Ventura S. Sanchez v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 23, 2016
• Docket: 44A03-1603-CR-564
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 23 2016, 10:48 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing 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 Adam C. Squiller Gregory F. Zoeller Squiller & Harley Attorney General of Indiana Auburn, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ventura S. Sanchez, November 23, 2016 Appellant-Defendant, Court of Appeals Case No. 44A03-1603-CR-564 v. Appeal from the LaGrange Superior Court State of Indiana, The Honorable Lisa Bowen- Appellee-Plaintiff. Slaven, Judge Trial Court Cause No. 44D01-1306-FB-17

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 44A03-1603-CR-564 | November 23, 2016 Page 1 of 3 [1] Ventura Sanchez appeals his convictions of Class B felony sexual deviate

conduct 1 and Class B felony incest 2 following a bench trial. He argues he did

not personally waive his right to a trial by jury. The State concedes reversible

error occurred. Accordingly, we reverse and remand for a new trial.

Facts and Procedural History [2] On June 24, 2013, the State charged Sanchez with Class B felony sexual deviate

conduct, Class B felony incest, and Class D felony sexual battery. 3 On August

5, 2015, Sanchez filed notice he was ready for trial, a waiver of trial by jury, and

a motion to set his cause for a bench trial. Sanchez’s counsel had signed the

jury trial waiver, but Sanchez had not personally signed the waiver. The trial

court held a bench trial and convicted Sanchez of sexual deviate conduct and

incest. 4

Discussion and Decision [3] Both the United States and Indiana Constitutions guarantee the right to jury

trial. Poore v. State, 681 N.E.2d 204, 206 (Ind. 1997); U.S. Const. amend. VI;

1 Ind. Code § 35-42-4-2 (1998). 2 Ind. Code § 35-46-1-3(a) (1994). 3 Ind. Code § 35-42-4-8(a)(1)(A) (2012). 4 The trial court determined it was prohibited from convicting Sanchez of both criminal deviate conduct and sexual battery “pursuant to the actual evidence test of the Indiana Double Jeopardy principles[.]” (App. Vol. III at 11-12.)

Court of Appeals of Indiana | Memorandum Decision 44A03-1603-CR-564 | November 23, 2016 Page 2 of 3 Ind. Const. art. 1 § 13. We presume a defendant did not waive this right unless

he affirmatively acts to do so. Poore, 681 N.E.2d at 207. “To constitute a valid

waiver of the right to a jury trial, [a] defendant’s waiver must be knowingly,

voluntarily, and intelligently made with sufficient awareness of the relevant

circumstances surrounding its entry and consequences.” Anderson v. State, 833

N.E.2d 119, 122 (Ind. Ct. App. 2005). In addition, the waiver “must be

‘personal,’ either in a writing signed by the defendant or in the form of a

colloquy in open court between the defendant and judge.” Kellems v. State, 849

N.E.2d 1110, 1112-13 (Ind. 2006).

[4] Sanchez did not sign the jury trial waiver that defense counsel filed. Nor does

the record reflect a colloquy in open court between Sanchez and the trial court.

As Sanchez did not personally express a desire to waive his right to jury trial,

the waiver is invalid. See Anderson, 833 N.E.2d at 122 (holding waiver invalid

where defendant neither signed the waiver nor expressed his personal desire to

waive right to jury trial in open court). We therefore vacate Sanchez’s

convictions and remand this case for a jury trial.

[5] Reversed and remanded.

Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 44A03-1603-CR-564 | November 23, 2016 Page 3 of 3