MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 20 2017, 9:12 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas P. Keller Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Frank E. Puzynski, June 20, 2017
Appellant-Defendant, Court of Appeals Case No.
71A04-1611-CR-2511
v. Appeal from the
St. Joseph Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Jeffrey L. Sanford, Judge
Trial Court Cause No.
71D03-1503-F5-31
Kirsch, Judge.
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[1] Frank E. Puzynski (“Puzynski”) was convicted after a bench trial of operating a
motor vehicle while privileges are forfeited for life, 1 a Level 5 felony, and failure
to remain at the scene of an accident 2 as a Class B misdemeanor. He was
sentenced to six years executed for the convictions. Puzynski appeals and raises
the following restated question for our review: whether the trial court
committed fundamental error because it failed to advise him of his right to
testify at trial.
[2] We affirm.
Facts and Procedural History
[3] On the night of February 23, 2015, a truck, later identified as belonging to
Puzynski, was involved in an accident, in which the truck struck two parked
cars in South Bend, Indiana. A witness observed a light-skinned man running
away from the truck. Officers from the South Bend Police Department arrived
at the scene of the accident and found no one inside Puzynski’s truck.
Puzynski’s cell phone was discovered in the truck, and it was still connected to
the truck’s stereo system and playing music.
[4] Later that night, Puzynski’s wife, Tina Puzynski (“Tina”), contacted the
Mishawaka Police Department and reported Puzynski’s truck had been stolen
from the Mishawaka Walmart, her place of employment. On February 25,
1
See Ind. Code § 9-30-10-17.
2
See Ind. Code § 9-26-1-1.1(b).
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2015, Puzynski called the South Bend Police Department and inquired about
the release of his truck. The police told Puzynski that the truck could not be
released at that time.
[5] Puzynski and Tina agreed to come to the police station to be interviewed by the
police. Prior to the interview, the police had spoken to a witness and viewed
surveillance video of the Walmart parking lot. The information gained from
the witness and video reflected that Puzynski had driven his truck to Walmart
to drop Tina off at work earlier in the day on February 23 and that the truck
had not been parked in the Walmart employee parking lot that day as Tina
claimed. When the police confronted Tina with this information, she admitted
that, at Puzynski’s direction, she had lied about the theft of the truck since he
was not supposed to drive due to being a habitual traffic offender.
[6] During the interview, Puzynski claimed that he had not driven his wife to work
on February 23 and that Tina had driven herself to work. Puzynski stated that
he was supposed to pick up the truck later that day to drive it to a job site, but
that the job got canceled, and he spent the evening at a friend’s house instead.
He gave the police the address of the canceled job, but the address turned out to
be a fictitious address. Maurice Brown (“Brown”) was the name of the friend
that Puzynski claimed he had spent the evening with on February 23. Brown
and his wife later testified at trial that Puzynski was with them that night. The
police examined the cell phone found in Puzynski’s truck at the time of the
accident, and such examination showed that Puzynski had called Brown during
the time that Puzynski claimed to be with Brown at his home.
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[7] On March 5, 2015, the State charged Puzynski with operating a motor vehicle
while privileges are forfeited for life as a Level 5 felony and failure to remain at
the scene of an accident as a Class B misdemeanor. Puzynski waived a jury
trial, and a bench trial was held on August 19, 2016. At the conclusion of trial,
the trial court found Puzynski guilty as charged. The trial court sentenced
Puzynski to six years executed. Puzynski now appeals.
Discussion and Decision
[8] Puzynski argues that he was denied his right to testify, which is guaranteed
under the Indiana Constitution. He contends that the trial court has an
affirmative duty to inquire directly as to whether a defendant wishes to testify at
trial and that, at his trial, the trial court did not advise Puzynski that he had a
right to testify. Puzynski asserts that the trial court committed fundamental
error when it failed to conduct a discussion as to whether or not he wished to
testify.
[9] Puzynski concedes that he did not object or raise this issue to the trial court and
has waived this claim. Therefore, his argument is reviewed for fundamental
error. The doctrine of fundamental error is only available in egregious
circumstances. Dickerson v. State, 957 N.E.2d 1055, 1057 (Ind. Ct. App. 2011)
(citing Brown v. State, 799 N.E.2d 1064, 1068 (Ind. 2003)), trans. denied. “The
mere fact that error occurred and that it was prejudicial will not satisfy the
fundamental error rule.” Absher v. State, 866 N.E.2d 350, 355 (Ind. Ct. App.
2007). Similarly, in order to invoke the fundamental error doctrine, it is not
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enough to claim that a constitutional right is implicated. Dickerson, 957 N.E.2d
at 1057. “[W]hen the issue is raised in terms of fundamental error, a defendant
must demonstrate that the [constitutional] error worked to his actual and
substantial disadvantage, infecting and tainting the entire trial.” Akard v. State,
924 N.E.2d 202, 209 (Ind. Ct. App. 2010), aff’d in relevant part, 937 N.E.2d 811
(2010). That is, the error must be so prejudicial to the rights of the defendant as
to make a fair trial impossible. Dickerson, 957 N.E.2d at 1057.
[10] The right to testify on one’s own behalf in a criminal proceeding has been
described by the United States Supreme Court as “a right implicit in the
Constitution.” United States v. Dunnigan, 507 U.S. 87, 96 (1993). The accused’s
right to testify is guaranteed by the Sixth Amendment and Article 1, section 13
of the Indiana Constitution. Baxter v. State, 522 N.E.2d 362, 368 (Ind. 1988).
“However, a trial court judge has no affirmative duty to insure [sic] that a
defendant represented by counsel knowingly and intelligently waived his right
to testify at trial.” Vanzandt v. State, 730 N.E.2d 721, 723 (Ind. Ct. App. 2000)
(citing Correll v. State, 639 N.E.2d 677, 681-82 (Ind. Ct. App. 1994)). A trial
court is entitled to presume that a lawyer and his client have discussed the
possibility of testifying. Phillips v. State, 673 N.E.2d 1200, 1202 (Ind. 1996).
[11] In the present case, Puzynski was represented by counsel at trial. Therefore,
because trial courts have no duty to make sure that a defendant who is
represented by counsel has knowingly and intelligently waived his right to
testify at trial, the fact that the trial court did not do so here cannot be error. Id.
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Puzynski has failed to establish that the trial court committed fundamental
error.3
[12] Affirmed.
[13] Mathias, J., and Altice, J., concur.
3
Puzynski attempts to distinguish the present case from Phillips v. State, 673 N.E.2d 1200 (Ind. 1996) and
Correll v. State, 639 N.E.2d 677 (Ind. Ct. App. 1994), which both held that a trial court has no affirmative duty
to ensure a counseled defendant knowingly and intelligently waived his right to testify at trial. Phillips, 673
N.E.2d at 1202; Correll, 639 N.E.2d at 681-82. He contends that Phillips is distinguishable because in that
case the defendant’s counsel stated on the record that his client would not be testifying. Appellant’s Br. at 11.
He also claims that Correll is distinguishable because there the trial court at least discussed the defendant’s
right to testify during jury instructions. Id. Puzynski asserts that, in both of these cases, the defendants were
at least made aware of the right to testify and that, here, “there is no mention anywhere in the record that
Puzynski had the right, much less gave it up.” Id. at 12. However, we find this argument to have no merit.
The facts highlighted by Puzynski in these two cases did not substitute for the duty Puzynski alleges he was
deprived of. Puzynski has not shown fundamental error.
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