FILED
Feb 06 2018, 10:21 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Rory Gallagher
Attorney General of Indiana Marion County Public Defender
Agency – Appellate Division
George P. Sherman Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, February 6, 2018
Appellant-Plaintiff, Court of Appeals Case No.
49A02-1704-CR-770
v. Appeal from the Marion Superior
Court
Latasha Bonds, The Honorable Annie Christ-
Appellee-Defendant. Garcia, Judge
Trial Court Cause No.
49G24-1606-CM-23081
Bradford, Judge.
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Case Summary 1
[1] On June 15, 2016, Appellee-Defendant Latasha Bonds was charged with two
misdemeanor offenses. Bonds waived her right to a trial by jury, instead
electing to be tried in a bench trial. Appellant-Plaintiff the State of Indiana
(“the State”), however, filed a written demand for a jury trial. The State
initiated this interlocutory appeal after the trial court denied its demand for a
jury trial and set the matter for a bench trial. Because we conclude that (1) the
State does not have the right to demand a jury trial and (2) the State’s consent
to a bench trial was not necessary in the underlying case, we affirm. It therefore
follows that on remand, the matter should proceed to a bench trial.
Facts and Procedural History
[2] Bonds stands accused of two misdemeanor offenses. On June 15, 2016, the
State charged Bonds with Count I, Class A misdemeanor carrying a handgun
without a license and Count II, Class A misdemeanor possession of marijuana.
During a December 13, 2016 pre-trial conference, Bonds requested that the case
be set for a bench trial. The deputy prosecutor responded, “Your Honor, the
State does not waive.” Tr. Vol. II, p. 93. The trial court reminded the deputy
1
We held oral argument on January 22, 2018, at Ben Davis High School in Indianapolis. We wish to thank
counsel for their advocacy and extend our appreciation to the students, faculty, and staff of Ben Davis for
their hospitality.
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prosecutor that the case involves only misdemeanor charges and set the case for
a bench trial on February 6, 2017.
[3] On December 28, 2016, the State filed a written demand for a jury trial.
Following a January 23, 2017 hearing on the State’s motion, the trial court
rejected the State’s demand for a jury trial. The trial court subsequently
certified the issue for interlocutory appeal and this interlocutory appeal follows.
Discussion and Decision
I. The Parties’ Contentions
[4] On appeal, the State contends that the trial court erred in denying its demand
for a jury trial. In raising this contention, the State claims that the trial court
erred in interpreting Indiana Code section 35-37-1-2 and Indiana Rule of
Criminal Procedure 22 (“Criminal Rule 22”). Specifically, the State claims that
the trial court erred in finding that the State did not have the right to demand a
jury trial. The State alternatively claims that even if it could not demand a jury
trial, its consent was necessary before the matter could be scheduled for a bench
trial.
[5] For her part, Bonds acknowledges that Indiana Code section 35-37-1-2 requires
that the defendant, the State, and the trial court agree to waiver of a jury trial in
cases involving felony charges, but contends that Criminal Rule 22 controls in
this case as the case only involves misdemeanor charges. Thus, Bonds further
contends that “[b]ecause the trial court properly followed Criminal Rule 22 by
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setting the matter for bench trial, this Court should affirm the trial court’s denial
of the State’s demand for jury trial.” Appellee’s Br. p. 8.
II. Standard of Review
[6] On appeal, appellate courts “review a matter of statutory interpretation de novo
because it presents a question of law.” Sloan v. State, 947 N.E.2d 917, 920 (Ind.
2011). “[W]hen engaging in statutory interpretation, we ‘avoid an
interpretation that renders any part of the statute meaningless or superfluous.’”
ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1199 (Ind. 2016)
(quoting Hatcher v. State, 762 N.E.2d 189, 192 (Ind. Ct. App. 2002)).
III. Overview of the Right to Trial by Jury
A. Constitutional Protections
[7] “The jury trial right is a bedrock of our criminal justice system, guaranteed by
both Article I, Section 13 of the Indiana Constitution [(“Article I, Section 13”)]
and the Sixth Amendment to the United States Constitution [(“the Sixth
Amendment”)].” Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016) (bracketed
material added). The Sixth Amendment provides as follows:
Amendment VI. Jury trials for crimes, and procedural rights
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
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process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
(Emphasis added). Article I, Section 13 provides, in relevant part, as follows:
§ 13 Rights of accused in criminal prosecutions
Section 13. (a) In all criminal prosecutions, the accused shall have
the right to a public trial, by an impartial jury, in the county in
which the offense shall have been committed; to be heard by
himself and counsel; to demand the nature and cause of the
accusation against him, and to have a copy thereof; to meet the
witnesses face to face, and to have compulsory process for
obtaining witnesses in his favor.
(Emphases added).
[8] “In broad view, federal and Indiana constitutional jury trial rights guarantee the
same general protection—a criminal defendant must receive a jury trial, unless
he waives it.” Horton, 51 N.E.3d at 1158. The clear language of both the Sixth
Amendment and Article I, Section 13 specifies that the rights afforded by each
of these constitutional provisions are afforded to the accused. Neither provision
contains any language indicating that the right to demand a jury trial is also
afforded to the State. This is consistent with the general principle that both the
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United States and Indiana Constitutions provide certain enumerated rights
meant to protect the citizenry from over-reach by the government.2
[9] In addition, in Indiana the right to a jury trial is further guaranteed by Indiana
Code section 35-37-1-2, which provides that “[t]he 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.”
B. Waiver of the Right to Trial by Jury
[10] “Waiver of the Sixth Amendment jury trial right must be ‘express and
intelligent[.]’” Horton, 51 N.E.3d at 1158 (quoting Patton v. U.S., 281 U.S. 276,
312 (1930)). “[W]aiver of the Indiana constitutional jury trial right must be
‘knowing, voluntary[,] and intelligent[.]’” Id. (quoting Perkins v. State, 541
N.E.2d 927, 928 (Ind. 1989)) (second set of brackets in original). Under this
provision, “waiver is valid only if communicated personally by the defendant.”
Id. (emphasis in original).
2
During oral argument, the State asserted that because it was not specifically mentioned in the constitutional
provisions, statutory authority, or Supreme Court rules relating to an accused’s right to a jury trial, none of
the limitations for such applied to the State and the State was therefore free to invoke its claimed right to a
jury trial at any time. We are unpersuaded by the State’s assertion, however, because we find it to be
inconsistent with the generally accepted principle that the United States and Indiana Constitutions are meant
to protect the citizenry from over-reach by the government by limiting the powers of the government and
granting certain enumerated rights to the citizenry which are not granted to the State. Constitutional and
statutory rights are specifically created by enumeration, not by silence.
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[11] Again, it is important to note that under both the Sixth Amendment and Article
I, Section 13, the right to a jury trial is only expressly conferred upon the
accused. As such, the requirements for waiver of that right generally relate to
actions which must be taken by the accused.
1. Felonies vs. Misdemeanors
[12] While Article I, Section 13 “guarantees the right to a jury trial without
distinction between felonies and misdemeanors or between degrees of
misdemeanors,” Stevens v. State, 689 N.E.2d 487, 489 (Ind. Ct. App. 1997)
(citing Gillespie v. Gilmore, 159 Ind. App. 449, 451, 307 N.E.2d 480, 482 (1974)),
applicable authority has differentiated between the two. Applicable case law
indicates that generally, “[a] person charged with a felony has an automatic
right to a jury trial; the defendant is presumed not to waive this right unless he
affirmatively acts to do so.” Poore v. State, 681 N.E.2d 204, 207 (Ind. 1997).
[13] However, “‘[t]he right to a jury trial in misdemeanor cases is not self-executing,
but is controlled by Indiana Rule of Criminal Procedure 22.’” Martinez v. State,
82 N.E.3d 261, 264 (Ind. Ct. App. 2017) (quoting Fiandt v. State, 996 N.E.2d
421, 423 (Ind. Ct. App. 2013)), trans. denied. “‘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.’” Fiandt, 996 N.E.2d at 423 (quoting
Young v. State, 973 N.E.2d 643, 645 (Ind. Ct. App. 2012)) (bracketed material in
original). “Further, although a defendant must be advised of her constitutional
right to a jury trial, a written advisement of her rights and the consequences of
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failure to make a timely demand is sufficient to act as a waiver of said right.”
Young, 973 N.E.2d at 645.
[14] Criminal 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 part of the record. If such
agreement is filed, then the trial court may, in its discretion, grant
a trial by jury.
(Emphases added). Thus, pursuant to Criminal Rule 22, a defendant charged
with a misdemeanor must file a timely written request for a jury trial and failure
to do so results in waiver of the accused’s right to a jury trial.
IV. Analysis
A. Whether the State has the Right to Demand a Jury Trial
[15] In claiming that the trial court erred in denying its demand for a jury trial, the
State asserts that “[i]t has long been held that the statute governing jury trials
requires that the defendant, the State, and the trial court all agree to any waiver
of a jury trial.” Appellant’s Br. p. 6. The State further asserts that “[b]ecause
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there is no reason to believe that the General Assembly intended to remove the
State’s long held statutory right to demand a jury trial, the trial court erred in
denying the State’s request for a jury trial.” Appellant’s Br. p. 6. In researching
the State’s assertions, however, we were unable to uncover any authority
indicating that the State has the right to demand a jury trial. Rather, the
relevant authority seems to suggest the opposite, i.e., that the right to demand a
jury trial rests solely with the accused. Considering the relevant authority
together with the clear language of the constitutional provisions discussed
above, we conclude that the right to demand a jury trial rests solely with the
accused and that the State does not have the right to demand a jury trial over
the accused’s objection.
[16] This conclusion is consistent with the likely intent of the Indiana Supreme
Court as it seems illogical that it would place restrictions on when and how an
accused can exercise their constitutionally protected right to trial by jury but fail
to extend any of the same restrictions on the State. Criminal Rule 22 sets forth
the procedure that an accused must follow if he or she wishes to submit his or
her case to a jury rather than the trial court. Criminal Rule 22, however, makes
no mention of any procedure by which the State may request to have the case
be tried before a jury. If the Indiana Supreme Court had intended for the right
to trial by jury to be extended to the State, it easily could have indicated that the
procedures set forth in Criminal Rule 22 applied in equal force to both the
accused and the State.
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B. Whether the State’s Consent to a Bench Trial was
Necessary
[17] For many years, Indiana Code section 35-37-1-2 provided that “[t]he defendant
and prosecuting attorney, with the assent of the court, may submit the trial to
the court. All other trials must be by jury.” The Indiana Supreme Court
interpreted this statute as meaning that “all criminal trials must be by jury
except where [a bench trial is] consented to by both the parties and the court[.]”
Alldredge v. State, 239 Ind. 256, 263, 156 N.E.2d 888, 891 (1959). However,
effective July 1, 2015, the Indiana General Assembly amended Indiana Code
section 35-37-1-2 to provide that “[t]he 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.” In arguing that the trial court erred
by denying its request for a jury trial, the State claims that “it is reasonable to
conclude that if the General Assembly intended to nullify the first sentence of
the statute, then the first sentence would have been modified or deleted.”
Appellant’s Br. p. 10. Thus, the State argues that Bonds should only receive a
bench trial if the State consents, which it did not do.
[18] Contrary to the State’s claim, however, we interpret the changes to Indiana
Code section 35-37-1-2 as clarifying that the unchanged language provides the
procedure for waiving a jury trial in a felony case while the added language
clarifies the procedure for waiving a jury trial in a misdemeanor case. We
believe that this interpretation better encompasses the likely intent of the
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General Assembly as it would not render any part of the amended version
superfluous or meaningless. Stated differently, the addition of the reference to
Criminal Rule 22, which again controls in cases involving only misdemeanor
charges, would arguably have no bearing on the first sentence which has long
been applied to cases involving felony charges. This interpretation is also
consistent with Indiana Supreme Court’s decision in Horton, where it noted that
“[e]ffective July 1, 2015, an amendment to this statute makes clear that the
personal waiver requirement applies only in felony prosecutions—not
misdemeanor prosecutions.… [Criminal Rule 22] provides that a defendant
charged with a misdemeanor is presumed to waive the jury trial right unless he
invokes it in writing at least ten days before the first scheduled day of trial.”
Horton, 51 N.E.3d at 1158 n.1 (emphases added).
[19] Considering the language of Criminal Rule 22 coupled with the recent change
to Indiana Code section 35-37-1-2 and the Indiana Supreme Court’s statement
found in footnote 1 in Horton, we infer that the General Assembly and the
Indiana Supreme Court intended for misdemeanors to continue to be treated
differently than felonies with regard to waiver of one’s right to trial by jury. 3
We further conclude that because the instant matter involves only a
3
We note that provisional data for 2017 reveals that in 2017, 13,747 cases with misdemeanor cause numbers
were filed in Marion County. See https://publicaccess.courts.in.gov/ICOR/ (last visited January 25, 2018).
Provisional data also reveals that 136,550 cases with misdemeanor cause numbers were filed statewide in
2017. See id.
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misdemeanor charge, Criminal Rule 22, which does not require the State’s
consent to a defendant’s waiver of her right to a jury trial, controls.
Conclusion
[20] The facts of this case demonstrate that Bonds was charged with two
misdemeanor offenses. The State filed a written demand for a jury trial after
Bonds waived her right to a jury trial. The trial court denied the State’s demand
for a jury trial and set the matter for bench trial. Because we conclude that the
State did not have the right to demand a jury trial and that the State’s consent to
a bench trial was not necessary, we affirm the judgment of the trial court. On
remand, the matter should therefore proceed to a bench trial.
[21] The judgment of the trial court is affirmed and the matter remanded to the trial
court for further proceedings.
Robb, J., and Altice, J., concur.
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