Matthew J. Gogarty v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 18 2020, 8:27 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Tyler D. Helmond Ian McLean Voyles Vaiana Lukemeyer Baldwin & Supervising Deputy Attorney Webb General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Matthew J. Gogarty, September 18, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-825 v. Appeal from the Vanderburgh Circuit Court State of Indiana The Honorable Kelli E. Fink, Appellee-Plaintiff Magistrate Trial Court Cause No. 82C01-1807-F6-4800

Crone, Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-825 | September 18, 2020 Page 1 of 4

Case Summary [1] Following a bench trial, Matthew J. Gogarty was convicted of level 6 felony

failure to register as a sex or violent offender. On appeal, he asserts that he did

not personally waive his right to a trial by jury, and therefore the waiver was

invalid. The State concedes that reversible error occurred. Accordingly, we

vacate Gogarty’s conviction and reverse and remand for a new trial.

Facts and Procedural History [2] In July 2019, Gogarty was taken into custody and charged with level 6 felony

failing to register as a sex or violent offender. A preliminary hearing was held

on February 19, 2020. During the brief hearing, Gogarty’s counsel told the

magistrate, “I had offered to waive jury trial and so we’re here today to do it

formally.” Tr. Vol. 2 at 4. The State offered no objection, and the magistrate

simply pronounced in open court that the “parties waive jury.” Id. Gogarty

was present at the hearing but did not speak. The magistrate thereafter ordered

that the “[j]ury trial set for February 21, 2020 is now a bench trial.” Appellant’s

App. Vol. 2 at 13-14. 1 [3] The bench trial was held before a different magistrate on February 21, 2020.

The trial court found Gogarty guilty as charged and sentenced him to 547 days,

with 427 days suspended to probation, minus credit for time served. This

appeal ensued.

1 We note that the magistrate that presided over the preliminary hearing was not the same judicial officer that presided over the bench trial.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-825 | September 18, 2020 Page 2 of 4

Discussion and Decision [4] Gogarty contends that he did not personally waive his right to a jury trial, and

therefore the waiver was invalid. The State concedes that the record does not

reflect that a personal waiver occurred and that reversal and remand for a new

trial is warranted. As our supreme court has explained, “[t]he Indiana

Constitution guarantees the right to jury trial, which may be waived by one,

and only one, person—the defendant. Unless the defendant personally

communicates to the judge a desire to waive that right, he must receive a jury

trial.” Horton v. State, 51 N.E.3d 1154, 1155 (Ind. 2016). The personal

communication requirement derives from Indiana Code Section 35-37-1-2,

which provides that “[t]he defendant and prosecuting attorney, with the assent of

the court, may submit the trial to the court. Unless a defendant waives the right

to a jury trial under the Indiana Rules of Criminal Procedure, all other trials

must be by jury.” (Emphasis added). So, while a defendant may indeed waive

his right to a jury trial, that waiver may occur “only when the defendant

personally waives and only when the record reflects that action in writing or in

open court.” Nunez v. State, 43 N.E.3d 680, 683 (Ind. Ct. App. 2015), trans.

denied (citations omitted). These requirements ensure that the defendant’s

waiver is “knowing, intelligent, and voluntary, with sufficient awareness of the

surrounding circumstances and the consequences.” Id. The failure to confirm a

defendant’s personal waiver before proceeding to bench trial constitutes

fundamental error. Horton, 51 N.E.3d at 1160.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-825 | September 18, 2020 Page 3 of 4 [5] Here, as conceded by the State, Gogarty did not sign a written jury trial waiver,

and the record reflects no colloquy in open court between Gogarty and the trial

court. As Gogarty did not personally express a desire to waive his right to a

jury trial, the waiver was invalid. See Anderson v. State, 833 N.E.2d 119, 122

(Ind. Ct. App. 2005) (holding waiver invalid where defendant neither signed

written waiver nor expressed personal desire to waive right to jury trial in open

court). We therefore vacate Gogarty’s conviction and remand this case for a

new trial. [6] Reversed and remanded.

Robb, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-825 | September 18, 2020 Page 4 of 4