Hanna-Womack v. State
| Decision Date | 15 November 1993 |
| Docket Number | No. 57A03-9302-CR-50,HANNA-WOMAC,A,57A03-9302-CR-50 |
| Citation | 623 N.E.2d 439 |
| Parties | Raceneppellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below. |
| Court | Indiana Appellate Court |
Linda M. Wagoner, Fort Wayne, for appellant-defendant.
Pamela Carter, Atty. Gen., Joseph F. Pieters, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
Racene Hanna-Womack appeals her conviction on two counts of dealing marijuana, a class A misdemeanor. 1 On appeal, Hanna-Womack raises three issues for our review, only one of which we must address. The issue dispositive of this appeal is whether Hanna-Womack knowingly and voluntarily waived her right to a jury trial.
We reverse and remand for a new trial.
The facts most favorable to the judgment reveal that on two separate occasions in October 1991, a confidential police informant went to Hanna-Womack's apartment and purchased marijuana. Hanna-Womack was subsequently arrested, charged and convicted after a bench trial of two counts of dealing marijuana.
Because Hanna-Womack was charged with misdemeanor offenses, Indiana Criminal Rule 22 applies, stating in pertinent part:
A defendant charged with a misdemeanor may demand a trial by jury by filing a written demand therefore 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 ...[.]
In applying this rule, this court has stated:
Our decisions have consistently held that it is fundamental error for a court to deny a defendant a jury trial without eliciting a waiver from him personally. A valid waiver cannot be made pursuant to C.R. 22 in the absence of an advisement by the trial court of the consequences of a failure to demand a trial by jury not later than ten days prior to the trial date. 2
Vukadinovich v. State (1988), Ind.App., 529 N.E.2d 837, 839. The court of appeals cannot infer a knowing and intelligent waiver from a record that does not demonstrate the defendant's personal choice. Zakhi v. State (1990), Ind.App., 560 N.E.2d 683, 685.
A careful reading of the record reveals that Hanna-Womack's right to jury trial was briefly addressed by the trial court on two occasions. At her initial hearing, the trial court read Hanna-Womack a statement of rights, which contained the following passage:
You do have the right to a speedy and public trial by court or by jury in the county in which the offense was allegedly committed.
Record, p. 66. Hanna-Womack's right to jury trial was again summarily mentioned at the pre-trial hearing, in which the trial judge stated:
... I'm going to, ah, set this matter for a trial then. Ah, since these are misdemeanors they would be set for bench trial then unless a jury trial were, were [sic] demanded.
Record, p....
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