MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Oct 31 2017, 11:48 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth A. Johnson Curtis T. Hill, Jr.
Matthew D. Anglemeyer Attorney General of Indiana
Indianapolis, Indiana Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kelvin Williams, October 31, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1703-CR-504
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shatrese Flowers,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G20-1610-F5-42383
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-504 | October 31, 2017 Page 1 of 8
STATEMENT OF THE CASE
[1] Appellant-Defendant, Kelvin Williams (Williams), appeals his conviction for
possession of cocaine with a prior conviction, a Level 5 felony, Ind. Code § 35-
48-4-6(a); and possession of methamphetamine of less than 5 grams with a prior
conviction, a Level 5 felony, I.C. § 35-48-4-6.1(a).
[2] We reverse and remand for a new trial.
ISSUE
[3] Williams presents us with two issues on appeal, one of which we find
dispositive and which we restate as: Whether Williams properly waived his
right to a jury for the enhancement phase of the trial.
FACTS AND PROCEDURAL HISTORY
[4] On October 26, 2016, two Indiana State Police officers (Officers) observed a
vehicle speeding eastbound on 38th Street near Post Road in Indianapolis,
Indiana. The Officers conducted a traffic stop and observed three adult males
and a child in the vehicle. Williams was seated in the front passenger seat.
During the course of the stop, the Officers ran Williams’ information and were
informed that he had an active warrant. Williams was arrested and during a
subsequent search at the Marion County Sheriff’s Office, a small baggie fell out
of Williams’ pant leg, containing .47 grams of cocaine and .72 grams of
methamphetamine.
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[5] On October 27, 2016, the State filed an Information, charging Williams with
possession of cocaine, as a Level 5 felony. On December 14, 2016, the State
amended the Information, adding a Count of possession of methamphetamine,
as a Level 5 felony. On January 9, 2017, the trial court conducted a jury trial.
At the close of the evidence, the jury found Williams guilty of both Counts as
Level 6 felonies. During the enhancement phase of the trial, Williams
stipulated to his prior drug conviction. Following a bench trial, the trial court
found him guilty, thereby enhancing his Level 6 felonies to Level 5 felonies.
On February 14, 2017, the trial court held a sentencing hearing. The court
imposed a concurrent term of four years with three years at the Indiana
Department of Correction and one year in community corrections.
[6] Williams now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[7] Williams contends that he did not knowingly, voluntarily, and intelligently
waive his right to a jury trial during the enhancement phase of the trial and,
therefore, he requests this court to vacate his Level 5 convictions and to remand
for resentencing.
[8] The jury trial right is a bedrock of our criminal justice system, guaranteed by
both Article I, Section 13 of the Indiana Constitution and the Sixth
Amendment to the United States Constitution. 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 v. State,
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51 N.E.3d 1154, 1158 (Ind. 2016). Waiver of the Sixth Amendment jury trial
must be “express and intelligent,” and waiver of the Indiana constitutional jury
trial must be “knowing, voluntary[,] and intelligent.” Id. (quoting Patton v.
United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930); Perkins v.
State, 541 N.E.2d 927, 928 (Ind. 1989)).
[9] Compared to the federal right, the Indiana jury trial provides greater protection
because, in a felony prosecution, waiver is valid only if communicated
personally by the defendant. Kellems v. State, 849 N.E.2d 1110, 1114 (Ind. 2006).
Indiana’s personal waiver requirement derives from the statutory procedure for
waiving the State constitutional jury trial right. Horton, 51 N.E.3d at 1158.
That statute, largely unchanged since its original enactment in 1852, confers the
authority to waive on the defendant—not the defense attorney. Id. Specifically,
Indiana Code section 35-37-1-2 provides that “[t]he defendant and the
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[ 1], all other trials must be by jury.”
[10] Relying on that defendant-centric procedure, Indiana precedent has repeatedly
affirmed the personal waiver requirement, beginning with our supreme court’s
decision in Good v. State, 366 N.E.2d 1169 (1977) (defense attorney cannot
waive jury trial on behalf of defendant), to Kellems, 849 N.E.2d at 1110 (defense
1
The Indiana Rules of Criminal Procedure make no change in the statue as it relates to jury trials for
felonies.
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attorney’s statement that defendant had decided to waive his jury trial right
must be confirmed with defendant). Our supreme court’s most recent
pronouncement in this area is Horton, 51 N.E.2d at 1158. In Horton, after being
found guilty in a jury trial, the defendant proceeded to the enhancement phase.
Id. at 1155. At that point, the court asked Horton’s counsel whether defendant
wanted to waive his jury trial right, to which counsel responded “[t]hat’s
correct, Judge.” Id. In the absence of a personal waiver by Horton, the State
asked the supreme court to imply from the circumstances that the waiver was
nevertheless defendant’s choice because “Horton had just experienced a jury
trial and thus was probably ‘aware’ of the right his attorney waived on his
behalf.” Id. at 1159. Declining to carve out an exception, the Horton court
stated:
The personal waiver requirement, rooted in Indiana Code section
35-37-1-2 and longstanding precedent, eliminates an intolerable
risk. It ensured that a felony prosecution will not proceed to a
bench trial against the defendant’s will by demanding direct
evidence that waiver is in the defendant’s choice. Given the high
stakes of erroneous jury-trial deprivation and the low cost of
confirming personal waiver, we see no reason to dilute our time-
honored personal waiver requirement by “back[ing] away from
[the] standard practice” that “Indiana trial courts have clearly
adopted.” That refusal simply reflects this [c]ourt’s commitment
to the doctrine of stare decisis—that “a rule which has been
deliberately declared should not be disturbed by the same court
absent urgent reasons and a clear manifestation of error.” Seeing
no such urgent reasons, we maintain the personal waiver
requirement.
Id. at 1160 (internal citations omitted).
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[11] Likewise, here, we find no “direct evidence that waiver [was] in [Williams’]
choice.” Id. After the jury returned a guilty verdict on the Level 6 charges and
prior to the commencement of the enhancement phase, the following colloquy
occurred:
THE COURT: Okay. You all may be seated, Okay, as the parties
are aware, [Williams] was charged with [L]evel 5 offenses. I
believe as a result of prior convictions, we can – Defense what is
your clients [sic] position, and your position regarding the second
phase?
[Williams’ counsel]: Judge, we are willing to stipulate to the prior
conviction.
THE COURT: Okay. And, do you have a copy of those?
[Williams’ counsel]: I’m sorry?
THE COURT: Do you have a copy of those?
[Williams’ counsel]: Yes, I do. I do.
THE COURT: Okay. And, it is – it’s just one prior conviction,
is that correct; or is it two?
[State]: It’s one.
***
THE COURT: Okay, thank you. Mr. Williams sir, please raise
your right hand. Mr. Williams. Mr. Williams.
[Williams]: oh, yes.
THE COURT: Okay, you’re [sic] head is on the desk. Are – are
you ill, sir?
[NO AUDIBLE RESPONSE]
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THE COURT: Mr. Williams, are you ill?
[Williams]: yep.
THE COURT: Okay, so. Do you need to go to – have a recess or
something?
[Williams]: I’m just ready to go, Judge.
THE COURT: Okay. So, Mr. Williams, we can bring the jury in
for the second phase, and they can be made aware, or right now
we’re going to – I have to ask you some questions under oath and
I’m sure your lawyers explained to you, both of them, how this
process is going to go.
[Williams]: I will accept, I will accept. I will accept.
THE COURT: Okay. Mr. Williams, raise your right hand, sir.
Do you swear or affirm under the penalties of perjury the
statements you’re going to give are true and accurate?
[Williams]: I ain’t got no reason not to.
THE COURT: Okay, you have to answer yes or no, Mr.
Williams. You know what we’ll do, to be – we can just bring the
jury back in, and then we can have – be here several more hours
to go through the second phase. So, you can either answer my
questions, or State’s going to be presenting a lot of evidence in
front of the jury.
[Williams]: INDISCERNABLE, yeah.
THE COURT: Okay. And, again, this is a courtroom. So, I
need you to raise your right hand. I have to make sure that the
record is clear, sir. Do you swear or affirm under the penalties of
perjury that the statements you’re going to give are true and
accurate, yes or no?
[Williams]: Yeah.
(Transcript pp. 125-27).
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[12] As in Horton, the State encourages us to find waiver by inferring that Williams
waived his right to a jury trial from the surrounding circumstances, such as
Williams’ history of contacts with the justice system, his education level, and
the fact that he had just experienced a jury trial. Even if we read Williams’
counsel’s stipulation to the prior conviction as inclusive of the jury trial waiver
during the enhancement phase, Williams still did not personally make a
voluntary, knowing, and intelligent waiver of his right. Accordingly, the failure
to confirm Williams’ personal waiver before proceeding to a bench trial for the
enhancement phase was fundamental error. See, e.g., Horton, 51 N.E.3d at 1160.
We therefore reverse Williams’ Level 5 convictions and remand for a new trial
on the enhancement charges.
CONCLUSION
[13] Based on the foregoing, we hold that the trial court committed fundamental
error by proceeding to a bench trial on the enhancement charges absent
Williams’ personal waiver of the right to trial by jury. We reverse his
conviction for the Level 5 enhancement charges and remand with instructions
to proceed to a new trial limited to the enhancements.
[14] Reversed and remanded for a new trial.
[15] Robb, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-504 | October 31, 2017 Page 8 of 8
Kelvin Williams v. State of Indiana (mem. dec.)
Combined Opinion