it to be a jury trial or do you want it to be a bench trial[?]". (Tr. p. 37). Working stated that he wanted a "[b]ench trial, please." (Tr. p. 37). That same day, Working executed and filed a document entitled Defendant's Waiver of Jury Trial Right and Request for Bench Trial (Waiver) in Cause F6-137. The Waiver provided that Working "voluntarily waive[d] [his] constitutional right to a jury trial and wish[ed] to proceed to a trial to the bench." (Appellant's App. Vol. II, p. 22). The Waiver was also signed by Working's counsel.
[¶9] On August 25, 2023, the trial court convened Working's bench trial. After the trial court found Working guilty of the two Class A misdemeanor charges, Working indicated that he wanted to admit his previous convictions that would enhance the offenses to Level 6 felonies. The trial court advised Working of the enhancing charge and the rights he would waive by admitting that he had the previous convictions, including the right to a speedy and public trial at which the State would be required to prove his guilt. Working indicated that he understood those rights that he would waive with his guilty plea. After concluding that Working was waiving his trial rights, the trial court accepted his guilty plea to the allegations of the enhancing Information.
[¶10] On November 20, 2023, the trial court held Working's sentencing hearing. The trial court entered judgment of conviction only for Level 6 felony operating while intoxicated endangering a person with a previous conviction within seven years. The trial court ordered Working to serve eighteen months in the Department of Correction.
[¶11] Working now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[¶12] Working contends that he did not validly waive his federal or state constitutional rights to a trial by jury. The validity of a jury trial waiver is a question of law which we review de novo. McQuinn v. State, 197 N.E.3d 348, 354 (Ind.Ct.App. 2022) (citing Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016)).
[¶13] A trial by jury is a fundamental principle of our criminal justice system which is guaranteed by the United States and Indiana Constitutions. Kellems v. State, 849 N.E.2d 1110, 1112 (Ind. 2006). A waiver of the Sixth Amendment jury trial right must be "'express and intelligent[.]'" Horton, 51 N.E.3d at 1158 (quoting Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930)). A waiver of our state constitutional jury trial right must be "'knowing, voluntary[,] and intelligent[.]'" Id. (quoting Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989)). A defendant is presumed not to waive his jury trial right unless he affirmatively acts to do so. Pryor v. State, 949 N.E.2d 366, 370-71 (Ind.Ct.App. 2011). In addition, a defendant who is charged with a felony must personally communicate the waiver of his jury trial right to the trial court. Horton, 51 N.E.3d at 1160; see also I.C. § 35-37-1-2 ("The 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."). A failure to confirm a defendant's jury trial waiver to a felony charge constitutes fundamental error. Bell v. State, 173 N.E.3d 709, 716-17 (Ind.Ct.App. 2021).
[¶14] Here, on September 14, 2022, at his initial hearing, Working was informed orally and in writing of his right to a trial "either with or without a jury[.]" (Tr. p. 11; Appellee's App. Vol. II, p. 2). Working confirmed both orally and with his signature on the advisement of rights form that he understood that right. Subsequently, Working, who was represented by counsel, personally informed the trial court at the May 15, 2023, and July 26, 2023, pre-trial hearings that he wished to proceed to a bench trial, not to a jury trial. On July 26, 2023, Working executed and filed the formal Waiver that provided that he voluntarily chose a bench trial, not a jury trial. The Waiver was also signed by Working's counsel. We observe that Working has at least two prior operating while intoxicated convictions and that the instant proceedings are the fifth occasion that Working has been charged with operating while intoxicated. These circumstances are sufficient for us to conclude that Working validly waived his right to a jury trial. See Poore v. State, 681 N.E.2d 204, 208 (Ind. 1997) (holding that Poore validly waived his jury trial right, where he filed a written waiver, Poore was represented by counsel who also signed the waiver, and Poore had an extensive criminal history); see also McSchooler v. State, 15 N.E.3d 678, 683 (Ind.Ct.App. 2014) (holding that McSchooler knowingly, voluntarily, and intelligently waived his jury trial right on a felony charge, where, after being advised three times of his right to a jury trial, he twice expressed his personal desire to waive the right on the record, he was represented by counsel, and he had a somewhat extensive criminal history).
[¶15] Nevertheless, Working argues that his oral and written waivers of his right to a jury trial were not knowing, voluntary, and intelligent because he was never informed that (1) a jury would consist of members of the community whom his counsel and the State would question and select for service; (2) he would receive a jury of six, not twelve, persons on his Level 6 felony charge; and (3) a jury would have to reach a unanimous decision. However, Working provides us with no legal authority for his proposition that he did not validly waive his jury trial right absent these advisements, and, indeed, our supreme court has declined to hold that a trial court must provide an extensive or comprehensive advisement to a defendant for a jury trial waiver to be valid. See Hutchins v. State, 493 N.E.2d 444, 445 (Ind. 1986) (observing that neither the federal or state constitutions nor any statute requires a full on-the-record hearing "to advise a defendant of his right to [a] trial by jury and the consequences of waiving that right"); McSchooler, 15 N.E.3d at 682-83 (rejecting arguments based on federal jurisprudence that were similar to Working's).
[¶16] Working also maintains that his oral and written jury trial waivers did not extend to the enhancement phase of the instant proceedings. A defendant must personally waive his right to a jury trial on enhancement proceedings. See Horton, 51 N.E.3d at 1159 (refusing to carve out an exception to the waiver requirement for a defendant who had just experienced a jury trial on the base misdemeanor charge but who did not personally waive his right to jury trial on the enhancement). However, Working does not support with any legal authority his implication that his oral and written jury trial waivers did not encompass the enhancement proceedings, especially where the enhancement Information was filed on the same day and under the same cause number as the base Class A misdemeanor charges, the parties and the trial court referred to the base charges and the enhancements together, and the written Waiver that Working executed carried the same cause number as the base and enhancement Informations, Cause F6-137. As such, we are not persuaded that Working's waiver of his jury trial right was invalid.
CONCLUSION
[¶17] Based on the foregoing, we hold that Working knowingly, voluntarily, and intelligently waived his right to a jury trial.
[¶18] Affirmed.
Felix, J. and Kenworthy, J. concur.