Jordan Gilliam v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Nov 27 2019, 10:20 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael D. Gross Curtis T. Hill, Jr.
Lebanon, Indiana Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jordan Gilliam, November 27, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1055
v. Appeal from the Boone Superior
Court
State of Indiana, The Honorable Bruce E. Petit,
Appellee-Plaintiff Judge
Trial Court Cause No.
06D02-1708-CM-1533
Crone, Judge.
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Case Summary
[1] Following a bench trial, Jordan Gilliam was convicted of class A misdemeanor
domestic battery and class C misdemeanor illegal consumption of an alcoholic
beverage. The sole issue Gilliam raises on appeal is whether he knowingly
waived his right to a jury trial. We affirm.
Facts and Procedural History
[2] On August 21, 2017, the State charged Gilliam with class A misdemeanor
domestic battery. An initial hearing was held that same day, and Gilliam was
given a Defendant’s Rights form. Paragraph one of the form advised Gilliam,
You have a right to a public and speedy trial of your case, and
that could be a trial by court or by jury. FOR A
MISDEMEANOR CHARGE, YOU MAY REQUEST A JURY
TRIAL IN WRITING AT LEAST TEN (10) DAYS BEFORE
THE FIRST SCHEDULED TRIAL DATE. FAILURE TO DO
SO COULD RESULT IN A WAIVER OF JURY TRIAL.
Appellant’s App. Vol. 2 at 22-23. Gilliam initialed each paragraph of the form
and signed the bottom of the form.
[3] The trial court also conducted an advisement of rights, during which the
following colloquy took place:
COURT: Now did each of you read, write and understand the
English language, were you given the advice of rights form and
did you read it, initial it and sign it? Mr. Gilliam?
DEFENDANT: Yes sir.
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COURT: Any question about the constitutional rights that are
contained on that form? How about you Mr. Gilliam?
DEFENDANT: No sir.
COURT: It’s my responsibility to advise you of some specific
constitutional rights you have, on record, so that you understand
these. You have a right to a trial, and have that trial be public,
speedy and by jury.… Do you understand each and every one of
these constitutional rights? Mr. Gilliam?
DEFENDANT: Yes sir.
COURT: Any questions over anything we’ve gone over so far,
the charges that were filed, the statutes under which they were
brought, potential penalties you face or your constitutional
rights? Any questions, Mr. Gilliam?
DEFENDANT: No sir.
Tr. Vol. 2 at 5-6.
[4] The trial court scheduled a bench trial for October 11, 2017. After several
continuances, the trial court scheduled a bench trial for January 29, 2019. On
January 10, 2019, the State filed a motion to add a charge of class C
misdemeanor illegal consumption of an alcoholic beverage, which the trial
court granted. During Gilliam’s initial hearing on the additional charge, he was
given an identical Defendant’s Rights form, which he initialed and signed. The
trial court conducted an advisement of rights, during which the following
colloquy took place:
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COURT: Did you receive the advice of rights form, did you read
it, initial it and sign it?
DEFENDANT: Yes sir.
COURT: Do you have any question about the constitutional
rights contained on that form?
DEFENDANT: No sir.
COURT: Well it’s my responsibility to advise you of some
specific constitutional rights you have, on record, so that I can be
sure you understand these. You have a right to a trial and have
that trial be public, speedy and by jury.… Do you understand
each and every one of these rights?
DEFEDANT: Yes sir.
Tr. Vol. 2 at 17-18.
[5] Following a bench trial on March 29, 2019, the trial court found Gilliam guilty
as charged and sentenced him to one year suspended to probation for the
domestic battery and fourteen days as time served for the illegal consumption of
alcohol. This appeal ensued.
Discussion and Decision
[6] Gilliam asserts that he did not knowingly waive his right to a jury trial because
the trial court’s advisements regarding that right were inadequate. The right to
a jury trial in criminal prosecutions is guaranteed by both Article 1, Section 13
of the Indiana Constitution and the Sixth Amendment to the United States
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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.” State v. Bonds, 94 N.E.3d 333, 336 (Ind.
Ct. App. 2018) (quoting Horton v. State, 51 N.E.3d 1154, 1158 (Ind. 2016)),
trans. denied. “The 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), trans. denied (2018).
Rule 22 provides in relevant part that
[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.
[7] Accordingly, in a misdemeanor case, a defendant waives the right to a jury trial
when
the record does not contain a timely request for a jury trial and
establishes that the defendant: (1) was advised of the right to a
jury trial; (2) had at least fifteen days advance notice of the trial
date; (3) was advised of the need to file a written demand for a
jury trial at least ten days before the first scheduled trial date and
that failure to do so will result in waiver of the right; and (4)
understood the advisements.
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Dadouch v. State, 126 N.E.3d 802, 804 (Ind. 2019). “We note that [a] defendant
may be advised of his rights in multiple ways. The court can orally inform him
of his rights, … the defendant can be given a written advisement, … or the
defendant can sign a written waiver and file it in open court.” Duncan v. State,
975 N.E.2d 838, 843 (Ind. Ct. App. 2012).
[8] It is undisputed that Gilliam made no request for a jury trial. He concedes that
he received and signed written advisements of his jury trial rights, which
included an advisement as to the consequences of failing to file a written
demand. Nevertheless, he maintains that he did not “knowingly” waive his
right to a jury trial because the trial court’s oral advisements were inadequate
Appellant’s Br. at 8-9. The record reflects that the trial court orally advised
Gilliam twice of his right to a jury trial, and Gilliam fails to explain, let alone
establish with citations to relevant legal authority, how the advisements were
inadequate. Gilliam has waived this issue, and therefore we affirm. See Cooper
v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (finding defendant's contention
waived because it was “supported neither by cogent argument nor citation to
authority”).
[9] Affirmed.
Baker, J., and Kirsch, J., concur.
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