Perry v. State, 1-1179A335

Citation401 N.E.2d 705
Case DateMarch 17, 1980
CourtCourt of Appeals of Indiana

Harriette Bailey Conn, Public Defender, Melanie C. Conour, Deputy Public Defender, Indianapolis, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.



Terry L. Perry was convicted of the offense of second degree burglary following a court trial without a jury. He appeals from said conviction. We affirm.


Perry was charged with the offense of second degree burglary by affidavit filed on May 1, 1974, charging him with the burglary of the office of one Hubert R. Rusk, M.D., in Wallace, Indiana, on April 29, 1974. Counsel was appointed to represent him and he entered a plea of not guilty on May 16, 1974. Subsequently, Perry's motion for The evidence most favorable to the State revealed that Perry and another man were observed walking from an automobile to Dr. Rusk's office at about 2:00 a. m. The witness then observed a flickering light in the office and the Indiana State Police were called. The men left the office and stood by the automobile. When they entered the car, the dome light came on, and the witness observed that the man on the passenger side was wearing a pink shirt and the driver's shirt was light in color. The license number of the car was recorded as the car left the scene, striking a garage at the end of the alley. Dr. Rusk's office had been broken into, the front door glass was broken, burned matches littered the floor, and the office had been ransacked. Officers proceeded to the residence of one Regina Linker and discovered the automobile there. The hood of the vehicle was warm. The officer knocked at the door. Perry answered, wearing a pink T-shirt, and shouted something to the effect: "The cops. Flush it."

                change of judge was granted, a special judge was appointed, and on February 11, 1975, Perry, in open court, elected to be treated as a drug abuser and waived his right to trial by jury and to a speedy trial.  The court found him eligible for treatment and referred him to the Indiana Department of Mental Health pursuant to statute.  1  The Department of Mental Health, Division of Addiction Services, filed their report on June 4, 1975, and on June 6, 1975, the court placed Perry under the supervision of the Department for a period of not to exceed three years for treatment, which order, pursuant to statute, provided that if Perry successfully completed the treatment program that the charge would be dismissed.  On June 30, 1975, the Department notified the court that Perry had left the treatment center without authorization which was a breach of treatment conditions, and, therefore, he was no longer treatable from a medical standpoint.  On July 13, 1975, the court ordered a warrant issued for Perry's arrest.  Prosecution was then resumed, and on February 11, 1976, the date set for trial, Perry moved for trial by jury, which motion was overruled on the ground that Perry had waived jury trial when he elected to be treated as a drug abuser.  Trial proceeded before the court resulting in Perry's conviction

Witness Terry Mattingly testified that he had been at a party at the Linker residence on April 29, 1974, and that he overheard Perry and Randy Smith talking about planning to break into a doctor's office in Wallace. The witness further stated that he saw Perry and Smith leave the Linker house about 12:30 to 1:00 a. m., that they returned carrying a box or dark bag of some kind, and that they later sorted drugs from this box or bag. A written statement given to the police by a witness Michael Morton, which statement was admitted in evidence, without objection, after Morton's testimony, and which statement Morton contended was coerced by the police, stated that Smith and Perry were at the Linker party; that they talked about breaking into a doctor's office; that they left and returned carrying a black bag; that the police came to the door and Perry shouted to Smith to "flush it down the toilet."


1. Whether the trial court abused its discretion in denying Perry's request for a jury trial.

2. Whether there was sufficient evidence to support the conviction.

Issue One

Perry contends that his waiver of jury trial was not voluntary since it was based upon mere speculation that he would be accepted into the drug abuse treatment program, successfully complete the program and therefore have the charge dismissed. He asserts that since he did not complete the program and obtain a dismissal of the charge that he should have been allowed to withdraw his waiver of jury trial and that the court abused its discretion and committed reversible error in denying his motion for jury trial made at the commencement of the trial. We do not agree.

An accused has a fundamental right to trial by jury guaranteed by both the State and Federal Constitutions. (Article I, Section 13, Indiana Constitution; United States Constitution, Amendments 6 and 14.) Sharpe v. State, (1977) Ind.App., 369 N.E.2d 683, 685; Wadlington v. State, (1975) 164 Ind.App. 255, 328 N.E.2d 458; Stevenson v. State, (1975) 163 Ind.App. 399, 324 N.E.2d 509. The right to jury trial may be waived, provided such waiver is made knowingly, voluntarily, and intelligently. Sharpe v. State, supra; Wadlington v. State, supra; Stevenson v. State, supra. 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. Sharpe v. State, supra; Kindle v. State, (1974) 161 Ind.App. 14, 313 N.E.2d 721. Once jury trial has been effectively waived, an accused has no constitutional right to withdraw the waiver, but withdrawal of the waiver rests in the sound discretion of the trial court. Sharpe v. State, supra; Stevenson v. State, supra.

In this case, Perry elected to submit to treatment as a drug abuser in lieu of prosecution. The applicable statute 2 provides as follows:

" * * * In offering an individual an election, the court shall advise him that (a) if he elects to submit to treatment and is accepted, he may be placed under the supervision of the department for a period not to exceed three (3) years; (b) during treatment he may be confined in an institution or, at the discretion of the department, he may be released for treatment or supervised aftercare in the community; (c) if he completes treatment, the charge will be dismissed, but if he does not, prosecution on the charge may be resumed; (d) such an election constitutes a formal waiver of the right to a speedy trial; (e) to make such an election he must waive a jury trial and consent to a trial by the court with the general finding to be entered by the court to be deferred until such time as prosecution is authorized...

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8 cases
  • Smith v. State, 128
    • United States
    • Court of Appeals of Maryland
    • June 12, 2003
    ...a defendant to waive his right to a jury trial in order to avail himself of an alternate drug treatment program. In Perry v. State, 401 N.E.2d 705, 707-08 (Ind.App.1980), that court "Perry, in his brief, concedes that he waived his right to jury trial as required by statute. Perry's sole co......
  • Pier v. State, 3-682A130
    • United States
    • Indiana Court of Appeals of Indiana
    • March 22, 1983
    ...fundamental right to trial by jury and that such right may be waived if the waiver is voluntarily made. Perry v. State (1980), Ind.App., 401 N.E.2d 705, 707; Williams v. State (1974), 159 Ind.App. 470, 307 N.E.2d 880, Pier now argues that because the trial court erroneously found him eligib......
  • Gonzalez v. State, 45A04-0101-CR-29.
    • United States
    • Indiana Court of Appeals of Indiana
    • October 25, 2001
    ...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 awa......
  • Sparkman v. State, 1-1181A330
    • United States
    • Indiana Court of Appeals of Indiana
    • March 17, 1982, Harris Page 440 v. State, (1981) Ind., 425 N.E.2d 112; Morgan v. State, (1981) Ind., 425 N.E.2d 625; Perry v. State, (1980) Ind.App., 401 N.E.2d 705, we find the evidence here sufficient to support a finding that Sparkman knowingly or intentionally failed to meet the financial obligatio......
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