David Howard v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 11, 2017
• Docket: 49A02-1609-CR-2105
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 11 2017, 6:10 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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender – Attorney General of Indiana Appellate Division Michael Gene Worden Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David Howard, April 11, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1609-CR-2105 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff. Judge Trial Court Cause No. 49G21-1603-F4-11341

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2105 | April 11, 2017 Page 1 of 5 Case Summary [1] On March 23, 2016, Appellant-Defendant David Howard was charged with

Count I Level 4 felony unlawful possession of a firearm by a serious violent

felon (“SVF”), Count II Level 5 felony possession of a narcotic drug while in

possession of a firearm, Count III Class A misdemeanor driving while

suspended, and Count IV Class B misdemeanor possession of marijuana.

Howard’s bifurcated trial was held on June 30, 2016. In the first phase, the jury

found Howard guilty of unlawful possession of a firearm, possession of a

narcotic drug with a firearm and the lesser-included offense of possession of a

narcotic drug, driving while suspended, and possession of marijuana. Howard

stipulated to his prior robbery conviction but did not waive his right to a jury

trial for the SVF enhancement. However, the trial court found Howard guilty

of Count I. Howard was sentenced to eight years executed for Count I, 910

days for Count II, 180 days for Count III, and 196 days for Count IV, all

sentences to be served concurrently.

[2] Howard challenges his conviction of Count I arguing that he did not waive his

right to a jury trial for the SVF enhancement. Because it is fundamental error

to violate the right to trial by jury, we reverse and remand for a new trial on the

SVF enhancement for Count I.

Facts and Procedural History

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2105 | April 11, 2017 Page 2 of 5 [3] On March 23, 2016, Indianapolis Metropolitan Police Department (“IMPD”)

Officer Kenneth Kunz and other officers were deployed to 25th Street and

Keystone Avenue when they observed suspicious behavior involving a dark-

colored Impala at a gas station. Officers stopped the vehicle a short time later

after observing traffic infractions committed by the driver of the vehicle.

[4] Howard was the driver and sole occupant of the vehicle. Two officers

approached the vehicle, one on the passenger side and one on the driver’s side.

Howard admitted to the officers that his driver’s license was suspended, which

the officers subsequently verified, and Howard was arrested. While one of the

officers was patting Howard down following his arrest, the officer found

oxycodone in a white pill bottle and a bag containing what he suspected was

marijuana. A search of the vehicle that Howard had been driving also revealed

a handgun under the front passenger’s seat.

[5] Appellee-Plaintiff the State of Indiana (“the State”) charged Howard with

unlawful possession of a firearm by a SVF as a Level 4 felony, possession of a

narcotic drug while in possession of a firearm, driving while suspended as a

Class A misdemeanor, and possession of marijuana as a Class B misdemeanor.

The trial was bifurcated. During the first phase of the trial, the jury found

Howard guilty of possessing a firearm, but the trial court reserved the

determination of whether Howard was a SVF for the second phase.

[6] Before the second phase of the trial, the trial court asked Howard if he wanted

to stipulate to his prior conviction for a C felony robbery or if he wanted to

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2105 | April 11, 2017 Page 3 of 5 waive his right to a jury trial; Howard told the trial court he did not want to do

either. The trial court subsequently brought the jury back into the courtroom

and informed them that there would be a second phase to the trial. Shortly

thereafter, Howard changed his mind and stipulated to his prior conviction.

Howard did not, however, waive his right to a jury trial.

[7] While the jury was waiting in the deliberation room, the trial court found

Howard guilty of being a SVF in possession of a firearm. The trial court then

sentenced Howard to eight years executed for his unlawful possession of a

firearm by a SVF conviction and ordered the other remaining sentences to run

concurrently with it. Howard now appeals his unlawful possession of a firearm

by a SVF and the sentence for that conviction.

Discussion and Decision [8] “The United States and Indiana Constitutions guaranty the right to trial by

jury.” Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997).

A person charged with a felony has an automatic right to a jury trial, and he is presumed not to waive this right unless he affirmatively acts to do so. It is fundamental error to deny a jury trial unless there is evidence of a knowing, voluntary and intelligent waiver of the right.

Jones v. State, 810 N.E.2d 777 (Ind. Ct. App. 2004). “The defendant must

express his personal desire to waive a jury trial and such a personal desire must

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2105 | April 11, 2017 Page 4 of 5 be apparent from the court’s record, whether in the form of a written waiver or

a colloquy in open court.” Id. (citations omitted).

[9] Howard argues, and the State concedes, that the record does not reflect that he

knowingly, voluntarily and intelligently waived his right to a jury trial. Howard

merely stipulated to the fact that he had a prior felony conviction. However,

Howard did not plead guilty to the SVF enhancement. See Corbin v. State, 713

N.E.2d 906, 908 (Ind. Ct. App. 1999) (“Moreover, the stipulation to certain

facts in no way transforms a trial into a guilty plea hearing.”).

[10] “A violation of the right to a trial by jury is a fundamental error, and cannot be

considered harmless.” Duncan v State, 975 N.E.2d 838, 844 (Ind. Ct. App.

2012). We therefore reverse Howard’s Level 4 felony SVF conviction and

remand for a new trial on that particular charge. Because we reverse Howard’s

SVF conviction, we need not address his claim regarding double jeopardy.

[11] We reverse and remand for a new trial for the SVF enhancement in Count I.

Najam, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2105 | April 11, 2017 Page 5 of 5