FILED
Oct 17 2018, 9:26 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony S. Churchward Curtis T. Hill, Jr.
Anthony S. Churchward, P.C. Attorney General
Fort Wayne, Indiana Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Shane R. Bradtmiller, October 17, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-884
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F.
Appellee-Plaintiff Surbeck, Jr., Judge
Trial Court Cause No.
02D06-1705-F3-26
Vaidik, Chief Judge.
Case Summary
[1] Shane R. Bradtmiller appeals his habitual-offender finding, arguing that he did
not personally waive his right to a jury trial for the habitual-offender
enhancement. We agree. Although Bradtmiller personally waived his right to
Court of Appeals of Indiana | Opinion 18A-CR-884 | October 17, 2018 Page 1 of 5
a jury trial on the underlying felonies, that waiver came before the State filed
the habitual-offender enhancement. Contrary to the State’s argument on
appeal, Bradtmiller’s waiver on the underlying felonies did not encompass a
waiver on the yet-to-be filed habitual-offender enhancement. We therefore
vacate Bradtmiller’s habitual-offender finding and the sentence imposed thereon
and remand this case to the trial court for further proceedings.
Facts and Procedural History
[2] In the summer of 2017, the State charged Bradtmiller with several felonies. At
a pretrial conference on Monday, October 30, 2017, the State told the trial court
about several pending motions in the case, including a motion to waive jury
trial that Bradtmiller’s attorney had filed on October 27. The court then
engaged Bradtmiller in a colloquy during which it informed Bradtmiller of his
right to a jury trial, and Bradtmiller waived that right. See Pretrial Tr. p. 5.
Also at this hearing, the State told the trial court that it had made a plea offer to
Bradtmiller that expired at “the end of the week.” Id. at 4. The State said that
if Bradtmiller did not accept its offer, it was going to file a habitual-offender
enhancement on Friday. The court set a hearing for Friday, November 3 to see
where matters stood.
[3] At the hearing on Friday, Bradtmiller’s attorney informed the trial court that
Bradtmiller was not accepting the State’s offer. The State then filed the
habitual-offender enhancement in open court. Bradtmiller’s attorney told the
trial court that “[w]e’re . . . wanting for the record to waive the Jury . . . [i]n
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reference to the Habitual Offender Enhancement[.]” Id. at 9-10. Unlike the
October 30 hearing, however, the court did not inform Bradtmiller of his right
to a jury trial for the habitual-offender enhancement or otherwise engage in a
colloquy with Bradtmiller regarding waiver.
[4] A bench trial was held in February 2018, and the trial court found Bradtmiller
guilty of the felonies and also found him to be a habitual offender. The court
sentenced Bradtmiller to thirty-five years, including twenty years for the
habitual-offender finding.
[5] Bradtmiller now appeals.
Discussion and Decision
[6] Bradtmiller contends that he did not personally waive his right to a jury trial for
the habitual-offender enhancement. The Indiana Supreme Court recently
reaffirmed the personal-waiver requirement in Horton v. State, where it stated
that the Indiana Constitution’s right to a jury trial “may be waived by one, and
only one, person—the defendant. Unless the defendant personally
communicates to the judge a desire to waive that right, he must receive a jury
trial.” 51 N.E.3d 1154, 1155 (Ind. 2016) (holding that Horton’s attorney’s
waiver for the second phase of trial was not a personal waiver by Horton). The
State does not argue that Bradtmiller personally waived his right to a jury trial
for the habitual-offender enhancement at the November 3 hearing. Instead, the
State argues that Bradtmiller’s personal waiver at the October 30 hearing
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“encompassed the habitual offender enhancement.” Appellee’s Br. p. 12. The
State reasons that although the habitual-offender enhancement was not filed at
the time of the October 30 hearing, Bradtmiller and his attorney nevertheless
knew that the State would file the habitual-offender enhancement if Bradtmiller
did not accept the State’s offer.
[7] We have addressed this argument from the State before. In O’Connor v. State,
the State argued that while the habitual-offender enhancement “was not filed
until well after O’Connor waived her right to a jury trial upon the underlying
charges, O’Connor knew full well at the time that she waived jury trial that the
State would file the habitual count if she did not accept the plea offer.” 796
N.E.2d 1230, 1234 (Ind. Ct. App. 2003) (quotation omitted). We rejected the
State’s argument:
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. The record
reveals that O’Connor was never advised of her right to a jury
trial as to the habitual offender determination and that at no time
after the State filed the habitual offender information did she
waive her right to such. O’Connor’s waiver of her right to a jury
trial was not made with sufficient awareness of the relevant
circumstances surrounding its entry and its consequences so as to
be deemed a voluntary, knowing, and intelligent waiver of her
right to a jury trial as to the habitual offender determination.
Therefore, we reverse the trial court’s habitual offender
determination, vacate the sentence imposed thereon, and remand
to the trial court for proceedings not inconsistent with this
opinion.
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Id. at 1235.
[8] We reach the same result in this case. Because Bradtmiller was never advised
of his right to a jury trial for the habitual-offender enhancement, his jury-trial
waiver on October 30 was not made with sufficient awareness of the relevant
circumstances and therefore did not apply to the later-filed habitual-offender
enhancement. See Jones v. State, 810 N.E.2d 777, 780 (Ind. Ct. App. 2004) (“As
in O’Connor, we believe Jones was not given the opportunity to voluntarily,
knowingly and intelligently waive his right to trial by jury on the habitual
offender count.”). We therefore reverse the trial court’s habitual-offender
finding and the sentence imposed thereon and remand this case to the trial
court for further proceedings.
[9] Reversed and remanded.
Riley, J., and Kirsch, J., concur.
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