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

• Court: Indiana Court of Appeals
• Decided: November 27, 2019
• Docket: 19A-CR-1055
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1055 | November 27, 2019 Page 1 of 6 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.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1055 | November 27, 2019 Page 2 of 6 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?

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?

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:

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1055 | November 27, 2019 Page 3 of 6 COURT: Did you receive the advice of rights form, did you read it, initial it and sign it?

COURT: Do you have any question about the constitutional rights contained on that form?

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 Court of Appeals of Indiana | Memorandum Decision 19A-CR-1055 | November 27, 2019 Page 4 of 6 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.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1055 | November 27, 2019 Page 5 of 6 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.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1055 | November 27, 2019 Page 6 of 6