Maggie E Winans v. State of Indiana

FILED Sep 26 2023, 9:05 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Eric Grzegorski Theodore E. Rokita Kokomo, Indiana Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Maggie E. Winans, September 26, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-80 v. Appeal from the Cass Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Lisa L. Swaim, Judge Trial Court Cause No. 09D02-2103-CM-142

Opinion by Judge Foley Chief Judge Altice and Judge May concur.

Foley, Judge. Court of Appeals of Indiana | Opinion 23A-CR-80 | September 26, 2023 Page 1 of 8 [1] Maggie E. Winans (“Winans”) was convicted after a bench trial of domestic

battery 1 as a Class A misdemeanor and resisting law enforcement 2 as a Class A

misdemeanor. Winans appeals her convictions and raises the following issue

for our review: whether the trial court committed fundamental error when it

failed to reset the matter for a jury trial after her pre-trial diversion agreement

was terminated. We conclude that reversible error occurred, and we, therefore,

reverse Winans’s convictions and remand for a jury trial.

Facts and Procedural History [2] On March 22, 2021, the State charged Winans with Class A misdemeanor

domestic battery and Class A misdemeanor resisting law enforcement. On the

same date, an initial hearing was held, and Winans executed a “Rights Advice

at Initial Hearing in Misdemeanor Cases” form, in which she was advised of

her right to a trial by jury. Appellant’s App. Vol 2 p. 24. On March 25, 2021,

Winans’s counsel filed a motion for jury trial, and the trial court granted the

motion and set a date for a jury trial. [3] Before the scheduled jury trial, on June 4, 2021, Winans entered into a pre-trial

diversion agreement, under which, if Winans complied with the terms of the

agreement, her charges would be dismissed twelve months after execution of

the agreement. The agreement stated that “the failure to meet any of the

1 Ind. Code § 35-42-2-1.3(a)(1). 2 I.C. § 35-44.1-3-1(a)(1).

Court of Appeals of Indiana | Opinion 23A-CR-80 | September 26, 2023 Page 2 of 8

specified terms in said agreement will result in the prosecution of [her] charge[s]

. . . .” Id. at 39 (emphasis removed). The agreement did not contain any terms

regarding a written waiver of jury trial by Winans. [4] On April 29, 2022, a motion for hearing was filed because Winans had been

discharged from the pre-trial diversion program, and the trial court issued an

order setting the matter for a pre-trial conference. In May 2022, Winans’s

original attorney withdrew, and a new attorney entered an appearance. On

June 6, 2022, Winans’s counsel filed a motion to continue the pre-trial

conference, which was granted. On July 7, 2022, Winans’s counsel filed

another motion to continue the pre-trial conference, which was denied by the

trial court. After a hearing on July 11, 2022, the trial court entered a minute

sheet, which states that a bench trial was set for September 12, 2022. Id. at 55.

A pre-trial hearing was held on July 26, 2022, after which, the trial court

entered a minute sheet that again stated that bench trial was set for September

12, 2022. Id. at 57. Nothing in the record indicates that Winans signed

anything waiving her jury trial, and no waiver of jury trial was discussed at

either hearing. On September 1, 2022, Winans’s counsel filed a motion to

continue the bench trial set for September 12, 2022, and the trial court granted

the motion and reset the bench trial for October 25, 2022. On September 20,

2022, Winans’s counsel again moved to continue the bench trial, which the trial

court granted and reset it for November 29, 2022. On November 29, 2022, the

parties appeared in court, and Winans’s attorney orally moved to continue the

bench trial, and the trial court reset it for December 13, 2022.

Court of Appeals of Indiana | Opinion 23A-CR-80 | September 26, 2023 Page 3 of 8 [5] A bench trial was held on December 13, 2022. At the conclusion of the trial,

the trial court found Winans guilty of Class A misdemeanor domestic battery

and Class A misdemeanor resisting law enforcement. Winans was sentenced to

365 days on each conviction with the sentences to run consecutively for an

aggregate sentence of 730 days with four days credit time and the balance

suspended to probation. Winans now appeals.

Discussion and Decision [6] The right of an accused to have a trial by jury is guaranteed by the Indiana and

United States Constitutions. U.S. Const. amend. VI; Ind. Const. art. 1, § 13;

Dadouch v. State, 126 N.E.3d 802, 804 (Ind. 2019). In criminal cases, the

procedure for asserting the right is codified in Indiana Code section 35-37-1-2

(“The 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 .

. ., all other trials must be by jury.”). While the Constitution does not

differentiate between felonies and misdemeanors, in Indiana the procedure for

asserting the right to a jury trial in misdemeanor cases is controlled by Indiana

Criminal Rule 22. Rule 22 states, in relevant part:

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.

Court of Appeals of Indiana | Opinion 23A-CR-80 | September 26, 2023 Page 4 of 8 [7] The right to trial by jury is a fundamental right, and while the manner of

preserving that right is altered by Criminal Rule 22, the right itself is not

diminished. Pryor v. State, 973 N.E.2d 629, 633 (Ind. Ct. App. 2012); Stevens v.

State, 689 N.E.2d 487, 489 (Ind. Ct. App. 1997). When charged with a

misdemeanor, a defendant can waive his or her right to a jury trial by failing to

make a timely demand for trial by jury. Fiandt v. State, 996 N.E.2d 421, 423

(Ind. Ct. App. 2013). However, while a defendant charged with a

misdemeanor can waive his right to a jury trial by inaction, the waiver must

nonetheless be knowing, voluntary, and intelligent. Dadouch, 126 N.E.3d at

804. Additionally, the waiver needs to be personal. Duncan, 975 N.E.2d 836,

843 (Ind. Ct. App. 2012).

In order to establish a valid waiver in a misdemeanor case, the record is sufficient if: 1) it does not contain a request for a trial by jury; 2) it evidences that the defendant was fully advised of the right to a trial by jury and of the consequences for failing to timely request the right; and 3) it reflects that the defendant was able to understand the advice.

Id. (emphasis added). Here, the record does contain a request for a jury trial as

Winans timely requested a jury trial at the outset of this case, and nothing in the

record indicates that she subsequently waived her explicitly requested right to a

jury trial. Therefore, the record does not establish a valid waiver of Winans’s

right to a jury trial. [8] Further, the record reveals that, after Winans timely filed her demand for a jury

trial, she entered into a pre-trial diversion agreement, under which, the State

Court of Appeals of Indiana | Opinion 23A-CR-80 | September 26, 2023 Page 5 of 8 would withhold prosecution of her charges, and if Winans complied with the terms of the agreement, her charges would be dismissed twelve months after execution of the agreement. The agreement did not contain any terms regarding a written waiver of jury trial by Winans. Several months after signing the agreement, Winans was discharged from the pre-trial diversion program. Consequently, the State’s prosecution of Winans resumed, and the trial court issued an order setting the matter for a pre-trial conference. Winans’s original attorney withdrew, and a new attorney entered an appearance. This new attorney moved to continue the pre-trial conference twice. The trial court set the matter for bench trial after the pre-trial conference was held, and Winans’s counsel subsequently moved to continue the bench trial several times. However, at no time after Winans was discharged from the pre-trial diversion agreement did she personally waive her right to a jury trial that she had previously explicitly requested. The effect of Winans’s discharge from the pre-trial diversion program was to return her to the original position that she occupied before she entered into the pre-trial diversion program, i.e., being prosecuted for domestic battery and resisting law enforcement. 3 Thus, the trial court should have set Winans’s case for a jury trial following her discharge from the pre-trial diversion program. The trial court committed fundamental error when it held a bench trial without obtaining a valid waiver of the right to a jury

3 A pretrial diversion program allows the prosecuting attorney to withhold formal prosecution under certain circumstances to afford the defendant an opportunity to successfully complete an alternative course of action. See Ind. Code § 33-39-1-8; Schenke v. State, 136 N.E.3d 255, 258 (Ind. Ct. App. 2019).

Court of Appeals of Indiana | Opinion 23A-CR-80 | September 26, 2023 Page 6 of 8

trial. See Duncan, 975 N.E.2d at 844 (stating that it has been held that a

violation of the right to trial by jury is a fundamental error and cannot be

harmless). [9] The State contends that Winans invited the error she complains of, namely that

she was tried in a bench trial and not a jury trial. However, the State does not

cite any legal authority regarding invited error with respect to a jury trial

waiver. To the extent the principal of invited error may apply to the waiver or a

timely request for a trial by jury, it requires more than just a “passive lack of

objection.” Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014), cert. denied. “To

establish invited error, there must be some evidence that the error resulted from

the appellant’s affirmative actions as part of a deliberate, ‘well-informed’ trial

strategy.” Batchelor v. State, 119 N.E.3d 550, 558 (Ind. 2019) (citing Brewington,

7 N.E.3d at 954). The record before us fails to establish that Winans’s failure to

object to the bench trial settings was part of a deliberate, well-informed trial

strategy. Where, as here, a defendant preserves her right to a jury trial, failure

to object to a subsequently scheduled bench trial is insufficient to constitute

waiver. See Perkins v. State, 541 N.E.2d 927, 928 (Ind. 1989) (refusing to find

that appellant had waived his right to a jury trial, even though appellant failed

to object at the bench trial, because the record did not indicate that appellant

“expressed a conscious choice” to give up the right to trial by jury). We,

therefore, reverse Winans’s convictions and remand for a jury trial. [10] Reversed and remanded.

Court of Appeals of Indiana | Opinion 23A-CR-80 | September 26, 2023 Page 7 of 8 Altice, C.J., and May, J., concur. Court of Appeals of Indiana | Opinion 23A-CR-80 | September 26, 2023 Page 8 of 8