Oct 11 2013, 5:40 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CYNTHIA P. HELFRICH GREGORY F. ZOELLER
Helfrich Law Offices Attorney General of Indiana
Brownsburg, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MATTHEW FIANDT, )
)
Appellant-Defendant, )
)
vs. ) No. 32A01-1211-CR-496
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Mary L. Comer, Senior Judge
Cause No. 32D01-1208-CM-1053
October 11, 2013
OPINION – FOR PUBLICATION
BARNES, Judge
Case Summary
Matthew Fiandt appeals his convictions for two counts of Class A misdemeanor
intimidation and one count of Class B misdemeanor harassment. We affirm.
Issue
The issue before the court is whether Fiandt was improperly denied his right to a
jury trial.
Facts
On February 27, 2012, Fiandt was charged with two counts of Class A
misdemeanor intimidation and two counts of Class B misdemeanor harassment in the
Plainfield Town Court. His initial hearing was held on March 15, 2012, via video, where
he indicated he was going to hire a private attorney and was given ten days to do so. His
bench trial was scheduled for June 12, 2012, and he was released on his own
recognizance. On March 30, 2012, a warrant for Fiandt’s arrest was issued when he
failed to obtain an attorney. He was arrested on June 12, 2012. At that time the court
appointed him counsel, Annie Fierek, and continued his bench trial to August 14, 2012.
On July 31, 2012, Fierek filed a request for a jury trial, which the Plainfield Town
Court granted, and the case was transferred to Hendricks Superior Court for purposes of
holding a jury trial. On August 15, 2012, Fierek withdrew her appearance, and Tom Lee
was appointed by the court as new counsel on August 30, 2012. Lee submitted a request
on September 20, 2012, for a bench trial instead of a jury trial. The Hendricks Superior
Court did not hold a hearing on this request. On October 5, 2012, that court conducted a
bench trial and found Fiandt guilty of two counts of Class A misdemeanor intimidation
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and one count of Class B misdemeanor harassment and not guilty of one count of Class B
misdemeanor harassment. Fiandt now appeals.
Analysis
Fiandt claims he was improperly denied his right to a jury trial because the trial
court did not personally secure a jury trial waiver from him on the record. The right to a
jury trial is guaranteed by the Indiana and United States Constitutions. Young v. State,
973 N.E.2d 643, 645 (Ind. Ct. App. 2012). The right to a jury trial in misdemeanor cases
is not self-executing, but is controlled by Indiana Rule of Criminal Procedure 22. Id. at
645. Criminal Rule 22 provides:
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.
“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.” Young, 973 N.E.2d
at 645. Fiandt argues that he affirmatively demanded his right to be tried by a jury when
he submitted his request for jury trial on July 31, 2012, prior to his bench trial scheduled
for August 14, 2012. However, in order to assert the right to a jury trial in accordance
3
with Criminal Rule 22, Fiandt was required to file his request ten days prior to his first
scheduled trial date, which was June 12, 2012. Fiandt’s jury trial request filed on July 31,
2012, was far too late to secure his right to a jury trial. By that time, Fiandt had already
waived his right to a jury trial by operation of law, no later than June 2, 2012. Fiandt did
not have to make a personal, express, on-the-record statement that he was knowingly,
intelligently, and voluntarily waiving his right to a jury trial. See Hutchins v. State, 493
N.E.2d 444, 445 (Ind. 1986) (stating that alleged misdemeanant can waive jury trial right
solely by failing to timely request jury trial by Criminal Rule 22 deadline).
It is true, as asserted by the dissent, that a waiver of jury trial in misdemeanor
cases under Criminal Rule 22 is ineffective if the trial court did not adequately advise the
defendant of the consequences of a failure to demand a jury trial no later than ten days
prior to the first trial date. See Levels v. State, 972 N.E.2d 972, 973-74 (Ind. Ct. App.
2012). Fiandt makes no argument that the trial court failed to make the proper
advisements or that there is any reason for considering this first waiver of his jury trial
right to be invalid. Also, this is not a case in which the record is “silent” or “missing” as
to whether proper constitutional advisements were given. Cf. Hall v. State, 849 N.E.2d
466, 472 (Ind. 2006) (stating that “silent” record is one in which an existing transcript
fails to reveal that defendant was advised of constitutional rights, while “missing” record
is one in which transcript and other documents are unavailable and cannot be
reconstructed) (quoting Parke v. Raley, 506 U.S. 20, 30, 113 S. Ct. 517, 523-24 (1992)).
Rather, Fiandt simply has not provided this court with any records related to what he was
told at the time of his initial hearing, nor has he claimed that such records are unavailable,
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nor did he request a transcript of his initial hearing. Given Fiandt’s failure to make any
argument that he was inadequately advised regarding his jury trial rights at the time of his
initial hearing and his failure to provide this court with any documentation that would
support such a claim, it is inappropriate to speculate that he was inadequately advised.
Having waived his right to a jury trial by failing to timely request one, Fiandt did
not have any constitutional entitlement to withdraw that waiver. See Hutchins, 493
N.E.2d at 445. Rather, any subsequent decision to grant a jury trial to Fiandt was purely
discretionary and not constitutionally required. See id. Moreover, Criminal Rule 22
constrains the discretion of trial courts to grant a jury trial after a previous waiver to
situations in which the defendant and the State expressly agree in writing to the request.
There is no indication of any such written agreement in the record; rather, on July 31,
2012, Fiandt simply filed a unilateral jury trial request without the State’s agreement.
Thus, not only was the Plainfield Town Court here not required to grant Fiandt’s
untimely jury trial request, it arguably was required to deny that request.
At best, the Plainfield Town Court’s granting of Fiandt’s untimely jury trial
request was a discretionary ruling that could later be reversed or, at worst, was a legal
nullity that needed to be reversed. See In re Estate of Hammar, 847 N.E.2d 960, 962
(Ind. 2006) (holding trial courts have authority to change previous discretionary rulings
as long as a case remains in fieri, or pending resolution). Here, when the Hendricks
Superior Court was faced with Fiandt’s request for a bench trial after having requested a
jury trial, there was no obstacle to the granting of that request because Fiandt had already
waived his right to a jury trial. Nor did it have to observe any constitutional requirements
5
for obtaining a jury trial waiver from Fiandt personally because the holding of a jury trial
was not constitutionally mandated at that point. It is therefore unnecessary to delve into
whether Fiandt’s attorney’s request for a bench trial would have been sufficient to waive
Fiandt’s right to a jury trial.
Conclusion
Fiandt failed to make a timely demand for a trial by jury as required by Criminal
Rule 22, and, therefore, he was not entitled to have one. We affirm.
Affirmed.
BAILEY, J., concurs.
NAJAM, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
MATTHEW FIANDT, )
)
Appellant-Defendant, )
)
vs. ) No. 32A01-1211-CR-496
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
NAJAM, Judge, dissenting.
I respectfully dissent and would vote to vacate Fiandt’s convictions and remand
for a jury trial.
Fiandt was charged with two Class A misdemeanors and one Class B
misdemeanor. A Class A misdemeanor carries a potential maximum term of one year
imprisonment. Ind. Code § 35-50-3-2. The Sixth Amendment right to a jury trial applies
to all “serious infractions.” Duncan v. Louisiana, 391 U.S. 145, 159-61 (1968). The
Supreme Court of the United States has held that “serious infractions” are crimes “where
imprisonment for more than six months is authorized.” Baldwin v. New York, 399 U.S.
66, 69 (1970); see also Holly v. State, 681 N.E.2d 1176, 1177-78 (Ind. Ct. App. 1997)
(Rucker, J.) (“[S]entences up to six months may be imposed . . . without guilt . . . being
determined by a jury. Sentences exceeding six months may not be imposed absent a jury
7
trial or waiver thereof.”) (citations omitted). Thus, as a matter of constitutional law,
Fiandt’s alleged Class A misdemeanors entitled him to a trial by jury.
Of course, one may waive his or her right to a trial by jury. But, when the
constitutional right to a jury applies, to be effective
[a] waiver of this right must be made in a knowing, intelligent, and
voluntary manner, with sufficient awareness of the surrounding
circumstances and the consequences. The record must reflect that such a
waiver was made . . . . This court has held that . . . the defendant’s assent
must mean an assent by the defendant personally . . . . The record
reflection must be direct and not merely implied. It must show the personal
communication of the defendant to the court that he chooses to relinquish
the right.
Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984) (emphases added); see also Patton v.
United States, 281 U.S. 276, 312 (1930) (holding that, before the constitutional right to a
jury may be waived, the “express and intelligent consent of the defendant” must be
obtained).
The majority holds that “[t]he right to a jury trial in misdemeanor cases is not self-
executing, but is controlled by Indiana Rule of Criminal Procedure 22.” Slip op. at 3.
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
8
part of the record. If such agreement is filed, then the trial court may, in its
discretion, grant a trial by jury.
According to the majority, “Fiandt failed to make a timely demand for a trial by jury as
required by Criminal Rule 22, and, therefore, he was not entitled to have one.” Slip op. at
6. Thus, the majority concludes that the Town Court erred as a matter of law when it
granted Fiandt’s request and transferred the cause to the Superior Court.
The majority’s reasoning does not take into account how Criminal Rule 22 and the
Sixth Amendment work together. Our Criminal Rules cannot supersede constitutional
principles or diminish a defendant’s fundamental rights. For example, this court has held
that, under Rule 22:
a defendant charged with a misdemeanor who fails to make a timely request
waives the right to a trial by jury if he has been advised in a timely manner
of both the right to jury trial and the consequences of failing to make a
timely demand. The defendant’s waiver, however, must be voluntary,
knowing, intelligent, and personal.
Greene v. State, 670 N.E.2d 38, 39 (Ind. Ct. App. 1996) (citations omitted), trans. denied;
see also Levels v. State, 972 N.E.2d 972, 973-74 (Ind. Ct. App. 2012). We have also held
that “‘[a] valid waiver cannot be made pursuant to C.R. 22 in the absence of an
advisement by the trial court of the consequences of a failure to demand a trial by jury
not later than ten days prior to the trial date.’” Hanna-Womack v. State, 623 N.E.2d 439,
440 (Ind. Ct. App. 1993) (quoting Vukadinovich v. State, 529 N.E.2d 837, 839 (Ind. Ct.
App. 1988)). And we have long recognized, in the context of the defendant’s
constitutional jury trial right under Criminal Rule 22, that “waiver of such a fundamental
right cannot be presumed from a silent record” and that the State’s argument to the
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contrary “is specious.” Casselman v. State, 472 N.E.2d 1310, 1311 n.1 (Ind. Ct. App.
1985).
Because Class A misdemeanors are, as a matter of constitutional law, “serious
infractions,” a waiver under Rule 22 is effective only if it is personally made by the
defendant and made knowingly, intelligently, and voluntarily. While the trial court may
obtain the defendant’s waiver under Rule 22 more than ten days before the defendant’s
trial, when the constitutional right applies it cannot be waived by mere inaction or silence
on the part of the defendant. Duncan v. State, 975 N.E.2d 838, 843 (Ind. Ct. App. 2012).
In other words, Fiandt’s waiver of his right to a jury trial for a “serious infraction” is not
“self-executing.”1 See Baldwin, 399 U.S. at 69.
The majority asserts that Fiandt “fail[ed] to make any argument that he was
inadequately advised regarding his jury trial rights at the time of his initial hearing and
[he] fail[ed] to provide this court with any documentation that would support such a
claim . . . .” Slip op. at 5. The majority continues by claiming that Fiandt’s appeal must
fail as he “simply has not provided this court with any records related to what he was told
at the time of his initial hearing, nor has he claimed that such records are unavailable, nor
did he request a transcript of his initial hearing.” Id. at 4-5. Thus, the majority concludes
that Fiandt failed to meet his burden on appeal of demonstrating reversible error.
1
Indeed, it is well established that the right to a jury trial is a fundamental right. See Duncan,
975 N.E.2d at 842. As such, the denial of that right entitles the defendant to relief on appeal even in the
absence of a proper objection from the defendant to the trial court. See, e.g., Taylor v. State, 922 N.E.2d
710, 718-19 (Ind. Ct. App. 2010), trans. denied.
10
The majority’s analysis does not recognize Fiandt’s argument on appeal and his
burden as the appellant. Fiandt’s argument on appeal is that the Superior Court denied
him his jury trial right when it granted his attorney’s minute sheet entry without first
making a constitutionally required record that showed Fiandt had received the proper
advisements and then had personally, knowingly, intelligently, and voluntarily waived his
right to a jury trial. There is no question at all on this record that Fiandt met his burden.
In response to Fiandt’s clear showing of the Superior Court’s reversible error, the
State responds by focusing not on the Superior Court’s decision but on whether Fiandt
timely filed his jury trial request with the Town Court. However, the State does not—
presumably because it cannot—support its argument with citations to the record showing
that the Town Court properly advised Fiandt of his jury trial right and that Fiandt then
personally, knowingly, intelligently, and voluntarily waived that right. It is the State’s
burden to support its argument with citations to the record, not Fiandt’s burden to
disprove the State’s argument. See Ind. Appellate Rule 46(A)(8)(a). The majority’s
holding to the contrary places Fiandt in the unreasonable position of having to prove a
negative, and it is a conclusion rejected by well-established constitutional law that the
defendant’s waiver of his constitutional right to a jury trial “cannot be presumed from a
silent record.” Casselman, 472 N.E.2d at 1311 n.1.
Moreover, there is no dispute that the State did not contest Fiandt’s jury trial
request to the Town Court. As such, it should not be permitted to assert after the fact and
for the first time on appeal that the Town Court erred in granting Fiandt’s request.
11
Without any objection from the State, the Town Court entered its order that caused
Fiandt’s case to be transferred to the jury trial docket of the Superior Court.
The Town Court apparently recognized when it granted Fiandt’s request for a jury
trial that it had never secured a constitutionally effective waiver from him. Because the
Town Court had not obtained an effective waiver from Fiandt, the Town Court was
constitutionally required to grant Fiandt’s request. As our supreme court has stated:
“When a defendant in a criminal case, before the beginning of his trial, asks for a jury,
the trial judge is not called upon to exercise a discretion in the matter. He has an
imperative duty to grant the request.” State ex rel. Rose v. Hoffman, 227 Ind. 256, 262,
85 N.E.2d 486, 488 (1949). The Town Court did not err when it granted Fiandt’s request.
Further, the majority’s rationale implies that the Town Court’s order granting
Fiandt’s jury trial request was void ab initio. But the Town Court clearly had subject
matter jurisdiction to rule on Fiandt’s jury trial request, and, as such, its order cannot be
void. As we have explained:
an order is “void” only when the action or subject matter it describes is of
no effect whatsoever, and is incapable of confirmation or ratification.
“Voidable,” however, describes an action or subject matter which
nonetheless operates to accomplish the thing sought to be accomplished,
until the fatal flaw is judicially ascertained and declared.
Kitchen v. Kitchen, 953 N.E.2d 646, 650 (Ind. Ct. App. 2011) (quotations omitted). For
example, had the Town Court granted Fiandt’s untimely request after having secured his
timely and constitutionally effective waiver, the State could have asked the Town Court
to reconsider its order in light of the record, which would render the order not void but
voidable. But that hypothetical is a far cry from the record here.
12
Having properly granted Fiandt’s request for a jury trial, the Town Court
transferred the matter to the Superior Court. There, Fiandt’s attorney filed a minute sheet
entry with the court that simply stated: “Defendant respectfully declines State’s offer &
requests a bench trial.” Appellant’s App. at 30. The minute sheet entry was not signed
by Fiandt, and the court approved the request without obtaining any evidence from Fiandt
that he knowingly, intelligently, and voluntarily waived his jury trial right. This was not
a constitutionally effective waiver. See, e.g., Duncan, 975 N.E.2d at 843.
In sum, I cannot agree with the majority that a defendant charged with a Class A
misdemeanor can waive his right to a jury trial by default. It is a trial court’s obligation
to make a record that shows the defendant received the proper advisements before
allowing the defendant to waive a fundamental, constitutional right. As Judge Bailey
recently stated in Levels, “[t]here can be no waiver absent the trial court’s affirmative
advisement to a defendant that he waives his right to a jury trial unless he demands it no
later than ten days prior to the scheduled trial date.” 972 N.E.2d at 973-74. Fiandt met
his burden on appeal when he demonstrated that the Town Court granted his jury trial
request only to have the Superior Court take it away without having first established, on
the record, that Fiandt had received the necessary and proper advisements.
Finally, the label attached to the alleged crime does not control our analysis. The
fact that the alleged crime is designated as a misdemeanor is a starting point but our
review must go beyond the “misdemeanor” label. The waiver-by-default provision in
Criminal Rule 22 does not apply where, as here, the misdemeanor is a “serious
infraction” as defined by the United States Supreme Court. See Baldwin, 399 U.S. at 69.
13
In such cases, a waiver by default does not satisfy the constitutional requirement that the
defendant can waive his jury trial right only through a personal, knowing, intelligent, and
voluntary waiver. Moreover, as a practical matter, this requirement is hardly difficult to
satisfy. The defendant may orally waive his right in court or sign a written form
acknowledging his right and his waiver of that right. But nothing in the record in this
appeal demonstrates such a waiver.
Accordingly, I would hold that the Town Court properly granted Fiandt’s request
for a jury trial and that the Superior Court erred when it accepted the proposed waiver of
that right submitted by Fiandt’s counsel. I would reverse Fiandt’s convictions and
remand for a jury trial.
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