dissenting.
I respectfully dissent from the views expressed in the majority regarding two of the issues raised in this appeal. First, it is my view that the waiver of jury trial which Pier executed in expectation of treatment as an alcohol abuser was not a valid waiver because he was ineligible for such treatment. - Second, IC 1976, 9-4-1-54 (Burns Code Ed., Supp.1982), amended before Pier's trial, is ameliorative in effect, and therefore should have been applied.
1.
Waiver of Jury Trial
The right to trial by jury is "fundamental to the American scheme of justice." Duncan v. Louisiana (1968), 391 U.S. 145, 149, 88 S.Ct. 1444, 1447, 20 L.Ed.2d 491. 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. Perry v. State (1980), Ind.App., 401 N.E.2d 705, 707. The record must reflect that such a waiver was made by the defendant, so the question of whether an effective waiver was made can be reviewed even though no objection was made at trial. See Cunningham v. State (1982), Ind.App., 433 N.E.2d 405 (trans. denied). Cf. Ford v. State (1967), 248 Ind. 438, 229 N.E.2d 634 (When trial court induced defendant to waive right to jury trial, error need not be raised in motion for new trial in order to be considered on appeal). Therefore, Pier did not waive the issue by failing to object at trial, and we should determine whether his waiver was valid.
Looking at the surrounding cireumstanc-es, it appears that Pier waived his right to a jury trial in expectation of treatment as an alcoholic in lieu of prosecution and in reliance upon the trial court's determination that he was eligible for such treatment. See, IC 1976, 16-18-6.1-17 (Burns Code Ed., Supp.1982). The offer of treatment by the trial court to Pier for his waiver of a trial by jury did not as a matter of law exist. Pier had only an expectation of treatment with the assurance of the trial court that he was legally entitled to such treatment. Once the Department of Mental Health refused Pier's request for treatment, the legally impossible expectation offered by the *991trial court ceased to exist; therefore, Pier's waiver of a jury trial was not valid.
Pier's expectations were rendered impossible through no fault on his part, unlike the defendant in Perry v. State, supra, who was accepted into the drug treatment program, but left it voluntarily, thereby forfeiting his right to a trial by jury. This Court considered a situation similar to Pier's in Williams v. State (1974), 159 Ind. App. 470, 307 N.E.2d 880 (trans. denied). In Williams, the defendant waived his right to a jury trial as part of a plea bargain which was never completed. When the State was unable to fulfill the plea bargain, Williams sought to withdraw his waiver, but the trial court refused to allow him to do so. We held that the trial court abused its discretion in failing to consider whether the waiver was predicated upon a promise by the prosecution. Id. Likewise, in this case, Pier executed a waiver as part of his request for treatment as an alcoholic which was certified by the trial judge. When his request was refused, his waiver was not valid. In the absence of a subsequent valid waiver, he is entitled to a new trial.
IL.
Retroactive Effect of Amended Statute
In applying the general rule that the law in effect at the time the crime was committed controls, and statutes are to be given prospective effect absent clear legislative intent to the contrary, cf. Berry v. State (1974), 162 Ind.App. 626, 321 N.E.2d 207, the majority fails to consider the exception to that general rule which provides that an ameliorative sentencing provision may be applied retroactively. - Lewandowski v. State (1979), Ind., 389 N.E.2d 706. The enactment of an ameliorative sentencing provision is, in itself, sufficient indication of legislative intent that it be applied to all persons to whom such application is possible and constitutional to overcome the general savings clause. Id. As amended, IC 1976, 9-4-1-54 (Burns Code Ed., Supp.1982) provides that only a prior conviction under that section occurring after June 30, 1978 will increase the severity of the offense from a Class A misdemeanor to a Class D felony. This amendment became effective on September 1, 1981, more than three months before Pier's trial. Because the version of IC 9-4-1-54 in effect at the time of the offense provided that any prior conviction under that section would increase the offense severity from a misdemeanor to a felony, the amendment was clearly ameliorative. See, State v. Turner (1978), 178 Ind.App. 562, 383 N.E.2d 428, 430-31. Therefore, the statute in effect at the time Pier was convicted should have been applied.
For the foregoing reasons, I think that Pier should be granted a new trial. In addition, the amended version of IC 9-4-1-54 should be applied, subjecting Pier to prosecution for a Class A misdemeanor, rather than a Class D felony, on that count. Therefore, I dissent.