Cheesman v. State
| Decision Date | 12 April 2018 |
| Docket Number | Court of Appeals Case No. 11A01–1708–CR–1939 |
| Citation | 100 N.E.3d 263 |
| Parties | Tarsha CHEESMAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Victoria L. Bailey, Indianapolis, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, Indiana
[1] Following a bench trial, Tarsha Cheesman was convicted of theft, a Class A misdemeanor. Cheesman now appeals, presenting only one issue for our review which we restate as whether the trial court erred in denying Cheesman's demand for a jury trial. Concluding the trial court did not err, we affirm.
[2] In May of 2016, Cheesman was employed by Page's IGA Grocery Store in Brazil, Indiana. On May 31, she requested a $50 cash advance from her next paycheck. The owner obliged, Cheesman signed a note promising to repay the $50, and the owner left a note instructing another employee to withhold $50 after cashing Cheesman's next paycheck. In a video later presented at trial, Cheesman can be seen stealing the $50 which the employee had set aside, and, although given another opportunity to repay the debt, Cheesman never did. State's Exhibit 1.
[3] On June 22, 2016, Cheesman was charged with theft, a Class A misdemeanor. On August 1, 2016, the trial court conducted an initial hearing at which Cheesman signed a Defendant's Acknowledgement of Rights providing:
4. (For Misdemeanor cases only) If you wish to exercise your right to trial by jury, you must file a written demand for a jury trial. You must file this written demand no later than ten (10) days before your first scheduled trial date. If you fail to file a written demand, or if you file a written demand but you file it late, you give up your jury trial right, permanently. If you give up your jury trial right, you will have no say about whether it will be a jury or a judge who hears the evidence at your trial and determines whether the State of Indiana proves your guilt beyond a reasonable doubt.
Appellant's Appendix, Volume II at 14 (emphasis added).
[4] The trial court set Cheesman's trial date for September 28, 2016. Cheesman moved to continue her trial and the trial court set a new trial date of December 7, 2016. Then, on November 18, 2016, the trial court set a new trial date of January 18, 2017, due to the unavailability of the presiding judge on the previously scheduled date. On January 6, 2017, Cheesman moved for a jury trial and a continuance. The trial court granted Cheesman's request for a continuance, setting a new trial date of April 19, 2017, but denied her demand for a jury trial because it was untimely filed.
[5] On April 7, 2017, the State moved to amend the information. Cheesman waived her initial hearing on the amended information and requested a continuance, which the trial court granted, and the trial court set a new trial date of May 10, 2017. On May 1, 2017, again because of the presiding judge's unavailability on the scheduled date, the trial court reset the trial date for July 26, 2017, when Cheesman's trial was finally conducted. The trial court found Cheesman guilty as charged and sentenced her to one year suspended to probation. Cheesman now appeals.
[6] On appeal, Cheesman argues that although Sixth Amendment jurisprudence only permits express waiver of a defendant's jury trial right, Indiana Criminal Rule 22 permits waiver where a defendant fails to file a timely request for a jury trial—timely being ten days prior to the defendant's first scheduled trial date. Therefore, Cheesman alleges that her Sixth Amendment jury trial right was violated when the trial court denied her jury demand. In turn, the State argues that Cheesman waived her jury trial right through her signature on the Defendant's Acknowledgement of Rights and her subsequent failure to demand a jury trial within the allotted time period.
[7] Notably, Cheesman confines her argument to the Sixth Amendment to the United States Constitution and does not present argument regarding Article 1, Section 13 of the Indiana Constitution, or Indiana Code Section 35–37–1–2.2
[8] Indiana Criminal Rule 22 provides:
Applied here, the Rule required Cheesman's demand for a jury trial be filed by September 18, 2016, ten days before the first scheduled trial date of September 28. However, because September 18 fell on a Sunday, pursuant to Indiana Trial Rule 6(A)(2), Cheesman's demand was due Monday, September 19. Cheesman's demand was not filed until January 6, 2017—almost four months late.
[9] Whether a defendant has waived her jury trial right under the Sixth Amendment is a question of law and we review such questions de novo. Horton v. State , 51 N.E.3d 1154, 1157 (Ind. 2016).
[10] The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
[11] In criminal cases, the jury trial right is "fundamental to the American scheme of justice," and such right has been incorporated to the states by way of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). This jury trial right extends to all charged with "serious" offenses. Id. at 160–61, 88 S.Ct. 1444. Whether an offense is "serious," as opposed to "petty," is answered by "consider[ing] the maximum penalty attached to the offense." Lewis v. United States , 518 U.S. 322, 326, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996). A "serious offense" is any offense "where imprisonment for more than six months is authorized." Baldwin v. New York , 399 U.S. 66, 69, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).
[12] In this case, Cheesman was charged with theft, a Class A misdemeanor. A Class A misdemeanor carries a possible term of imprisonment "of not more than one (1) year." Ind. Code § 35–50–3–2. Thus, as a matter of federal constitutional law, Class A misdemeanors constitute "serious offenses" for the purposes of the Sixth Amendment.3 See, e.g. , Martinez v. State , 82 N.E.3d 261, 264 n.4 (Ind. Ct. App. 2017), trans. denied.
[13] On appeal, Cheesman claims that her signature on the Defendant's Acknowledgement of Rights form and her subsequent failure to demand a jury trial within the time permitted by Indiana Criminal Rule 22 were insufficient to constitute a valid waiver of her Sixth Amendment right to a trial by jury. We disagree.
[14] It has long been established that a criminal defendant may waive his or her Sixth Amendment jury trial right. Patton v. United States , 281 U.S. 276, 299, 50 S.Ct. 253, 74 L.Ed. 854 (1930), abrogated on other grounds by Williams v. Florida , 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Our supreme court recently discussed such waiver in Horton v. State :
51 N.E.3d 1154, 1158 (Ind. 2016) (emphasis added).
[15] We addressed a claim similar to Cheesman's in Martinez v. State . There, Martinez was charged with a Class A misdemeanor and several Class C misdemeanors. At his initial hearing, Martinez—who spoke limited English—signed a written acknowledgement of rights form in Spanish. 82 N.E.3d at 263. After failing to file a timely request for a jury trial,...
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