Maloney v. State

673 N.E.2d 519, 1996 Ind. App. LEXIS 1597, 1996 WL 679488

• Court: Indiana Court of Appeals
• Decided: November 26, 1996
• Docket: No. 92A03-9603-CR-85
• Status: Published

Opinions

OPINION

STATON, Judge.

Scott L. Maloney signed a waiver of rights form wMch had been distributed en mass to a group of defendants. After signing the form, he pled guilty to operating a motor veMcle while intoxicated, a Class A misdemeanor. Later, he petitioned for post-conviction relief. The petition was demed. He appeals and raises tMs issue:

Did the trial court commit reversible error when it failed to have personal interaction with Maloney during the advisement of Ms rights.

We conclude that the trial court erred, and we reverse.

Maloney contends that his Boykin¹ rights were violated. Before he pled guilty, he was not advised by the judge of Ms right to a jury trial or to confront and cross-examine the witnesses against him. While standing before the trial court en mass with other charged defendants, he signed the waiver of rights form which had been distributed. There is nothing in the record wMch indicates any interaction between Maloney and the trial judge. There is nothing in the record to indicate that Maloney made a personal choice to enter a plea of guilty. Hanna-Womack v. State, 623 N.E.2d 439, 440 (Ind.Ct.App.1993), reh. denied (citing Zakhi v. State, 560 N.E.2d 683, 685 (Ind.Ct.App.1990)).

In Greene v. State, 670 N.E.2d 38 (Ind.Ct.App.1996), I dissented and urged that the Indiana Supreme Court overrule Poore v. State, 666 N.E.2d 415 (Ind.Ct.App.1996), trans. granted and Hadley v. State, 636 N.E.2d 173 (Ind.Ct.App.1994), trans. denied. Poore and Hadley have many of the same defects that exist in Maloney’s appeal. Judge Riley now joins me in recognizing these defects and in establishing a conflict between the previously cited opimons and tMs optaion. Ind. Appellate Rule 11(B)(2)(c).

Our decisions have consistently held that it is fundamental error for a court to deny a defendant a jury trial without eliciting a waiver from him personally. A valid waiver cannot be made pursuant to C.R. 22 in the absence of an advisement by the trial court of the consequences of a failure to demand a trial by jury not later than ten days prior to the trial date.

Hanna-Womack, supra, at 440 (quoting Vukadinovich v. State, 529 N.E.2d 837, 839 (Ind.Ct.App.1988)).

The record must reflect that Maloney was fully advised of Ms rights. It must show that he was capable of reading a written advisement and of understanding the advisement. TMs showing on the record must be made whether the advisement is substantially oral or written. Eldridge v. State, 627 N.E.2d 844, 848 n. 3 (Ind.Ct.App.1994), trans. denied.

None of the basic advisements were personally given to Maloney. There is absolutely no interaction between the trial judge and Maloney regarding Ms rights under Boykin or Ind.Crim. Rule 22. The herd of defendants were given waiver forms to sign. Ma-loney signed Ms without being fully aware of the consequences. Maloney’s state of mind is critical at the time of his advisement. There can be no turning back of the clock and suppositions made as to what was or should have been. The record must be clear that at the time of advisement Maloney made a personal choice and understood that choice.

Our system of criminal justice should not be viewed as callous or indifferent to an individual’s rights. Nor should those individual rights be demeaned by en mass advise-ments which bypass the individual's personal choice to waive those rights.

Maloney’s conviction is reversed and a new trial granted.

RILEY, J., concurs. GARRARD, J., dissents with opinion.

1 . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).