Gonzalez v. State

• Decision Date: 25 October 2001
• Docket Number: No. 45A04-0101-CR-29.,45A04-0101-CR-29.
• Citation: 757 N.E.2d 202
• Parties: Ruben GONZALEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

757 N.E.2d 202

Ruben GONZALEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 45A04-0101-CR-29.

Court of Appeals of Indiana.

October 25, 2001.

Marce Gonzalez, Jr., Merrillville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROOK, Judge.

Case Summary

Appellant-defendant Ruben Gonzalez ("Gonzalez") appeals his waiver of his right to a jury trial on a habitual offender charge. We affirm.

Issue

Gonzalez raises a single issue for review, which we restate as whether he knowingly waived his right to jury trial.

Facts and Procedural History

The facts most favorable to the judgment indicate that on the evening of January 21-22, 2000, Jose Germain was managing a bar in East Chicago, Indiana. That evening, Gonzalez fought at least once with two other bar patrons, and Germain asked him to leave the bar. After last call, Germain locked the front door and let customers out through the side door. When Gonzalez re-entered the bar through the side door, Germain told him that the bar was closed and that he had to leave. Gonzalez ignored Germain and began arguing with the two men he had fought with earlier. Germain approached Gonzalez and again told him that he had to leave, whereupon Gonzalez drew a knife from his pocket and stabbed Germain under his chin, causing profuse bleeding. Germain was initially treated for the laceration at the local emergency room; after he began vomiting blood, however, x-rays and a CT scan revealed a severe injury to the back of his throat. Germain was transferred to a hospital in Chicago, where he underwent a tracheotomy and specialized surgery to repair the injury. At the time of Gonzalez' trial, Germain had undergone additional surgery, had difficulty talking and eating, and had difficulty moving, feeling, and tasting food with his tongue.

The State charged Gonzalez with aggravated battery,¹ a Class B felony, with battery² as a Class C felony, and with being a habitual offender.³ On November 15, 2000, a jury found Gonzalez guilty of aggravated battery and battery. After polling the jury, the trial court entered judgment on the aggravated battery verdict and initiated the following sidebar:

THE COURT: We talked earlier about the Habitual Offender phase.⁴ Is it your client's wish to proceed with the trial by a jury or is he willing to waive the jury and be tried by the Court?

BY MR. WOLOSHANSKY: He is willing to waive. And I ask the Court to bring him up here.

THE COURT: Mr. Gonzalez, will you come up here, please? You understand—can you hear me all right? On the habitual offender you have the right to be tried by the jury or you can waive the jury and submit that to the Court. Your attorney has indicated you wish to waive the jury and submit that to the Court. Is that what you want to do? You have to respond audibly so the court reporter can pick you up.

[GONZALEZ]: Yes, sir.

THE COURT: And you understand what I have told you?

[GONZALEZ]: Yes, sir.

THE COURT: Okay.

The trial court dismissed the jury, heard evidence that Gonzalez had accumulated two prior unrelated felony convictions,⁵ and found him to be a habitual offender. On December 22, 2000, the court vacated the battery "verdict and judgment"⁶ and sentenced Gonzalez to twenty years on the aggravated battery charge, with an additional twenty years on the habitual offender charge, for a total of forty years.

Discussion and Decision

"The United States and Indiana Constitutions guaranty the right to trial by jury." Poore v. State, 681 N.E.2d 204, 206 (Ind.1997) (footnotes omitted); see U.S. CONST. amend. VI (guaranteeing "the right to a speedy and public trial, by an impartial jury" in all criminal prosecutions); IND. CONST. art. I, § 13 (guaranteeing the right to "a public trial, by an impartial jury," in all criminal prosecutions).⁷ "The right to trial by jury applies to habitual offender proceedings." Dixie v. State, 726 N.E.2d 257, 259 (Ind.2000) (citing IND.CODE § 35-50-2-8). "A person charged with a felony has an automatic right to a jury trial; the defendant is presumed not to waive this right unless he affirmatively acts to do so." Poore, 681 N.E.2d at 207.⁸ "It is fundamental error to deny a defendant a jury trial unless there is evidence of the defendant's knowing, voluntary and intelligent waiver of the right." Reynolds v. State, 703 N.E.2d 701, 704 (Ind.Ct.App.1999). "The defendant must express his personal desire to waive a jury trial and such a personal desire must be apparent from the court's record," Poore, 681 N.E.2d at 206, whether in the form of a written waiver or a colloquy in open court. See Good v. State, 267 Ind. 29, 32, 366 N.E.2d 1169, 1171 (1977).

Article I, Section 19 of the Indiana Constitution provides that "the jury shall have the right to determine the law and the facts" in all criminal cases.⁹ In Seay v. State, 698 N.E.2d 732 (Ind.1998), our supreme court definitively stated that Article I, Section 19 applies to habitual offender proceedings and that "a defendant is entitled to an instruction similar to that given during the guilt phase of a trial, i.e., the jury has the right to determine the law and the facts." Id. at 736 and n. 8.¹⁰ The court further explained that "at issue was the jury's ability to find Seay to be a habitual offender (or not to be a habitual offender) irrespective of the uncontroverted proof of prior felonies." Id. at 736.¹¹ Gonzalez contends that his waiver of his constitutional right to jury trial was unknowing¹² because the trial court failed to advise him of the jury's ability to find him not to be a habitual offender.

The United States Supreme Court has stated that "[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. U.S., 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (addressing claim that petitioner's guilty plea was not voluntary) (emphasis added). In the years following Brady, our courts followed this standard to the letter in reviewing guilty pleas. See, e.g., Brimhall v. State, 258 Ind. 153, 162, 279 N.E.2d 557, 563 (1972) (waivers must be "`intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences'") (quoting Brady) (emphasis added); Henry v. State, 175 Ind.App. 212, 216, 370 N.E.2d 972, 975 (1977) (same).

The first Indiana decision to rely on Brady with respect to jury trial waivers, however, employed the following language: "The waiver of any constitutionally protected right at the time of trial must be voluntary, knowing and intelligently made with sufficient awareness of the relevant circumstances surrounding its entry and its consequences." Williams v. State, 159 Ind.App. 470, 474, 307 N.E.2d 880, 883 (1974), trans. denied. Subsequent decisions of this court and our supreme court addressing jury trial waivers followed Williams' lead in omitting "likely" before the word "consequences." See, e.g., Kindle v. State, 161 Ind.App. 14, 21, 313 N.E.2d 721, 725 (1974) ("To be effective, such waiver must be voluntarily, knowingly, and intelligently made with sufficient awareness of the relevant circumstances surrounding its entry and consequences."), trans. denied (citing, inter alia, Brady and Williams); Perry v. State, 401 N.E.2d 705, 707 (Ind.Ct.App.1980) ("It has also been said that such waiver must be voluntarily, knowingly, and intelligently made with sufficient awareness of the relevant circumstances surrounding its entry and its consequences.") (citing, inter alia, Kindle); Doughty v. State, 470 N.E.2d 69, 70 (Ind. 1984) ("A waiver of this right must be made in a knowing, intelligent, and voluntary manner, with sufficient awareness of the surrounding circumstances and consequences.") (citing Perry); Brown v. State, 495 N.E.2d 178, 179 (Ind.1986) ("However, trial by jury is subject to knowing and intelligent waiver by the defendant, provided the record demonstrates such waiver was made in a voluntary manner with sufficient awareness of the surrounding circumstances and the consequences.") (citing, inter alia, Doughty).

Given that the rights forfeited in guilty pleas and jury trial waivers are all constitutionally derived,¹³ and that our supreme court has not specifically enunciated a more stringent standard for reviewing the waiver of rights derived from our state constitution, we conclude that a defendant who considers waiving his right to jury trial need only be informed of the likely consequences of his decision. Our conclusion is supported not only by the specific language of Brady, but also by practical considerations; if courts were required to inform defendants of every conceivable consequence of waiving the right to jury trial, the wheels of justice would grind to a proverbial halt. See Reynolds, 703 N.E.2d at 704 ("Reynolds' counsel did not have to explain each and every possible detail concerning a jury trial in order for the defendant to be sufficiently informed about the nature of a jury trial and the consequences of waiving his right to a jury trial."); see also Kennedy v. State, 271 Ind. 382, 387, 393 N.E.2d 139, 142 (1979) (noting that there is no "statutory or constitutional requirement that the trial judge explain to Defendant the difference between a trial by court and by jury; nor is there any requirement that the trial record demonstrate that Defendant understood the difference."), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 734 (1980); but see ABA STANDARDS FOR CRIMINAL JUSTICE 15-1.2(b) (3d ed. 1996) ("The court should not accept a waiver [of trial by jury] unless the defendant, after being advised by the court of his or her right to trial by jury and the consequences of waiver of jury trial, personally waives the right to trial by jury in writing or in open court on the record.").

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