Maloney v. State, 92A03-9603-CR-85

• Docket Nº: No. 92A03-9603-CR-85
• Citation: 673 N.E.2d 519
• Case Date: November 26, 1996
• Court: Court of Appeals of Indiana

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673 N.E.2d 519 Scott L. MALONEY, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff. No. 92A03-9603-CR-85. Court of Appeals of Indiana. Nov. 26, 1996.

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Donald C. Swanson, Jr., Swanson & Campbell, Fort Wayne, for Appellant-Defendant.

Pamela Carter, Attorney General of Indiana, Andrew L. Hedges, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

STATON, Judge.

Scott L. Maloney signed a waiver of rights form which had been distributed en mass to a group of defendants. After signing the form, he pled guilty to operating a motor vehicle while intoxicated, a Class A misdemeanor. Later, he petitioned for post-conviction relief. The petition was denied. He appeals and raises this issue:

Did the trial court commit reversible error when it failed to have personal interaction with Maloney during the advisement of his rights.

We conclude that the trial court erred, and we reverse.

Maloney contends that his Boykin ¹ rights were violated. Before he pled guilty, he was not advised by the judge of his right to a jury trial or to confront and cross-examine the witnesses against him. While standing before the trial court en mass with other charged defendants, he signed the waiver of rights form which had been distributed. There is nothing in the record which indicates any interaction between Maloney and the trial judge. There is nothing in the record to indicate that Maloney made a personal choice to enter a plea of guilty. Hanna-Womack v. State, 623 N.E.2d 439, 440 (Ind.Ct.App.1993), reh. denied (citing Zakhi v. State, 560 N.E.2d 683, 685 (Ind.Ct.App.1990)).

In Greene v. State, 670 N.E.2d 38 (Ind.Ct.App.1996), I dissented and urged that the Indiana Supreme Court overrule Poore v. State, 666 N.E.2d 415 (Ind.Ct.App.1996), trans. granted and Hadley v. State, 636 N.E.2d 173 (Ind.Ct.App.1994), trans. denied. Poore and Hadley have many of the same defects that exist in Maloney's appeal. Judge Riley now joins me in recognizing these defects and in establishing a conflict between the previously cited opinions and this opinion. Ind. Appellate Rule 11(B)(2)(c).

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.

Hanna-Womack, supra, at 440 (quoting Vukadinovich v. State, 529 N.E.2d 837, 839 (Ind.Ct.App.1988)).

The record must reflect that Maloney was fully advised of his rights. It must show that he was capable of reading a written advisement and of understanding the advisement. This showing on the record must be made whether the advisement is substantially oral or written. Eldridge v. State, 627 N.E.2d 844, 848 n. 3 (Ind.Ct.App.1994), trans. denied.

None of the basic advisements were personally given to Maloney. There is absolutely no interaction between the trial judge and Maloney regarding his rights under Boykin or Ind.Crim. Rule 22. The herd of defendants were given waiver forms to sign. Maloney signed his without being fully aware of the consequences. Maloney's state of mind

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is critical at the time of his advisement. There...